RAJASTHAN LAND DEVELOPERS PVT. LTD, Jaipur V. DCIT, Jaipur

ITA 109/JPR/2017

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 2385 (ITAT-JAIPUR)
• Duration Of Justice: 3 year(s) 1 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-03-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2007-2008
• Appeal Filed On: 01-02-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: VARINDAR MEHTA
• Keywords: Unexplained cash credit; Loose papers; Additional evidence; Wrong claim; Competent authority; Assessment record; Set aside
• Section: 143(3); 133(6); 143(1); 13; 22; 147; 131; 68; 148

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENC HES A 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 VIKRA M SINGH YADAV, AM VK;DJ VIHY LA- @ ITA NO. 109/JP/2017 FU/KZKJ.K O'K Z @ ASSESSMENT YEAR :2007-08 M/S RAJASTHAN LAND DEVELOPERS PVT. LTD., JAIPUR CUKE VS. DCIT, CIRCLE-02, JAIPUR LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO.: AACCR5397N VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ L S@ ASSESSEE BY : SH. MOHIT KHANDELWAL (ADV.) JKTLO DH VKSJ LS @ REVENUE BY : SH. VARINDAR MEHTA (CIT) LQUOKBZ DH RKJH[ K@ DATE OF HEARING : 18/12/2019 MN?KKS'K.KK DH RKJH[ K@ DATE OF PRONOUNCEMENT: 17/03/2020 VKNS'K@ ORDER PER: VIKRAM SINGH YADAV, A.M. THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER OF LD. CIT(A)-1, JAIPUR DATED 30.12.2016. 2. AT THE OUTSET, IT IS NOTED THAT THE APPEAL OF TH E ASSESSEE WAS HEARD BY THE CO-ORDINATE BENCH AND VIDE COMMON ORDER DATED 0 7.02.2018 IN ITA NO. 418/JP/2016 FOR A.Y 2006-07 AND 109/JP/2017 FOR THE IMPUGNED ASSESSMENT YEAR, THE CO-ORDINATE BENCH HAS UPHELD THE RESPECTI VE ORDERS PASSED BY THE LD. CIT(A). THEREAFTER, THE ASSESSEE MOVED A MISC. APPLICATION REQUESTING FOR RECALL OF THE ORDER FOR THE IMPUGNED ASSESSMENT YEA R FOR THE REASON THAT GROUND NO. 3 OF THE ASSESSEES APPEAL WAS NOT DECID ED BY THE TRIBUNAL WHILE PASSING THE ORDER DATED 07.02.2018. THEREAFTER, THE MISC. APPLICATION WAS DISPOSED OFF BY THE COORDINATE BENCH VIDE ORDER DAT ED 03.06.2019 AND THE ITA NO. 109/JP/2017 M /S RAJASTHAN LAND DEVELOPERS PVT. LTD., JAIPUR VS. DCIT, JAIPUR 2 EARLIER ORDER OF THE TRIBUNAL WAS RECALLED FOR THE LIMITED PURPOSE OF ADJUDICATION OF GROUND NO. 3 OF THE ASSESSEES APPE AL AND THE FINDINGS OF THE COORDINATE BENCH WHILE RECALLING THE ORDER READS AS UNDER: 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AS WE LL AS THE RELEVANT MATERIAL ON RECORD. ON CAREFUL PERUSAL OF THE IMPUG NED ORDER, WE FIND THAT THE TRIBUNAL IN PARA 3.4 OF THE IMPUGNED ORDER HAS DECIDED THE GROUND NO. 1 OF THE ASSESSEES APPEAL FOR ASSESSMEN T YEAR 2007-08. FOR READY REFERENCE, WE REPRODUCE PARA 3.4 AND 3.5 AS UNDER :- 3.4 WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIALS AVAILABLE ON RECORD. WE FIND THAT THE LD. CIT(A) VIDE ITS JUDGEMENT DATED 30-12-2016 FOR THE ASSESSMENT Y EAR 2007-08 HAD TAKEN INTO CONSIDERATION THE JUDGEMENT DATED 20- 11- 2015 OF HON'BLE UPPER DISTRICT JUDGE, ROOM NO. 19, JAIPUR MAHANAGAR AND REJECTED THE CONTENTION OF THE ASSESS EE BY OBSERVING AS UNDER (PAGE 20) OF LD. CIT(A)S ORDER) :- (V) FURTHER VIDE ABOVE REFERRED ORDER, THE HON'BLE ADJ HAS HELD AS UNDER:- QYR% OKNH DEIUH DK ;G OKN FO:} IZFROKNHX.K ,DI{KH; LO;; FMH DJ VKNSK FN;K TKRK GS FD OKNH DEIUH O IZFROKNH DEIUH DS E/; FU'IKFNR ,E-VKS-;W- FNUKAD 14-07-2007 DS RGR GH OKNH DEIUH OF.KZR 'KRKSZ O IZK IR JKFK DS VUQLKJ GH IZFROKNH DEIUH DKS HKWFE MIYC/K DJOKUS DK NKF;RO J[KRH GSA FTLDS Q YLO:I ;G LFKKBZ FU'KS/KKKK IZNKU DH TKRH GS FD IZFROKNHX.K DEIUH ,E-VKS-;W FNUKAD 14-07 -2007 ESA OF.KZR KRKKSZ DS FO:} FDLH IZDKJ DH DKSBZ DK;ZOKGH UGHA DJSAA (VI) THUS IT IS EVIDENT FROM THE ABOVE THAT THE IS SUE OF GENUINENESS OR OTHERWISE OF THE MOU DATED 14-07-200 7 WAS NOT BEFORE THE COURT OF HON'BLE ADJ AND THE MOU DAT ED 22-03- 2006 WAS NOT PLACED BEFORE THE HON'BLE COURT, ACCOR DING TO WHICH BALANCE PAYMENT OF RS. 13.10 CRORE WAS REQUIR ED TO BE PAID TO BEFORE 04-06-2006, OUT OF THE SALE CONSIDER ATION OF RS. ITA NO. 109/JP/2017 M /S RAJASTHAN LAND DEVELOPERS PVT. LTD., JAIPUR VS. DCIT, JAIPUR 3 15,87,50,000/-. MOREOVER, THE ABOVE ORDER WAS PASSE D EX- PARTE IN THE ABSENCE OF THE RESPONDENTS U TURN AND SHRI NIKHIL TRIPATHI. THUS THE CONTENTION OF THE A.R. IS NOT CO RRECT AND THUS HEREBY REJECTED. (VII) IT MAY BE MENTIONED THAT THE APPELLANT HAS F AILED TO CONTROVERT THE FINDINGS OF THE AO AS STATED IN THE ASSESSMENT ORDER AND THE REMAND REPORT. THEREFORE, IN VIEW OF THE ABOVE DISCUSSION AND LOOKING TO THE TOTALITY OF FACTS AND CIRCUMSTANCES OF THE CASE, IT IS HELD THAT THE AO W AS JUSTIFIED IN MAKING ADDITION OF RS. 3.26 CRORES U/S 68 OF THE AC T AND HENCE THE SAME IS HEREBY SUSTAINED. IT IS NOTED THAT FILING OF ADDITIONAL EVIDENCE BY T HE LD.AR OF THE ASSESSEE HAS NO RELEVANCE AS THE SAME HAS ALREADY B EEN TAKEN INTO CONSIDERATION IN THE CASE OF THE ASSESSEE FOR THE A SSESSMENT YEAR 2007-08. IN THIS VIEW OF THE MATTER AND FACTS AND C IRCUMSTANCES OF THE CASE, WE CONCUR WITH THE FINDINGS OF THE LD. CI T(A) FOR THE ASSESSMENT YEAR 2007-08 AND DO NOT FIND MERIT IN AD MITTING THE ADDITIONAL EVIDENCE FILED BY THE ASSESSEE. HENCE, T HE ADDITIONAL EVIDENCE FILED BY THE ASSESSEE FOR THE ASSESSMENT Y EAR 2007-08 IS NOT ADMITTED. THUS GROUND NO. 1 OF THE ASSESSEE IS DISM ISSED. 3.5 AS REGARDS GROUND NO. 2, 3 AND 4, WE HAVE HEAR D THE RIVAL CONTENTIONS AND PERUSED THE MATERIALS AVAILABLE ON RECORD. IT IS NOT IMPERATIVE TO REPEAT THE SAME FACTS AS SIMILAR ISSU E HAS BEEN DECIDED AGAINST THE ASSESSEE IN ASSESSEES OWN CASE FOR THE ASSESSMENT YEAR 2006-07. WE FURTHER NOTED THAT IN THIS CASE THE LD. CIT(A) HAS RIGHTLY CONFIRMED THE ACTION OF THE AO AS THE ASSESSEE COUL D NOT ADVANCE ANY CONTRARY MATERIAL/ EVIDENCE AS TO THE ADDITION CONF IRMED BY THE LD. CIT(A). IN VIEW OF THE SIMILAR FACTS AND CIRCUMSTAN CES OF THE CASE AS NARRATED IN THE CASE OF THE ASSESSEE FOR THE ASSESS MENT YEAR 2006- 07, THE DECISION TAKEN THEREIN SHALL APPLY MUTATIS MUTANDIS IN ITA NO. 109/JP/2017 M /S RAJASTHAN LAND DEVELOPERS PVT. LTD., JAIPUR VS. DCIT, JAIPUR 4 ASSESSEE'S CASE FOR THE ASSESSMENT YEAR 2007-08. TH US THE APPEAL OF THE ASSESSEE IS DISMISSED. AS IT IS CLEAR THAT GROUND NO. 2, 3 & 4 HAVE BEEN D ISPOSED OFF BEING COMMON TO THE ASSESSMENT YEAR 2006-07. WE FIND THAT THE GROUND NO. 3 FOR THE ASSESSMENT YEAR 2007-08 IS NOT COMMON TO ANY OF THE GROUNDS FOR THE ASSESSMENT YEAR 2006-07. THOUGH THE TRIBUNAL WHILE DECIDING GROUND NO. 1 FOR THE ASSESSMENT YEAR 2007- 08 IN PARA 3.4 HAS REPRODUCED THE FINDING OF THE LD. CIT (A) WHICH ALS O COVERS THE ISSUE INVOLVED IN GROUND NO. 3, HOWEVER, THE SAID REPRODU CTION OF FINDING OF LD. CIT (A) FOR DECIDING GROUND NO. 1 DOES NOT LEAD TO THE CONCLUSION THAT THE SAID GROUND WAS INDEPENDENTLY DECIDED BY T HE TRIBUNAL WHEN IT WAS NOT COMMON TO THE ASSESSMENT YEAR 2006-07. A CCORDINGLY, WE ARE OF THE CONSIDERED OPINION THAT THERE IS A MISTA KE CREPT IN THE IMPUGNED ORDER SO FAR AS THE GROUND NO. 3 FOR THE A SSESSMENT YEAR 2007-08 IS NOT ADJUDICATED BY A SPEAKING ORDER. ACC ORDINGLY, WE RECALL THE IMPUGNED ORDER TO THE EXTENT OF NON-ADJUDICATIO N OF GROUND NO. 3 FOR THE ASSESSMENT YEAR 2007-08 AND DIRECT THAT THE APPEAL OF THE ASSESSEE IN ITA NO. 109/JP/2017 FOR THE ASSESSMENT YEAR 2007-08 BE FIXED FOR FRESH HEARING AND ADJUDICATION OF GROUND NO. 3 OF THE ASSESSEES APPEAL. 