M/S OM PLANTATION, JAIPUR V. INCOME TAX OFFICER, JAIPUR

ITA 1047/JPR/2017

• Counselvise Citation: [2018] 122 COUNSELVISE.COM (IT) 4026 (ITAT-JAIPUR)
• Duration Of Justice: 9 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-10-2018
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2006-2007
• Appeal Filed On: 28-12-2017
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: J C KULHARI JCIT DHK
• Keywords: Unexplained investment; Principle of natural justice; Opportunity of cross examination; Tangible material
• Section: 143(3); 147; 131; 68; 148; 69

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES, JAIPUR JH FOT; IKY JKO] U;KF;D LNL; ,OA JH FOE FLAG ;KNO ] YS[KK LNL; DS LE{K BEFORE: SHRI VIJAY PAL RAO, JM & SHRI VIKRAM SINGH YADAV, AM VK;DJ VIHY LA-@ ITA NO. 1047/JP/2017 FU/KZKJ.K O'KZ@ ASSESSMENT YEAR : 2006-07 M/S OM PLANTATION, 22, PATH NO. 6, VIJAY BARI, TEEN DUKAN, SIKAR ROAD, JAIPUR. CUKE VS. I.T.O., WARD 4(3), JAIPUR. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO.: AABFO 5180 A VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY : SHRI P.C. PARWAL (CA) JKTLO DH VKSJ LS@ REVENUE BY : SHRI J.C. KULHARI (JCIT) LQUOKBZ DH RKJH[K@ DATE OF HEARING : 06/09/2018 MN?KKS'K.KK DH RKJH[K @ DATE OF PRONOUNCEMENT : 09/10/2018 VKNS'K@ ORDER PER: VIJAY PAL RAO, J.M. THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER DATED 10/10/2017 OF LD. CIT(A), AJMER FOR THE A.Y. 2006-0 7. THE ASSESSEE HAS RAISED FOLLOWING GROUNDS OF APPEAL: 1. THE LD. CIT(A) HAS ERRED ON FACTS AND IN LAW IN CONFIRMING THE ADDITION OF RS. 2,23,10,000/- U/S 69 OF THE IT ACT BY HOLDING THAT ASSESSEE HAS MADE PAYMENT IN CASH OVER AND ABOVE TH E SALES CONSIDERATION RECORDED IN THE SALE DEEDS, SOURCE OF WHICH REMAINED UNEXPLAINED. 1.1 THE LD. CIT(A) HAS FURTHER ERRED ON FACTS AND I N LAW IN STATING THAT THE APPELLANT INSTEAD OF CROSS EXAMINING THE SELLER S TOOK ADJOURNMENT AND CHOOSE NOT TO CROSS EXAMINE THEM IG NORING THAT ITA 1047/JP/2017_ OM PLANTATION VS ITO 2 NONE OF THE SELLERS APPEARED BEFORE A.O. IN REMAND PROCEEDINGS FOR CROSS EXAMINATION. 2. THE ASSESSEE CRAVES TO AMEND, ALTER AND MODIFY A NY OF THE GROUNDS OF APPEAL. 3. THE APPROPRIATE COST BE AWARDED TO THE ASSESSEE. 2. THE ASSESSEE IS A PARTNERSHIP FIRM CONSTITUTED ON 11/05/2005 WITH THE OBJECTS OF CARRYING OUT PLANTATION, REAL ESTATE AND CONSTRUCTION BUSINESS. THE ASSESSEE FILED ITS RETURN OF INCOME O N 31/10/2006 DECLARING A LOSS OF RS. 10,772/-. THE ASSESSING OFFICER RECEIV ED A REPORT OF DDIT(INV), JAIPUR VIDE LETTER DATED 28/3/2010 REGARD ING THE ON MONEY PAYMENT BY THE ASSESSEE IN RESPECT OF PURCHASE OF L AND SITUATED AT BHANKROTA, JAIPUR FOR A SALE CONSIDERATION OF RS. 1 ,76,34,000/- SHOWN IN THE SALE DEED, HOWEVER, AN AMOUNT OF RS. 1,80,80,000 /- WAS ALSO FOUND TO HAVE BEEN PAID IN CASH AND WAS DEPOSITED IN THE B ANK ACCOUNT OF THE SELLERS OF THE LAND. ACCORDINGLY, THE ASSESSING OFF ICER REOPENED THE ASSESSMENT BY ISSUING NOTICE U/S 148 OF THE INCOME TAX ACT, 1961 (IN SHORT THE ACT) ON 21/3/2013. THE ASSESSING OFFICER I N THE ASSESSMENT FRAMED U/S 143(3) READ WITH SECTION 147 OF THE ACT H AS MADE AN ADDITION OF RS. 2,23,10,000/- U/S 69 OF THE ACT ON ACCOUNT O F CASH PAYMENT OVER AND ABOVE THE SALE CONSIDERATION RECORDED IN THE SA LE DEED. 3. THE ASSESSEE CHALLENGED THE ACTION OF THE ASSESSI NG OFFICER BEFORE THE LD. CIT(A) AND ALSO RAISED AN OBJECTION OF NON-G RANT OF OPPORTUNITY TO ITA 1047/JP/2017_ OM PLANTATION VS ITO 3 CROSS EXAMINE THE SELLERS. THE LD. CIT(A) CALLED FOR A REMAND REPORT FROM THE ASSESSING OFFICER AND AFTER CONSIDERING THE REM AND REPORT AS WELL AS THE STATEMENTS OF THE ASSESSEE, HAS CONFIRMED THE A DDITION MADE BY THE ASSESSING OFFICER ON THIS ACCOUNT. 