Smt. Urmilaben J.Jadav, Ahmedabad V. The Income tax Officer,Ward-4, Gandhinagar

ITA 1151/AHD/2013

• Counselvise Citation: [2017] 130 COUNSELVISE.COM (IT) 9139 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 10 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-02-2017
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: SMC
• Next Hearing Date: 25-01-2017
• Assessment Year: 2009-2010
• Appeal Filed On: 23-04-2013
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: OM PRAKASH MEENA
• Assessee Lawyers: A C BRAHMAKSHATRIYA
• Keywords: Unexplained investment

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, AHMEDABAD . . , , BEFORE SHRI N.K. BILLAIYA, ACCOUNTANT MEMBER AND SHRI MAHAVI R PRASAD, JUDICIAL MEMBER . / I.T.A. NO . 1151/AHD/2013 ( / ASSESSMENT YEAR : 2009 - 10 ) SMT. URMILABEN J. JADAV 704, SARTHI BUNGLOWS, AHMEDABAD MEHSANA HIGHWA Y , CHANDKHEDA, AHMEDABAD . / VS. INCOME - TAX OFFICER, WD. 4, GANDHINAGAR . ./ ./ PAN/GIR NO. : ADYPJ 7990 B ( / APPELLANT ) .. ( / RESPONDENT ) / APPELLANT BY : SHRI A.C. B RAHMAKSHATRIYA A.R. / RESPONDENT BY : SHRI OM PRAKASH MEENA, SR. D.R. / DATE OF HEARING 25/01/2017 / DATE OF PRONOUNCEMENT 28 / 02 /201 7 / O R D E R PER SHRI MAHAVIR PRASAD, JUDICIAL MEMBER : THIS APPEAL HAS BEEN PREFERRED BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF THE COMMISSIONER OF INCOME TAX(APPEALS ) - AHMEDABAD , DATED 25/02/2013 F OR THE ASSESSMENT YEAR (AY) 2009 - 10 . ASSESSEE HAS BEEN FOLLOWING GROUND OF APPEAL: THE LEARNED COMMISSIONER OF INCOME - TAX (APPEALS) ERRED IN LAW AND ON FACTS IN CONFIRMING THE ADDITION OF RS.25,50,000/ - AS UNEXPLAINED INVESTMENT IN LAND. 2. IN THIS CASE ASSESSEE FILED HER RETURN SHOWING TOTAL INCOME OF RS. 2,03,240/ - . WHILE PASSING AN ASSESSMENT ORDER LD. A.O. HAS ADDITION OF ITA NO. 1151/AHD/2013 SMT. URMILABEN J. JADAV VS. ITO ASST.YEAR 2009 - 10 - 2 - RS. 25,50,000/ - OF ALLEGED UNEXPLAINED INVESTMENT IN LAND. IT WAS STATED BY THE LD. A.O. THAT ASSESSEE HAS PURCHASED AGRICULTURAL LAND BEARING SURVEY NO. 607 OF KUDASAN VILLAGE , DIST - GANDHINAGAR FOR AN AMOUNT OF RS. 51,00,000/ - . 3. DURING THE COURSE OF ASSESSMENT PROC EEDINGS, LD. A.O. ASKED TO EXPLAIN THE ALLEGED INCOME IN THE SO - CALLED, AS PER PURCHASE DEED NO. 2117 DTD. 03/03/2000 AGAINST THE SAID QUARRY. HOWEVER, LD. A.O. WAS SATISFIED WITH THE CONTENTION OF THE ASSESSEE AND STATED THAT ONCE DOCUMENT IS REGISTERED, PENDING PAYMENT AGAINST THE SAID PURCHASE. LD. A.O. CAME ACROSS THE SALE - DEED EXECUTED BETWEEN THE ASSESSEE, CO - PERSON RAJESHKUMAR BALUBHAI PATEL WITH HARESH KANAIYALAL. THE SALE DEED WAS AMOUNTING TO