3. THE PRESENT APPEAL HAS, THEREFORE, COME UP FOR A DJUDICATION BEFORE US WHEREIN THE LIMITED ISSUE UNDER CONSIDERATION RELAT ES TO GROUND NO. 3 OF THE ASSESSEES APPEAL WHICH READS AS UNDER: ON THE FACTS AND CIRCUMSTANCES OF THE CASE LEARNED CIT APPEALS WAS NOT JUSTIFIED WHILE CONFIRMING ADDITION OF RS. 3,26 ,00,000/- U/S 68 AS UNEXPLAINED CASH CREDIT OF INCOME TAX ACT, 1961. ITA NO. 109/JP/2017 M /S RAJASTHAN LAND DEVELOPERS PVT. LTD., JAIPUR VS. DCIT, JAIPUR 5 4. BRIEFLY STATED, THE FACTS OF THE CASE ARE THAT T HE ASSESSEE COMPANY IS ENGAGED IN THE BUSINESS OF REAL ESTATE AND HAS FILE D ITS RETURN OF INCOME DECLARING TOTAL INCOME OF RS. 1,90,08,880/- ON 31.1 0.2007. THE RETURN WAS PROCESSED U/S 143(1) ON 30.10.2008. THEREAFTER, BAS IS CERTAIN INFORMATION RECEIVED BY THE ASSESSING OFFICER, THE CASE OF THE ASSESSEE WAS REOPENED AFTER SEEKING REQUISITE APPROVAL AND NOTICE U/S 148 WAS ISSUED ON 14.03.2014. IN RESPONSE TO THE NOTICE, THE ASSESSEE FILED ITS RETURN OF INCOME AND ALSO REQUESTED FOR COPY OF THE REASONS WHICH WE RE DULY SUPPLIED TO THE ASSESSEE. 5. AS PER THE ASSESSING OFFICER, THE ASSESSEE HAS E NTERED INTO A MEMORANDUM OF UNDERSTANDING (MOU) DATED 22.03.2006 WITH M/S U- TURN HOUSING PVT. LTD. FOR SALE OF ITS LAND SITUATED AT SANGANER DIGGI, MALPURA ROAD IN THE REVENUE VILLAGES OF PANWALIA, MANPUR TI LLAWALA, JAISINGHPURA, ROOPWAS FALLING IN SANGANER TEHSIL OF JAIPUR. FURTH ER, AS PER COPY OF ACCOUNT FURNISHED BY M/S U-TURN HOUSING PVT. LTD., IT WAS F OUND THAT CASH PAYMENT OF RS. 3,26,00,000/- WAS MADE TO ASSESSEE AGAINST P URCHASE OF LAND ON THE FOLLOWING DATES: S.NO. DATE AMOUNT (RS.) 1. 01.04.2006 25,00,000 2. 10.04.2006 1,00,00,000 3. 15.04.2006 50,00,000 4. 24.04.2006 37,00,000 5. 30.04.2006 16,00,000 7. 17.05.2006 40,00,000 8. 28.05.2006 40,00,000 9. 14.08.2006 8,00,000 TOTAL 3,26,00,000 ITA NO. 109/JP/2017 M /S RAJASTHAN LAND DEVELOPERS PVT. LTD., JAIPUR VS. DCIT, JAIPUR 6 6. THE ASSESSING OFFICER, HOWEVER, FOUND THAT NO SU CH RECEIPTS HAVE BEEN DECLARED BY THE ASSESSEE IN ITS BOOKS OF ACCOUNTS. IN ORDER TO EXAMINE M/S U.TURN HOUSING PVT. LTD., COMMISSION U/S 131(1) (D) WAS ISSUED TO ADIT (INV.), SPECIAL CELL, NEW DELHI WHEREIN SHRI NIKHIL TRIPATHI, DIRECTOR OF M/S U-TURN HOUSING PVT. LTD. WAS EXAMINED ON 13.03. 2014 AND HIS STATEMENT WAS RECORDED. THE ASSESSING OFFICER NOTE D THAT IN HIS STATEMENT, SHRI NIKHIL TRIPATHI HAS CONFIRMED THE CASH PAYMENT OF RS. 4.09 CRORE IN F.Y 2005-06 AND F.Y 2006-07 TO THE ASSESSEE COMPANY AND OUT OF WHICH, AN AMOUNT OF RS. 3,26,00,000/- WAS STATED TO BE PAID I N CASH DURING THE YEAR UNDER CONSIDERATION. THE ASSESSEE COMPANY WAS ACCOR DINGLY ASKED TO SHOW CAUSE AS TO WHY THESE RECEIPTS SHOULD NOT BE INCLUD ED IN ITS TOTAL INCOME. 7. IN RESPONSE TO THE SHOW CAUSE NOTICE, THE ASSESS EE COMPANY, IN ITS SUBMISSION FILED BEFORE THE ASSESSING OFFICER ON 23 .02.2015, SUBMITTED THAT THE MOU DATED 22.03.2006 FOR SALE AND PURCHASE OF L AND MEASURING 125000 SQ. YARDS @ RS. 1270.00 PER SQ. YARD WAS CANCELLE D DUE TO NON-FULFILLMENT OF CERTAIN CONDITIONS STATED IN THE SAID MOU VIDE C ANCELLATION AGREEMENT DATED 14.10.2007 WHICH WAS DULY SIGNED BY DIRECTORS OF BOTH THE COMPANIES, NOTARIZED AND REGISTERED WITH THE NOTARY PUBLIC VID E REGISTRATION ENTRY NO. 426 DATED 19.07.2007. IT WAS FURTHER SUBMITTED THAT A FRESH MOU WAS ENTERED INTO BETWEEN THE TWO COMPANIES ON 14.07.200 7 FOR SALE AND PURCHASE OF 72,000 SQ. YARD LAND @ RS. 1270.00 PER SQ. YARD AND THE SAID MOU WAS DULY SIGNED BY DIRECTORS OF BOTH THE COMPAN IES, NOTARIZED AND REGISTERED WITH THE NOTARY PUBLIC VIDE REGISTRATION ENTRY NO. 427 DATED 19.07.2007. IT WAS FURTHER SUBMITTED THAT DURING TH E F.Y 2006-07, THE ASSESSEE HAS RECEIVED A SUM OF RS. 3,89,00,000/- WH ICH IS DULY SUPPORTED BY CONFIRMATION RECEIPT FROM M/S U-TURN HOUSING PVT. L TD. AND BASIS THE SAME, THE ASSESSEE HAS SOLD THE LAND AS PER MOU DATED 14. 07.2007 AND ISSUED THE ITA NO. 109/JP/2017 M /S RAJASTHAN LAND DEVELOPERS PVT. LTD., JAIPUR VS. DCIT, JAIPUR 7 POSSESSION AND ALLOTMENT LETTER ALONG WITH SITE PLA N TO THE ALLOTTEE /NOMINEE NAMES PROVIDED BY U-TURN HOUSING PVT. LTD. 8. THE SUBMISSION SO FILED WAS CONSIDERED BY THE AS SESSING OFFICER BUT NOT FOUND ACCEPTABLE TO HIM. AS PER THE ASSESSING O FFICER, SH. NIKHIL TRIPATHI IN HIS STATEMENT HAS CATEGORICALLY DENIED TO HAVE S IGNED ANY SUCH CANCELLATION AGREEMENT/IKRARNAMA DATED 14.07.2007 W HEREIN IN RESPONSE TO QUESTION NO. 4, HE HAS DENIED THE SAID DOCUMENT HAS BEEN EXECUTED BY HIM ON BEHALF OF U-TURN HOUSING PVT. LTD. AS HIS SIGNAT URES WERE FORGED. FURTHER, THE AO STATED THAT IN THE BOOKS OF ACCOUNT S OF M/S U-TURN HOUSING PVT. LTD, IT HAS SHOWN CASH PAYMENT OF RS. 3,26,00, 000/- TO THE ASSESSEE AND THE ASSESSEE HAS NOT ACCOUNTED FOR SAID PAYMENT IN ITS BOOKS OF ACCOUNTS. THEREFORE, CASH PAYMENT OF RS. 3,26,00,00 0/- WAS TREATED AS ASSESSEES UNEXPLAINED CASH CREDIT, BY INVOKING PRO VISIONS OF SECTION 68 OF THE ACT, WHICH IS NOT SHOWN IN THE BOOKS OF ACCOUNT S AND THE SAME WAS ADDED TO INCOME OF THE ASSESSEE FOR THE IMPUGNED AS SESSMENT YEAR. THE ASSESSMENT WAS ACCORDINGLY COMPLETED AT AN INCOME O F RS. 5,16,08,880/- VIDE ORDER PASSED U/S 147 READ WITH 143(3) DATED 20 .03.2015. 9. BEING AGGRIEVED, THE ASSESSEE CARRIED THE MATTER IN APPEAL BEFORE THE LD CIT(A) WHO HAS SINCE SUSTAINED THE SAID ADDITION S AND AGAINST THE SAID FINDINGS, THE ASSESSEE COMPANY IS IN APPEAL BEFORE US. 10. DURING THE COURSE OF HEARING, THE LD. AR SUBMIT TED THAT THE IMPUGNED ORDER PASSED BY THE ASSESSING OFFICER AND FURTHER C ONFIRMED BY THE LEARNED CIT(A) VIDE ITS IMPUGNED ORDER DATED 30.12.2016 IS EX-FACIE ILLEGAL, UNJUST AND IS AGAINST THE SETTLED PREPOSITION OF LAW. THE LD. AR SUBMITTED THAT THE SAID ASSESSMENT ORDER HAS BEEN PASSED UNDER SECTION 68 OF THE ACT WHICH DEALS WITH THE UNEXPLAINED CASH CREDIT IN THE BOOKS OF THE ACCOUNTS OF THE ITA NO. 109/JP/2017 M /S RAJASTHAN LAND DEVELOPERS PVT. LTD., JAIPUR VS. DCIT, JAIPUR 8 ASSESSEE. IT IS SUBMITTED THAT IN THE INSTANT CASE, THE ESSENTIAL CONDITION STIPULATED UNDER SECTION 68 OF THE ACT HAVE NOT BEE N FULFILLED. IT IS SUBMITTED THAT AS PER SECTION 68 OF THE ACT, IT IS INTEGRAL T HAT THE FOLLOWING CONDITIONS ARE DULY SATISFIED BEFORE MAKING ANY ASSESSMENT/ RE -ASSESSMENT: THE EXISTENCE OF THE BOOKS OF ACCOUNT MAINTAINED BY THE ASSESSEE HIMSELF; THE CREDIT ENTRY IN THE BOOKS OF ACCOUNT; AND THE ABSENCE OF THE SATISFACTORY EXPLANATION BY THE ASSESSEE ABOUT THE NATURE AND SOURCE OF THE SUM CREDITED. IT WAS SUBMITTED THAT IN THE INSTANT CASE, NONE OF THE AFOREMENTIONED CONDITIONS ARE SAID TO HAVE BEEN FULFILLED DUE TO W HICH THE IMPUGNED ORDER IS LIABLE TO BE SET AND ASIDE. 11. IT WAS SUBMITTED BY THE LD AR THAT THERE EXIST NO BOOKS OF ACCOUNTS OF THE ASSESSEE WHEREIN ANY ENTRY PERTAINING TO CASH R ECEIVED FROM M/S. U-TURN HOUSING PVT. LTD. IS PRESENT. IT IS SUBMITTED THAT THE ASSESSEE HAS MERELY RECEIVED AN AMOUNT OF RS. 5.69 CRORES FROM THE M/S. U-TURN HOUSING PVT. LTD. AND RS.5 LAKH FROM MR. NIKHIL TRIPATHI IN THE ASSESSMENT YEAR 2007-08 THROUGH BANKING CHANNEL AND NO CASH AMOUNT HAS BEEN RECEIVED BY THE ASSESSEE COMPANY FROM M/S. U-TURN HOUSING PVT. LTD. 12. THE LD. AR FURTHER SUBMITTED THAT IN PARAGRAPH NO. 4 OF THE IMPUGNED ASSESSMENT ORDER, THE ASSESSING OFFICER HAS PROVIDE D THE COMPUTATION OF THE PURPORTED UNEXPLAINED CASH CREDIT TOTALING RS. 3,26 ,00,000/- WHICH IS AS UNDER: S. NO. DATE AMOUNT (RS.) 1. 01.04.2006 25,00,000/- ITA NO. 109/JP/2017 M /S RAJASTHAN LAND DEVELOPERS PVT. LTD., JAIPUR VS. DCIT, JAIPUR 9 2. 10.04.2006 1,00,00,000/- 3. 15.04.2006 50,00,000/- 4. 24.04.2006 37,00,000/- 5. 30.04.2006 16,00,000/- 6. 17.05.2006 40,00,000/- 7. 28.05.2006 40,00,000/- 8. 14.08.2006 8,00,000/- TOTAL 3,26,00,000/- IN THIS REGARD, IT WAS SUBMITTED THAT THE AFOREMENT IONED ENTRIES DO NOT EVEN MATCH WITH THE BOOKS OF ACCOUNTS OF M/S. U-TURN HOU SING PVT. LTD. AS NO SUCH ENTRIES ARE MENTIONED IN THE LEDGER ACCOUNT OF M/S U-TURN HOUSING PVT. LTD. IN SUCH CIRCUMSTANCES, THE DEPARTMENT HAS FAILED TO MENTION THE SOURCE OF SUCH COMPUTATION WHICH IS MENTIONED IN TH E IMPUGNED ASSESSMENT ORDER. IT IS SUBMITTED THAT SUCH ASSESSMENT ORDER H AS BEEN PASSED SOLELY ON THE BASIS OF THE STATEMENT OF SHRI NIKHIL TRIPATHI AND NOT ON THE BASIS OF ANY ENTRY IN THE BOOKS OF ACCOUNTS. IT WAS ALSO SUBMITT ED THAT THE AFOREMENTIONED TABLE ALSO SUFFERS FROM AN ARITHMETI C ERROR AS THE CUMULATIVE TOTAL OF THE AFOREMENTIONED AMOUNT WOULD BE RS.3,16 ,00,000/- AND NOT RS.3,26,00,000/- AS MENTIONED IN THE TABLE. 