The ACIT, Cir 1(1), Baroda V. Shri Rahul S Patel, Baroda

ITA 1743/AHD/2000

• Counselvise Citation: [2009] 114 COUNSELVISE.COM (IT) 9235 (ITAT-AHMEDABAD)
• Duration Of Justice: 9 year(s) 1 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-08-2009
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: D
• Next Hearing Date: 01-07-2009
• Assessment Year: 1996-1997
• Appeal Filed On: 25-07-2000
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: NEETA SHAHDR
• Assessee Lawyers: TUSHAR P HEMANIAR
• Keywords: Unexplained investment; Capital asset; Loose papers; Share purchase agreement; Set aside
• Section: 69B; 6; 12; 10; 2

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL: AHMEDABAD BEN CHES D BENCH: AHMEDABAD (BEFORE S/SHRI H. L. KARWA, JM AND A N PAHUJA, AM) ITA NO.1743/AHD/2004 A Y: 1996-97 THE ACIT CIRCLE -1(1), 1 ST FLOOR, AAYAKAR BHAVAN, RACE COURSE CIRCLE, BARODA VS SHRI RAHUL S. PATEL, C/O. STHAPTYA KENDRA, KIRTI TOWER, TILAK ROAD,BARODA [PAN: 31-616-PY-1364/ BRD/CC-3] APPELLANT RESPONDENT ITA NO.1745/AHD/2004 A Y: 1996-97 THE DCIT CIRCLE -2(1), AAYAKAR BHAVAN, RACE COURSE CIRCLE, BARODA VS SHRI SIDDHARTH S. PATEL, KIRTI TOWER, TILAK ROAD, BARODA [PAN: 31-616-PZ-1363] APPELLANT RESPONDENT DEPARTMENT BY NEETA SHAH,DR ASSESSEE BY SHRI TUSHAR P. HEMANI,AR ORDER A N PAHUJA: THESE TWO APPEALS BY THE REVENUE AGAINST TWO SEPARATE ORDERS DATED 11-4-2000 OF THE LEARNED CIT (A)- IV, BARODA, RAISE THE FOLLOWING GROUNDS: ITA NO.1743/AHD/2000[RAHUL S PATEL] 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE AND IN LAW, THE LEARNED CIT(A) ERRED IN DELETING THE ADDITION OF RS .17.5 LAKHS TOWARD SUPPRESSED SALE CONSIDERATION OF LAND SOLD B Y THE ASSESSEE TO HIS BROTHER SHRI S. S. PATEL. THE CIT(A) HAS ERR ED IN HOLDING THAT AO HAS RELIED WRONGLY ON ONE DOCUMENT ONLY. HE HAD RELIED ON CIRCUMSTANTIAL AND SURROUNDING CIRCUMSTANCES INCLUD ING HUMAN BEHAVIOURAL PATTERN THEN CAME TO THAT BALANCE OF PR OBABILITY CLEARLY SHOWS ON MONEY TRANSACTION. THE CIT(A) HAS ONLY G ONE BY THIS DOCUMENT IGNORING SO MANY OTHER FACTORS MENTIONED B Y THE A. O. PREVAILING SALE PRICE, SALE OF SAME LAND, REGISTER ED TRANSACTION, ETC. ITA NO.1743 AND 1745/AHD/2000 SHRI RAHUL S PATEL AND SIDDHARTH S. PATEL 2 AS ALSO ACQUIRING OF SO MANY ASSETS BY ASSESSEE FOR WHICH APPARENTLY ASSESSEE HAD NO SOURCE. THE SUPREME COUR T HAS ALSO UPHELD SUCH ADDITIONS ON THE BASIS OF SUCH CIRCUMST ANTIAL EVIDENCES (SUMATI DAYAL, 214 ITR 810). 