Abdul Rahaman Khan, Hyderabad V. ITO, Ward-8(2), Hyderabad

CO 23/HYD/2011

• Counselvise Citation: [2012] 122 COUNSELVISE.COM (IT) 8125 (ITAT-HYDERABAD)
• Duration Of Justice: 1 year(s) 7 month(s) 22 day(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 07-12-2012
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 14-06-2011
• Assessment Year: 2007-2008
• Appeal Filed On: 15-04-2011
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: P BALAKRISHNA
• Keywords: Capital asset; Gift; Corroborative evidences; Assessment record

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCH A', HYDERABAD BEFORE SHRI CHANDRA POOJARI, ACCOUNTANT MEMBER AND SHRI SAKTIJIT DEY, JUDICIAL MEMBER ITA NO . 56/HYD/2011 ASST. YEAR 2007-08 ITO, WARD-8(2), HYDERABAD. V/S. SRI ABDUL RAHMAN KHAN, HUSSAINI ALAM, HYDERABAD. PAN:ADIPA 4479Q (APPELLANT) (RESPONDENT) C.O. NO.23/HYD/2012 (ARISING OUT OF ITA 56/HYD/2011) & ITA NO. 1446/HYD/2010- ASST. YEAR 2007 -08 SRI ABDUL RAHMAN KHAN, HUSSAINI ALAM, -V- ITO, WARD-8(2) HYDERABAD. HYDERABAD. PAN:ADIPA 4479Q (APPELLANT) (RESPONDENT) ASSESSEE BY : SRI P. BALAKRISHNA DEPARTMENT BY : SHRI HARILAL NAIK (CIT- DEPARTMENTAL REPRESENTATIVE) DATE OF HEARING 15 - 10 - 2012 DATE OF PRONOUNCEMENT 7-12-2012 O R D E R PER SAKTIJIT DEY, JUDICIAL MEMBER: THESE CROSS APPEALS BY THE REVENUE AND ASSESSE AND CROSS OBJECTION BY THE ASSESSEE ARE DIRECTED AGAINST THE SAME OR DER OF CIT (A), HYDERABAD. SINCE COMMON ISSUES ARE INVOLVED IN THESE APPEALS ITA NOS. 56 AND 1446 OF 2011 & CO 23 OF 2011 ABDUL RAHMAN KHAN, HYD. 2 AND CROSS OBJECTION, THESE ARE CLUBBED TOGETHER AND DISPO SED OF BY THIS COMBINED ORDER FOR THE SAKE OF CONVENIENCE. 2. WE WILL FIRST DEAL WITH THE APPEAL OF THE REVENU E WHICH IS ITA NO.56/H/2011. THE REVENUE HAS RAISED THE FOLLOWING G ROUNDS:- 1. CIT (A) HAS ERRED IN LAW AS WELL AS FACTS IN SO FAR AS HE HAS ALLOWED GIFT RECEIVED FROM HIS SISTER HAFEEZA BEGUM AMOUNTING TO RS.18,18,000/- WITH OUT SUFFICIENT FACTS ON THE RECORD THOUGH ASSESSING OFFICER HAS CLEARLY ESTABLISHED THE NON CREDITWORTHINESS OF SMT. HAFEEZA BEGUM. 2. CIT (A) HAS ERRED IN LAW AS WELL AS FACTS IN SO FAR AS HE HAS ALLOWED GIFT OF RS.4,21,000 RECEIVED FROM ASSESSEE S BROTHER NAMED YOUSUF KHAN WITHOUT ANY DISCUSSION AT ALL IN THE ORDER AND WITHOUT REBUTTING THE FINDINGS OF ASSESSING OFF ICER REGARDING YOUSUF KHANS NON-CREDITWORTHINESS. THE ASSESSEE IS AN INDIVIDUAL DERIVING INCOME FROM DAIRY AND TRANSPORT BUSINESS. FOR THE YEAR UNDER DISPUTE, THE ASSESSEE FILED HIS RETURN OF INCOME ON 31-10-2007 DECLARING A TOTAL INCOME OF RS.4, 36,653/-. THE ASSEESSEES RETURN WAS SELECTED FOR SCRUTINY. IN THE COURSE OF SCRUTINY ASSESSMENT PROCEEDINGS, THE ASSESSING OFFICER NOTICED THAT TH E ASSESSEE HAS CLAIMED TO HAVE RECEIVED GIFT OF RS.18,18,000/ - AND 4,21,000/- DURING THE FINANCIAL YEAR 2006-07. THE ASSESSING OFFICER ASKED THE ASSESSEE TO PRODUCE EVIDENCE WITH REGARD TO THE GENUINENESS OF GIFT CLAIMED TO HAVE BEEN RECEIVED BY HIM. THE A SSESSEE IN HIS REPLY SUBMITTED THAT HIS SISTER MADE A HIBBA (GIFT) IN RESPECT OF THE PROPERTY AT D.21-4-21 TO 26 HUSSAINI ALAM, HYDERABAD IN HIS FAVO UR IN 1993-94 AT THE TIME OF PARTITION OF HIS FAMILY . THE AFORESA ID FACT WAS DULY DECLARED BY THE ASSESSEE IN HIS RETURN OF INCOME FILED FOR THE ITA NOS. 56 AND 1446 OF 2011 & CO 23 OF 2011 ABDUL RAHMAN KHAN, HYD. 3 ASSESSMENT YEAR 1994-95. THE ASSESSEE STATED THAT AFTER TA KING POSSESSION OF THE PROPERTY IN THE YEAR 1993-94, THE ASSE SSEE HAS BEEN CARRYING ON HIS DAIRY BUSINESS IN THE GIFTED PREMISES FOR THE LAST 15 YEARS., IT WAS FURTHER STATED THAT THE GIFT DOCUMENT E XECUTED IN THE YEAR 1994 SINCE IS DAMAGED , ON THE ADVICE OF THE ELDER S IN THE FAMILY, THE GIFT WAS REGISTERED ON 27-4-2006 AND THE EXPENDIT URE INCURRED TOWARDS REGISTRATION WAS TRANSFERRED TO THE CAPITAL ACCOUN T. IN SUPPORT OF HIS CONTENTION, THE ASSESSEE SUBMITTED AN AFFIDAVIT OF HIS SISTER SMT. HAFEEZA BEGUM. THE ASSESSEE SUBMITTED THAT ALL CONDITIONS IN RESPECT TO THE HIBBA (GIFT) WERE FULFILLED LONG BACK IN 1993 -94 IN ACCORDANCE WITH THE ISLAMIC LAW . THE ASSESSING OFFICER HOWEVER DID N OT BELIEVE THE CLAIM OF GIFT MADE BY THE ASSESSEES SISTER SMT. HAFEEZA BEGUM SINCE SHE DID NOT APPEAR BEFORE HIM IN RESPONSE TO THE SUMMONS ISSUED, THE ASSESSING OFFICER OBSERVED THAT MERE IDENTIFI CATION OF THE DONOR AND SHOWING MOVEMENT OF GIFTED PROPERTY THROUG H REGISTRATION CHANNELS IS NOT SUFFICIENT TO PROVE THE GENUINENESS OF THE GIFT. THE ASSESSING OFFICER OBSERVING THAT THE ASSESSEE HAS FAILED TO P ROVE THE CAPACITY OF SMT. HAFEEZA BEGUM TO MAKE THE GIFT, REJECT ED THE CLAIM OF THE ASSESSEE AND TREATED THE AMOUNT OF 22,39,000/- ALON G WITH REGISTRATION CHARGES OF RS.22,190/- TOTAL AMOUNTING R S.22,61,190/- AS UNEXPLAINED INCOME OF THE ASSESSEE AND ADDED IT TO THE T OTAL INCOME OF THE ASSESSEE. SO FAR AS THE GIFT RECEIVED FROM SRI YOUSUF KHAN IS CONCERNED, THE ASSESSING OFFICER OBSERVING THAT SINCE THE GI FT OF PROPERTY BY YOUSUF KHAN PERTAINS TO THE ASSESSMENT YEAR 2006-07, NO ADDITION IS WARRANTED IN THE ASSESSMENT YEAR UNDER DISPU TE. THE ASSESSEE BEING AGGRIEVED OF THE ASSESSMENT MADE, FILED AN APPEAL BEFORE THE CIT (A). ITA NOS. 56 AND 1446 OF 2011 & CO 23 OF 2011 ABDUL RAHMAN KHAN, HYD. 4 3. IN COURSE OF HEARING BEFORE THE CIT (A), THE ASSESSEE CONTENDED THAT THE ASSESSEES FATHER SRI FAKEER KHAN HAD PURCHASED THE SAID PROPERTY VIZ., HOUSE BEARING NO.21-4-21 TO 21-4-26 IN THE NAME OF SMT HAFEEZA BEGUM OUT OF HER MEHAR/DOWRY AMOUNT COMPR ISING LAND OF 125 SQ. YARDS AT HUSSAINI ALAM, HYDERABAD FROM ONE M OHD. AZAM UNDER REGISTERED SALE DEED VIDE DOCUMENT NO.354/1972, BOOK NO.1, VOLUME NO.131 WHICH WAS REGISTERED IN THE OFFICE OF SU B-REGISTRAR, DOODBOWLI, HYDERABAD ON 18-3-1972. IN THE REGISTERE D SALE DEED, IT WAS MENTIONED THAT SMT. HAFEEZA BEGUM WAS THE ABSOLUTE OWNER BEING IN POSSESSION AND ENJOYMENT OF SAID PROPERTY. IT WAS S UBMITTED THAT THE FATHER OF THE ASSESSEE ALSO PURCHASED ANOTHER PROPERT Y BEARING NO.21-4-21 COMPRISING LAND