4. BEFORE US, THE LD AR OF THE ASSESSEE HAS SUBMITT ED THAT THE ASSESSING OFFICER HAS MADE ADDITION ON THE BASIS OF CASH DEPOSITS IN THE BANK ACCOUNTS OF THE SELLERS AND THEIR RELATIVES IN THE MONTH OF MAY AND AUGUST, 2005. WHEREAS THE ASSESSEE HAS PURCHASED TH E LANDS IN QUESTION VIDE TWO SALE DEEDS DATED 11/8/2005. THE CONSIDERATIO N THEREOF IS CLEARLY STATED IN THE REGISTERED SALE DEEDS, WHICH WAS DULY A UTHENTICATED BY THE PARTIES BEFORE THE SUB-REGISTRAR. THE ASSESSEE HAS P AID THE CONSIDERATION ONLY IN CHEQUE AS STATED IN THE REGISTERED DEED AND NO AMOUNT HAS BEEN PAID IN CASH. THE ASSESSING OFFICER FOR MAKING THE A DDITION, HAS RELIED UPON A COPY OF THE AGREEMENT FOR SALE OF LAND WITH S HRI BHAGWATA MEENA IN WHICH THE RATE OF SALE OF AGRICULTURAL LAND IS ME NTIONED AT RS. 28,25,000/- PER BIGHA AND ACCORDINGLY CALCULATED TH E CONSIDERATION OVER AND ABOVE THE AMOUNT SHOWN IN THE SALE DEED AND THE DIFFERENTIAL AMOUNT OF RS. 2,23,10,000/- WAS ADDED TO THE INCOME OF THE ASSESSEE AS UNEXPLAINED INVESTMENT U/S 69 OF THE ACT. THE ALLEGE D AGREEMENT IS ONLY A PHOTO COPY AND DOES NOT BEAR THE SIGNATURE OF THE ASSESSEE. THE AGREEMENT IS NEITHER REGISTERED NOR NOTARIZED, THER EFORE, IN ABSENCE OF ITA 1047/JP/2017_ OM PLANTATION VS ITO 4 CORROBORATIVE EVIDENCE, NO ADDITION CAN BE MADE ON A SUCH PHOTO COPY OF AN AGREEMENT NOT SIGNED BY THE ASSESSEE. THE LD. AR HAS CONTENDED THAT THE SAID PHOTO COPY IS NOT A PRIMARY EVIDENCE UNDER THE EVIDENCE ACT AND EVEN IF IT IS CONSIDERED AS A SECONDARY EVIDENCE, I T CAN BE ESTABLISHED THAT THE COPY IS MADE FROM THE ORIGINAL AGREEMENT. IN AB SENCE OF THE ORIGINAL AGREEMENT AND ALSO IN ABSENCE OF ANY RECORD TO SHOW THAT THE PHOTO COPY FOUND WAS TAKEN FROM THE ORIGINAL AGREEMENT IT HAS N O EVIDENTIARY VALUE. IN SUPPORT OF HIS CONTENTION, HE HAS RELIED UPON TH E DECISION OF THE HONBLE KERALA HIGH COURT IN THE CASE OF CIT VS. SMT . K.C. AGNES 128 TAXMAN 848 (KER.). THE LD. AR HAS FURTHER CONTENDED T HAT IN ABSENCE OF REGISTRATION OF THE ALLEGED AGREEMENT, IT WOULD NOT CONFER ANY TITLE OR ANY INTEREST IN THE IMMOVABLE PROPERTY, THEREFORE, THE REGISTERED SALE DEED CANNOT BE DISPUTED BY PLACING RELIANCE ON SUCH PHOT O COPY OF UNREGISTERED AGREEMENT, WHICH IS NOT SIGNED BY THE A SSESSEE. FURTHER THE ASSESSING OFFICER HAS RELIED UPON THE STATEMENTS RE CORDED OF VARIOUS PERSONS INCLUDING THE SELLERS WITHOUT GIVING AN OPPO RTUNITY OF CROSS EXAMINATION TO THE ASSESSEE. THE LD AR HAS REFERRED TO THE LETTER DATED 24/2/2014 AND 06/3/2014 FILED BY THE ASSESSEE DURIN G THE ASSESSMENT PROCEEDINGS AND SUBMITTED THAT THE ASSESSEE HAS DEM ANDED THE CROSS EXAMINATION OF THE PERSONS WHOSE STATEMENTS WERE PRO POSED TO BE RELIED UPON BY THE ASSESSEE FOR MAKING THE ADDITION. HOWEVE R, THE ASSESSING ITA 