2. ON FACTS AND IN THE CIRCUMSTANCES OF THE CASE AN D IN LAW THE LEARNED CIT(A) OUGHT TO HAVE UPHELD THE ORDER OF TH E ASSESSING OFFICER. 3. IT IS, THEREFORE, PRAYED THAT THE ORDER OF THE C IT(A) BE SET ASIDE AND THAT OF THE ASSESSING OFFICER BE RESTORED. ITA NO. 1745/AHD/2000[SIDDHARTH S PATEL] 1. ON FACTS AND IN THE CIRCUMSTANCES OF THE CASE A ND IN LAW THE LEARNED CIT(A) ERRED IN DELETING THE ADDITION OF RS .17.5 LAKHS ON ACCOUNT OF UNACCOUNTED INVESTMENT U/S. 69-B OF THE ACT. 2. ON FACTS AND IN THE CIRCUMSTANCES OF THE CASE AN D IN LAW THE LEARNED CIT(A) OUGHT TO HAVE UPHELD THE ORDER OF TH E ASSESSING OFFICER. 3. IT IS, THEREFORE, PRAYED THAT THE ORDER OF THE C IT(A) BE SET ASIDE AND THAT OF THE ASSESSING OFFICER BE RESTORED. 2. FACTS, IN BRIEF, AS PER RELEVANT ORDERS ARE THAT DURING THE COURSE OF SEARCH U/S132 OF THE INCOME-TAX ACT, 1961 (HEREINAFTER REF ERRED TO AS THE ACT) CONDUCTED ON 30-6-1994 IN THE BUSINESS AND RESIDENT IAL PREMISES, INCLUDING NANDANVAN FARM HOUSE OF THE ASSESSEE SHRI RAHUL S P ATEL, HIS BROTHER SHRI SIDDHARTH S. PATEL AND HIS FATHER SHRI S. L. PATEL, SOME LOOSE PAPERS, INCLUDING A DRAFT MEMORANDUM OF UNDERSTANDING[MOU] DATED 30.4.1 994 CONTAINING SETTLEMENT AMONGST THE TWO BROTHERS AND OTHER MEMBE RS OF THE FAMILY, WAS SEIZED. THE SAID MOU WAS NOT SIGNED BY ANY OF THE P ERSONS INVOLVED IN THE DISTRIBUTION OF ASSETS AND WAS SIGNED ONLY BY ASSES SEES UNCLE SHRI B. C. PATEL . INTER ALIA, IT WAS MENTIONED IN THE DRAFT MOU THAT THE ASSESSEE SHRI RAHUL S PATEL IN CONSIDERATION OF A SPECIFIED AMOUNT SHALL TRANSFER HIS HOLDING IN GREEN ACRES MOTELS LTD. AND RELINQUISH THE RIGHT IN PROPE RTY SITUATED IN AMPAD VILLAGE. THE SAID LAND IN AMPAD VILLAGE WAS OWNED BY THE ASS ESSEE AND HIS BROTHER FOR DEVELOPMENT PROJECTS. THE ASSESSEE SHRI RAHUL S PAT EL HAD MADE INVESTMENT OF ITA NO.1743 AND 1745/AHD/2000 SHRI RAHUL S PATEL AND SIDDHARTH S. PATEL 3 RS.2.00 LACS IN THE SAID LAND OUT OF A TOTAL OF RS. 4.00 LACS. THE RELEVANT PORTION OF THE TERMS & CONDITIONS OF THE SAID DRAFT MOU REVEA L AS UNDER: IT IS CLEARLY UNDERSTOOD AND AGREED BETWEEN S. L. P., R.S.P. & S. S. P. THAT MR. R. S. P. WILL GIVE NECESSARY P. A. IN FAVO UR OF S. L. P. TO EXECUTE NECESSARY DOCUMENTS IN RESPECT OF N. A. ETC. AND TH E SAME P. A. SHALL REMAIN IN POSSESSION OF MR.BCP TILL THIS AGREEMENT IS SIGNED BY ALL THE THREE AND ALSO NECESSARY PAYMENTS MENTIONED HEREIN BELOW IS GIVEN