ADMEASURING 538 SQ. YARDS SIT UATED AT HUSAIN ALAM, HYDERABAD IN THE NAME OF SMT. HAFEEZA BEGU M ALONG WITH TWO OTHER PERSONS NAMELY LATEEF KHAN AND SIKUNDE R KHAN UNDER A REGISTERED SALE DEED NO.752/19312 DATED 15-6-1976. HOWEVER, SUBSEQUENTLY, THE OTHER TWO CO-SHARERS SRI LATEEF KHAN A ND SIKUNDER KHAN RELINQUISHED THEIR RIGHT OVER THE PROPERTY FOR A TOTAL CONSIDERATION OF RS.11,800/-. THE COPIES OF THE SALE DEED WERE SUBMIT TED BEFORE THE CIT (A). THE ASSESSEE FURTHER CONTENDED THAT DURING HI S LIFE TIME, ASSESSEES FATHER SRI FAKEER KHAN HAD ORALLY SETTLED THE PROPERTY ACQUIRED UNDER THE RELINQUISHMENT IN FAVOUR OF SMT. HA FEEZA BEGUM WITH THE CONSENT OF HIS FOUR SONS AS THE SAID PROPERTY WA S ACQUIRED OUT OF MEHAR FUNDS. AT THE TIME OF DEATH OF SRI FAKIR KHAN IN 1994, SMT. HAFEEZA BEGUM WAS HOLDING THE SAID TWO PROPERTIES AS ABSO LUTE OWNER. IT WAS SUBMITTED THAT THE ASSESSEE BEING THE YOUNGEST BROT HER OF SMT. HAFEEZA BEGUM, HE IS MAINTAINING VERY CORDIAL RELATIO NSHIP WITH HER AND HER FAMILY MEMBERS AND ALSO HELPING THEM AT THE T IME OF NEED. THEREFORE, OUT OF LOVE AND AFFECTION TOWARDS HIM, THE SAID TWO ITA NOS. 56 AND 1446 OF 2011 & CO 23 OF 2011 ABDUL RAHMAN KHAN, HYD. 5 PROPERTIES WERE GIFTED BY SMT. HAFEEZA BEGUM TO THE A SSESSEE IN THE YEAR 1994. IT WAS FURTHER SUBMITTED BY THE ASSESSEE THAT NOT ONLY THE GIFT HAS BEEN DISCLOSED TO THE DEPARTMENT BUT THE EXPE NSES INCURRED TOWARDS REGISTRATION OF THE GIFT AGAIN IN THE YEAR 2 006 HAS ALSO BEEN RECORDED IN THE BOOKS OF ACCOUNTS OF THE ASSESSEE. THE CIT ( A) AFTER CONSIDERING THE CONTENTIONS OF THE ASSESSEE AND EXAMINING THE DOCUMENTS PRODUCED BEFORE HIM, FOUND THAT THE ASSESSEE IN HIS BALANCE-SHEET SUBMITTED ALONG WITH THE RETURN FILED FOR THE IMPUGNED ASSESSMENT YEAR HAS SHOWN TWO PROPERTIES IN QUESTION AS FIXE D ASSETS VALUED AT RS.18,18,000/- AND RS.4,21,000/-. THE CIT (A) FURTHER NOTICED THAT THE ASSESSING OFFICER HAS DISBELIEVED THE FACT OF GIFTING OF THE AFORESAID TWO PROPERTY BY SMT. HAFEEZA BEGUM TO H ER BROTHER I.E. THE ASSESSEE ONLY BECAUSE SMT. HAFEEZA BEGUM DID NOT APPEA R BEFORE THE ASSESSING OFFICER IN RESPONSE TO THE SUMMONS ISSUED BY H IM. HOWEVER, FROM THE ASSESSMENT RECORDS, THE CIT (A) FOUND TH AT THE SMT. HAFEEZA BEGUM HAS CATEGORICALLY STATED IN HER LETTER TH AT SHE HAS GIFTED THE PROPERTIES TO THE ASSESSEE OUT OF LOVE AND AF FECTION. FROM THE COPIES OF THE REGISTERED GIFT DEEDS DATED 27-4-200 6 IT IS ALSO EVIDENT THAT SMT. HAFEEZA BEGUM HAS GIFTED THE AFORESA ID TWO PROPERTIES TO THE ASSESSEE AND HER FOUR BROTHERS ARE AL SO WITNESSES TO THE SAID DOCUMENT. SMT. HAFEEZA BEGUM HAS FILED AN AFF IDAVIT CONFIRMING THE FACT THAT SHE HAS GIFTED THE PROPERTIE S TO THE ASSESSEE. THE CIT (A) ON THE FACE OF DOCUMENTARY EVIDENCE PRODUCE D WHICH PROVED THE FACT OF GIFT OF THE PROPERTIES BY SMT. HAFE EZA BEGUM TO THE ASSESSEE, DELETED THE ADDITION OF RS.22,61,190/-. 4. THE DEPARTMENT BEING AGGRIEVED IS IN APPEAL BEFOR E US. THE LEARNED DEPARTMENTAL REPRESENTATIVE RELYING UPON THE ASSESSMENT ITA NOS. 56 AND 1446 OF 2011 & CO 23 OF 2011 ABDUL RAHMAN KHAN, HYD. 6 ORDER SUBMITTED THAT SINCE SMT. SMT. HAFEEZA BEGUM, TH E DONOR DID NOT APPEAR IN RESPONSE TO THE SUMMONS ISSUED, THE ASSESSING O FFICER WAS JUSTIFIED IN COMING TO A CONCLUSION THAT THE CLAIM OF GIFT IS A BOGUS ONE. 5. THE LEARNED AR REITERATING HIS STAND TAKEN BEFORE THE LOWER AUTHORITIES, SUBMITTED THAT ALL EVIDENCES WERE NOT ONLY PRODUCED BEFORE THE ASSESSING OFFICER BUT ALSO SAME EVIDENCES WERE PRODUCED BEFORE THE CIT (A). IT WAS SUBMITTED THAT THE CIT (A) AFTER CONSIDERING THE AUTHENTICITY OF DOCUMENTS PRODUCED BEFORE HIM HAS ACCEP TED THE CLAIM OF THE ASSESSEE. THE LEARNED AR SUBMITTED THAT TH OUGH THE PROPERTIES WERE GIFTED BY HIS SISTER SMT. HAFEEZA BEGUM IN THE FINANCIAL YEAR 1993-94 BY WAY OF HIBBA (GIFT) BUT AS THE DOCUME NTS EVIDENCING THE HIBBA WERE EATEN AWAY BY THE MOTHS, SHE AGAIN M ADE TWO GIFT SETTLEMENT DEEDS WHICH WERE REGISTERED IN THE OFFICE OF SRO, CHARMINAR AS DOCUMENT NO.571/06 AND 575/06 DATED 27-4-2006 WHER EIN HER OTHER FOUR BROTHERS ALSO APPEARED AS WITNESSES AND ALSO AC CORDED THEIR CONSENT. THE LEARNED AR THEREFORE SUBMITTED THAT TH E CIT (A) WAS JUSTIFIED IN DELETING THE ADDITION. 6. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECORD. IT HAS BEEN THE CLAIM OF THE ASSESSEE THAT HIS SI STER SMT. HAFEEZA BEGUM HAS GIFTED THE PROPERTIES IN QUESTION BY EXECUTING DOCUMENTS OF HIBBA (GIFT) IN THE FINANCIAL YEAR 1993- 94. THIS FACT WAS ALSO DISCLOSED TO THE DEPARTMENT BY THE ASSESSEE IN HIS RETU RN FILED FOR THE ASSESSMENT YEAR 1994-95. AS IT APPEARS FROM THE ASSESSME NT ORDER, THE ASSESSING OFFICER HAS NOT DISPUTED THIS FACT. I T IS ALSO EVIDENT FROM THE FACTS ON RECORD THAT SMT. HAFEEZA BEGU M FURTHER ITA NOS. 56 AND 1446 OF 2011 & CO 23 OF 2011 ABDUL RAHMAN KHAN, HYD. 7 RATIFIED THE GIFTING OF THE PROPERTY IN QUESTION BY EXECUTING TWO GIFT DEEDS IN FAVOUR OF THE ASSESSEE IN RESPECT OF THE SAID TWO PROPERTIES WHICH WERE REGISTERED WITH THE SRO, CHARMINAR. IT IS ALSO A FACT THAT HER OTHER FOUR BROTHERS NOT ONLY CONSENTED TO SUCH ACT OF GIFT BUT HAVE ALSO APPEARED AS WITNESSES IN THE DOCUMENTS SO EXECUTED. WH EN THERE IS NO DISPUTE WITH REGARD TO THE FACT THAT THE PROPERT IES GIFTED WERE EARLIER OWNED BY SMT. HAFEEZA BEGUM AND SHE HAS GIFTED THEM TO THE ASSESSEE OUT OF LOVE AND AFFECTION THROUGH REGISTERED DOCU MENTS, THEN THERE IS NO QUESTION OF DISBELIEVING THESE FACTS ONLY B ECAUSE SMT. HAFEEZA BEGUM FAILED TO APPEAR BEFORE THE ASSESSING OFFI CER IN RESPONSE TO THE SUMMONS ISSUED BY HIM. THE ASSESSING OFFICE R HAS NOT BROUGHT ON RECORD ANY MATERIAL TO DISPROVE THE CLA IM OF THE ASSESSEE THAT THE PROPERTIES WERE GIFTED BY HIS SISTER SMT . HAFEEZA BEGUM. ON GOING THROUGH THE ASSESSMENT ORDER, WE FIND THAT THE ASSESSING OFFICER HAS NOT GIVEN ANY COGENT REASON FOR NOT A CCEPTING THE CLAIM OF GIFT EXCEPT SIMPLY OBSERVING THAT THEY ARE BOG US GIFTS. WHEN THE ASSESSEE HAS PRODUCED MATERIAL EVIDENCE IN SUPPORT OF H IS