1047/JP/2017_ OM PLANTATION VS ITO 5 OFFICER DID NOT GRANT THE OPPORTUNITY OF CROSS EXAM INATION TO THE ASSESSEE AND THEREFORE, IN VIEW OF THE DECISION OF THE HON'BL E SUPREME COURT IN THE CASE OF ANDAMAN TIMBER INDUSTRIES VS. CCE PASSED IN CIVIL APPEAL NO. 4228 OF 2006 JUDGMENT DATED 02/09/2015, THE ADDITIO N MADE IN VIOLATION OF PRINCIPLES OF NATURAL JUSTICE IS NOT SUSTAINABLE . THE SECOND LEG OF ARGUMENT ADVANCES BY THE LD AR THAT THIS IS THE FIR ST YEAR OF THE ASSESSEE FIRM AFTER ITS CONSTITUTION AND THEREFORE, IN ABSEN CE OF ANY SOURCE OF INCOME IN THE HANDS OF THE ASSESSEE FIRM, NO ADDITI ON U/S 69 OF THE ACT CAN BE MADE IN THE HANDS OF THE ASSESSEE. IN SUPPOR T OF HIS CONTENTION, HE HAS RELIED UPON THE DECISION OF THE HON'BLE SUPR EME COURT IN THE CASE OF CITP.K. NOORJEHAN 237 ITR 570 AND SUBMITTED THAT T HE WORD MAY USED IN THE SECTION 69 CANNOT BE READ AS SHALL AN D THEREFORE, A DISCRETION IS CONFERRED ON THE ASSESSING OFFICER IN THE MATTER OF TREATING THE SOURCE OF INVESTMENT WHICH HAS NOT BEEN SATISFAC TORY EXPLAINED BY THE ASSESSEE AS INCOME OF THE ASSESSEE. THE ITO IS NOT O BLIGED TO TREAT SUCH SOURCE OF INVESTMENT AS INCOME IN EVERY CASE WHERE E XPLANATION OFFERED BY THE ASSESSEE IS NOT FOUND TO BE SATISFACTORY. THE LD AR HAS THUS, CONTENDED THAT WHEN THE ASSESSEE IS HAVING NO SOURC E OF INCOME IN THE YEAR UNDER CONSIDERATION THEN THE ADDITION U/S 68 O F THE ACT CANNOT BE MADE IN THE HANDS OF THE ASSESSEE. THE LD AR HAS ALS O RELIED UPON THE DECISION OF THE COORDINATE BENCH OF THIS TRIBUNAL IN THE CASE OF M/S ITA 1047/JP/2017_ OM PLANTATION VS ITO 6 KAMAKSHI HOSPITALITY PVT. LTD. VS. DCIT IN ITA NO. 481/JP/2016 ORDER DATED 20/12/2017. 5. ON THE OTHER HAND, THE LD DR HAS SUBMITTED THAT IT IS A FULL PROOF CASE MADE OUT BY THE ASSESSING OFFICER THAT ON MONE Y OF RS. 2,23,10,000/- WAS PAID BY THE ASSESSEE OVER AND ABOV E THE CONSIDERATION SHOWN IN THE SALE DEED FOR PURCHASE OF THE LANDS. EV EN THE STATEMENT OF THE BRANCH MANAGER OF JAIPUR THAR GRAMIN BANK WAS REC ORDED WHEREIN THE CASH DEPOSITED IN THE ACCOUNT OF THE OWNER OF TH E LAND WAS CONFIRMED AS SALE CONSIDERATION RECEIVED FROM THE SALE OF THE AGRICULTURAL LAND. IT IS NOT A SIMPLE CASE OF ADDITION MADE BASED ON THE STA TEMENTS BUT AN AGREEMENT DATED 11/5/2005 WAS ALSO FOUND WHICH HAS CL EARLY ESTABLISHED THE SALE CONSIDERATION @ 28,25,000/- PER BIGHA. FURT HER THE SAID AGREEMENT ALSO CONTAINS THE PARTICULARS OF PAYMENT OF CONSIDERATION IN CASH AS WELL AS IN CHEQUE, THEREFORE, THE PART CONSI DERATION PAID IN CHEQUE AT THE TIME OF AGREEMENT IS ALSO REFERRED IN THE REGISTERED SALE DEED WHICH ESTABLISHES THE FACT THAT THERE WAS AN AGR EEMENT BETWEEN THE PARTIES PRIOR TO THE SALE DEED DATED 11/8/2005. HEN CE, THE CONTENTS RECORDED IN THE AGREEMENT TO SELL DATED 11/5/2005 H AS BEEN CORROBORATED BY THE CONTENTS OF THE SALE DEED WHERE THE PART CON SIDERATION WAS PAID THROUGH CHEQUE AS MENTIONED IN THE AGREEMENT. THE LD DR HAS FURTHER SUBMITTED THAT THE TIMING OF THE CASH DEPOSITED IN THE BANK ACCOUNT OF ITA 1047/JP/2017_ OM PLANTATION VS ITO 7 THE SELLERS AND THEIR RELATIVES BEING SONS, GRANDSO NS AND WIFE OF SELLERS FURTHER ESTABLISHES THIS FACT THAT THERE WAS A CASH PAYMENT OVER AND ABOVE CONSIDERATION SHOWN IN