13. IT WAS FURTHER SUBMITTED THAT EVEN FROM THE PER USAL OF THE LEDGER ACCOUNT OF M/S U-TURN HOUSING PVT. LTD. FOR THE ASS ESSMENT YEAR 2007-08, IT IS EVIDENT THAT THE CASH ENTRIES MENTIONED IN SUCH LEDGER HAVE NOT BEEN ACTUALLY PAID TO THE ASSESSEE BUT TO SOME OTHER PER SON AND THE ENTRY ITSELF STATE THAT THE PAYMENT WAS BEEN MADE TO ' CHANDRA MOHAN FOR ADVANCE PAYMENT OF BHARATPUR LAND ' DATED 19.05.2006 FOR THE PAYMENT OF RS. 4,00,000/-, ENTRY DATED 25.05.2006 FOR THE PAYMENT OF RS. 40,00,000/-, ENTRY DATED 09.06.2006 FOR THE PAYMENT OF RS. 10,00 ,000/-, ENTRY DATED ITA NO. 109/JP/2017 M /S RAJASTHAN LAND DEVELOPERS PVT. LTD., JAIPUR VS. DCIT, JAIPUR 10 16.06.2006 FOR THE PAYMENT OF RS. 10,00,000/- AND E NTRY DATED 24.07.2006 FOR THE PAYMENT OF RS. 4,00,000/-). IT IS SUBMITTED THAT THE ASSESSEE HAS NO LINK WITH ANY PERSON NAMED AS MR. CHANDRA MOHAN AND FURTHER, NO PROJECT WAS UNDERTAKEN BY THE ASSESSEE IN BHARATPUR. THUS, IT IS EVIDENT THAT THE SAID ENTRIES HAVE BEEN WRONGLY MADE BY M/S U-TURN H OUSING PVT. LTD. IN ITS LEDGER ACCOUNT PERTAINING TO THE ASSESSEE AND THE S AME CANNOT BE ADDED IN THE INCOME OF THE ASSESSEE. 14. THE LD. AR FURTHER SUBMITTED THAT THE INCOME OF THE ASSESSEE CANNOT BE RE-ASSESSED MERELY ON THE BASIS OF SOME ENTRIES IN THE ACCOUNTS OF M/S U- TURN HOUSING PVT. LTD., IF ANY, UNLESS THE SAME ARE PROVEN TO BE CORRECT ON THE BASIS OF THE AVAILABLE EVIDENCE. IT IS SUBMITT ED THAT THE ASSESSING OFFICER HAS FAILED TO CONSIDER THE CONFIRMATION OF ACCOUNTS FOR THE ASSESSMENT YEAR 2007-08 WHICH DULY CARRIES THE SIGNATURE OF SHRI NI KHIL TRIPATHI AND MENTIONS THAT ONLY AMOUNT OF RS.5.69 CRORES HAS BEEN PAID BY THE M/S. U-TURN HOUSING PVT. LTD. TO THE ASSESSEE DURING THE ASSESS MENT YEAR 2007-08. THE CONFIRMATION OF ACCOUNTS AND CREDIT NOTES WERE AUTH ENTIC DOCUMENTS BEARING THE SIGNATURE OF THE DIRECTOR OF M/S. U-TURN HOUSIN G PVT. LTD. AND THERE EXISTED NO REASON FOR NON-CONSIDERATION OF THE SAME . THE SAME CANNOT BE PERMITTED TO BE DISREGARDED MERELY ON THE BASIS OF DENIAL OF THE SAME BY SHRI NIKHIL TRIPATHI IN HIS STATEMENT. 15. THE LD. AR FURTHER SUBMITTED THAT THE ASSESSING OFFICER HAS FAILED TO CONSIDER THE REVISED MOU DATED 14.07.2007 AND THE C ANCELLATION AGREEMENT DATED 14.07.2007 WHICH WERE RECOVERED IN ORIGINAL F ROM POSSESSION OF MR. NIKHIL TRIPATHI DURING POLICE INVESTIGATIONS. I T WAS SUBMITTED THAT THESE DOCUMENTS WERE DULY SIGNED BY BOTH THE PARTIES AND THERE EXISTED NO REASON FOR DENYING THE SAME BY ANY OF THE PARTIES. IN THIS REGARD, IT WAS SUBMITTED THAT IT IS EVIDENT FROM THE AFOREMENTIONED DOCUMENT S THAT M/S. U-TURN ITA NO. 109/JP/2017 M /S RAJASTHAN LAND DEVELOPERS PVT. LTD., JAIPUR VS. DCIT, JAIPUR 11 HOUSING PVT. LTD. HAD MERELY PAID A SUM OF RS.5.69 CRORES TO THE ASSESSEE IN THE FINANCIAL YEAR 2006-07 AND NO FURTHER AMOUNT HA S BEEN PAID. HOWEVER, THE ASSESSING OFFICER IGNORED THESE ORIGINAL DOCUME NTS AND RELIED ON THE TESTIMONY OF SHRI NIKHIL TRIPATHI. IT WAS FURTHER S UBMITTED THAT SHRI NIKHIL TRIPATHI HAS HIMSELF ACCEPTED THE EXISTENCE OF THE MOU DATED 14.07.2007 IN ITS APPLICATION FILED BEFORE THE LEARNED C.M.M, PAT IALA HOUSE COURT, NEW DELHI ON 05.12.2013 AND THE SAID MOU ALSO FINDS ITS MENTI ON IN THE ORDER DATED 11.05.2015 PASSED BY THE LEARNED C.M.M IN DECIDING SUCH APPLICATION. IT WAS FURTHER SUBMITTED THAT THE EXISTENCE OF MOU DATED 1 4.07.2007 ALSO FIND MENTION IN THE SUIT FILED BY THE ASSESSEE COMPANY B EFORE THE ADJ-19, JAIPUR AND DECREE HAS BEEN ISSUED BY LD. ADJ, JAIPUR VIDE ORDER DATED 20.11.2015 16. THE LD. AR FURTHER SUBMITTED THAT THE LEARNED A SSESSING OFFICER HAS NOT COLLECTED OR EXAMINED THE BANK STATEMENT OF M/S. U- TURN HOUSING PVT. LTD. TO CHECK THE AVAILABILITY OF THE AMOUNT CLAIM TO HA VE BEEN PAID TO THE ASSESSEE. FURTHER, M/S. U-TURN HOUSING PVT. LTD. H AS CLAIMED THAT IT HAS WITHDREW THE AMOUNT FROM ITS BANK ACCOUNT ON SEVERA L OCCASIONS IN ORDER TO PAY CASH TO THE ASSESSEE COMPANY. HOWEVER, THEY HAV E NOT PRODUCED ANY BANK STATEMENT TO SHOW SUCH WITHDRAWAL MADE BY THEM . IT WAS SUBMITTED THAT IN COMPLIANCE OF THE DIRECTIONS OF THE BENCH D ATED 22.03.2019, THE DEPARTMENT HAS PRESENTED THE PETTY CASH BOOK REGIST ER OF M/S. U-TURN HOUSING PVT. LTD. DURING THE PERIOD BETWEEN 01.04.2 006 TO 30.04.2006 AS PER WHICH ONLY THE CASH AMOUNT OF RS.37,10,000/- HA S BEEN RECEIVED BY M/S. U-TURN HOUSING PVT. LTD. IN THAT MONTH. HOWEVER, I T HAS BEEN CLAIMED BY M/S. U-TURN HOUSING PVT. LTD. THAT THEY HAVE PAID A N AMOUNT OF RS. 2,28,00,000/- TO THE ASSESSEE COMPANY DURING TH AT MONTH. THUS, M/S. U- TURN HOUSING PVT. LTD. WAS NOT HAVING SUCH HUGE AMO UNT WITH IT IN THAT MONTH AND HAS MERELY MADE THE FALSE CLAIM OF PAYING THE SAME TO THE ASSESSEE COMPANY. IT IS ALSO PERTINENT TO MENTION H ERE THAT THE DEPARTMENT ITA NO. 109/JP/2017 M /S RAJASTHAN LAND DEVELOPERS PVT. LTD., JAIPUR VS. DCIT, JAIPUR 12 WAS DUTY BOUND TO FILE THE BANK STATEMENT OF M/S. U -TURN HOUSING PVT. LTD. DURING THE PERIOD BETWEEN 01.04.2006 TO 30.04.2006 IN ORDER TO ESTABLISH THE INFLOW AND OUTFLOW OF SUCH HUGE AMOUNT FROM M/S . U-TURN HOUSING PVT. LTD. HOWEVER, THE DEPARTMENT HAS FAILED TO PRODUCE ANY SUCH DOCUMENTS AND HAS MERELY FILED AN ACCOUNT STATEMENT BETWEEN 2 0.04.2006 TO 22.04.2006 AND SUCH ACCOUNT STATEMENT DOES NOT PROV E ANY PAYMENT BEING MADE IN CASH TO THE ASSESSEE COMPANY. 17. IT WAS FURTHER SUBMITTED THAT IN THE INSTANT CA SE THE ASSESSEE COMPANY HAS DULY DISCHARGED ITS BURDEN BY PROVIDING ADEQUAT E DOCUMENTATION BEFORE THE ASSESSING OFFICER TO ESTABLISH THAT IT HAS NOT RECEIVED THE SAID CASH AMOUNT OF RS.2.28 CRORE FROM M/S. U-TURN HOUSING PV T. LTD. HOWEVER, THE ASSESSING OFFICER HAS NEITHER CONSIDERED THESE DOCU MENTS NOR HAS PROVIDED ANY REASON FOR DISREGARDING THE SAME. 18. IT WAS FURTHER SUBMITTED THAT THE HONBLE TRIBU NAL WHILE HEARING THE MISC. APPLICATION FOR RECALLING OF ORDER FILED BY T HE ASSESSEE VIDE ITS ORDER DATED 22.03.2019 ASKED THE DEPARTMENT TO FILE THE D ETAILED REPORT SUPPORTED BY RELEVANT DOCUMENTS RELYING ON WHICH THE ASSESSME NT HAS BEEN DONE BY THE ASSESSING OFFICER FOR THE ASSESSMENT YEAR 2007- 08. IT IS SUBMITTED THAT IN RESPONSE, THE DEPARTMENT HAS FILED A REPORT DATED 0 5.04.2019 BEFORE THE HONBLE TRIBUNAL. IT IS EVIDENT FROM THE SAID REPOR T THAT THE ENTIRE ASSESSMENT HAS BEEN DONE MERELY ON THE BASIS OF THE STATEMENT GIVEN BY SHRI NIKHIL TRIPATHI UNDER SECTION 131 OF THE ACT. FURTHER, THE REPORT ITSELF MENTIONS THAT THE ENTIRE RE-ASSESSMENT HAS BEEN DON E ON THE BASIS OF THE PRESUMPTIONS. IT HAS BEEN STATED THAT ' FURTHER, A SPECIFIC MODUS OPERANDI IS IN CIRCULATION AMONGST THE REAL STATE SECTOR ENTITI ES THAT PART PAYMENT IS PAID IN CASH AND PART IN CHEQUES. FURTHER, THE TRANSACTI ONS CANNOT BE VOID ITSELF. ONE HAS MADE PAYMENT TO THE OTHER, THEN IT IS OUGHT TO BE UNDERSTOOD THAT ITA NO. 109/JP/2017 M /S RAJASTHAN LAND DEVELOPERS PVT. LTD., JAIPUR VS. DCIT, JAIPUR 13 THE OTHER HAS RECEIVED IT. ALSO, WHATEVER IS PAID A CCORDING TO THE INTENTION OF THE PARTY PAYING: WHATEVER IS RECEIVED IS RECEIVED ACCORDING TO THE INTENTION OF THE PARTY RECEIVING. ' IT WAS SUBMITTED THAT THE HON'BLE SUPREME COURT I N THE CASE OF CENTRAL BUREAU OF INVESTIGATION VS. V.C . SHUKLA & ORS (SC)-1998- 3-63 REFERRING TO SECTION 34 OF THE INDIA EVIDENCE ACT 1871 OBSERVED THAT ' THE STATEMENT MADE THEREIN SHALL NOT ALONG BE SUFFI CIENT EVIDENCE TO CHARGE ANY PERSON WITH LIABILITY '. 19. THE LD. AR FURTHER SUBMITTED THAT IT IS SETTLED PREPOSITION OF LAW THAT WHILE CONSIDERING THE EXPLANATION OF THE ASSESSEE, IT IS INCUMBENT ON THE ASSESSING AUTHORITY TO ENQUIRE INTO THE SAME. IT CA NNOT OVERLOOK ONE OR THE OTHER MATERIALS OR IT CANNOT UNDERTAKE A HALF-HEART ED ENQUIRY. WHEN LOOKING AT THE FACTS, THE COURT HAS EVERY RIGHT TO SCRUTINI ZE THE SITUATION AND FIND OUT AS TO WHETHER ENQUIRY WAS MADE REASONABLY WITH THE PRUDENCE OF A REASONABLE MAN. RELIANCE IS PLACED ON THE CASE OF H INDUSTAN TEA TRADING CO LTD VS. CIT, 263 ITR 289. HOWEVER IN THE INSTANT CA SE, THE LEARNED ASSESSING OFFICER ACTED CONTRARY TO THE SAID PRINCIPLE. 