CLAIM, THEY CANNOT BE DISCARDED OR REJECTED IN A SUPERFLUOUS MA NNER WITHOUT BRINGING MATERIAL ON RECORD TO PROVE THE CONTRARY. W E ALSO AGREE WITH THE CIT (A) THAT THERE IS NO CASH GIFT INVOLVED IN THE PRESENT CASE AND THE ASSESSING OFFICER HAS ALSO NOT BROUGHT ANY MATERIAL ON RECORD TO PROVE THAT ANY CONSIDERATION HAS PASSED BETWEEN THE P ARTIES TOWARDS THE REGISTRATION OF THE PROPERTIES IN QUESTION. IN T HE AFORESAID CIRCUMSTANCES, NO ADDITION CAN BE MADE OF THE AMOUNT RS.22 ,61,190/-. WE THEREFORE UPHOLD THE ORDER OF THE CIT (A) IN THI S RESPECT. GROUNDS RAISED BY THE REVENUE ARE DISMISSED. ITA NOS. 56 AND 1446 OF 2011 & CO 23 OF 2011 ABDUL RAHMAN KHAN, HYD. 8 7. SO FAR AS GROUND NO.2 IS CONCERNED, THE DEPARTMENT H AS CHALLENGED THE ALLOWANCE OF ALLEGED GIFT OF RS.4,21,00 0/- FROM ASSESSEES BROTHER YOUSUF KHAN. 8. WE HAVE HEARD THE SUBMISSIONS OF THE PARTIES AND PERU SED THE MATERIAL ON RECORD. IT IS EVIDENT FROM THE ASSESSMENT OR DER THAT WITH REGARD TO THE GIFT RECEIVED FROM SRI YOUSUF KHAN, T HE ASSESSING OFFICER HIMSELF HAS OBSERVED THAT SINCE THE GIFT PERTAINED TO T HE ASSESSMENT YEAR 2006-07, NO ADDITION IS WARRANTED IN THE ASSESSMENT YEAR UNDER DISPUTE. IN VIEW OF THE AFORESAID OBSERVATION OF T HE ASSESSING OFFICER IN HIS ASSESSMENT ORDER, THE GROUND RAISED BY THE REVENUE CANNOT BE ENTERTAINED AND HAS TO BE DISMISSED. ITA NO. 1446/HYD/2010 (ASSESSEES APPEAL) : 9. THE ASSESSEE HAS RAISED SEVEN EFFECTIVE GROUNDS IN THIS AP PEAL. GROUND NO.1 RELATES TO ADDITION OF RS.10,93,250/- SUSTA INED BY THE CIT (A) ON ACCOUNT OF LESS MILK PRODUCTION SHOWN BY THE ASSESSE E. FACTS OF THE ISSUE IN BRIEF ARE IN COURSE OF ASSESSMENT PROCEEDINGS, T HE ASSESSING OFFICER REQUIRED THE ASSESSEE TO PRODUCE THE DETAI LS OF PRODUCTION OF MILK FOR RACE WISE AND ANIMAL WISE PER DA Y FOR THE WHOLE YEAR AND AS THE ASSESSEE DID NOT FURNISH THE DETAILS CALL ED FOR, THE ASSESSING OFFICER ISSUED A SHOW CAUSE NOTICE PROPOSING TO ESTIMA TE THE QUANTUM OF MILK PRODUCTION AND ALSO FOR ESTIMATING THE INCOME FROM SALE OF MILK. THE ASSESSING OFFICER TAKING INTO ACCOUNT TH E 89 BUFFALOES THE ASSESSEE WAS HAVING AT THE BEGINNING OF THE YEAR TO BE OF NORMAL RACE STATED THAT EACH OF THE BUFFALOES WILL BE GIVING MILK OF 10 LITERS PER DAY. THE ASSESSING OFFICER FURTHER NOTED THAT THE ASSESSEE DURING THE ITA NOS. 56 AND 1446 OF 2011 & CO 23 OF 2011 ABDUL RAHMAN KHAN, HYD. 9 YEAR HAD PURCHASED 27 BUFFALOES OF GUJARAT AND HARYANA BREED AND SIX COWS AND AT THE SAME TIME HAD SOLD 19 DRY BUFALLOES. T HE ASSESSING OFFICER NOTING THAT THE 27 BUFFALOES PURCHASED ARE HIGH ER BREED ESTIMATED THE MILK PRODUCTION OF EACH BUFFALOE AS 15 L ITERS PER DAY. THE ASSESSING OFFICER ALSO TOOK THE AVERAGE MILK PRODUC TION OF EACH COW AT 12 LITRES PER DAY. THE ASSESSING OFFICER BY TAKIN G THE DATES OF PURCHASE OF THE NEW ANIMALS AND THE DATES WHEN THE DRY BUFFALOES WERE SOLD DURING THE PREVIOUS YEAR ESTIMATED THE TOTAL MILK PRODUCTION DURING THE YEAR TO BE 376634 LITRES AND TAKING THE A VERAGE RATE OF MILK PER LITER AT RS.25 PROPOSED TO ESTIMATE THE INCOME DERI VED FROM SALE OF MILK AT RS.58,89,070/-. THE WORKOUT OF THE PROPOSED ESTIMATION AS GIVEN IN THE SHOW CAUSE NOTICE WAS ALSO IN PAGE 2 OF THE ASSESSMENT ORDER. THE ASSESSEE OBJECTING TO THE PROPOSED ESTIMATION SUBMITTED A REPLY STATING THEREIN THAT IN CASE OF MURRAH/GUJARATI BUFFALOES PRODUCTION OF MILK PER DAY IS BETWEEN 8-10 LITRES WHER EAS IN CASE OF GRADED MURRAH BUFFALOES PRODUCTION OF MILK PER DAY IS BETWEEN 6-8 LITRES. 10. IT WAS STATED THAT BOTH VARIETIES OF BUFFALOES ARE CAPABLE OF GIVING MILK FOR A PERIOD OF 250 TO 300 DAYS. WITH R EGARD TO PRODUCTION OF MILK THE ASSESSEE ALSO SUBMITTED AN EXPERT OPINION FR OM A RETIRED ASSTT. DIRECTOR OF VETERINARY SCIENCES. IT WAS STATED IN HI S REPORT THAT OUT OF 97 BUFFALOES THE ASSESSEE WAS HAVING 65 WERE OF MURRAH/GUJARATI VARIETY AND REST 32 ARE OF GRADED MU RRAH VARIETY. HE FURTHER STATED THAT THE AVERAGE LACTATION PERIOD OF T HE BUFFALOES IS 210 DAYS. SO FAR AS PRODUCTION OF MILK IS CONCERNED, THE CONCE RNED EXPERT OPINED THAT AVERAGE MILK PRODUCTION IN CASE OF MURRAH/ GUJARATI BUFFALO IS 9 LITRES PER DAY AND IN CASE OF GRADED MURRAH BUFFAL O IT IS 5 LITRES PER ITA NOS. 56 AND 1446 OF 2011 & CO 23 OF 2011 ABDUL RAHMAN KHAN, HYD. 10 DAY. HE FURTHER OPINED THAT IN A DAIRY FIRM, AT A G IVEN TIME ONLY 70% OF THE ANIMALS WILL BE PRODUCING MILK AND 30% WILL BE AD VANCED PREGNANT AND DRY. ON THE AFORESAID BASIS THE EXPERT TREATED 67 BUFFALOES OUT OF A TOTAL OF 97 TO BE IN MILK PRODUCTION AND BALANCE 30 BEING DRY. THE EXPERT CALCULATED THE TOTAL MILK PRODUCED DURING THE Y EAR AT 515 LITRES. THE ASSESSING OFFICER DID NOT ACCEPT THE CONTENTION OF THE ASSESSEE. REFERRING TO THE BROCHURE OF THE ANIMAL HUSBANDRY DEP ARTMENT, THE ASSESSING OFFICER OBSERVED THAT A BUFFALO CAN GIVE 12 LITR ES OR MORE MILK PER DAY. HE FURTHER OBSERVED AS PER THE SAID BROCHURE, LACTATION PERIOD OF BUFFALOES IS 300 DAYS. ON THE AFORESAID BASIS, THE A SSESSING OFFICER PROCEEDED TO COMPUTE THE TOTAL MILK PRODUCTION OF THE ASSESSEE DURING THE YEAR AT 3,51,264 LITRES AS PER THE CALCULATION GIVE N AT PAGE -6 OF THE ASSESSMENT ORDER. THE ASSESSING OFFICER THUS ARRIVED AT THE TOTAL MILK PRODUCTION AS ABOVE AND BY TAKING THE RATE AT RS.20 P ER LITRE COMPUTED THE TURNOVER FROM SALE OF MILK AT RS.70,25,280/-. 