THE SALE DEED. THE DEPO SIT MADE IN THE BANK ACCOUNT OF THE SELLERS AND THEIR RELATIVES MAT CHES WITH THE DATES OF THE AGREEMENT AND SALE DEEDS. HENCE, EVEN IF THE SA ID AGREEMENT WAS NOT SIGNED BY BOTH THE PARTIES, THE FACTS REVEALED IN THE AGREEMENTS ARE FURTHER CORROBORATED AND ESTABLISHED BY THE SALE DE ED AS WELL AS THE STATEMENTS OF THE SELLERS AND THE BANK MANAGER. HEN CE, THE LD DR HAS SUBMITTED THAT THIS IS NOT A CASE OF ADDITION BASED ON MERE STATEMENT BUT TANGIBLE MATERIAL WAS AVAILABLE WITH THE ASSESSING OF FICER WHICH CANNOT BE DISPUTED BEING THE BANK ACCOUNT STATEMENT, AGREEMEN T AS WELL AS THE SALE DEEDS ALL ARE CONFERRING THE FACT OF PAYMENT O F CASH AGAINST THE PURCHASE OF THE LANDS IN QUESTION. AS REGARDS THE OPPORTUNITY FOR CROSS EXAMINATION, THE LD DR HAS SUBMITTED THAT THE LD. C IT(A) HAS CALLED FOR A REMAND REPORT FROM THE ASSESSING OFFICER FOR GIVING THE OPPORTUNITY OF CROSS EXAMINATION TO THE ASSESSEE. DURING THE REMAN D PROCEEDINGS, ONE OF THE PERSON WAS AVAILABLE FOR CROSS EXAMINATION, H OWEVER, THE ASSESSEE CHOSE NOT TO CROSS EXAMINE THE WITNESS AND THEREFORE , THE ASSESSEE CANNOT TAKE THIS OBJECTION AT THIS STAGE. HE HAS RE LIED UPON THE ORDERS OF THE AUTHORITIES BELOW. ITA 1047/JP/2017_ OM PLANTATION VS ITO 8 6. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AS WELL AS THE RELEVANT MATERIAL ON RECORD. THE ASSESSEE PURCHASED THE LAND SITUATED AT BHANKROTA, JAIPUR VIDE TWO SALE DEEDS BOTH DATED 11/ 8/2005 FOR A TOTAL CONSIDERATION MENTIONED IN THE SALE DEEDS AT RS. 1, 76,34,000/-. HOWEVER, THE ASSESSING OFFICER RECEIVED THE REPORT OF THE DD IT(INV) ALONGWITH THE DETAILS OF THE CASH DEPOSITS IN THE BANK ACCOUNTS O F THE SELLERS AND THEIR RELATIVES AND FURTHER AN AGREEMENT TO SELL DATED 11 /5/2005 WHEREIN THE CONSIDERATION @ RS. 28,25,000/- PER BIGHA WAS AGREED UPON BETWEEN THE PARTIES AND PART CONSIDERATION WAS STATED TO HAVE BE EN PAID AT THE TIME OF AGREEMENT IN CASH AS WELL AS IN CHEQUE. THE ASSESSING OFFICER HAS COMPUTED THE TOTAL PURCHASE CONSIDERATION BY ADOPTI NG THE RATE OF RS. 28,25,000/- PER BIGHA AS STATED IN THE AGREEMENT TO SELL DATED 11/5/2005. THOUGH THE SAID AGREEMENT IS NOT SIGNED BY BOTH THE PARTIES AND IT WAS SIGNED ONLY BY THE SELLER, HOWEVER, WE FIND THAT THE DETAILS GIVEN IN THE AGREEMENT REGARDING THE AGRICULTURAL LANDS, ITS KHA SARAS NUMBERS AS WELL AS THE PART CONSIDERATION OF RS. 15,50,000/- THROUG H A CHEQUE NO. 582863/- DATED 10/6/2005 IS NOT IN DISPUTE. THE DEA ILSOF THE SAID CHEQUE ALSO FIND PLACE IN THE REGISTERED SALE DEED DATED 1 1/8/2005. THUS, THE CONTENTS OF THE AGREEMENT TO THE EXTENT OF PART PAY MENT OF CONSIDERATION HAS BEEN ESTABLISHED BY THE SALE DEED DATED 11/8/20 05. THEREFORE, EVEN IF THE SAID AGREEMENT IS NOT ENFORCEABLE IN LAW DUE TO THE NON-BEARING OF ITA 1047/JP/2017_ OM PLANTATION VS ITO 9 THE SIGNATURE OF THE ASSESSEE AND FURTHER DUE TO NO N-REGISTRATION, THE CONTENTS OF THE SAID AGREEMENT WHICH HAS BEEN PROVED AND CORROBORATED BY THE SALE DEED GO TO ESTABLISH THE EXISTENCE OF T HE AGREEMENT BETWEEN THE PARTIES. FURTHER THE DETAILS OF THE CASH DEPOSI TED IN THE BANK ACCOUNT OF THE SELLERS AND THEIR RELATIVES HAS BEEN REPRODU CED BY THE ASSESSING OFFICER IN THE ASSESSMENT PROCEEDINGS AT PAGE