RS. 51,00,000/ - OUT OF WHICH RS. 15,00,000/ - (7,50,000+ 7,50,000) WAS PAID BY ACCOUNT PAYEE CHEQUE AND RS.36,00,000/ - WAS STATED TO BE PAID BY CASH AND ASSESSEE WAS ASKED TO EXPLAIN THE SOURCE OF SAID AMOUNT OF RS. 36,00,000/ - PAID BY WAY OF CASH. 4 . THE LAND IN QUESTION WAS BELONGING TO SMT. SHARDABEN GAUTAM BHAI PATEL AND RAJNIKANT GAUTAMBHAI PATEL. MR. HARESH KANAIYALAL HAS FOR GELY GOT THE SALE - DEED EXECUTED IN HIS FAVOUR FOR THE AMOUNTING TO RS.50,00,000/ - . THE LAND IN QUESTION WAS FORGELY TAKEN AS SALES TO HIM BY SHRI HARESH KANAIYALAL. (A FORGE SALE - DEED IS ENCLOSED HEREWITH). IT MAY BE SEEN THAT, THERE IS NO SIGNATURE OF SELLER SHRI SHARDABEN GAUTAMBHAI PATEL AND RAJNIKANT GAUTAMBHAI PATEL. THEREFORE, THE SALE - DEED EXECUTED BETWEEN SHRI SHARDABEN GAUTAMBHAI PATEL AND ITA NO. 1151/AHD/2013 SMT. URMILABEN J. JADAV VS. ITO ASST.YEAR 2009 - 10 - 3 - SHRI HARESH KANAIYALAL HAS NOT BEEN EN TERED IN THE REGISTRATION BOOK MAINTAINED BY T HE SUB - REGISTRAR, GANDHINAGAR. T HE REGISTRATION OF THE SALE - DEED NO.2108 (BETWEEN SMT SHARDABEN GAUTAMBHAI PATEL AND HARESH KANAIYALAL) HAS NOT BEEN ENTERED IN THE REGISTER. IT WAS ALSO ORDERED THAT SINCE SMT S HARDABEN G. PATEL AND RAJNIKANT G. PATEL ARE NOT PRESENT IN THE OFFICE OF THE SUB - REGISTRAR, GANDHINAGAR AND THE CONFIRMATION HAS NOT BEEN GIVEN, THE REGISTRATION HAS BEEN CANCELLED. THE REGISTRATION OF THE PURCHASER IS ENTERED IN REGISTRATION BOOK BECAUSE ONLY THE PURCHASER WAS PRESENT IN THE OFFICE. A COPY OF THE SAID LETTER WAS SENT TO SMT SHARDABEN G. PATEL AND RAJNIKANT G. PATEL (ORIGINAL LAND OWNERS). REALIZING THE FORGE SALE DOCUMENTS, SMT SHARDABEN G. PATEL AND RAJNIKANT G. PATEL OBJECTED THE SALE - D EED. BUT BEFORE IT COMES TO ANYBODY S KNOWLEDGE, SHRI HARES KANAIYALAL HAS MISGUIDED THE SMT. URMILABEN J. JADAV AND RAJESH BALUBHAI PATEL AND MADE THEM AGREE TO PURCHASE THE SAID LAND. SMT. URMILABEN J. JADAV AGREED TO SHARE 1/3 RD OF THE TOTAL AGREED CONS IDERATION. 5. HOWEVER, SMT. URMILABEN J. JADAV AND RAJESH B. PATEL WERE HAVING SOME DOUBT LOOKING TO THE BEHAVIOR OF HARESH KANAIYALAL. THEREFORE, IT WAS AGREED THAT SHRI HARESH KANAIYALAL WILL BE PAID RS.15,00,000/ - BY WAY OF ACCOUNT PAYEE CHEQUE AND AFT ER REGISTRATION OF THE SALE - DEED AS WELL AS ENTERING THE PURCHASER S NAME (RAJESHKUMAR B. PATEL AND SMT. URMILABEN J. JADAV) INTO THE REVENUE RECORD AND ON PRODUCTION OF 7/12 EXTRACT AND INDEX , THE BALANCE RS. 36,00,000/ - WILL BE PAID IN CASH. THIS WAS T HE ORAL TALK TOOK PLACE BETWEEN SHRI HARESH ITA NO. 1151/AHD/2013 SMT. URMILABEN J. JADAV VS. ITO ASST.YEAR 2009 - 10 - 4 - KANAIYALAL AND THE PURCHASER URMILABEN J. JADAV AND RAJESHKUMAR B. PATEL. THEREFORE, SHRI HARESH KANIYALAL WAS PAID ONLY RS. 15,00,000/ - AND RS. 36,00,000/ - WAS TO BE PAID IN CASH ON SATISFACTION OF THE PURCHASER PARTIES BY ENTERING THEIR NAME IN THE REVENUE RECORD. THUS, IN THE BOOKS OF ACCOUNT OF THE ASSESSEE, RS. 17,00,000/ - (1/3 RD SHARE) WAS SHOWN AS PAYABLE TO HARESH KANAIYALAL. 