11. THE ASSESSEE HAVING ADMITTED AN INCOME OF RS.35,25,88 0/- THE DIFFERENTIAL AMOUNT OF RS.34,99,400/- WAS ADDED TO TH E INCOME. THE ASSESSEE CHALLENGED THE ADDITION BEFORE THE CIT (A). BE FORE THE CIT (A) THE ASSESSEE RAISED PRIMARY OBJECTION WITH REGARD TO THE EXPERT OPINION OBTAINED BY THE ASSESSING OFFICER WHICH WAS NOT C ONFRONTED TO THE ASSESSEE. THE ASSESSEE FURTHER OBJECTED TO THE ASSESSING OF FICER TAKING THE LACTATION PERIOD OF 300 DAYS, THE ASSESSEE SUBM ITTED THAT THE ASSESSING OFFICER WAS NOT CORRECT IN NOT CONSIDERING THE FACT THAT AT A GIVEN TIME, ONLY 70% OF THE ANIMALS IN A DAIRY FARM WILL BE IN MILK PRODUCTION. THE ASSESSEE ALSO OBJECTED TO THE ADOPTION O F RATE AT RS.20 PER LITRE BY THE ASSESSING OFFICER FOR ESTIMATING THE I NCOME FROM SALE OF MILK. THE CIT (A) ACCEPTED THE C0ONTAENTION OF THE ASSE SSEE THAT ITA NOS. 56 AND 1446 OF 2011 & CO 23 OF 2011 ABDUL RAHMAN KHAN, HYD. 11 EXPERT OPINION REFERRED BY THE ASSESSING OFFICER CANNOT B E TAKEN COGNIZANCE OF IN ABSENCE OF ANY MATERIAL IN WRITING ON RECORD. THE CIT (A) ALSO ACCEPTED THAT 70% OF THE ANIMALS ARE IN MILK P RODUCTION. THE CIT (A) HOWEVER DID NOT ACCEPT ESTIMATION OF MILK PROD UCTION MADE BY THE EXPERT IN THE EXPERT OPINION OBTAINED BY THE ASSE SSEE AS HE HAS ARRIVED AT THE FIGURE BY TAKING INTO ACCOUNT THE NUM BER OF ANIMALS AS ON 18-12-2009. THE CIT (A) FOUND THE ANIMALS AT THE BEGINNING OF THE YEAR TO BE 89 IN NUMBERS AND BY TAKING 70% OF THE BU FFALOES I.E., 63 OF THEM TO BE IN MILK PRODUCTION PROCEEDED TO ESTIMATE TH E MILK PRODUCED. IN ABSENCE OF ANY DETAILS MAINTAINED BY THE ASSESSEE, WIT H REGARD TO THE VARIETY AND RACE OF THE BUFFALOES, THE CIT (A) CON SIDERED THEM TO BE OF GUJARATI/MURRAH RACE AND AVERAGE MILK PRODUCTION O F EACH BUFFALO PER DAY AT 9 LITRES. THE CIT (A) ALSO DID NOT ACCEPT THE LACTATION PERIOD OF 210 DAYS ADOPTED BY THE ASSESSEE. THE CIT (A) RELYING U PON THE PUBLICATION OF THE ANIMAL HUSBANDRY DEPARTMENT, ANDHR A PRADESH ( AHD IN SHORT) TOOK THE AVERAGE LACTATION PERIOD OF THE BUFFALOES AT 275 DAYS. 12. THE CIT (A) TOOK THE AVERAGE MILK PRODUCTION IN CASE OF THE EXISTING 63 BUFFALOES AT 9 LITRES PER DAY PER ANIMAL. IN CASE OF 27 NEW BUFFALOES PURCHASED DURING THE YEAR THE CIT (A) CONSIDER ING THEM TO BE OF HIGHER VARIETY TOOK THE DAILY AVERAGE MILK PRODU CTION PER EACH ANIMAL AT 12 LITRES AND IN CASE OF SIX COWS, THE DAILY AV ERAGE MILK PRODUCTION WAS TAKEN AT 10 LITRES PER DAY FROM THE DAT E OF THEIR PURCHASE. IN THIS PROCESS, THE CIT (A) ARRIVED AT THE T OTAL MILK PRODUCTION DURING THE YEAR AT 2,42,849 LITRES. THE CIT (A) ACCEPTING THE PRICE SHOWN BY THE ASSESSEE AT RS.19/- PER LITRE, ARRI VED AT SALE ITA NOS. 56 AND 1446 OF 2011 & CO 23 OF 2011 ABDUL RAHMAN KHAN, HYD. 12 PRICE OF MILK AT RS.46,14,131/- THEREBY SUSTAINING THE ADDITION OF DIFFERENTIAL AMOUNT OF RS.10,93,250. 13. THE LEARNED AR SUBMITTED BEFORE US THAT THE CIT ( A) WAS NOT JUSTIFIED IN ESTIMATING THE SALES TURNOVER WITHOUT CONS IDERING HERD AVERAGE MILK PRODUCTION AS PER THE EXPERT OPINION. TH E LEARNED AR SUBMITTED THAT THE CIT (A) HAS TAKEN THE AVERAGE LACTA TION PERIOD TO BE 275 DAYS BY REFERRING TO THE PUBLICATION OF THE AHD W HICH IS NOT CORRECT. LACTATION PERIOD MENTIONED THEREIN IS IN RESP ECT OF COW AND NOT BUFFALOES. THE LEARNED AR REFERRING TO PAGE-16 OF THE PAPER BOOK SUBMITTED THAT AS PER PUBLICATION OF THE AHD, THE AVER AGE MILK PRODUCTION FOR BUFFALOES IS 6 TO 8 LITRES PER DAY FOR A LACTATION PERIOD OF 250 300 DAYS. THE LEARNED AR FURTHER SUBMITTED THA T THE AVERAGE MILK PRODUCTION OF 12 LITRES PER DAY FOR THE 27 NEW BUFFALOES PURCHASED DURING THE YEAR WITHOUT CONSIDERING THE EXPERT OPINIO N IS NOT CORRECT. SO FAR AS MILK PRODUCED FROM COWS ARE CONCERNED, THE LEA RNED AR SUBMITTED THAT THE COWS ARE LOCAL BREED AND AVERAGE MIL K PRODUCTION WILL BE 4 LITRES AND NOT 10 LITRES AS ADOPTED BY THE C IT (A). THE LEARNED AR REFERRING TO THE MONTH-WISE MILK PRODUCTION GIVEN IN A TABULAR FORM SUBMITTED THAT THE MILK PRODUCED BY THE ASSESSEE DURING T HE YEAR IS 186531 LITRES AND SALE PRICE OF WHICH IS RS.35,44,089/-. HE THEREFORE URGED FOR DELETING THE ADDITION MADE IN THIS REGARD . 14. THE LEARNED DEPARTMENTAL REPRESENTATIVE SUBMITTED THAT THE CIT (A) HAS ARRIVED AT THE FIGURE AFTER CONSIDERING ALL A SPECTS; HENCE THERE IS LITTLE SCOPE FOR DELETING THE ADDITIONS MADE. ITA NOS. 56 AND 1446 OF 2011 & CO 23 OF 2011 ABDUL RAHMAN KHAN, HYD. 13 15. WE HAVE HEARD RIVAL SUBMISSIONS AND PERUSED THE MAT ERIAL ON RECORD. WE HAVE ALSO CONSIDERED THE WRITTEN SUBMISSIONS OF THE ASSESSEE AND THE PAPER SUBMITTED IN THE FORM OF PAPER BO OK. SO FAR AS THIS ADDITION IS CONCERNED, WE FIND THAT THE DISPUTE REM AINS ONLY WITH REGARD TO QUANTUM OF MILK PRODUCTION. IN THE EXPERT OPINION OBTAINED BY THE ASSESSEE WHICH IS AT PAGES 9 AND 10 OF THE PAPER BO OK THE EXPERT HAS MENTIONED THE AVERAGE PER DAY MILK PRODU CTION IN CASE OF MURRAH/GUJARATI BUFFALOES AT 9 LITRES AND IN CASE OF GR ADED MURRAH BUFFALOES AT 5 LITRES PER DAY. THE ENGLISH TRANSLATIO N OF THE BROCHURE AT PAGE-15 OF THE PAPER BOOK MENTIONS AVERAGE MILK PROD UCTION OF BUFFALOES AT 6 TO 8 LITRES FOR LACTATION PERIOD OF 250 TO 300 DAYS. THE CIT (A) HAS TAKEN THE AVERAGE MILK PRODUCTION IN CASE OF EXISTING BUFFALOES AT 9 LITRES PER DAY. CONSIDERING THE FACT TH AT THE ASSESSEE HAS NOT MAINTAINED DETAILS WITH REGARD TO THE VARIETY AN D RACE OF THE BUFFALOES, WE AGREE WITH THE CIT (A) THAT THE AVERAG E PER DAY MILK PRODUCTION IN CASE OF THE EXISTING 63 BUFFALOES HAS BEEN RIGHTLY TAKEN AT 9 LITRES. HOWEVER, SO FAR AS 27 NEW BUFFALOES PURCHASED DURING THE YEAR ARE CONCERNED, THERE IS NOTHING ON RECORD TO SHOW AS TO ON WHAT BASIS THE CIT (A) HAS TAKEN THE AVERAGE MILK PRODUCTIO N AT 12 LITRES PER DAY. KEEPING IN VIEW THE PUBLICATION OF AHD AND THE EXPERT OPINION, WE DIRECT THAT IN CASE OF THE 27 BUFFALOES PURCHASED DURING THE YEAR, THE AVERAGE PER DAY MILK PRODUCTION SHOULD ALSO BE TAKEN AT 9 LITRES AS IN THE CASE OF OTHER BUFFALOES. HOWEVER, THE CIT (A)S FIN DING WITH REGARD TO NUMBER OF DAYS MILK PRODUCTION BY THE 27 BUFFALOE S WILL REMAIN UNDISTURBED. SO FAR AS LACTATION PERIOD OF BUFFALOES IS CONCERNED THE ENGLISH TRANSACTION OF PUBLICATION ( PAGE-15 OF PAPE R BOOK) OF AHD RECORDS IT AT BETWEEN 250 TO 300 DAYS. THE DOCUMENT A T PAGE-13 OF THE PAPER BOOK ALSO MENTIONS THE LACTATION PERIOD AT 300 DAYS. IN ITA NOS. 56 AND 1446 OF 2011 & CO 23 OF 2011 ABDUL RAHMAN KHAN, HYD. 14 SUCH VIEW OF THE MATTER, LACTATION PERIOD OF 210 DAYS M ENTIONED IN THE EXPERT OPINION OF THE ASSESSEE CANNOT BE ACCEPTED. IN THIS REGARD, LACTATION PERIOD OF 275 DAYS ADOPTED BY THE CIT (A) I S REASONABLE AND DESERVES TO BE ACCEPTED. SO FAR AS MILK