NO. 4 AND 5 OF THE ASSESSMENT ORDER AS UNDER: S. NO. NAME OF PERSON BANK ACCOUNT NO. DEPOSITED CASH AMOUNT DATE RELATION WITH THE SELLER 1. SMT. DHAPU DEVI MEENA 210501000 00001 32,74,000/- 12/08/2005 SELLER OF LAND 2. SH. DULHARAM MEENA 1007813 1,50,000/- 10,00,000/- 1,60,000/- 14/05/2005 12/08/2005 16/08/2005 DO 3. SH. BALLU RAM MEENA 1007108 4,00,000/- 11,70,666/- 14/05/2005 12/08/2005 DO 4. SH. HARPHOOL MEENA 1004534 11,70,667/- 12/08/200 5 DO 5. SH. SATENDRA BASANWAL 1007978 14,00,000/- 12/08/2005 SON OF SH. BAGWATARAM SELLER 6. SH. RAJENDRA KUMAR MEENA 1003946 1,50,000/- 14,00,000/- 12/05/2005 12/08/2005 DO 7. SH. OM PRAKASH MEENA 1004337 1,50,000/- 14,00,000/- 12/05/2005 12/08/2005 DO 8. SH. ASHOK KUMAR MEENA 1001168 14,00,000/- 12/08/2005 DO 9. SH. ROSHAL LAL MEENA 1006877 1,50,000/- 14,00,000/- 12/05/2005 12/08/2005 GRANDSON OF SH BAGWATARAM, SELLER 10. SH. JAGDISH PD. MEENA 100131 7,50,000/- 12/08/2005 SON OF SMT. DHAPU DEVI MEENA, SELLER 11. SH. MANNA LAL MEENA 1008064 7,15,800/- 12/08/20 05 SON OF SMT. DHAPU DEVI MEENA, SELLER 12. SH. NEMI CHAND MEENA 1005293 7,50,000/- 12/08/2005 SON OF SMT. DHAPU DEVI MEENA, SELLER 13. SMT. SUSHILA MEENA W/O PRABHU DAYAL MEENA 210501000 07726 7,50,000/- 12/08/2005 W/O- SH. PRABHU DAYAL MEENA, S/O- SMT. DHAPU DEVI MEENA, SELLER ITA 1047/JP/2017_ OM PLANTATION VS ITO 10 THE DATES OF DEPOSIT OF CASH AS WELL AS CHEQUES IN TH E BANK ACCOUNTS OF THE SELLERS, THEIR SONS, GRANDSONS AND WIFE ARE CLEA RLY MATCHING TO THE DATES OF AGREEMENT TO SELL AND SALE DEED I.E. 11/5/ 2005 AND 11/8/2005. ALL THE DEPOSITS OF CASH IN THE BANK ACCOUNTS OF TH ESE PERSONS WERE MADE ON THE VERY NEXT DAY OF EXECUTION OF AGREEMENT AND SALE DEED RESPECTIVELY. IN ABSENCE OF ANY OTHER SOURCE OF INC OME OF THE SELLERS, THE ONLY INFERENCE WHICH CAN BE DRAWN FROM THE DETAILS OF THE BANK ACCOUNTS AND PARTICULARLY THE DEPOSITS MADE ON THE PARTICULA R DATES WHICH IS JUST ONE DAY AFTER THE EXECUTION OF THE AGREEMENT TO SEL L AND SALE DEEDS THAT THE CASH DEPOSITS IN THE BANK ACCOUNTS OF THE SELLE RS AND THEIR RELATIVES IS ONLY FROM THE SALE CONSIDERATION RECEIVED AGAINST T HE SALE OF AGRICULTURAL LANDS IN QUESTION. THERE IS NO OTHER TRANSACTION EIT HER ON THOSE DATES OR IN AROUND THOSE DATES OF DEPOSITS IN THE BANK ACCOUNTS OTHER THAN THE PRESENT TRANSACTION OF SALE OF LANDS BY THE SELLERS . FURTHER THE ASSESSING OFFICER HAS REPRODUCED THE STATEMENTS OF THE BRANCH MANAGER WHEREIN THE AMOUNTS WERE DEPOSITED AS WELL AS THE RELATIVES O F THE SELLERS WHO HAVE CONFIRMED THE RECEIPT OF CASH AND DEPOSIT OF T HE SAME IN THE BANK ACCOUNT. THUS, WE FIND THAT THE ASSESSMENT FRAMED BY THE ASSESSING OFFICER IS NOT SOLELY BASED ON THE STATEMENTS RECOR DED BY THE INVESTIGATION WING BUT THERE WAS TANGIBLE MATERIAL I N THE SHAPE OF THE BANK ACCOUNTS STATEMENTS, AGREEMENT TO SELL AND SAL E DEEDS WHICH ARE OF ITA 1047/JP/2017_ OM PLANTATION VS ITO 11 COURSE NOT IN DISPUTE. THE ONLY DISPUTE RAISED BY TH E ASSESSEE IS REGARDING THE PHOTO COPY OF THE AGREEMENT AND ITS E VIDENTIARY VALUE, HOWEVER, IT IS NOT THE ISSUE OF LEGAL ENFORCEABILITY OF THE SAID AGREEMENT AND THE CLAIM UNDER THE AGREEMENT BUT THE CONTENTS OF THE AGREEMENT WHICH ARE TO THE EXTENT CORROBORATED BY THE INDEPEND ENT EVIDENCE BEING SALE DEEDS AND FURTHER THE BANK STATEMENTS OF THE S ELLERS CANNOT BE DENIED ON THE TECHNICAL GROUND OF ADMISSIBILITY. THE REFORE, ONCE THE PAYMENT OF CASH IS REFLECTED FROM ALL THESE DOCUMEN TS AS WELL AS STATEMENTS OF THE PARTIES THEN THE TECHNICAL OBJECT ION RAISED BY THE ASSESSEE WILL NOT HELP THE CASE OF THE ASSESSEE. 