20. THE LD. AR FURTHER PLACED RELIANCE ON THE CASE OF COMMISSIONER OF INCOME TAX VS. S.C. SETHI, 2006 SCC ONLINE RAJ. 329 , WHEREIN IN THE SIMILAR SET OF CIRCUMSTANCES, THE HON'BLE RAJASTHAN HIGH CO URT HAS HELD THE ASSESSMENT CANNOT BE DONE SOLELY ON THE BASIS OF TH E LOOSE PAPERS RECEIVED FROM THE PREMISE OF THIRD PARTY. IT WAS SUBMITTED T HAT THE ASSESSEE HAS ALSO SOUGHT FOR CROSS EXAMINATION OF SHRI NIKHIL TRIPATH I BUT THE SAME WAS REJECTED. 21. THE LD. AR FURTHER SUBMITTED THAT THE ONLY DOCU MENT ON WHICH THE DEPARTMENT HAS RELIED TO JUSTIFY THE SAID ASSESSMEN T IS THE LIST OF CASH PAYMENTS GIVEN BY SHRI NIKHIL TRIPATHI TO THE DEPAR TMENT DURING HIS ITA NO. 109/JP/2017 M /S RAJASTHAN LAND DEVELOPERS PVT. LTD., JAIPUR VS. DCIT, JAIPUR 14 STATEMENT. IT IS SUBMITTED THAT THE SAID LIST CAN N EITHER BE CALLED AS BOOKS OF ACCOUNTS NOR CAN IT BE THE BASIS OF ASSESSMENT BEIN G DONE UNDER SECTION 68 OF THE ACT. IN SUPPORT, RELIANCE WAS PLACED ON THE DECISION OF THE TRIBUNAL IN THE CASE OF PRARTHANA CONSTRUCTION (P) LTD. VS. DEP UTY COMMISSIONER OF INCOME TAX (2001) 70 TTJ AHD 122 IN WHICH THE TRIBU NAL STATED THAT 'IF WE CONSIDER THE EVIDENTIARY VALUE OF THESE DOCUMENTS A S PER SECTION 34 OF THE EVIDENCE ACT, 1872 IT IS AMPLY CLEAR THAT THESE LOO SE PAPERS AND DOCUMENTS CANNOT POSSIBLY BE CONSTRUED AS BOOKS OF ACCOUNTS R EGULARLY KEPT IN THE COURSE OF BUSINESS'. 22. THE AR FURTHER SUBMITTED THAT THE ASSESSING OFF ICER HAD FAILED TO CONSIDER THAT NIKHIL TRIPATHI HAD EVERY REASON TO M AKE FALSE STATEMENT REGARDING THE PAYMENT OF THE CASH AMOUNT TO THE ASS ESSEE IN ORDER TO CREATE HIS DEFENSE IN THE FIRS/ COMPLAINT FILED AGAINST NI KHIL TRIPATHI BY THE PERSONS WHO HAVE BOOKED THEIR FLATS/PROPERTIES IN 'SILVER C ITY PROJECT' OF M/S. U-TURN HOUSING PVT. LTD. IT WAS SUBMITTED THAT IT IS UNFAI R TO THE ASSESSEE THAT THE ENTIRE RE-ASSESSMENT HAS BEEN DONE ON THE UN-CHALLE NGED TESTIMONY OF THE PERSON WHO HAS BEEN AN ACCUSED IN SEVERAL CASES AND HAS BEEN DECLARED AS ABSCONDER BY THE COURT OF LAW. 23. IT WAS FURTHER SUBMITTED THAT IN ORDER TO ASSES S A PERSON U/S 68 OF THE ACT, THERE MUST BE RUNNING BOOKS OF ACCOUNT AVAILAB LE ON RECORD. HOWEVER, IN THE INSTANT CASE, NO RETURN HAS BEEN FILED BY M/ S. U-TURN HOUSING PVT. LTD. AFTER THE ASSESSMENT YEAR 2007-08 AND THE NAME OF T HE COMPANY HAS BEEN STRIKE OFF BY THE ROC AND A CERTIFIED COPY OF THE C OMPANY MASTER DATA OF M/S. U-TURN HOUSING PVT. LTD. IS ANNEXED. 24. IT WAS FURTHER SUBMITTED THAT THE ADDITION OF R S.3.26,00,000/- IS BASED ON CONJUNCTION, SURMISES AND PRESUMPTION AND THE AD DITION IS BOUND TO BE ITA NO. 109/JP/2017 M /S RAJASTHAN LAND DEVELOPERS PVT. LTD., JAIPUR VS. DCIT, JAIPUR 15 DELETED AS PER THE DECISION OF THE HON'BLE TRIBUNAL IN THE CASE OF JAYA S. SHETTY VS. ACIT 1999 69 ITD 336 MUM. IT WAS FURTHER SUBMITTED THAT SHRI NIKHIL TRIPATHI IS A THIRD PARTY AND LIST GIVEN BY HIM CANNOT BE RELIED UPON. THE HON'BLE BOMBAY HIGH COURT IN THE CASE OF ASTT. CIT VS OMPRAKASH & CO. (2004) 87 TTJ MUMBAI 183 STATED THAT 'THE DEPARTMEN T IS NOT EMPOWERED TO MAKE ANY ADDITION ON THE BASIS OF SEIZED PAPERS FOU ND FROM THE RESIDENCE OF THE THIRD PARTY UNLESS SUCH PAPERS ARE MADE AVAILAB LE TO BE ASSESSEE'. 25. THE LD. AR FINALLY SUBMITTED THAT THE INCOME OF THE ASSESSEE COMPANY HAS BEEN WRONGLY REASSESSED IN CONTRADICTION OF THE DOCUMENTS AVAILABLE ON RECORD. IT IS SUBMITTED THAT THE ASSESSEE COMPANY C ANNOT BE MADE TO SUFFER FOR THE WRONG COMMITTED BY ANY OTHER PERSON AND THE IMPUGNED ORDER PASSED BY THE ASSESSING OFFICER DESERVE TO BE QUASH ED AND SET ASIDE. 26. PER CONTRA, THE LD. CIT DR SUBMITTED THAT STATE MENT OF SH. NIKHIL TRIPATHI, DIRECTOR OF M/S U-TURN HOUSING PVT. LTD. WAS RECORDED ON OATH U/S 131 WHEREIN HE HAS CONFIRMED THE CASH PAYMENT OF RS . 3.26 CRORES TO THE ASSESSEE COMPANY. IT WAS FURTHER SUBMITTED THAT IN THE LEDGER ACCOUNT OF THE ASSESSEE IN THE BOOKS OF M/S U-TURN HOUSING PVT. LT D., PAYMENT OF RS. 3.26 CRORES IN CASH TO THE ASSESSEE COMPANY IS APPEARING AND THE ASSESSEE COMPANY HAS NOT BROUGHT ON RECORD ANY REASONS AS TO WHY M/S U-TURN HOUSING PVT. LTD. WOULD SHOW CASH PAYMENT OF RS. 3. 26 CRORES IN ITS AUDITED BOOKS OF ACCOUNTS IF NO SUCH PAYMENTS WERE ACTUALLY MADE BY IT. 27. REGARDING THE CONTENTION OF THE LD AR THAT MOU DATED 14.07.2007 AND CANCELLATION AGREEMENT WHEREBY THE EARLIER MOU DATE D 22.03.2006 WAS CANCELLED WERE RECOVERED IN ORIGINAL FROM POSSESSIO N OF SHRI NIKHIL TRIPATHI, REFERRING TO THE ORDER OF THE LD CIT(A), THE LD CIT DR SUBMITTED THAT THE ASSESSEE COMPANY HAS TAKEN A SIMILAR PLEA BEFORE TH E LD CIT(A) THAT A ITA NO. 109/JP/2017 M /S RAJASTHAN LAND DEVELOPERS PVT. LTD., JAIPUR VS. DCIT, JAIPUR 16 CHARGE-SHEET HAS BEEN FILED BY THE POLICE AGAINST M /S U-TURN HOUSING PVT. LTD. AND ITS DIRECTORS EMPHASIZING THAT THE CANCEL LATION AGREEMENT DATED 14.07.2007 WAS RECOVERED IN ORIGINAL BY THE POLICE FROM THE POSSESSION OF SH. NIKHIL TRIPATHI. IT WAS SUBMITTED THAT THE LD. CIT(A) HAS GONE THROUGH THE CHARGE-SHEET AND IT WAS NOTICED BY HIM THAT THE INV ESTIGATION OFFICER DID NOT MENTION ANYTHING ABOUT THE GENUINENESS OR OTHERWISE OF THE CANCELLATION AGREEMENT DATED 14.07.2007. THEREFORE, THE SAID CHA RGE-SHEET IS OF NO HELP TO THE ASSESSEE COMPANY. 28. FURTHER, REGARDING THE SUIT FILED BY THE ASSESS EE COMPANY AGAINST SH. NIKHIL TRIPATHI BEFORE THE ADJ-19, JAIPUR, IT W AS SUBMITTED THAT THE LD. CIT(A) HAS GONE THROUGH THE ORDER PASSED BY THE ADJ -19, JAIPUR DATED 20.11.2015 AND THE LD CIT(A) HAS RECORDED A FINDING THAT THE ISSUE OF GENUINENESS OR OTHERWISE OF THE MOU DATED 14.07.200 7 WAS NOT BEFORE THE COURT OF HONBLE ADJ AND THE MOU DATED 22.03.2006 W AS NOT PLACED BEFORE THE HONBLE COURT AND THE SAID ORDER HAS BEEN PASSE D EX-PARTE IN THE ABSENCE OF RESPONDENTS. THEREFORE, THE CONTENTION O F THE ASSESSEE COMPANY CANNOT BE ACCEPTED. IT WAS ACCORDINGLY SUBMITTED TH AT THE AO WAS JUSTIFIED IN MAKING THE ADDITION OF RS. 3.26 CRORES U/S 68 OF THE ACT AND THE FINDINGS SO RECORDED BY THE AO SHOULD BE CONFIRMED. HE ACCOR DINGLY SUPPORTED ORDER OF THE LOWER AUTHORITIES. 29. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. THE CASE OF THE REVENUE IS TH AT THE ASSESSEE COMPANY HAS RECEIVED A SUM OF RS. 3.26 CRORES IN CASH FROM M/S U-TURN HOUSING PVT. LTD. DURING THE F.Y 2006-07 RELEVANT TO IMPUGNED AS SESSMENT YEAR AND THE SAME IS NOT SHOWN IN ITS BOOKS OF ACCOUNTS, ACCORDI NGLY, BY INVOKING PROVISIONS OF SECTION 68 OF THE ACT, THE SAID AMOUN T HAS BEEN BROUGHT TO TAX AS UNEXPLAINED CASH CREDIT IN THE HANDS OF THE ASSE SSEE COMPANY. FIRSTLY, WE ITA NO. 109/JP/2017 M /S RAJASTHAN LAND DEVELOPERS PVT. LTD., JAIPUR VS. DCIT, JAIPUR 17 REFER TO THE PROVISIONS OF SECTION 68 OF THE ACT WH ICH HAS BEEN INVOKED BY THE ASSESSING OFFICER AND THE SAME READS AS UNDER:- 68. WHERE ANY SUM IS FOUND CREDITED IN THE BOOKS OF AN ASSESSEE MAINTAINED FOR ANY PREVIOUS YEAR, AND THE ASSESSEE OFFERS NO EXPLANATION ABOUT THE NATURE AND SOURCE THEREOF OR THE EXPLANATION OFFERED BY HIM IS NOT, IN THE OPINION OF THE ASSESSING OFFI CER, SATISFACTORY, THE SUM SO CREDITED MAY BE CHARGED TO INCOME-TAX AS THE INCOME OF THE ASSESSEE OF THAT PREVIOUS YEAR: PROVIDED THAT WHERE THE ASSESSEE IS A COMPANY (NOT BEING A COMPANY IN WHICH THE PUBLIC ARE SUBSTANTIALLY INTERESTED), AND THE SUM SO CREDITED CONSISTS OF SHARE APPLICATION MONEY, SHARE CAPITAL, SHARE PREMIUM OR ANY SUCH AMOUNT BY WHATEVER NAME CALLED, ANY EXPLANATIO N OFFERED BY SUCH ASSESSEE-COMPANY SHALL BE DEEMED TO BE NOT SATISFAC TORY, UNLESS (A ) THE PERSON, BEING A RESIDENT IN WHOSE NAME SUCH C REDIT IS RECORDED IN THE BOOKS OF SUCH COMPANY ALSO OFFERS AN EXPLANATIO N ABOUT THE NATURE AND SOURCE OF SUCH SUM SO CREDITED; AND (B ) SUCH EXPLANATION IN THE OPINION OF THE ASSESSING OF FICER AFORESAID HAS BEEN FOUND TO BE SATISFACTORY: PROVIDED FURTHER THAT NOTHING CONTAINED IN THE FIRS T PROVISO SHALL APPLY IF THE PERSON, IN WHOSE NAME THE SUM REFERRED TO THEREIN I S RECORDED, IS A VENTURE CAPITAL FUND OR A VENTURE CAPITAL COMPANY AS REFERR ED TO IN CLAUSE (23FB) OF SECTION 10 . 