PRODUCTION OF 6 COWS IS CONCERNED, THOUGH IT HAS BEEN CONTENDED THAT THEY ARE O F LOCAL BREED, NO EVIDENCE HOWEVER HAS BEEN PRODUCED TO SUBSTANTIATE SUCH CLAIM. THE EXPERT OPINION IS ALSO SILENT ON THIS ASPECT. IT IS SEEN FROM THE DOCUMENT AT PAGE-15 OF THE PAPER BOOK THAT THE AVERA GE MILK PRODUCTION FROM CROSS BREED IS 8 TO 10 LITRES WHEREAS THE DOCUMENT AT PAGE-11 OF THE PAPER BOOK MENTIONS MILK PRODUCTION OF COW AT 12 LITRES PER DAY. IN AFORESAID VIEW OF THE MATTER, THE CIT (A ) WAS JUSTIFIED IN ESTIMATING THE MILK YIELD OF THE COWS AT 10 LITRES PER DAY. WE THEREFORE DIRECT THE ASSESSING OFFICER TO RE-COMPUTE THE I NCOME FROM MILK PRODUCTION BY TAKING THE AVERAGE PER DAY MILK P RODUCTION IN THE CASE OF 27 NEW BUFFALOES AT 9 LITRES. THE ORDER OF THE CIT (A) IS MODIFIED TO THIS EXTENT ONLY. HENCE THIS GROUND OF THE ASSESSEE IS ALLOWED IN PART. 16. GROUND NO.2 IS WITH REGARD TO ADDITION OF RS.70,0 05/- ON ACCOUNT OF LOSS FOR SALE OF DRY BUFFALOES. BRIEFLY THE FACTS ARE IN THE COURSE OF ASSESSMENT PROCEEDINGS, THE ASSESSING OFFICER NOTICED THAT TH E ASSESSEE HAS SOLD 19 BUFFALOES FOR AN AMOUNT OF RS.1,99,500 /- AND THE COST OF WHICH HAS BEEN SHOWN AT RS.2,31,240/- IN THE TRAD ING ACCOUNT. THEREFORE, LOSS ON ACCOUNT OF SALE OF THOSE BUFFALOES WOUL D BE RS.31,740/-. THE ASSESSEE HAS HOWEVER CLAIMED LOSS AT RS.1,0 1,745/- IN THE PROFIT AND LOSS A/C. IN ABSENCE OF A REASONABLE EXPLANATION FROM THE ASSESSEE, THE ASSESSING OFFICER ADDED THE DIFFERENTIAL A MOUNT OF ITA NOS. 56 AND 1446 OF 2011 & CO 23 OF 2011 ABDUL RAHMAN KHAN, HYD. 15 RS.70,005/-. THE ADDITION WAS ALSO SUSTAINED BY THE CI T (A) IN FIRST APPEAL. 17. THE LEARNED AR WHILE REQUESTING FOR DELETING THE ADDITION MADE HAS VIRTUALLY REITERATED THE CONTENTIONS RAISED BEFORE THE CIT (A). 18. THE LEARNED DEPARTMENTAL REPRESENTATIVE, ON THE OTHER HAND, SUPPORTED THE ORDER OF THE CIT (A). 19. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECORD. IT IS MANIFEST FROM THE ORDERS OF THE LOWER A UTHORITIES THAT THE ASSESSEE HAS IN FACT CLAIMED EXCESS LOSS OF RS.70,005/-. THE A SSESSEE HAS NOT BEEN ABLE TO RECONCILE THE DIFFERENCE BEFORE US. WE THEREFORE UPHOLD THE ADDITION OF RS.70,005/-. THE GROUND RAISE D BY THE ASSESSEE IS DISMISSED. 20. GROUND NO.3 RELATES TO ADDITION OF RS.70,000/- ON ACCOUNT OF DIFFERENCE IN VALUATION OF CLOSING STOCK. THE ASSESSING OFFICER WHILE EXAMINING THE TRADING ACCOUNT OF THE ASSESSEE NOTICED AS PER THE COMPUTATI ON IN PARA-5 OF THE ASSESSMENT ORDER, THE ASSESSEE HAS SHOWN THE CLOSING STOCK AT RS.15,37,930/- IN STEAD OF THE ACTUAL CLOSING STOCK OF RS. 16,07,973/-. THE ASSESSING OFFICER NOT BEING SATISFIED WITH THE EXPLANATION OF THE ASSESSEE, ADDED THE SHORTFALL IN VALUATION OF CLOSING STOCK AMOU NTING TO RS.70,000/-. THE ADDITION WAS ALSO SUSTAINED BY THE CIT (A). 21. WE HAVE HEARD SUBMISSIONS OF THE PARTIES. AFTER PE RUSING THE MATERIAL ON RECORD, AND GOING THROUGH THE ORDERS OF THE LOWER AUTHORITIES, WE FIND THE ADDITION MADE TO BE IN ORDER. WE ARE THEREFORE NOT INCLINED TO INTERFERE WITH ITA NOS. 56 AND 1446 OF 2011 & CO 23 OF 2011 ABDUL RAHMAN KHAN, HYD. 16 THE FINDINGS OF THE LOWER AUTHORITIES IN THIS REGARD. THEREFORE, THE GROUND RAISED BY THE ASSESSEE ON THIS ASPECT IS DISMISSED. 22. IN SUB-GROUNDS (A) AND (B) OF GROUND NO.4 THE ASSE SSEE HAS CHALLENGED THE CONFIRMATION OF ADDITION OF RS.14,32,432/- TOWARD S SHORT-TERM CAPITAL GAIN AND RESTRICTING THE COST OF CONSTRUCTION CLAIMED TO RS.4 LAKHS. BRIEFLY THE FACTS ARE THE ASSESSEE ALONG WITH THREE OTHER PARTNE RS OF THE PARTNERSHIP FIRM M/S. DECENT LORRY TRANSPORT WERE THE OWNERS OF TH E PROPERTY SITUATED AT AUTO NAGAR. THE SAID PROPERTY WAS SOLD DURING THE REL EVANT FINANCIAL YEAR FOR A CONSIDERATION RS.61,65,000/-. THE SALE PROCEEDS WERE E QUALLY DIVIDED BETWEEN THE FOUR PARTNERS AND OFFERED TO TAX AS LONG TERM CAPITAL GAINS. IN COURSE OF ASSESSMENT PROCEEDINGS, THE ASSESSEE EXPLAINED THAT T HE PROPERTY IN QUESTION BELONGED TO APIIC LIMITED,A STATE GOVERN MENT UNDERTAKING. THE ASSESSEE ALONG WITH OTHER CO-OWNERS ENTERED INTO AN AGREE MENT FOR SALE WITH APIIC LTD. ON 26-11-1984 FOR PURCHASE OF THE PROPERTY BEARING PLOT NO.4 IN BLOCK NO.33 MEASURING 2002 SQ. YARDS FOR A CONSIDERATION OF RS.32,032/-. AFTER MAKING PAYMENT OF SALE CONSIDERATION, THE ASSESSEE A LONG WITH OTHER CO-OWNERS WAS PUT ON POSSESSION OVER THE PROPERTY ON 9-4 -1980 AND PERMITTED TO MAKE CONSTRUCTION OF GO DOWNS OVER THE SAI D LAND. IT WAS FURTHER SUBMITTED BY THE ASSESSEE THAT AN AMOUNT OF RS.9, 80,000/- WAS INCURRED TOWARDS CONSTRUCTION OF GO-DOWNS. THE ASSESSEE THER EFORE PLEADED FOR ASSESSING THE GAIN FROM THE SALE OF THE PROPERTY AS LONG TERM CAPITAL GAINS. THE ASSESSING OFFICER DID NOT ACCEPT THE SUBMISSIONS O F THE ASSESSEE AS THE SAID LAND WAS REGISTERED BY THE APIIC LTD. IN TH E NAME OF THE ASSESSEE AND OTHER CO-OWNERS BY SALE DEED DATED 10-5-2005. THE ASSESSING OFFICER RELYING UPON A DECISION OF THE HONBLE SUPREME COURT I N THE CASE OF ALAPATI VENKATA RAMAIAH V/S. CIT (57 ITR 185) WHEREIN IT WA S HELD THAT TITLE TO IMMOVABLE PROPERTY WILL NOT PASS TILL HE CONVEYANCE DEE D IS EX EXECUTED AND ITA NOS. 56 AND 1446 OF 2011 & CO 23 OF 2011 ABDUL RAHMAN KHAN, HYD. 17 REGISTERED TREATED IT AS SHORT CAPITAL GAIN. THE ASSESSI NG OFFICER FURTHER RESTRICTING THE EXPENDITURE INCURRED ON CONSTRUCTION OF GO-DOWN COMPUTED THE SHORT TERM CAPITAL GAIN AT RS.57,29,730/- AND ADDE D ASSESSEES 1/4 TH SHARE OF RS.14,32,432. THE ADDITION WAS CHALLENGED BEFO RE THE CIT (A). THE CIT (A) ALSO DID NOT ACCEPT THE ASSESSEES CLAIM THAT THE ASSE SSEE WAS GIVEN POSSESSION OF THE PROPERTY IN THE YEAR 1980. THE CIT ( A) INTERPRETING DIFFERENT CLAUSES OF AGREEMENT FOR SALE OBSERVED THAT TH E PLOT WAS MERELY ALLOTTED TO THE ASSESSEE AND OTHER CO-OWNERS. THE CIT (A) REFERRING TO VARIOUS CLAUSES OF AGREEMENT OF SALE CAME TO A CONCLUSION THAT OWNERSHIP OVER THE PROPERTY WAS RETAINED BY APIIC LTD., AND TH E ASSESSEE ALONG WITH OTHERS WERE ONLY ALLOWED USER OF THE PLOT MERELY AS A TENANT. ONLY ON EXECUTION OF SALE DEED ON 10-5-2005 AND REGISTRATION OF THE PROPERTY IN THE NAME OF THE ASSESSEE, THE PROPERTY WAS ACTUALLY TRANSFERRE D AND SOLD TO THE ASSESSEE AND OTHER CO-OWNERS. THEREFORE, THE ASSESSEE AND OT HERS HAVING BECOME THE OWNERS OF THE PROPERTY IN MAY, 2005, THE CONSIDERATION RECEIVED ON SALE OF THE SAID PROPERTY IN NOV. 2006 WILL BE SUBJ ECT TO SHORT TERM CAPITAL GAIN. THE CIT (A) ALSO CONCURRED WITH THE COST OF CONST RUCTION ESTIMATED BY THE ASSESSING OFFICER AT RS. 4 LAKHS. 