6.1 THE DECISION RELIED UPON BY THE LD AR OF THE ASS ESSEE THAT THE ASSESSING OFFICER HAS THE DISCRETION TO MAKE THE AD DITION U/S 69 OF THE ACT AND NOT BOUND TO MAKE THE ADDITION IN A CASE THE EX PLANATION WAS NOT FOUND SATISFACTORY, WE NOTE THAT THE SAID DECISION IS NO DOUBT LAID DOWN A GUIDANCE AND LIBERTY FOR DECIDING THE ISSUE OF ADDI TION U/S 69 OF THE ACT BUT ONCE THE FACT OF PAYMENT OF CASH BY THE ASSESSE E AND INDISPUTABLY THE FAILURE OF THE ASSESSEE TO EXPLAIN THE SOURCE IS E STABLISHED BY THE ASSESSING OFFICER THEN THE SAID DECISION OF THE HON 'BLE SUPREME COURT CANNOT BE APPLIED IN THE FACTS OF THE PRESENT CASE. MOREOVER, IT IS NOT THE CASE OF THE EXPLANATION OF SOURCE OF INVESTMENT WAS NOT FOUND TO BE SATISFACTORY BUT THE ASSESSEE HAS DENIED THE PAYMEN T OF THE CASH AGAINST ITA 1047/JP/2017_ OM PLANTATION VS ITO 12 THE PURCHASE OF THE LAND AND HENCE THERE WAS NO EXPL ANATION ON THE PART OF THE ASSESSEE FOR THE SOURCE OF SUCH CASH PAYMENT . ONCE THE FACT OF PAYMENT OF CASH IS ESTABLISHED AND THERE IS NO EXPL ANATION OF SUCH INVESTMENT BY THE ASSESSEE THEN THE DECISION OF THE HON'BLE SUPREME COURT HAS NO ROLE IN THE CASE OF THE ASSESSEE. THE L D AR HAS ALSO RELIED UPON THE DECISION OF THE COORDINATE BENCH IN THE CA SE OF M/S KAMAKSHI HOSPITALITY PVT. LTD. VS DCIT (SUPRA) WHEREIN THE COO RDINATE BENCH HAS DELETED THE ADDITION MADE BY THE ASSESSING OFFICER ON THE GROUND THAT THE SAID ADDITION WAS MADE ON THE BASIS OF STATEMENT OF A THIRD PERSON WITHOUT GIVING A OPPORTUNITY OF CROSS EXAMINATION AN D IN ABSENCE OF ANY DOCUMENTARY AND INDEPENDENT EVIDENCE, SUCH ADDITION BASED ON THE STATEMENT OF THIRD PARTY WITHOUT CROSS EXAMINATION I S NOT SUSTAINABLE. IN THE CASE IN HAND, WE FIND THAT THE ADDITION IS NOT BASED MERELY ON THE STATEMENT BUT THE DOCUMENTARY EVIDENCE IN THE SHAPE OF AGREEMENT DATED 11/05/2005, THE BANK STATEMENT OF THE SALE DE EDS SHOWING DEPOSITS OF CASH ON THE DATES OF THE EXECUTION OF T HE AGREEMENT AS WELL AS SALE DEEDS AND FURTHER THE PART CONSIDERATION PA ID THROUGH CHEQUE FIND MENTIONED IN THE AGREEMENT TO SELL AS WELL AS IN SAL E DEED ESTABLISHED THE FACT OF EXISTENCE OF THE SAID AGREEMENT BETWEEN THE PARTIES. THE STATEMENTS RECORDED BY THE INVESTIGATION WING FURTH ER CORROBORATES THE DOCUMENTARY EVIDENCE AND HENCE IT IS NOT A CASE OF ADDITION BASED ON ITA 1047/JP/2017_ OM PLANTATION VS ITO 13 MERE STATEMENT OF THIRD PARTY. FURTHER THE STATEMEN TS OF THE SELLER CANNOT BE SAID TO BE THE STATEMENT OF THE THIRD PARTY BUT THEY WERE VERY MUCH PARTY TO THE TRANSACTION OF SALE OF THE LANDS IN QU ESTION TO THE ASSESSEE. AS REGARDS THE OPPORTUNITY FOR CROSS EXAMINATION, T HE LD CIT(A) CALLED FOR A REMAND REPORT FROM THE ASSESSING OFFICER AFTER AL LOWING THE OPPORTUNITY OF CROSS EXAMINATION. THE ASSESSING OFFICER IN ITS R EMAND REPORT HAS STATED THAT HE HAS SUMMONED BOTH THE PARTIES FOR TH EIR PRESENCE AND AFTER GIVING 2-3 