6. IN BETWEEN, IT WAS FOUND THAT SHRI HARESH KANAIYALAL FORGELY TAKEN RS.15,00,0 00/ - BY ACCOUNT PAYEE CHEQUE AND EXECUTED SALE - DEED WITH SHRI RAJESHKUMAR B. PATEL AND URMILABEN J. JADAV. BEFORE, HE WAS PAID BALANCE AMOUNT OF RS. 36,00,000/ - THE ASSESSEE AND RAJESH B. PATEL ASKED HARESH KANAIYALA TO REPAY RS. 15,00,000/ - WHICH WAS PAID BY ACCOUNT PAYEE CHEQUE. 7. LATER ON, THE LAND IN QUESTION HAS BEEN SOLD BY ORIGINAL LAND OWNERS SMT. SHARDABEN G. PATEL AND RAJNIKANT G. PATEL TO SHRI GHANSYAMBHAI DAHYABHAI PATEL, PALLAV G. PATEL AND LOVE G. PATEL. THE SAID SALE - DEED AMOUNTING OF RS. 72,00,000/ - EXECUTED AND DULY REGISTERED IN THE OFFICE OF THE SUB - REGISTRAR, GANDHINAGAR. 8. BEING AGGRIEVED, THE ORIGINAL LAND OWNERS SMT. SHARDABEN G. PATEL AND RAJNIKANT G. PATEL HAS LODGED THE SPECIAL - CIVIL COMPLAINT WITH THE PRINCIPAL CIVIL JUDGE GANDHINAGAR HAVING CIVIL - APPLICATION NO. 299/2011 ASKING THE RELIEF MENTIONED IN THE ENCLOSED CIVIL APPLICATION. A DETAILED HISTORY IS NARRATED IN THE ENCLOSED SPECIAL - CIVIL APPLICATION. ITA NO. 1151/AHD/2013 SMT. URMILABEN J. JADAV VS. ITO ASST.YEAR 2009 - 10 - 5 - 9. THE ABOVE FACTS AND CIRCUMSTA NCES OF THE CASE, YOUR GOOD SELF IS REQUESTED TO DROP THE IDEA OF MAKING ADDITION OF RS. 25,50,000/ - ON ACCOUNT OF SO - CALLED SALE - DEED WHICH WAS NEVER EXECUTED IN REAL SENSE. 10. AGAINST THE SAID ORDER ASSESSEE PREFERRED FIRST STATUTORY APPEAL BEFORE THE LD. CIT(A), BUT TO NO AVAIL AND LD. CIT(A) CONFIRMED THE ORDER OF THE LD. A.O. 11. WE HAVE HEARD BOTH THE PARTIES AND GONE THROUGH THE IMPUGNED ORDER AND THERE IS NO DOUBT THAT AS PER THE AGREEMENT WHICH WAS GOT REGISTERED IN THE NAME OF THE APPELLANT (T HOUGH SUBSEQUENTLY CANCELLED), SHE WOULD HAVE LEGALLY BECOME OWNER OF 50% OF THE PROPERTY. THE REGISTERED DEED IN THE CASE OF AN IMMOVABLE PROPERTY IS THE PRIME PROOF OF TITLE. NO ONE WOULD HAVE BEEN ABLE TO CHALLENGE HER 50% OF OWNERSHIP. 1 2. T HE APPELLA NT NOW IS CLAIMING THAT IT HAD ONLY 1/3 RD INTEREST IN THE PROPERTY INTENDED TO BE PURCHASED, WHICH IS CONTRARY TO THE DOCUMENT PLACED BEFORE THE REGISTRATION AUTHORITY. 