30. AS APPARENT FROM A READING OF THE AFORESAID PRO VISIONS, WHERE A SUM IS FOUND CREDITED IN THE BOOKS OF ACCOUNTS OF THE ASSE SSEE MAINTAINED FOR ANY PREVIOUS YEAR AND THE ASSESSEE OFFERS EITHER NO EXP LANATION ABOUT THE NATURE ITA NO. 109/JP/2017 M /S RAJASTHAN LAND DEVELOPERS PVT. LTD., JAIPUR VS. DCIT, JAIPUR 18 AND SOURCE THEREOF OR THE EXPLANATION OFFERED BY HI M IS NOT SATISFACTORY IN THE OPINION OF THE ASSESSING OFFICER, THE SUM SO CR EDITED MAY BE CHARGED TO TAX AS INCOME OF THE ASSESSEE OF THAT PREVIOUS YEAR . THEREFORE, WHAT IS RELEVANT TO DETERMINE IS WHETHER ANY SUM IS FOUND C REDITED IN THE BOOKS OF ACCOUNTS OF THE ASSESSEE OR NOT AND THEN, ONCE THE SAID FACTUAL POSITION IS ESTABLISHED, AN EXPLANATION SHOULD BE SOUGHT FROM T HE ASSESSEE REGARDING THE NATURE AND SOURCE OF SUCH SUM AND WHERE SUCH EX PLANATION IS EITHER NOT FURNISHED OR THE EXPLANATION SO FURNISHED IS NOT FO UND SATISFACTORY, THE SUM SO CREDITED IN THE BOOKS OF ACCOUNTS OF THE ASSESSE E MAY BE CHARGED TO INCOME TAX AS THE INCOME OF THE ASSESSEE. IN THE I NSTANT CASE, THE CASE OF THE REVENUE IS THAT THE ASSESSEE HAS RECEIVED A SUM OF RS. 3.26 CRORES IN CASH FROM M/S U-TURN HOUSING PVT. LTD. AND THE SAME IS NOT SHOWN IN ITS BOOKS OF ACCOUNTS. THE ASSESSEE HAS DISPUTED THE RE CEIPT OF SUCH SUM OF MONEY (WHICH WE SHALL BE DEALING SUBSEQUENTLY) AND THEREFORE, SAID SUM OF MONEY IS NEITHER SHOWN BY THE ASSESSEE IN ITS BOOKS OF ACCOUNTS NOR FOUND CREDITED BY THE ASSESSING OFFICER IN THE BOOKS OF A CCOUNTS OF THE ASSESSEE. IN SUCH A SCENARIO, IT MAY BE TREATED AS UNACCOUNTE D RECEIPTS IN THE HANDS OF THE ASSESSEE, HOWEVER, AS FAR AS THE PROVISIONS OF SECTION 68 OF THE ACT ARE CONCERNED, THE SAME CAN BE INVOKED ONLY WHERE SUCH RECEIPTS ARE ACCOUNTED FOR IN THE BOOKS OF ACCOUNTS AND EXPLANATION REGARD ING NATURE AND SOURCE OF SUCH RECEIPTS IS EITHER NOT FORTHCOMING OR NOT FOUN D SATISFACTORY. THEREFORE, AS FAR AS INVOKING THE PROVISIONS OF SECTION 68 IS CONCERNED, IN ABSENCE OF THE REQUISITE REQUIREMENTS SO SPECIFIED THEREIN, THE SA ID PROVISIONS CANNOT BE INVOKED TO BRING SUCH UNACCOUNTED RECEIPTS TO TAX A S INCOME IN THE HANDS OF THE ASSESSEE. 31. HAVING SAID THAT, LETS LOOK AT THE BASIS AND THE EVIDENCE ON RECORD ON THE BASIS OF WHICH THE ASSESSING OFFICER HAS ARRIVE D AT THE FINDING THAT SUM OF RS 3.26 CRORES HAS BEEN RECEIVED BY THE ASSESSEE DU RING THE FINANCIAL YEAR ITA NO. 109/JP/2017 M /S RAJASTHAN LAND DEVELOPERS PVT. LTD., JAIPUR VS. DCIT, JAIPUR 19 2006-07 AND HAS NOT BEEN ACCOUNTED FOR IN ITS BOOKS OF ACCOUNTS AND THEREFORE IS IN NATURE OF UNACCOUNTED RECEIPTS WHIC H ARE NOT DISCLOSED TO THE REVENUE AUTHORITIES AND CONSEQUENTIALLY, IT SHOULD BE SUBJECT TO TAXATION. 32. FIRSTLY, WE FIND THAT THE ASSESSING OFFICER HAS RELIED ON THE STATEMENT OF SH. NIKHIL TRIPATHI, DIRECTOR OF M/S U-TURN HOUS ING PVT. LTD. WHICH WAS RECORDED U/S 131 OF THE ACT BY THE ADIT (INVESTIGAT ION) SPECIAL CELL, NEW DELHI. EVEN DURING THE COURSE OF HEARING, OUR REFE RENCE WAS DRAWN BY THE LD CIT DR TO QUESTION NO. 7 AND HIS RESPONSE THERETO, WHICH HAS ALSO BEEN REFERRED TO BY THE LD CIT(A) IN HIS ORDER, ACCORDIN GLY, WE DEEM IT APPROPRIATE TO REPRODUCE THE SAME AS UNDER:- Q. NO. 7: I AM ALSO SHOWING YOU A COPY OF DOCUME NT TITLED 'DETAIL OF PAYMENTS MADE TO RAJASTHAN LAND DEVELOPERS PVT. LTD . JAIPUR DURING THE PERIOD WEF 01/03/2006 TO 31/03/2007' WHICH HAS BEEN FILED BY YOUR COMPANY BEFORE THE ITO, WARD-2(2), JAIPUR U/S 133(6) OF THE I.T. ACT, 1961. PLEASE STATE WHETHER YOU ACCEPT THAT THI S DOCUMENT HAS BEEN FILED BY YOUR COMPANY AND IF SO WHY IT DOES NO T MATCH WITH YOUR BOOKS OF ACCOUNTS? ANS: I CONFIRM THAT THE SAID DOCUMENT HAS BEEN FILE D BY UTHPL BEFORE THE ITO, WARD-2(2), JAIPUR U/S 133(6) OF THE I.T. A CT, 1961. THE TOTAL PAYMENT OF RS. 9.83 CRORE MADE TO M/S RLDPL MATCHES WITH OUR BOOKS OF ACCOUNTS. HOWEVER, THE DATES AS PER BOOK OF ACCO UNTS AND THE SAID STATEMENT DIFFERS BECAUSE UTHPL HAS ACCOUNTED FOR T HE ENTIRE CASH AND PART PAYMENT BY BEARER CHEQUE PAID TO RLDPL IN THE FY 2006-07. WE AGAIN CONFIRM THAT PAYMENT BY CASH/ BEARER CHEQU E DURING THE FY 2005-06 TO RLDPL AMOUNTS TO RS. 67,50,000/- AND DUR ING FY 2006-07 THE SAME AMOUNT TO RS. 3.42 CRORES AGAINST WHICH RS . 10,00,000/- IS ACCOUNTED IN OUR BOOKS IN THE FY 2005-06 AND THE BA LANCE 3.99 CRORES IS ACCOUNTED FOR IN OUR BOOKS IN THE FY 2006-07. ITA NO. 109/JP/2017 M /S RAJASTHAN LAND DEVELOPERS PVT. LTD., JAIPUR VS. DCIT, JAIPUR 20 33. IN HIS STATEMENT, SHRI NIKHIL TRIPATHI HAS STAT ED THAT M/S U-TURN HOUSING PVT. LTD. HAS MADE PAYMENT OF RS. 9.83 CROR ES TO THE ASSESSEE COMPANY AS PER DETAILS FILED BEFORE THE AO IN RESPO NSE TO NOTICE U/S 133(6) OF THE ACT. HE HAS FURTHER STATED IN HIS STATEMENT THAT THE SAID PAYMENT MATCHES WITH THE ENTRIES IN THE BOOKS OF ACCOUNTS O F M/S U-TURN HOUSING PVT. LTD. 34. FURTHER, THE ASSESSING OFFICER HAS ALSO RELIED UPON COPY OF ACCOUNT OF THE ASSESSEE IN THE BOOKS OF ACCOUNTS OF M/S U-TURN HOUSING PVT. LTD. AS FURNISHED BY THE LATTER DURING THE COURSE OF ASSESS MENT PROCEEDINGS AND HELD THAT AS PER SUCH COPY OF ACCOUNT, IT IS FOUND THAT CASH PAYMENT OF RS 3.26 CRORES WAS MADE TO ASSESSEE COMPANY ON VARIOUS DATE S AS WE HAVE NOTED IN PARA 4 ABOVE. 35. THEREFORE, WE FIND THAT THE STATEMENT OF SHRI N IKHIL TRIPATHI AND THE COPY OF ACCOUNT OF THE ASSESSEE IN THE BOOKS OF ACC OUNTS OF M/S U-TURN HOUSING PVT. LTD ARE THE TWO PIECES OF DOCUMENT WHI CH HAVE BEEN RELIED UPON BY THE ASSESSING OFFICER WHILE ARRIVING AT THE FINDING THAT SUM OF RS 3.26 CRORES HAS BEEN RECEIVED BY THE ASSESSEE DU RING THE FINANCIAL YEAR 2006-07 AND WHICH HAS NOT BEEN ACCOUNTED FOR IN ITS BOOKS OF ACCOUNTS. 36. AT THE SAME TIME, WE FIND THAT THE ASSESSING OF FICER HAS NOT ACCEPTED THE SUBMISSION OF THE ASSESSEE COMPANY THAT THE EAR LIER MOU DATED 22.03.2006 WAS CANCELLED DUE TO NON-FULFILLMENT OF CERTAIN CONDITIONS AS EVIDENCED BY THE CANCELLATION AGREEMENT DATED 14.10 .2007 AND A FRESH MOU WAS ENTERED INTO BETWEEN THE TWO COMPANIES ON 14.07 .2007 WHICH TALKS ABOUT RECEIPT OF RS 5.69 CRORES BY THE ASSESSEE COM PANY AS PART OF THE EARLIER MOU AND WHICH SHALL BE ADJUSTED AGAINST THE TOTAL CONSIDERATION OF RS 9.14 CRORES AS AGREED BETWEEN THE PARTIES AS PER FRESH MOU. IT WAS ITA NO. 109/JP/2017 M /S RAJASTHAN LAND DEVELOPERS PVT. LTD., JAIPUR VS. DCIT, JAIPUR 21 FURTHER SUBMITTED THAT OUT OF RS 5.69 CRORES, THE A SSESSEE HAS RECEIVED A SUM OF RS. 3,89,00,000/- DURING THE F.Y 2006-07, WH ICH WAS ACCOUNTED FOR IN ITS BOOKS OF ACCOUNTS AND IS DULY SUPPORTED BY CONF IRMATION SIGNED BY SHRI NIKHIL TRIPATHI ON BEHALF OF M/S U-TURN HOUSING PVT . LTD. AND BASIS THE SAME, THE ASSESSEE HAS SOLD THE LAND AS PER MOU DATED 14. 07.2007 AND ISSUED THE POSSESSION AND ALLOTMENT LETTER ALONG WITH SITE PLA N TO THE ALLOTTEE /NOMINEE NAMES PROVIDED BY U-TURN HOUSING PVT. LTD., WHICH W AS AGAIN NOT TAKEN INTO CONSIDERATION BY THE ASSESSING OFFICER FOR THE REAS ON THAT SH. NIKHIL TRIPATHI IN HIS STATEMENT HAS CATEGORICALLY DENIED TO HAVE S IGNED ANY SUCH CANCELLATION AGREEMENT DATED 14.07.2007 WHEREIN IN RESPONSE TO QUESTION NO. 4, HE HAS DENIED THE SAID DOCUMENT HAS BEEN EXE CUTED BY HIM ON BEHALF OF U-TURN HOUSING PVT. LTD. AS HIS SIGNATURES WERE FORGED. 