23. THE LEANED AR SUBMITTED BEFORE US THAT PHYSICAL PO SSESSION OF THE LAND WAS DELIVERED TO THE ASSESSEE ON 9-4-1980 EVEN MUCH PRIOR TO THE EXECUTION OF AGREEMENT OF SALE ON 26-11-1984. THE ASSESSEE HAS AL SO FULFILLED ALL OTHER CONDITIONS AS MENTIONED IN THE AGREEMENT OF SALE INCLUD ING PAYMENT OF THE TOTAL SALE CONSIDERATION OF RS.32,032/-. THEREFORE, THE ASSESSEE SHOULD BE DEEMED TO BE THE OWNER OF THE PROPERTY SINCE 9-4-1980 AND GAIN FROM SALE OF THE PROPERTY SHOULD BE TAXED AS LONG TERM CAPITAL GAIN . IN SUPPORT OF HIS CONTENTION, THE LEARNED AR RELIED UPON A DECISION OF HO NBLE AP HIGH COURT IN CASE OF M.SYAMALA RAO V/S. CIT (234 ITR 140). SO FAR AS COST OF ITA NOS. 56 AND 1446 OF 2011 & CO 23 OF 2011 ABDUL RAHMAN KHAN, HYD. 18 CONSTRUCTION OF THE GO-DOWN IS CONCERNED, THE LEARNED AR SUBMITTED THAT THE CIT (A) WAS NOT JUSTIFIED IN RESTRICTING THE COST OF CONSTR UCTION TO RS.4 LAKHS. 24. THE LEARNED DEPARTMENTAL REPRESENTATIVE COUNTE RING THE SUBMISSIONS MADE ON BEHALF OF THE ASSESSEE SUBMITTED THAT TILL THE P ROPERTY WAS REGISTERED IN THE NAME OF THE ASSESSEE A VALID TRANSFER O F TITLE CANNOT BE HELD TO HAVE TAKEN PLACE. HENCE THE ASSESSEE CANNOT BE TREATED TO BE OWNER OF THE PROPERTY. SINCE THE ASSESSEE ACQUIRED THE TITLE OVER THE PROPERTY IN MAY, 2005 AND SOLD IT INN NOVEMBER, 2006, THE GAIN ARISING OUT OF SALE OF THE PROPERTY HAS TO BE TREATED AS SHORT TERM CAPITAL GAIN. THE LEARNED DEPARTMENTAL REPRESENTATIVE FURTHER SUBMITTED THAT IN ABSENCE OF PROPER EVIDENCE THE ESTIMATION OF EXPENDITURE INCURRED TOWARD S CONSTRUCTION OF GO- DOWNS IS REASONABLE. 25. WE HAVE HEARD RIVAL SUBMISSIONS AND PERUSED THE MAT ERIAL ON RECORD. THE CRUCIAL ISSUE TO BE DECIDED IS, WHICH IS THE DATE TO BE CONSIDERED AS DATE OF TRANSFER FOR THE PURPOSE OF DETERMINING THE TAXABI LITY OF INCOME AS LONG TERM OR SHORT TERM CAPITAL GAINS. WHILE THE ASSESSEE CLAI MS 9-4-1980 AS THE DATE ON WHICH POSSESSION OF THE LAND WAS DELIVERED TO HI M TO BE CONSIDERED AS DATE OF TRANSFER. ACCORDING TO THE REVENUE, THE DAT E ON WHICH THE SALE DEED WAS EXECUTED AND THE LAND WAS REGISTERED IN THE NA ME OF THE ASSESSEE I.E., 10-5-2005 SHOULD BE CONSIDERED AS DATE OF TRANSFER . IT APPEARS FROM THE LETTER OF THE APIIC LTD. AT PAGE 34 OF THE PAPER B OOK THAT LAND BEARING PLOT NO.4, BLOCK NO.33 AT AUTO NAGAR WAS ALLOTTED TO THE A SSESSEE ON OUTRIGHT SALE BASIS FOR TOTAL COST OF RS.32,000/-. IT WAS FURTHER MENT IONED IN THE SAID LETTER THAT THE ALLOTTEE WAS REQUIRED TO PAY 50% OF THE LAN D COST AND COMPLETE OTHER FORMALITIES LIKE EXECUTION OF AGREEMENT OF SALE, EXECUTION OF PROMISSORY NOTE FOR THE BALANCE LAND COST, TAKING POSSESSION OF THE A LLOTTED PLOT ETC. ITA NOS. 56 AND 1446 OF 2011 & CO 23 OF 2011 ABDUL RAHMAN KHAN, HYD. 19 CLAUSE (3) OF THE AGREEMENT FOR SALE DATED 26-11-1984 WHICH IS AT PAGE-36 OF THE PAPER BOOK REVEALS THAT THE TOTAL COST OF LAND INCLUDING DEVELOPMENT CHARGES WAS PAID BY THE ALLOTTEES PRIOR TO THE EXECUTION OF THE DOCUMENT. THE SALE DEED WAS EXECUTED ON `10-5-2005 A COPY OF WHICH IS PLACED AT PAG- 48 OF THE PAPER BOOK. CLAUSE-6 OF THE AFORESAID SALE DEED READS THUS: 6. AND WHEREAS THE VACANT POSSESSION OF THE LAND W AS DELIVERED TO THE PARTY OF THE SECOND PART ON 9-4-1985 AND THE PA RTY OF THE SECOND PART HAS CONSTRUCTED THE FACTORY BUILDING AND GONE INTO PRODUCTION. 26. A READING OF THE AFORESAID CLAUSE MAKES IT CLEAR THA T POSSESSION OF THE LAND WAS NOT ONLY DELIVERED ON 9-4-1985 BUT THE ALLO TTEES HAS ALSO CONSTRUCTED A FACTORY BUILDING OVER THE LAND. CLAUSE-7 OF THE SALE DEED FURTHER RECORDS THE FACT THAT THE TOTAL SALE CONSIDERATIO N OF RS.32,032/- HAS ALSO BEEN PAID BY THE ALLOTTEES. WHEN ALL THE CONDIT IONS OF SALE LIKE PAYMENT OF CONSIDERATION DELIVERY OF POSSESSION HAD TAKEN PLACE O N 9-5-1985, IN OUR VIEW, TRANSFER OF THE PROPERTY HAS TAKEN PLACE FOR ALL INTENT AND PURPOSE IN TERMS WITH SECTION 2(47) OF THE ACT READ WITH SECTION 53A OF THE TRANSFER OF PROPERTY ACT, 1882. THE DEFERMENT OF EXECUTION OF SALE DEED AND REGISTRATION OF THE PROPERTY TO A LATER DATE, FOR WHATEVER MAY B E THE REASON, WILL NOT LEAD TO A CONCLUSION THAT EFFECTIVE TRANSFER OF THE PROPERTY HAS TAKEN PLACE ONLY ON THE DATE OF EXECUTION OF SALE DEED AND REGISTRATION OF THE PROPERTY ON 10-5- 2005. IT IS WELL-KNOWN PRINCIPLE OF LAW THAT TRANSFER OF TITLE OF AN IMMOVEABLE PROPERTY CONSTITUTES A BUNDLE OF RIGHTS. IN THE CASE B EFORE US, ADMITTEDLY THE PLOT OF LAND WAS ALLOTTED ON OUT-RIGHT SALE BASIS AND I T IS ALSO NOT DISPUTED THAT THE ASSESSEE HAS PAID THE ENTIRE SALE CONSIDERATION AS FIXED BY THE VENDOR. IT IS ALSO A FACT ON RECORD THAT THE ASSESSEE ALO NG WITH CO-OWNERS WAS NOT ONLY VESTED WITH THE POSSESSION OF THE PROPERTY BUT THEY WERE ALSO ITA NOS. 56 AND 1446 OF 2011 & CO 23 OF 2011 ABDUL RAHMAN KHAN, HYD. 20 PERMITTED TO CONSTRUCT THE FACTORY BUILDING AND USED THE PROPERTY LIKE A PERSON HAVING ABSOLUTE OWNERSHIP OF THE PROPERTY IN D ETRIMENT TO OTHERS. THIS IS ALSO IN CONSONANCE WITH SECTION 53A OF TRANSFER OF PROPERTY ACT WHICH RECOGNISES DELIVERY OF POSSESSION OF THE IMMOVEABLE PROPER TY IN PART PERFORMANCE OF A CONTRACT ALSO AS A TRANSFER. THE INCOME TAX ACT,1961 ALSO RECOGNISES IT AS TRANSFER OF CAPITAL ASSET BY INCORPORATING CLAUSE (V) TO SEC.2(47) OF THE ACT. IN THE DECISION RELIED UPON BY T HE ASSESSING OFFICER IN CASE OF ALAPATI VENKATA RAMAIAH V/S. CIT (57 ITR 185) , THE HONBLE SUPREME COURT WAS INTERPRETING THE MEANING OF TRANSF ER UNDER THE INCOME- TAX ACT, 1922 WHEREIN THE TERM TRANSFER WAS NOT DEFINE