1 3. N OT ONLY THAT, SHE WANTS THE DEPARTMENT TO BELIEVE THAT WHATEVER STAKE SHE WOULD H AVE GOT, AND HER ENDEAVOR TO GET 50% OF OWNERSHIP LEGALLY WAS GOT, WITHOUT PAYIN G A SINGLE RUPEE; AND STILL SHE WOULD BE CO - OWNER AND THE SELLER AGREED TO GIVE HER SO MUCH STAKE. THIS CANNOT BE ITA NO. 1151/AHD/2013 SMT. URMILABEN J. JADAV VS. ITO ASST.YEAR 2009 - 10 - 6 - BELIEVED, BEING AGAINST PROBABILITY OF HUMAN BEHAVIOR; PARTICU LARLY WHEN THE WRITTEN DOCUMENTS SPELLS CLEARLY OTHERWISE. 1 4. T HE FACT IS THAT BOTH THE SELLER AND THE PURCHASER HAVE GONE ON TO PRESENT THE DEED BEFORE THE REGISTERING AUTHORITY AND NOT ONLY THAT AT THE FIRST INSTANCE THAT AUTHORITY WENT ON TO REGISTER IT. 1 5. T HE CLAIMED AFFIDAVIT FROM THE PERSON, WHO ACCORDING TO APPELLANT HERSELF WAS ENGAGED IN FRAUD, CANNOT BE BELIEVED OVER WHAT HAS BEEN STATED IN THE WRITTEN DOCUMENT. IN VIEW OF THE OVERWHELMING EVIDENCES THAT THE APPELLANT HAD ENTERED INTO A DEAL TO PURCHASE THIS LAND AND SUBSEQUENT GONE TO GET IT REGISTERED; THE EVENTUAL SELLER TO HER HAD REGISTERED IT EARLIER AS A PURCHASER; SHE WAS PURPORTED TO BE CLEARLY 50% OWNER; NO ONE CAN BELIEVE THAT SHE WAS ENTITLED TO SUCH A BENEFIT WITHOUT SPENDING A S INGLE RUPEE. WE DO NOT FIND ANY REASON TO DEVIATE FROM THE FINDINGS OF THE CIT . H ENCE, WE WOULD LIKE TO OBSERVE THAT ONCE A REGISTERED STATEMENT IS MADE BEFORE A LAWFUL A UTHORITY IT SHOULD NORMALLY BE TAKEN TO BE TRUE. HERE, WE WOULD LIKE TO REFER TO THE JUDGMENT OF THE HON BLE HIGH COURT OF MADRAS IN THE CASE OF COIMBATORE SPINNING & WEAVING CO. LTD. 95 ITR 375 WHERE IT HAS OBSERVED THAT: TRIBUNAL IS NOT EXPECTED TO TAKE JUDICIAL NOTICE OF SUCH A SUB - STANDARD MORALITY ON PART OF ASSESSEE AS TO ENABLE THEM TO GO BACK ON THEIR OWN SWORN STATEMENTS GIVEN TO BANKS ITA NO. 1151/AHD/2013 SMT. URMILABEN J. JADAV VS. ITO ASST.YEAR 2009 - 10 - 7 - NO ONE SHOULD BE ALLOWED TO BLOW HOT AND COLD IN THE SAME BREATHE TO SUIT ITS PERSONAL INTEREST BEFORE DIFFERENT AUTHORITIES. THEREFORE, THE ADDITION CONFIRMED BY THE LD. CIT(A) OF RS.25,50,000/ - AS UNDISCLOSED INCOME, NOT REFLECTED IN THE RETURN OF INCOME IS CONFIRMED. THE GROUND OF APPEAL IS DISMISSED. WE ARE NOT INCLINE TO INTERFERE IN THE ORDER PASSED BY THE LD. CIT(A). 16 . IN THE RESULT, APPEAL FILED BY THE ASSES SEE /APPELLANT IS DISMISSED . THIS ORDER PRONOUNCED IN OPEN COURT ON 28 / 02 /201 7 SD/ - SD/ - . . ( ) ( ) ( N.K. BILLAIYA ) ( MAHAVIR PRASAD ) ACCOUNTANT MEMBER JUDICIAL MEMBER A HMEDABAD; DATED 28 / 02 /20 17 PRITI YADAV, SR.PS / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. / CONCERNED CIT 4. ( ) / THE CIT(A) - AHMEDABAD 5. , , / DR, ITAT, AHMEDABAD 6. / GUARD FILE . / BY ORDER, //TRUE COPY// / ( DY./ASSTT.REGISTRAR) , / ITAT, AHMEDABAD TRUE COPY