37. FIRSTLY, IF WE LOOK AT THE COPY OF ACCOUNT/LEDG ER ACCOUNT OF THE ASSESSEE IN THE BOOKS OF M/S U-TURN HOUSING PVT. LT D. FOR THE PERIOD 1.4.2006 TO 31.03.2007 WHICH IS AVAILABLE AS PART O F ASSESSMENT RECORDS, IT SHOWS OPENING BALANCE OF RS. 2.45 CRORES AND CLOSIN G BALANCE OF RS. 9.83 CRORES. THEREFORE, MERE LOOKING AT THE CLOSING BALA NCE OF RS 9.83 CRORES IN THE ASSESSEES LEDGER ACCOUNT, ONE MAY TEND TO BELI EVE THAT THE SAME CORROBORATES THE STATEMENT MADE BY SH. NIKHIL TRIPA THI WHEREIN HE HAS STATED THAT M/S U-TURN HOUSING PVT. LTD. HAS PAID A SUM OF RS 9.83 CRORES TO THE ASSESSEE COMPANY. HOWEVER, ON A CLOSER READING OF THE VARIOUS PAYMENT ENTRIES REFLECTED IN THE SAID LEDGER ACCOUN T, WE FIND THAT IT REFLECTS VARIOUS DISCREPANCIES AND INCONSISTENCY AS WE HAVE NOTED IN SUBSEQUENT PARAGRAPHS. 38. FIRSTLY, WE FIND THAT THERE ARE NUMBER OF ENTR IES SHOWING PAYMENTS TOTALING TO RS 68 LACS WHICH ARE REFLECTED IN THE A SSESSEES LEDGER ACCOUNT IN THE BOOKS OF M/S U-TURN HOUSING PVT. LTD. WHEREIN T HE CHEQUES HAVE BEEN ITA NO. 109/JP/2017 M /S RAJASTHAN LAND DEVELOPERS PVT. LTD., JAIPUR VS. DCIT, JAIPUR 22 ISSUED TO SHRI CHANDRA MOHAN FOR ADVANCE TOWARDS BH ARATPUR LAND. AS WE HAVE NOTED ABOVE AND AS PER MATERIAL AVAILABLE ON R ECORD, THE ASSESSEES LAND IS SITUATED AT SANGANER, JAIPUR WHICH IS SUBJE CT MATTER OF TWO MOUS AND THERE IS NOTHING ON RECORD TO SUGGEST THAT THE ASSE SSEE HAS ANY DEALING WITH M/S U-TURN HOUSING PVT. LTD. REGARDING ANY LAND SIT UATED AT BHARATPUR. FURTHER, THERE IS NOTHING ON RECORD TO SHOW ANY LIN KAGE OR CONNECTION OF SHRI CHANDRA MOHAN WITH THE ASSESSEE COMPANY. IN THIS R EGARD, APPARENTLY, NO QUESTION HAS BEEN ASKED FROM SH. NIKHIL TRIPATHI BY THE ADIT (INVESTIGATION) SPECIAL CELL, NEW DELHI DURING THE COURSE OF HIS ST ATEMENT RECORDED U/S 131 OF THE ACT. FURTHER, NO ENQUIRY OR INVESTIGATION H AS BEEN CARRIED BY THE ASSESSING OFFICER EVEN THOUGH THESE ENTRIES ARE APP ARENT ON THE FACE OF ASSESSEES LEDGER ACCOUNT. THEREFORE, AS FAR AS TH ESE PAYMENTS RELATING TO BHARATPUR LAND ARE CONCERNED, THE SAME CANNOT BE RE LATED TO THE ASSESSEE COMPANY AND HAVE BEEN WRONGLY DEBITED IN THE ACCOUN TS OF THE ASSESSEE COMPANY IN THE BOOKS OF M/S U-TURN HOUSING PVT. LTD . FOR THE REASONS BEST KNOWN TO SUCH COMPANY AND WHICH HAVE NOT BEEN ENQUI RED OR INVESTIGATED BY THE ASSESSING OFFICER. THEREFORE, THE STATEMENT OF SHRI NIKHIL TRIPATHI THAT THE SAID PAYMENTS MADE TO THE ASSESSEE COMPANY MATC HES WITH THE ENTRIES IN THE BOOKS OF ACCOUNTS OF M/S U-TURN HOUSING PVT. LTD. DOESNT STAND THE TEST OF CORROBORATION TO THE EXTENT OF AFORESAID PA YMENTS. 39. FURTHER, WE FIND THAT THERE ARE VARIOUS ENTRIES TOTALING TO RS 1.49 CRORES AS REFLECTED IN THE ASSESSEES AFORE SAID LEDGER ACCOUNT WHEREIN THE COMMON THREAD IS THE NARRATION AGAINST EACH OF THESE ENTRIES STATING THAT THE CHEQUE NO. ENCASHED THROUGH SH. R . K. GUPTA AND PAID TO RAJASTHAN LAND DEVELOPERS PVT LTD. IN ITS SUBMISS ION DATED 19.03.2014 FILED BEFORE THE ASSESSING OFFICER, THE ASSESSEE HA S DENIED KNOWING OR HAVING ANY LINKAGE WITH SH. R. K. GUPTA OR HAVING A UTHORIZED HIM TO ACT ON ITS BEHALF. THEREFORE, WHERE THE REVENUE IS RELYING ON THE STATEMENT OF ITA NO. 109/JP/2017 M /S RAJASTHAN LAND DEVELOPERS PVT. LTD., JAIPUR VS. DCIT, JAIPUR 23 SH. NIKHIL TRIPATHI AND IN TURN, ENTRIES IN THE BOO KS OF ACCOUNTS OF M/S U-TURN HOUSING PVT. LTD. AND THE ENTRIES ON THE FACE OF IT SUGGEST THAT CERTAIN CHEQUES HAVE BEEN ENCASHED THROUGH SH. R. K. GUPTA AND THERE IS DENIAL BY THE ASSESSEE COMPANY REGARDING KNOWING OR HAVE AUTH ORISED SH R. K GUPTA, THAN IT WAS INCUMBENT ON THE PART OF THE ASSESSING OFFICER TO HAVE ENQUIRED THE MATTER FURTHER FROM SH. NIKHIL TRIPATHI ABOUT S UCH TRANSACTION AND SH. R. K. GUPTA AND HIS LINKAGE/RELATIONSHIP WITH M/S U-TU RN HOUSING PVT. LTD. OR THE ASSESSEE COMPANY AND SHOULD HAVE RECORDED HIS S TATEMENT AS WELL AS STATEMENT OF SH R.K. GUPTA IN ORDER TO BUILD CHAIN OF EVENTS AS TO THE INVOLVEMENT OF SH. R. K GUPTA, ON WHOSE BEHALF HE H AS ENCASHED THE CHEQUES AND HOW THE PAYMENT HAVE BEEN MADE TO THE A SSESSEE COMPANY. HOWEVER, WE AGAIN FIND THAT THERE IS NOTHING ON REC ORD IN TERMS OF ANY QUESTION ASKED IN THIS REGARD FROM SH. NIKHIL TRIPA THI WHILE RECORDING HIS STATEMENT OR ANY SUMMONS ISSUED AND STATEMENT OF SH . R K GUPTA BEING RECORDED BY THE ASSESSING OFFICER OR ANY SEPARATE I NQUIRY OR INVESTIGATION SO CARRIED OUT BY THE AO EITHER DIRECTLY OR THROUGH IS SUE OF SUMMONS TO THE CONCERN PARTIES. THEREFORE, AS FAR AS THESE PAYMENT S TOTALING TO RS 1.49 CRORES ARE CONCERNED, IN ABSENCE OF NECESSARY NEXUS BEEN ESTABLISHED BY THE ASSESSING OFFICER, THE SAME CANNOT BE RELATED TO TH E ASSESSEE COMPANY MERELY BASIS THE STATEMENT OF SHRI NIKHIL TRIPATHI AND ENTRIES IN THE BOOKS OF ACCOUNTS OF M/S U-TURN HOUSING PVT. LTD. THEREFORE , THE STATEMENT OF SHRI NIKHIL TRIPATHI THAT THE SAID PAYMENTS MADE TO THE ASSESSEE COMPANY MATCHES WITH THE ENTRIES IN THE BOOKS OF ACCOUNTS O F M/S U-TURN HOUSING PVT. LTD. AGAIN FAILS THE TEST OF CORROBORATION TO THE EXTENT OF AFORESAID PAYMENTS. 40. FURTHER, ON PERUSAL OF THE AFORESAID LEDGER AC COUNT OF THE ASSESSEE IN THE BOOKS OF M/S U-TURN HOUSING PVT. LTD., WE ALSO FIND THAT THERE ARE VARIOUS ENTRIES TOTALING TO RS 1.77 CRORES WHEREIN CASH PAYMENTS HAVE BEEN ITA NO. 109/JP/2017 M /S RAJASTHAN LAND DEVELOPERS PVT. LTD., JAIPUR VS. DCIT, JAIPUR 24 SHOWN TO HAVE BEEN MADE TO THE ASSESSEE COMPANY BY M/S U-TURN HOUSING PVT. LTD OUT OF ITS PETTY CASH BOOK. IN THIS REGAR D, FIRSTLY, IT IS NOTED THAT DATE AND AMOUNT OF CASH PAYMENT AS REFLECTED IN THE LEDG ER ACCOUNT DOESNT TALLY WITH THE DATE AND AMOUNT OF CASH PAYMENT AS RECORDE D BY THE ASSESSING OFFICER IN THE ASSESSMENT ORDER AS APPARENT FROM FO LLOWING COMPARATIVE TABLE: AS PER ASSESSMENT ORDER AS PER LEDGER ACCOUNT S. NO. DATE AMOUNT (RS.) DATE AMOUNT (RS.) 1. 01.04.2006 25,00,000/- 22.04.2006 20,00,000/- 2. 10.04.2006 1,00,00,000/- 22.05.2006 40,00,000/- 3. 15.04.2006 50,00,000/- 11.06.2006 20,00,000/- 4. 24.04.2006 37,00,000/- 17.06.2006 12,00,000/- 5. 30.04.2006 16,00,000/- 23.06.2006 15,00,000/- 6. 17.05.2006 40,00,000/- 27.07.2006 13,00,000/- 7. 28.05.2006 40,00,000/- 22.08.2006 15,00,000/- 8. 14.08.2006 8,00,000/- 10.09.2006 10,00,000/- 9. - 11.09.2006 10,00,000/- 10. - 3.10.2006 10,00,000/- 11. - 7.10.2006 12,00,000/- TOTAL 3,26,00,000/- 1,77,00,000/- 41. AS CAN BE SEEN FROM ABOVE, THERE ARE NOT JUST V AST DIFFERENCE IN THE DATE AND AMOUNT OF PAYMENT IN TWO TABLES BUT EVEN T HE TOTAL AMOUNT VARIES SIGNIFICANTLY FROM RS 3.26 CRORES AS RECORDED IN TH E ASSESSMENT ORDER TO RS 1.77 CRORES AS PER THE LEDGER ACCOUNT OF THE ASS ESSEE IN BOOKS OF M/S U- TURN HOUSING PVT. LTD. AND APPARENTLY, BOTH THESE D ETAILS OF PAYMENTS ARE CLAIMED TO BE EMERGING FROM THE BOOKS OF ACCOUNTS O F M/S U-TURN HOUSING PVT. LTD. HOWEVER, WE FIND THAT THE FIRST SET OF DA TA IS EMERGING FROM A ITA NO. 109/JP/2017 M /S RAJASTHAN LAND DEVELOPERS PVT. LTD., JAIPUR VS. DCIT, JAIPUR 25 STATEMENT SIGNED BY SH. NIKHIL TRIPATHI AND APPAREN TLY HANDED OVER BY HIM DURING THE COURSE OF RECORDING OF HIS STATEMENT U/S 131 WHICH HAS NO CORROBORATION WHEN THE SAME IS COMPARED WITH THE EN TRIES IN THE LEDGER ACCOUNT OF ASSESSEE IN BOOKS OF M/S U-TURN HOUSING PVT. LTD. GIVEN THESE APPARENT AND INHERENT INCONSISTENCIES ON FACE OF RE CORD, THE QUESTION IS WHETHER THE ASSESSING OFFICER CARRIED OUT ANY FURTH ER ENQUIRY OR INVESTIGATION TO VERIFY THE VERACITY OF STATEMENT GIVEN BY SHRI N IKHIL TRIPATHI. WE NOTE THAT THERE IS NO ENQUIRY OR INVESTIGATION CARRIED OUT BY THE ASSESSING OFFICER REGARDING THESE DISCREPANCIES. FURTHER, NO FINDING HAS BEEN RECORDED BY HIM WHICH PROVES THAT AT THE RELEVANT POINT IN TIME, M/ S U-TURN HOUSING PVT. LTD. HAD SUFFICIENT CASH BALANCE IN ITS HANDS OR THE MON EY HAS BEEN COLLECTED FROM PROSPECTIVE BUYERS OR THE MONEY HAS BEEN WITHD RAWN FROM ITS BANK TO PAY TO THE ASSESSEE COMPANY. WE THEREFORE FIND THA T THERE ARE VAST DIFFERENCES IN SET OF TWO FIGURES AS CLAIMED