OPPORTUNITIES AT LAST ON 09/1/2017 ONE SMT. MALTI DEVI MEENA, WIDOW OF LATE MADAN LAL MEENA APPEARED BEFORE THE ASSESSING OFFICER AND CONFIRMED THE EARLIER STATEMENT MADE BY HER HUSBAND. THE ASSESSING OFFICER AGAIN SUMMONED THE REMAINING PART IES FOR SUBSEQUENT DATES. WE FIND THAT DESPITE VARIOUS OPPORTUNITIES G IVEN BY THE ASSESSING OFFICER, BOTH THE PARTIES KEPT ON SEEKING DEFERMENT OF REMAND PROCEEDINGS AND FINALLY THE STATEMENTS ON BEHALF OF THE SELLERS WERE MADE THAT THEY STAND BY THEIR STATEMENTS MADE ON THE EAR LIER OCCASIONS. ONE SHRI MUNNA LAL MEENA, S/O SMT. DHAPU DEVI APPEARED FOR CROSS EXAMINATION, HOWEVER, THE ASSESSEE DID NOT CHOSE TO CROSS EXAMINE HIM. THE REMAND REPORT OF THE ASSESSING OFFICER HAS BEEN REPRODUCED BY THE LD. CIT(A) AT PAGE 7 AND 8 OF THE IMPUGNED ORDER AS UNDER: MIJKSDR FOK;KURXZR FUOSNU GS FD MIJKSDR VIHYDRKZ E S- VKSE IYKUVS'KU] T;IQJ DS EKEYS ESA VKIDS DK;KZY; DS I= EKAD 4001 FNUAKD 08- 11-2016 }KJK FJEK.M FJIKSZV EKAXH XBZ FKHA ITA 1047/JP/2017_ OM PLANTATION VS ITO 14 BL LECU/K ESA YS[K GS FD KWL ,XTKFEU DS FY, NKSUKS A I{KKSA DKS LWFPR FD;K X;K ,OA NKSUKSA I{KKSA DH LGEFR LS NKSUKSA I{KKSA DKS DK;KZ Y; ESA MIFLFKR GKSUS DKS DGK X;KA FDURQ /KKIW NSOH DS I{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{K MIFLFKR UGH GQVK FNUAKD 07-07-2017 DKS GJQWY EH.KK] CYYWJKE EH. KK] /KWYKJKE EH.KK] ENU YKY EH.KK DKS IWU% LEEU TKJH FD;S X;S] ,OA KL ,XTKFEU GSRQ FNUAKD 19-07-2017 FU;R DH XBZ FNUKAD 18-07-2017 DKS IZ'KKAR CALY US DSL DH LQUOKBZ 20-07-2017 DKS DGKA FNUAKD 20-07-2017 DKS NKSUKSA I{KKSA US IQU% KL ,X TKFEU LFKKXU GSRQ ,OA KL ,XTKFEU LFKKXU GSRQ DGK VKSJ IQU% LQUOKBZ DH RKJH[K 08-08-2017 J[KH BLESA DKSBZ HKH I{K MIFLFKR UGH GQVK FNUAKD 07-09-2017 DKS IZ'K KAR CALY ,OA GJQWY EH.KK] CYYWJKE EH.KK] EUUKYKY EH.KK MIFLFKR GQ, VKSJ KL , XTKFEU DH RKJH[K 11-09- 2017 J[KH XBZ FNUAKD 11-09-2017 DKS JH IZ'KKAR CALY ] JH DS-DS-XQIRK LH-,- NKSUKSA I{K DH RJQ LS MIFLFKR GQ, VKSJ IQU% MUGKSUSA KL ,XTKFE U GSRQ FNUAKD 12-09-2017 J[KH] FNUAKD 12-09-2017 DKS JH DS-DS-XQIRK LH-,- VF UY UWVKY LH-,- VKSJ EUUKYKY EH.KK VKSJ IZ'KKAR CALY LH-,- MIFLFKR GQ, VKSJ IZ'K KAR CALY LS DGK FD ENUYKY EH.KK DK LOXZOKL GKS X;K GSA GJQWY EH.KK VKSJ VU; L HKH VIUS IWOZ C;KU NTZ DJOK PQDS GS JH ENU YKY EH.KK ,OA JH GJQWY EH.KK US FNUA KD 28-01-2014 DKS VIUS C;KU FN;S GS] JH CYYWJKE EH.KK ,OA JH NWYK JKE EH.K K US FNUAKD 20-01-2014 DKS VIUS C;KU FN;S GSA VR% FDLH DK HKH KL ,XTKFEU UGHA GKS IK;K GSA D;KSAFD EQUUKYKY EH.KK JHERH /KKIWNSOH DS IQ= GS VR% BUDK KL ,XTKFEU DJUS DS FY, NKSUKSA I{KKSA GH LGER UGHA GQ,A THUS, IT IS CLEAR THAT THE ASSESSING OFFICER MADE SI NCERE EFFORTS FOR GRANTING THE OPPORTUNITY TO CROSS EXAMINE TO THE AS SESSEE, HOWEVER, IT APPEARS THAT BOTH THE PARTIES IN COLLUSION AVOIDED THE CROSS EXAMINATION. ITA 1047/JP/2017_ OM PLANTATION VS ITO 15 THUS, THE BLAME CANNOT BE SHIFTED ON THE ASSESSING O FFICER FOR NON-CROSS EXAMINATION IF ANY. 6.2 THE ADDITION MADE BY THE ASSESSING OFFICER IN TH E HAND OF SELLER U/S 68 INSTEAD OF CAPITAL GAIN WOULD NOT AFFECT THE MERI TS OF THE ADDITION MADE IN THE HAND OF THE ASSESSEE. THE LD. CIT(A) HAS CONSI DERED THE OBJECTIONS RAISED BY THE ASSESSEE ON THIS ISSUE IN PARA 4.3 AS UNDER: 4.3 I HAVE GONE THROUGH THE ASSESSMENT