D.THE TERM TRANSFER UNDER 1961 ACT IS DEFINED U/S2(47) OF THE ACT AND IS W IDE ENOUGH TO TAKE WITHIN ITS AMBIT CASES WHERE THE ENTIRE SALE CONSIDERAT ION HAS BEEN PAID AND DELIVERY OF POSSESSION HAS BEEN HANDED OVER IN PART PE RFORMANCE OF A CONTRACT. THE DECISION OF THE JURISDICTIONAL HIGH COURT IN CASE OF M.SYAMALA RAO (SUPRA) ALSO LAYS DOWN THE RATIO THAT THE DATE OF REGISTRATION WILL RELATE BACK TO THE DATE WHEN THE AGREEMENT FOR SALE WAS EXECUT ED. THE OBSERVATION OF THE HONBLE HIGH COURT IS EXTRACTED HERE UNDER FOR R EADY REFERENCE:- A PERUSAL OF THE DOCUMENT MAKES IT CLEAR THAT THE A GREEMENT OF SALE WAS EXECUTED IN 1962 AND POSSESSION WAS DELIVERED T O THE ASSESSEE ON THE SAID DATE AND THE SALE CONSIDERATION WAS ALS O PAID BY THE ASSESSEE TO THE OWNER OF THE PROPERTY. HOWEVER, TH E DOCUMENT WAS REGISTERED ON JUNE 8, 1979. THE REGISTRATION OF TH E DOCUMENT RELATES BACK TO THE DATE ON WHICH THE AGREEMENT OF SALE WAS EXECUTED IN FAVOUR OF THE ASSESSEE BY THE OWNER. THEREFORE, TH E ASSESSEE IS DEEMED TO BE THE OWNER OF THE PROPERTY WITH EFFECT FROM MAY 1, 1962. IF THE ASSESSEE IS THE OWNER OF THE PROPERTY WITH E FFECT FROM MAY 1, 1962, THE CAPITAL GAINS CANNOT BE SAID TO BE SHORT- TERM CAPITAL GAINS AS THE ASSESSEE HAS ALREADY HELD THE PROPERTY FOR M ORE THAN THIRTY-SIX ITA NOS. 56 AND 1446 OF 2011 & CO 23 OF 2011 ABDUL RAHMAN KHAN, HYD. 21 (36) MONTHS. IN OUR VIEW, THEREFORE, THE VIEW EXPR ESSED BY THE TRIBUNAL THAT THE CAPITAL GAINS ARE SHORT-TERM CAPI TAL GAINS IS NOT CORRECT. 27. IN THE AFORESAID VIEW OF THE MATTER, WE HOLD T HAT THE PROFIT DERIVED FROM SALE OF THE PROPERTY SHOULD BE TAXED AS LONG TERM CAPITAL GAIN. HOWEVER, THE DATE OF ACQUISITION OF THE PROPERTY SHOUL D BE RECKONED TO BE THE DATE OF DELIVERY OF POSSESSION AS MENTIONED IN CLAUSE-6 OF THE SALE DEED I.E. 9-4-1985. SO FAR AS INCURRING OF EXPENDITURE IN CONST RUCTION OF GOD0WN IS CONCERNED, IT IS SEEN FROM RECORD THAT APART FROM SUBMITT ING A LETTER FROM AN EXECUTIVE ENGINEER OF THE R & B DEPARTMENT THE ASSESSEE HAS NOT SUBMITTED ANY BILLS OR VOUCHERS IN RESPECT OF THE EXPENDITURE INCUR RED. FROM THE LETTER OF THE EXECUTIVE ENGINEER, IT APPEARS THAT HE HAS ESTIM ATED THE COST ONLY ON THE BASIS OF PLANS WITHOUT MAKING ANY PHYSICAL VERIFIC ATION. IN THESE CIRCUMSTANCES, THERE IS LITTLE SCOPE FOR INTERFERING WITH T HE COST OF CONSTRUCTION TAKEN AT RS.4 LAKHS BY THE ASSESSING OFFICER AND SUSTAINED BY THE CIT (A). WE ALSO CONCUR WITH THE VIEW OF THE LOWER AUTHORITIES I N THIS REGARD. WE DIRECT THE ASSESSING OFFICER TO VERIFY THE ORIGINAL SALE DEED A ND IF CLAUSE-6 OF THE SALE DEED AS EXTRACTED HEREIN ABOVE IS FOUND TO BE EX ISTING IN THE ORIGINAL SALE DEED ,THE ASSESSING OFFICER SHALL COMPUTE THE LONG TERM CA PITAL GAINS ACCORDINGLY IN ACCORDANCE WITH LAW. 28. IN GROUND NO.5, THE ASSESSEE HAS CHALLENGED THE ADDIT ION OF AN AMOUNT OF RS. 7 LAKHS ON ACCOUNT OF UNEXPLAINED CASH CREDI T SUSTAINED BY THE CIT (A) OUT OF TOTAL ADDITION OF RS. 20 LAKHS MADE B Y THE ASSESSING OFFICER. BRIEFLY THE FACTS ARE DURING THE ASSESSMENT PROCEEDINGS, THE ASSESSING OFFICER NOTICED THAT THE ASSESSEE HAS TAKEN UNSECURED LOAN OF RS. 20 LAKHS FROM AATEEQ HYDER. TO VERIFY THE GENUINENESS OF THE LOAN, THE ASSESSING OFFICER ITA NOS. 56 AND 1446 OF 2011 & CO 23 OF 2011 ABDUL RAHMAN KHAN, HYD. 22 WROTE A LETTER TO THE CONCERNED BANK. SINCE THERE WAS NO RESPONSE FROM THE BANK, THE ASSESSING OFFICER PROPOSED TO ADD AN AMOUNT OF RS.20 LAKHS. THE ASSESSEE SUBMITTED A REPLY EXPLAINING THEREIN THAT THE A ATEEQ HYDER IS A PERSON OF INDIAN ORIGIN RESIDING AT RIYADH IN SAUDI ARABIA. THE SAID AATEEQ HYDER WITH AN INTENTION TO START A REAL ESTAT E BUSINESS WITH THE ASSESSEE HAD CONTRIBUTED RS. 13LAKHS BY WAY OF CHEQUE THR OUGH HIS NRI ACCOUNT AND BALANCE RS.7 LAKHS BY CASH THROUGH HIS WIFE DU RING HER STAY IN INDIA. IN THIS REGARD, THE ASSESSEE ALSO SUBMITTED A CONFI RMATION FROM THE CONCERNED CREDITOR AND ALSO FURNISHED HIS PERMANENT ADDRE SS IN INDIA AS WELL AS COPY OF HIS BANK ACCOUNT IN INDIA. THE ASSESSING OFFICER DISBELIEVING THE EXPLANATION OF THE ASSESSEE ADDED THE AMOUNT OF RS.20 LA KHS. THE ASSESSEE CHALLENGED THE ADDITION BEFORE THE CIT (A). THE CIT (A) ACCEPTED AN AMOUNT OF RS.13 ADVANCED THROUGH CHEQUE TO BE GENUINE WHILE SUSTAINING THE ADDITION OF RS.7 LAKHS GIVEN IN CASH IN THE ABSENCE OF SA TISFACTORY EXPLANATION BY THE ASSESSEE. 29. THE LEARNED AR HAS SUBMITTED BEFORE US THAT THE A SSESSEE ALONG WITH FOUR OTHERS HAVE ENTERED INTO PARTNERSHIP DEED EXECUTE D ON 27-4-2006 FOR CARRYING ON REAL ESTATE BUSINESS. AATEEQ HYDER BEING O NE OF THE PARTNERS INVESTED A SUM OF RS.20 LAKHS AS HIS SHARE OF INVESTMENT IN CARRYING ON THE REAL ESTATE BUSINESS IN PARTNERSHIP. IT WAS SUBMITTED B Y THE LEARNED AR THAT THE CONTRIBUTION MADE BY ALL THE PARTNERS WERE POOLED TOGETHER AND PAID TOWARDS COST OF LAND AT MAHESWARAM. THE LEARNED AR SU BMITTED THAT THE AMOUNT OF RS.20 IS NOT LOAN BUT IS AN INVESTMENT INTO P ARTNERSHIP FOR CARRYING ON A REAL ESTATE BUSINESS. THE LEARNED AR SUBMITTED THA T AN AMOUNT OF RS.20 LAKHS HAS ALSO BEEN SHOWN AS A LIABILITY IN THE BALANCE-SH EET OF THE ASSESSEE. THE LEARNED AR SUBMITTED THAT AATEEQ HYDER HAVING CON FIRMED OF INVESTING ITA NOS. 56 AND 1446 OF 2011 & CO 23 OF 2011 ABDUL RAHMAN KHAN, HYD. 23 THE AMOUNT OF RS.20 LAKHS, THE ADDITION OF RS.7 LAKHS SH OULD HAVE BEEN MADE BY THE CIT(A). 30. THE LEARNED DEPARTMENTAL REPRESENTATIVE, ON THE OTHER HAND, SUBMITTED THAT THE ASSESSEE HAVING FAILED TO SATISFACTORILY EXPLAIN THE CASH LOAN OF RS. 7 LAKHS, THE CIT (A) HAS RIGHTLY SUSTAINED T HE ADDITION OF SAID AMOUNT. 