TO BE PAID TO BE ASSESSEE COMPANY AND WHAT HAS BEEN REFLECTED IN THE BOOKS OF ACCOUNTS AND EVEN THE SOURCE OF SUCH PAYMENTS ARE NOT EMERGING FROM THE R ECORDS. WE THEREFORE FIND THAT THE ASSESSING OFFICER HAS RELIED BLINDLY ON THE STATEMENT OF SH. NIKHIL TRIPATHI WHICH LACKS NECESSARY CORROBORATION AND CANNOT BE RELIED UPON. 42. FURTHER, ON PERUSAL OF THE AFORESAID LEDGER ACC OUNT OF THE ASSESSEE IN THE BOOKS OF M/S U-TURN HOUSING PVT. LTD., WE FIND THAT THERE ARE VARIOUS ENTRIES TOTALING TO RS 3.39 CRORES WHEREIN CHEQUE P AYMENTS HAVE BEEN SHOWN TO HAVE BEEN MADE TO THE ASSESSEE COMPANY DUR ING THE FINANCIAL YEAR 2006-07 AND CHEQUE PAYMENT OF RS 50 LACS DURING THE FINANCIAL YEAR 2005-06 TOTALLING TO RS 3.89 CRORES, WHOLE OF WHICH HAS BEE N ACCOUNTED FOR IN THE BOOKS OF ASSESSEE COMPANY DURING THE FINANCIAL YEAR 2006-07. THE SAME PAYMENT OF RS 3.89 CRORES HAS ALSO BEEN CONFIRMED B Y SHRI NIKHIL TRIPATHI IN THE CONFIRMATION SUBMITTED BEFORE THE AO WHICH HAS APPARENTLY NOT BEING ITA NO. 109/JP/2017 M /S RAJASTHAN LAND DEVELOPERS PVT. LTD., JAIPUR VS. DCIT, JAIPUR 26 CONSIDERED BY THE AO WHILE FRAMING THE ASSESSMENT A PPARENTLY FOR THE REASON THAT SUCH CONFIRMATION HAS BEEN OBTAINED AND SUBMITTED BY THE ASSESSEE COMPANY AND BLIND RELIANCE ON THE STATEMEN T OF SHRI NIKHIL TRIPATHI WHICH FAILS THE NECESSARY CORROBORATION TEST AS WE HAVE NOTED ABOVE. 43. NOW COMING TO THE ASSESSEE COMPANYS CONTENTIO N REGARDING THE BASIS OF RECEIPT OF RS 5.69 CRORES FROM M/S U-TURN HOUSIN G PVT. LTD. OUT OF WHICH RS 3.89 CRORES WAS RECEIVED/RECORDED IN ITS BOOKS O F ACCOUNTS DURING THE FINANCIAL YEAR 2006-07 RELEVANT TO IMPUGNED ASSESSM ENT YEAR. THE ASSESSEE COMPANY HAS SUBMITTED A DOCUMENT BY WAY OF A MEMORA NDUM OF UNDERSTANDING (MOU) DATED 14.07.2007, NOTARIZED AND REGISTERED WITH NOTARY PUBLIC, WHICH HAS BEEN ENTERED INTO BETWEEN THE ASSESSEE COMPANY AND M/S U-TURN HOUSING PVT. LTD. WHEREIN BOTH THE E NTITIES HAVE COME TOGETHER AND AGREED ON TERMS AND CONDITIONS INCLUDI NG RELEVANT OBLIGATIONS AND PAYMENT OF CONSIDERATION WHEREIN THERE IS A CLE AR MENTION OF RS. 5.69 CRORES WHICH HAVE BEEN PAID BY M/S U-TURN HOUSING P VT. LTD. TO THE ASSESSEE COMPANY PRIOR TO ENTERING INTO SUCH MOU AS PART OF EARLIER MOU WHICH WAS CANCELLED AND WHICH SHALL BE ADJUSTED AGA INST THE REVISED CONSIDERATION OF RS 9.14 CRORES. IN THIS REGARD, WE REFER TO PARA NO. 3 OF THE MOU DATED 14.07.2007 WHEREIN IT HAS BEEN STATED AS UNDER: THAT BOTH THE PARTIES ENTERED INTO AN MOU EARLIER T O THIS MOU (WHICH IS THE PRESENT MOU) ON 23.02.2006 AND IN PURSUANCE OF THE EARLIER MOU DATED 23.02.2006 PARTY OF THE SECOND PART HAS A LREADY MADE A PAYMENT OF RS.5,69,00,000/- (RUPEES FIVE CRORE SIXT Y NINE LAC ONLY) TO THE PARTY OF THE FIRST PART BUT DUE TO SOME UNAV OIDABLE CIRCUMSTANCES ON THE PART OF THE SECOND PARTY THE E ARLIER MOU DATED 23.02.2006 HAS BEEN CANCELLED BY A SEPARATE CANCELL ED DEED, EXECUTED BY THE MUTUAL CONSENT OF BOTH THE PARTIES, ON DATED 14.07.2007 ITA NO. 109/JP/2017 M /S RAJASTHAN LAND DEVELOPERS PVT. LTD., JAIPUR VS. DCIT, JAIPUR 27 WHEREIN IT HAS BEEN AGREED THAT BOTH THE PARTIES WI LL EXECUTE ANOTHER MOU (WHICH IS THE PRESENT MOU) WITH FRESH UNDERSTAN DING AND WITH FRESH TERMS AND CONDITIONS AND THE SAID AMOUNT OF R S. 5,69,00,000/- (RUPEES FIVE CRORE SIXTY NINE LAC ONLY) WHICH WAS P AID BY THE PARTY OF THE SECOND PART TO THE PARTY OF THE FIRST PART WILL BE ADJUSTED AGAINST THE TOTAL PAYMENT OF RS.9,14,40,000/- (RUPEES NINE CRORE FOURTEEN LAC FORTY THOUSAND ONLY) WHICH IS TO BE MADE BY THE PARTY OF THE SECOND PARTY TO THE PARTY OF THE FIRST PART UNDER T HIS MOU. 44. THE ASSESSING OFFICER HAS NOT ACCEPTED THE SAID MOU DATED 14.07.2007 STATING THAT SH. NIKHIL TRIPATHI IN HIS STATEMENT HAS DENIED TO HAVE EXECUTED SUCH MOU STATING THAT HIS SIGNATURE O N THIS DOCUMENT WAS FORGED. THE QUESTION IS WHERE THE ASSESSEE COMPANY HAS STATED THAT IT HAS ENTERED INTO SUCH AN MOU AND THE SAME IS THE BASIS FOR RECEIPT OF RS 5.69 CRORES DULY ACCOUNTED FOR IN ITS BOOKS OF ACCOUNTS AND THE OTHER SIGNATORY TO THE MOU DENIES ENTERING INTO SUCH AN MOU, WHAT SHOU LD BE THE COURSE OF ACTION TO BE ADOPTED BY THE ASSESSING OFFICER. TO O UR MIND, ONCE THE PAYMENT OF RS 5.69 CRORES IS DULY ACCOUNTED FOR IN BOOKS OF ACCOUNTS OF BOTH PARTIES AND SUCH PAYMENT HAS BEEN MADE THROUGH BANK ING CHANNEL AND REFLECTED IN RESPECTIVE BANK ACCOUNTS, THERE CANNOT BE ANY DISPUTE THAT SUCH PAYMENT HAS CHANGED HANDS. ONLY QUESTION THAT REMA INS IS WHETHER THERE IS ANY PAYMENT OVER AND ABOVE THE AFORESAID PAYMENT OF RS 5.69 CRORES IN TERMS OF EARLIER MOU. IN SUCH A SCENARIO, CERTAIN BASIC DUE DILIGENCE WAS REQUIRED IN THE MATTER WHERE THE MATTER RELATING TO FORGED SIGNATURES COULD HAVE BEEN REFERRED TO THE FORENSIC EXPERT AND HIS R EPORT SHOULD BE CALLED UPON. FURTHER, NECESSARY ENQUIRY COULD HAVE BEEN C ONDUCTED WITH THE NOTARY PUBLIC WHO HAS AUTHENTICATED THE EXECUTION A ND SIGNING OF SECOND MOU DATED 14.07.2007 AND CANCELLATION AGREEMENT OF EVEN DATE WHERE THE EARLIER MOU DATED 22.03.2006 WAS CANCELLED BY BOTH THE PARTIES. HOWEVER, ITA NO. 109/JP/2017 M /S RAJASTHAN LAND DEVELOPERS PVT. LTD., JAIPUR VS. DCIT, JAIPUR 28 THERE IS NOTHING ON RECORD WHICH SUGGEST ANY SUCH A SSISTANCE WAS SOUGHT FROM FORENSIC EXPERTS OR ANY ENQUIRY AND INVESTIGAT ION WAS CARRIED OUT BY THE ASSESSING OFFICER. 45. IN ADDITION, WE NOTE THAT ORIGINAL COPY OF MOU DATED 14.07.2007 EXECUTED BETWEEN THE TWO PARTIES WAS FOUND DURING T HE COURSE OF INVESTIGATION BY THE POLICE AUTHORITIES WHILE INVES TIGATING THE ECONOMIC OFFENCE ALLEGED TO BE COMMITTED BY SH. NIKHIL TRIPA THI, FIND MENTION IN THE COPY OF CHARGESHEET FILED IN THE ADJ COURT, PATIALA HOUSE, NEW DELHI, A COPY OF WHICH IS AVAILABLE AS PART OF ASSESSMENT RECORDS SUBMITTED BEFORE US AND AVAILABLE AT DEPARTMENTS PAPER BOOK PAGES 51 TO 75 AND THE RELEVANT CONTENTS THEREOF READS AS UNDER:- THE DOCUMENTS RECOVERED FROM THE OFFICE OF THE ACC USED COMPANY ALSO INCLUDED ONE MEMORANDUM OF UNDERSTANDING DT. 1 4.07.07, (IN ORIGINAL) EXECUTED BETWEEN RAJASTHAN LAND DEVELOPER S PVT. LTD THROUGH ITS DIRECTOR MR. PRABHU LAL CHOPRA AND M/S U-TURN HOUSING PVT. LTD TROUGH ITS DIRECTOR NIKHIL TRIPATHI. IN TH E SAID MOU M/S RAJASTHAN LAND DEVELOPERS PVT. LTD HAD AGREED . TO SELL THE MARKETING RIGHTS TO M/S U-TURN HOUSING PVT. LTD IN RESPECT OF 72,000 SQ. YARDS OF LAND OUT OF THE TOTAL LAND OF 10.63 ACRES SITUATED IN VILLAGES JAISINGHPURA & MANPURA TILAWALA, TEHSIL SANAGANER, JAIPUR. IN THE SAID MOU, IT IS MENTIONED THAT NOC AND PROCEEDINGS U/S 9 0B OF THE LAND REVENUE ACT 1956 IN RESPECT OF THE LAND HAD BEEN PA SSED BY THE COMPETENT AUTHORITY AND LAYOUT PLANS HAVE BEEN SUBM ITTED & APPROVED BY THE ZONAL LEVEL COMMITTEE, WHEREAS THE PROCEEDINGS U/S 25(2) OF THE JAIPUR DEVELOPMENT ACT WERE UNDER PROC ESS AND LAY OUT PLANS WERE YET TO BE RELEASED. THE TOTAL CONSIDERAT ION FOR THE ABOVE RIGHTS WAS FIXED @ 1270 PER SQ. YARDS TOTALING TO R S. 9,14,40,000/-, OUT OF WHICH RS. 5.69 CRORES HAD ALREADY BEEN RECEI VED AS PER AN ITA NO. 109/JP/2017 M /S RAJASTHAN LAND DEVELOPERS PVT. LTD., JAIPUR VS. DCIT, JAIPUR 29 EARLIER AGREEMENT DT. 22.03.2006 (WRONGLY REFERRED AS 23.02.2006) IN THIS MOU, WHICH WAS CANCELLED ON THE SAME DATE I.E. 14.07.07. THE REMAINING PAYMENT OF RS. 3.45 CRORES WAS AGREED TO BE PAID BY THE U- TURN HOUSING PVT. LTD. ON THE RELEASE OF MAPS BY TH E JAIPUR DEVELOPMENT AUTHORITY. IT IS ALSO MENTIONED IN THE MOU THAT BECAUSE OF THE REASONS BEYOND THE CONTROL OF M/S RAJASTHAN DEVELOPERS PVT. LTD., IF THE MAPS COULD NOT RELEASED WITHIN THE SIX MONTHS OF THE EXECUTION OF MOU DT. 14.07.2007, M/S U-TURN HOUSING PVT. LTD WOULD HAVE TO MAKE THE REMAINING PAYMENT OF RS. 3.45 CROR ES, FAILING WHICH THE MOU SHALL STAND CANCELLED. 