ORDER, STAT EMENT OF FACTS, GROUNDS OF APPEAL, WRITTEN SUBMISSION, REMAND REPORT AND REJOI NDER CAREFULLY. IT IS SEEN THAT THE AO HAS MADE THE ADDITION IN RESPECT OF THE UNACCOUNTED CASH OF RS. RS. 2,23,10,000/- PAID BY THE APPELLANT TOWARDS PUR CHASE OF LAND SITUATED AT BHANKROTA, JAIPUR. THE CASH PAID BY THE APPELLANT O VER AND ABOVE THE SALES CONSIDERATION RECORDED IN THE SALE DEED WAS DEPOSIT ED BY THE SELLERS IN THEIR BANK ACCOUNT. THE BANK MANAGER IN HIS STATEMENT REC ORDED BY THE DDIT, JAIPUR HAS CONFIRMED THAT IT WAS EXPLAINED BY THE DEPOSITORS THAT THE CASH BEING DEPOSITED BY THEM WAS RECEIVED BY THEM ON SAL E OF THE LAND (PAGE NO. 2 & 3 OF THE ASSESSMENT ORDER). THE STATEMENTS OF THE SELLERS OF PROPERTY WERE ALSO RECORDED U/S 131 AND THEY ALSO CONFIRMED THAT THE CASH DEPOSITED BY THEM IN THE BANK ACCOUNTS WAS RECEIVED BY THEM FROM M/S OM PLANTATION ON SALE OF THEIR LAND TO M/S OM PLANTATION (PAGE NO. 5 TO 9 OF THE ASSESSMENT ORDER). THE ITO, WARD - 7(2) WAS IN POSSESSION OF T HE COPY OF AGREEMENT TO SALE MADE BY THE ASSESSEE WITH THE SELLER SHRI BHAG WAT MEENA ON 11.05.2005. IN THE AGREEMENT, THERE IS MENTION OF CASH PAYMENT AS WELL AS PAYMENT BY CHEQUE. THE PAYMENTS BY CHEQUE RECORDED IN THE AGRE EMENT IS ALSO FOUND RECORDED IN THE BANK STATEMENT OF THE SELLER. THUS, THE GENUINENESS OF THE AGREEMENT CANNOT BE DOUBTED. DURING THE COURSE OF A PPELLATE PROCEEDINGS, THE AO WAS DIRECTED TO ALLOW THE APPELLANT, THE OPP ORTUNITY TO CROSS EXAMINE ITA 1047/JP/2017_ OM PLANTATION VS ITO 16 THE SELLERS. THE AO IN THE REMAND REPORT DATED 19.0 9.2017 HAS MENTIONED THAT THE APPELLANT INSTEAD OF CROSS EXAMINING THE SELLER S TOOK ADJOURNMENT ON ONE PRETEXT OR ANOTHER AND IT CHOSE NOT TO CROSS EXAMIN E ANY OF THE SELLER. HENCE, IN VIEW OF THE FACTS DISCUSSED BY THE AO IN THE ASS ESSMENT ORDER, SPECIFICALLY AT PARA 5.4 AND 5.5 (PAGE NO. 13 TO 16) OF THE ASSESSM ENT ORDER, I AM OF THE CONSIDERED VIEW THAT THE APPELLANT DID MAKE PAYMENT OF RS. 2,23,10,000/- IN CASH OVER AND ABOVE THE SALES CONSIDERATION RECORDE D IN THE SALES DEEDS, SOURCE OF WHICH REMAINED UNEXPLAINED. ACCORDINGLY, THE ADDITION OF RS. 2,23,10,000/- MADE BY THE AO U/S 69 IS HEREBY CONFI RMED. HAVING ANALYSED THE ENTIRE FACTS, THE RELEVANT RECO RD INCLUDING THE EVIDENCE BROUGHT ON RECORD BY THE ASSESSING OFFICER , WE DO NOT FIND ANY ERROR OR ILLEGALITY IN THE ORDERS OF THE AUTHORITIE S BELOW, HENCE UPHOLD THE ORDER OF THE LD. CIT(A) QUA THIS ISSUE. 7. IN THE RESULT, APPEAL OF THE ASSESSEE IS DISMISS ED. ORDER PRONOUNCED IN THE OPEN COURT ON 09/10/2018. SD/- SD/- FOE FLAG ;KNO FOT; IKY JKO (VIKRAM SINGH YADAV) (VIJAY PAL RAO) YS[KK LNL;@ ACCOUNTANT MEMBER U;KF;D LNL;@ JUDICIAL MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 09 TH OCTOBER, 2018 *RANJAN VKNS'K DH IZFRFYFI VXZSFKR @ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ @ THE APPELLANT- M/S OM PLANTATION, JAIPUR. 2. IZR;FKHZ @ THE RESPONDENT- THE I.T.O., WARD 4(3), JAIPUR. 3. VK;DJ VK;QDR @ CIT ITA 1047/JP/2017_ OM PLANTATION VS ITO 17 4. VK;DJ VK;QDRVIHY @ THE CIT(A) 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ @ DR, ITAT, JAIPUR 6. XKMZ QKBZY @ GUARD FILE (ITA NO. 1047/JP/2017) VKNS'KKUQLKJ @ BY ORDER, LGK;D IATHDKJ @ ASST. REGISTRAR