31. WE HAVE HEARD RIVAL SUBMISSIONS AND PERUSED THE MAT ERIAL ON RECORD. UNDISPUTEDLY, IN THE ASSESSEES BALANCE-SHEET (PAGE-91OF T HE PAPER BOOK) AATEEQ HYDER APPEARS AS A SUNDRY CREDITOR HAVING ADVANCE D AN AMOUNT OF RS.20 LAKHS. IT IS THE CONTENTION OF THE ASSESSEE THAT THE SAID 20 LAKHS IS NOT LOAN BUT AN INVESTMENT BY AATEEQ HYDER IN THE PARTNE RSHIP BUSINESS. IF IT IS ACTUALLY AN INVESTMENT BY AATEEQ HYDER IN PARTNERSHIP BUSINESS AS CLAIMED BY THE ASSESSEE THEN THERE IS NO REASON WHY IT SHOULD APPE AR AS SUNDRY CREDITOR IN THE BALANCE-SHEET OF THE ASSESSEE. THIS PROVE S THE FACT THAT AN AMOUNT OF RS.20 LAKHS IS NOT AN INVESTMENT IN THE PART NERSHIP BUSINESS BUT, IT IS A LOAN GIVEN TO THE ASSESSEE. SO FAR AS THE AMOUNT OF RS.7 LAKHS ADVANCED IN CASH, IN THE CONFIRMATION LETTER OF AATEEQ HYDER (P AGE 101 OF PAPER BOOK) HE HAS STATED TO HAVE ADVANCED THE ENTIRE AMOUNT OF RS.20 LAKHS THROUGH HIS NRI BANK ACCOUNT. HOWEVER, THE BANK ACCOUNT COPY (PAG E 120 TO 121 OF PAPER BOOK) DOES NOT REFLECT ANY CASH TRANSFER EXCEPTING AN AMOUNT OF RS.13 LAKHS ON 28-12-2006 VIDE CHEQUE NO.31581. THE CLAIM O F AATEEQ HYDER IS THAT ENTIRE AMOUNT OF RS.20 LAKHS WAS TRANSFERRED FROM HIS NRI A/C IS NOT CORRECT. THE ASSESSEE HAS ALSO NOT SUBMITTED ANY SATISFACTORY EXPLANATION WITH SUPPORTING EVIDENCE TO PROVE THE GENUINENESS OF T HE AFORESAID CASH LOAN OF RS. 7 LAKHS. BESIDES, WHEN SRI AATEEQ HYDER WAS MAIN TAINING A BANK ACCOUNT IN INDIA AND HAS ADVANCED AN AMOUNT OF RS.13 LAK HS THROUGH CHEQUE, ITA NOS. 56 AND 1446 OF 2011 & CO 23 OF 2011 ABDUL RAHMAN KHAN, HYD. 24 THERE IS NO REASON FOR HIM TO ADVANCE AN AMOUNT OF RS.7 LAKHS IN CASH. THE ASSESSEE HAS ALSO NOT PRODUCED ANY CAPITAL ACCOUNT OR BALANCE SHEET OF AATEEQ HYDER REFLECTING SUCH LOAN TRANSACTION TO ESTABL ISH THE GENUINENESS OF THE LOAN AND CREDITWORTHINESS OF THE CREDITOR. IN THE A FORESAID CIRCUMSTANCES, THE ADDITION OF RS.7 LAKHS HAS TO BE SUSTAINED. THEREFOR E, THIS GROUND OF THE ASSESSEE IS DISMISSED. 32. GROUND NO.6 RELATES TO THE CIT (A) SUSTAINING AD DITION OF RS.1,50,000/- OUT OF TOTAL ADDITION 16,50,000/- MADE BY THE ASSESSING OFFICER ON ACCOUNT OF LOAN TAKEN FROM SMT. SAYIDA SAFIYA. BRIEFLY THE FA CTS ARE WHILE EXAMINING THE BALANCE-SHEET OF THE ASSESSEE DURING THE ASSESSMENT PROCEE DINGS, THE ASSESSING OFFICER NOTICED THAT THE ASSESSEE HAS TAKEN TOTAL LO AN OF RS.16,50,000/- FROM SAYIDA SAFIYA. IN RESPONSE TO ASSESSI NG OFFICER S QUERY, THE ASSESSEE EXPLAINED THAT THE SAID CREDITOR IS A PERSON OF INDIAN ORIGIN RESIDING AT JEDDAH IN SAUDI ARABIA. SHE HAD ADVANCED AN AMOUNT OF RS.15 LAKHS THROUGH CHEQUE AND ONE DEMAND DRAFT TOWARD S INVESTMENT IN ASSESSEES DAIRY BUSINESS. THE BALANCE AMOUNT OF RS.1,50, 000/- WAS A PERSONAL LOAN RECEIVED THROUGH HSBC BANK ON 26-9-2006. THE ASSESSING OFFICER REJECTING THE EXPLANATION OF THE ASSESSEE ADDED E NTIRE AMOUNT OF RS.16,50,000/- U/S 68 OF THE ACT. THE ASSESSEE CHALLENGED THE ADDITION BEFORE THE CIT (A). THE CIT (A) ACCEPTED RS.15 LAKHS G IVEN THROUGH CHEQUE AND DEMAND DRAFT TO BE GENUINE AND DELETED THE SAME. SO FAR AS HAND LOAN OF RS.1,50,000/- IS CONCERNED, THE CIT (A) SUSTAINED THE ADDITION BY OBSERVING THAT THE GENUINENESS OF THE LOAN HAS NOT BEEN PROVED. 33. THE LEARNED AR SUBMITTED THAT THE AMOUNT OF RS.1 ,50,000/- WAS ALSO GIVEN THROUGH A CHEQUE DATED 26-9-2006 DRAWN ON HSB C BANK LIMITED, HYDERABAD AND THE AMOUNT WAS CREDITED TO THE BANK ACCOUN T OF THE ASSESSEE ITA NOS. 56 AND 1446 OF 2011 & CO 23 OF 2011 ABDUL RAHMAN KHAN, HYD. 25 ON 7-10-2006. IN SUPPORT OF SUCH CONTENTION, BANK ACCOUN T OF THE CONCERNED BANK WAS REFERRED TO BY THE LEARNED AR WHICH IS AT PA GES 15 AND 16 OF THE WRITTEN SUBMISSIONS. 34. THE LEARNED DEPARTMENTAL REPRESENTATIVE, ON THE OTHER HAND, SUPPORTED THE ORDER OF THE CIT (A). 35. WE HAVE HEARD THE SUBMISSIONS OF THE PARTIES AND PER USED THE MATERIAL ON RECORD. IT IS EVIDENT FROM THE HSBC BANK ACCOUNT COPY OF MOHD. ARSHAD KHAN (PAGE-16 OF THE WRITTEN SUBMISSIONS) THAT AN AMOUN T OF RS.1,50,000/- WAS TRANSFERRED VIDE CHEQUE NO.3984 ON 6-10-2006 WHICH WAS CREDITED TO THE BANK ACCOUNT OF THE ASSESSEE IN DARUSALEM CO-OPERATIVE URBAN BANK ON 7-10-2006. THE CHEQUE NUMBER INVOLVED IN THE TRANSAC TION AS MENTIONED IN THE RESPECTIVE BANK ACCOUNTS ALSO TALLIED. IT IS FURTHER SEEN FROM THE HSBC ACCOUNT OF MOHD. ARSHAD KHAN THAT ON THE DATE OF TRANS FER OF RS.1,50,000/-, THERE WAS SUFFICIENT BALANCE IN THE ACCOUNT. IN THE AF ORESAID CIRCUMSTANCES, THERE COULD BE NO REASON TO DOUBT THE GENUINENESS OF TH E AFORESAID LOAN TRANSACTION. WE THEREFORE DIRECT THE ASSESSING OFFICER TO DELETE THE ADDITION OF RS.1,50,000/- AFTER VERIFYING THE BANK ACCOUNT. T HIS GROUND OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. 36. IN THE LAST GROUND I.E., GROUND NO.7, THE ASSESSEE HAS URGED FOR DELETING AN AMOUNT OF RS.75,160/- ON ACCOUNT OF INCOME FROM TRANSPORT BUSINESS ALLEGING DOUBLE ADDITION. ON EXAMINING THE R ECORDS, WE FIND THAT THE ASSESSEE HAS NOT CHALLENGED THE AFORESAID ADDITION BY RAISING ANY SPECIFIC GROUND BEFORE THE CIT (A). THIS FACT IS FURTHER CLARIF IED FROM THE OBSERVATION MADE BY THE CIT (A) IN PARA 2.1 OF HIS ORDER. SINCE T HE ASSESSEE HAS NOT URGED THIS GROUND BEFORE THE CIT (A), WE ARE NOT INCL INED TO ENTERTAIN THIS ITA NOS. 56 AND 1446 OF 2011 & CO 23 OF 2011 ABDUL RAHMAN KHAN, HYD. 26 GROUND AT THIS STAGE FOR THE FIRST TIME. THE GROUND RAISED BY THE ASSESSEE IS THEREFORE DISMISSED. 37. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS AL LOWED IN PART AS INDICATED ABOVE. 38. SO FAR AS CROSS OBJECTION NO.23/HYD/2011 FILED BY TH E ASSESSEE IS CONCERNED, IT MERELY SUPPORTS THE ORDER OF THE CIT (A). HENCE, IN VIEW OF OUR DECISION IN DEPARTMENTS APPEAL ITA NO. 56/H/2011, IT IS DISMISSED AS INFRUCTUOUS. 39. IN THE RESULT, APPEAL FILED BY THE REVENUE IS DI SMISSED, WHILE ASSESSEES APPEAL IS ALLOWED IN PART AND THE CROSS OBJECTIO N FILED BY THE ASSESSEE IS DISMISSED AS INFRUCTUOUS. ORDER PRONOUNCED IN THE COURT ON 7 -12-2012. SD/- SD/-/- (CHANDRA POOJARI) (SAKTIJIT DEY) ACCOUNTANT MEMBER JUDICIAL MEMBER DT/- 7 TH DECEMBER, 2012 COPY FORWARDED TO: 1. ITO, WARD- 8(2), HYDERABAD. 2. 3. 4 SRI ABDUL RAHAMAN KHAN, H.NO.21-4-21/A, HUSSAINI ALAM, HYDERABAD. COMMISSIONER OF INCOME-TAX (APPEALS) III, HYDERABAD. CIT CONCERNED, HYDERABAD. 5 DEPARTMENTAL REPRESENTATIVE, ITAT, HYDERABAD. JMR * ITA NOS. 56 AND 1446 OF 2011 & CO 23 OF 2011 ABDUL RAHMAN KHAN, HYD. 27