46. SIMILARLY, WE FIND THAT SHRI NIKHIL TRIPATHI HA S FILED AN APPLICATION BEFORE THE LEARNED C.M.M, PATIALA HOUSE COURT, NEW DELHI ON 05.12.2013 FOR REMOVING THE EMBARGO ON THE EXECUTION OF LEASE DEED BY JDA ON THE ASSESSEES LAND SITUATED AT SANGANER AND IN THE SAI D APPLICATION, HE HAS STATED ABOUT THE INITIAL MOU DATED 22.03.2006 AND S UBSEQUENT MOU DATED 14.07.2007 AND LD C.M.M HAS TAKEN COGNIZANCE OF THE SECOND MOU I.E, MOU DATED 14.07.2007 AND DENIED TO LIFT THE EMBARGO VID E HIS ORDER DATED 11.05.2015 AND HIS FINDINGS READ AS UNDER: IN VIEW OF THE ARGUMENTS ADDRESSED ON BEHALF OF TH E PARTIES AND PERUSAL OF THE RECORD, I AM OF THE OPINION THAT IN THE PRESENT CASE OFFENCE ALLEGED AGAINST THE ACCUSED PERSONS IS SERI OUS IN NATURE WHEREIN THE LAND WAS PUT FOR SALE EVEN PRIOR TO ACQ UISITION OF OWNERSHIP RIGHTS FROM M/S RAJASTHAN LAND DEVELOPERS PRIVATE LIMITED. AS PER THE 2 ND MOU, THE APPLICANT ACQUIRED THE RIGHTS OVER THE LA ND IN THE YEAR 2007 WHEREAS THE APPLICANT HAD INVITED APP LICATIONS FOR ALLOTMENT OF LAND WAY BACK IN THE YEAR 2006. EVEN M /S RAJASTHAN LAND DEVELOPERS PRIVATE LIMITED HAS ALSO RAISED OBJECTIO N OVER LIFTING OF ITA NO. 109/JP/2017 M /S RAJASTHAN LAND DEVELOPERS PVT. LTD., JAIPUR VS. DCIT, JAIPUR 30 EMBARGO AND IS WILLING TO GET THE SAME REMOVED ONLY TO THE EXTENT OF 42,000 SQYDS FOR WHICH IT HAS BEEN PAID FOR. THE APPLICANT HAS APPLIED FOR LIFTING OF EMBARGO F OR THE BENEFIT OF VICTIMS BUT IT IS SILENT ABOUT MAKING ALLOTMENT OF LAND OR REPAYMENT TO ALL THE 408 INVESTORS INVOLVED IN THE PRESENT. T HE APPLICANT HAS NOT COME UP WITH ANY CONCRETE PROPOSAL TO COMPENSATE TH EM. EVEN THE INVESTORS WHO ARE TO BE COMPENSATED HAVE NOT BEEN B ROUGHT FORWARD TO SUBSTANTIATE THE PLEA OF THE APPLICANT. THE APPL ICANT HAS NOT COME UP WITH ANY PLAN TO JUSTIFY AS TO HOW HE WILL COMPE NSATE THE INVESTORS WHO LEFT OFF AFTER ALLOTMENT OF THE AVAILABLE LAND SINCE HE HAS ALLOTTED THE LAND MORE THAN WHAT WAS AVAILABLE WITH HIM. EVE N M/S RAJASTHAN LAND DEVELOPERS PRIVATE LIMITED IS NOT WILLING FOR SALE OF THE ENTIRE LAND AS IT HAS OFFERED THE LAND ONLY TO THE EXTENT OF 42,000 SQYADS FOR WHICH IT HAS RECEIVED THE PAYMENT FROM THE APPLICAN T. IN THESE CIRCUMSTANCES, I DO NOT FIND THAT LIFTING OF EMBARG O WOULD ACTUALLY BENEFIT THE INVESTORS/VICTIMS AND AS SUCH THE APPLI CATION BEING DEVOID OF ANY MERIT IS DISMISSED. 47. FURTHER, WE NOTE THAT THE EXISTENCE OF MOU DATE D 14.07.2007 AND PAYMENT OF RS 5.69 CRORES ALSO FIND MENTION IN THE SUIT FILED BY THE ASSESSEE COMPANY BEFORE THE ADJ-19, JAIPUR WHICH HAS BEEN TA KEN COGNIZANCE OF BY THE ADJ COURT AND DECREE HAS BEEN ISSUED BY LD. ADJ , JAIPUR VIDE ORDER DATED 20.11.2015 WHICH READS AS UNDER: QYR% OKNH DEIUH DK ;G OKN FO:} IZFROKNHX.K ,DI{KH; LO;; FMH DJ VKNSK FN;K TKRK GS FD OKNH DEIUH O IZFROKNH DEIUH DS E/; FU'IKFNR ,E-VKS-;W- F NUKAD 14-07-2007 DS RGR GH OKNH DEIUH OF.KZR 'KRKSZ O IZKIR JKFK DS VUQLKJ GH IZFROKNH DEIUH DKS HKWFE M IYC/K DJOKUS DK NKF;RO J[KRH GSA FTLDS QYLO:I ;G LFKKBZ FU'KS/KKKK IZNKU DH TKRH GS FD IZFROKNHX.K D EIUH ,E-VKS-;W FNUKAD 14-07-2007 ESA OF.KZR KRKKSZ DS FO:} FDLH IZDKJ DH DKSBZ DK;ZOKGH UGHA DJSAA FMHIPKZ RN KUQLKJ TKJH GKSA ITA NO. 109/JP/2017 M /S RAJASTHAN LAND DEVELOPERS PVT. LTD., JAIPUR VS. DCIT, JAIPUR 31 48. THEREFORE, WHERE THE EXISTENCE OF FRESH MOU DAT ED 14.07.2007 HAS BEEN STATED TO BE RECOVERED IN ORIGINAL DURING THE COURSE OF POLICE INVESTIGATION AND ALSO FIND MENTION IN THE FILINGS BEFORE THE APPROPRIATE COURTS AND TAKEN COGNIZANCE OF EVEN BY THE APPROPRI ATE COURTS, IT WAS NOT CORRECT ON PART OF THE ASSESSING OFFICER TO BRUSH A SIDE THE CONTENTION OF THE ASSESSEE AND NEGATE THE VERY EXISTENCE OF SUCH AN M OU AND THAT TOO, ON BASIS OF THE STATEMENT OF SHRI NIKHIL TRIPATHI WHIC H AS WE HAVE NOTED ABOVE LACKS NECESSARY CORROBORATION EVEN WITH THE BOOKS O F ACCOUNTS OF M/S. U- TURN HOUSING PVT. LTD. THE STATEMENT OF SHRI NIKHIL TRIPATHI MAY RAISE CERTAIN INITIAL APPREHENSION IN THE MIND OF THE ASSESSING O FFICER AND RIGHTLY SO, HOWEVER, SUCH APPREHENSION CANNOT TAKE THE FORM OF FINAL FINDING OF THE ASSESSING OFFICER WHERE HE DECIDES ON HIS OWN THAT SUCH MOU IS FORGED AND NOT TAKEN COGNIZANCE OF ESPECIALLY IN THE LIGHT OF INVESTIGATIONS AND FILINGS BEFORE THE APPROPRIATE COURTS. IN ANY CASE, IN SUC H TYPE OF MATTERS WHERE THE PARTIES CLAIM THAT THEIR SIGNATURES ARE FORGED ON A PARTICULAR DOCUMENT AND THE CONTENTS AND EXISTENCE OF SUCH DOCUMENTS AR E CHALLENGED, AS COURTS HAVE HELD FROM TIME TO TIME, THE MATTER IS BEST SUI TED TO BE REFERRED TO THE DOMAIN EXPERTS SUCH AS HANDWRITING EXPERTS OR FOREN SIC EXPERTS WHO HAVE THE REQUISITE EXPERTISE AND EXPERIENCE IN THE MANNE R AND THE ASSESSING OFFICER CANNOT ARROGATE TO HIMSELF THE POWER TO DET ERMINE THE AUTHENCITY AND EXISTENCE OF THE DOCUMENT AND THAT TOO, WITHOUT REF ERRING TO ANY RELIABLE MATERIAL. 49. HAVING SAID THAT, WE NOW LOOK AT THE CONTENTS O F THE MOU DATED 14.07.2007. THE MOU TALKS ABOUT SELLING OF MARKETI NG RIGHTS BY THE ASSESSEE COMPANY TO M/S. U-TURN HOUSING PVT. LTD. I N RESPECT OF 72,000 SQ YARDS OF LAND WHICH SHALL INCLUDE THE BOOKING OF PL OTS AND RECEIVING THE PAYMENT FROM PROSPECTIVE CUSTOMERS AT THE RATE OF R S 1270 PER SQ YARD FOR A ITA NO. 109/JP/2017 M /S RAJASTHAN LAND DEVELOPERS PVT. LTD., JAIPUR VS. DCIT, JAIPUR 32 TOTAL CONSIDERATION OF RS 9.14 CRORES. FURTHER, ON PERUSAL OF THE MOU, WE FIND THAT BOTH THE PARTIES HAVE AGREED THEREIN THAT THE AMOUNT TO THE TUNE OF RS 5.69 CRORES HAS ALREADY BEEN PAID BY M/S. U-TURN HO USING PVT. LTD. PRIOR TO ENTERING INTO SUCH FRESH MOU AND THE SAME SHALL BE ADJUSTED AGAINST THE TOTAL CONSIDERATION OF RS. 9.14 CRORES. THE COURT OF LD. ADJ JAIPUR HAS ALSO TAKEN COGNIZANCE OF RECEIPT OF RS 5.69 CRORES BY TH E ASSESSEE COMPANY. THE SAID ASSERTION IN THE MOU HAS ALSO BEEN CONFIRMED S EPARATELY BY WAY OF ANNUAL CONFIRMATION STATEMENT SUBMITTED BEFORE THE ASSESSING OFFICER DULY SIGNED BY SHRI NIKHIL TRIPATHI AND IT IS NOT THE CA SE OF THE REVENUE THAT HIS SIGNATURE ON SUCH CONFIRMATION WAS FORGED. FURTHER , CREDIT NOTES ARE ISSUED BY M/S. U-TURN HOUSING PVT. LTD. AGAIN SIGNED BY SH RI NIKHIL TRIPATHI DRAWING REFERENCE TO MOU DATED 14.07.2007 AND STATING THAT SUM HAS BEEN CREDITED IN ACCOUNT OF THE ASSESSEE COMPANY AGAINST SALE PRO CEEDS OF SPECIFIED PLOTS OF LAND. FURTHER, AS WE HAVE NOTED ABOVE, THE PAYM ENT OF RS 3.89 CRORES ALSO CORROBORATES WITH THE BOOKS OF ACCOUNTS OF M/S . U-TURN HOUSING PVT. LTD. 50. IN LIGHT OF AFORESAID DISCUSSIONS AND IN THE E NTIRETY OF FACTS AND CIRCUMSTANCES OF CASE, WE ARE OF THE CONSIDERED VIE W THAT THE STATEMENT OF SHRI NIKHIL TRIPATHI CANNOT BE HELD AS RELIABLE PIE CE OF EVIDENCE AGAINST THE ASSESSEE COMPANY IN VIEW OF VARIOUS DISCREPANCIES A ND LACK OF CORROBORATION AS WE HAVE DISCUSSED ABOVE. FURTHER, THERE IS NO M ATERIAL ON RECORD WHICH CAN FORM THE BASIS TO HOLD THAT THE ASSESSEE COMPAN Y HAS RECEIVED RS 3.26 CRORES IN CASH FROM M/S U-TURN HOUSING PVT. LTD. WH ICH HAS NOT BEEN ACCOUNTED FOR IN ITS BOOKS OF ACCOUNTS DURING THE F INANCIAL YEAR 2006-07. THEREFORE, THE ADDITION MADE BY THE ASSESSING OFFIC ER TO THIS EFFECT IS HEREBY DIRECTED TO BE DELETED. ITA NO. 109/JP/2017 M /S RAJASTHAN LAND DEVELOPERS PVT. LTD., JAIPUR VS. DCIT, JAIPUR 33 IN THE RESULT, GROUND NO. 3 OF THE ASSESSEES APPEA L IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 17/03/2020. SD/- SD/- FOT; IKY JKO FOE FLAG ;KNO (VIJAY PAL RAO) (VIKRAM SINGH YADAV) U;KF;D LNL;@ JUDICIAL MEMBER YS[KK LNL;@ ACCOUNTANT MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 17/03/2020 * GANESH KR. VKNS'K DH IZFRFYFI VXZSFKR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT- M/S RAJASTHAN LAND DEVELOPERS PVT. L TD., JAIPUR 2. IZR;FKHZ@ THE RESPONDENT- DCIT, CIRCLE-02, JAIPUR 3. VK;DJ VK;QDR@ CIT 4. VK;DJ VK;QDR@ CIT(A) 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ@ DR, ITAT, JAIPUR. 6. XKMZ QKBZY@ GUARD FILE {ITA NO. 109/JP/2017} VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASST. REGISTRAR