TO MR. R. S. P. MR. S. S. P. WILL GIVE RS.20 LACS IN T HREE INSTALLMENT VIZ. RS.10 LACS ON SIGNING AGREEMENT, RS. 5 LACS AFTER 2 MONTH S FROM THE DATE OF THIS AGREEMENT & BALANCE RS.5 LACS AFTER 4 MONTHS FROM T HE DATE OF THIS AGREEMENT. TWO POST DATED CHEQUES OF RS.5 LACS AS M ENTIONED ABOVE SHALL BE GIVEN IN FAVOUR OF SHRI R. S. P. BY MR. S. S. P. AND THIS CHEQUES WILL BE REMAIN IN POSSESSION OF MR. B. C. P. TILL T HE DATE OF ENCASHMENT. IT IS CLEARLY UNDERSOOOD & AGREED MR. S. C. P. , R. S. P. , S. S. P. THAT IT WILL BE THE RESPONSIBILITY OF S. L. P., R. S. P. & B. C. P. THAT POST DATED CHEQUES ARE CLEARED WITHOUT ANY PROBLEMS ON THE DUE DATES. IN CONSIDERATION OF ABOVE MENTIONED PAYMENTS, IT IS AGREED BY MR. R.S.P. THAT HE WILL SURRENDER & TRANSFER HIS SHARES OF GREEN ACRES IN FAVOUR OF MR. S. S. P.OR HIS NOMINEE AND MR. R. S. P. WILL ALSO TRANSFER HIS PORTION OF LAND (IN AOP) IN FAVOUR OF MR. S. S. P. OR HIS NOMINEE (PARA A). MR. R. S. P. WILL SIGN BLANK TRANSFER FORMS AND GIV E THE SAME TO B. C. P. ALONG WITH SHARE CERTIFICATES AND WILL ALSO S IGN ALL THE DOCUMENTS IN RESPECT OF TRANSFER OF AGREE LAND HELD BY AOP IN TH E FAVOUR OF MR. S. S. P. AND ALL THESE PAPERS SHALL REMAIN WITH MR. B. C. P. & MR. ____ AND THE SAME SHALL BE HANDED OVER BY MR. B. C. P. TO MR. S. S. P. ON RECEIPT OF FULL PAYMENTS BY MR. R. S. P. (HEREIN MENTIONED AS ABOVE ) (PARA A). IT IS ALSO AGREED THAT MR. S. S. P. SHARE TRANSFER ONE COTTAGE OF ______SQ. FT. ALONG WITH A NON-AGRICULTURE PLOT OF _______SG. FT. IN FAVOUR OF MR. R. S. P. OR HIS NOMINEE IN CONSIDERATION OF MR. R. S. P.S GREEN ACRES SHARE & HIS PORTION OF LAND (IN AOP) WHICH WI LL BE TRANSFERRED TO MR. S. S. P. OR HIS NOMINEE. 2.1. THE ASSESSEE SHRI RAHUL S PATEL RETURNED INCOM E OF RS.2,53,300/- INCLUDING RENTAL INCOME, PROFESSIONAL INCOME BESIDE S INCOME FROM OTHER SOURCES AND WITHDRAWAL FROM NSS IN HIS RETURN FILED ON 31.3 .1997 WHILE SIDDHARTH S PATEL FILED RETURN DECLARING INCOME OF RS. 7777,675/- ON 8.10.1996. SHRI RAHUL S PATEL IS STATED TO HAVE PURCHASED NEW OFFICE PROPERTY FOR RS.4,19,501/-, AGRICULTURAL ITA NO.1743 AND 1745/AHD/2000 SHRI RAHUL S PATEL AND SIDDHARTH S. PATEL 4 LAND FOR RS.1,07,801/- AND ALSO BOOKED A NEW HOUSE FOR RS.17.00 LACS FOR WHICH PAYMENT OF RS.2.50 LACS WAS MADE IN THE YEAR UNDER CONSIDERATION. THE ASSESSEE ALSO PURCHASED A NEW CAR FOR RS.2,08,358/- .AS STIPULATED IN THE AFORESAID DRAFT MOU, THE ASSESSEE ALSO GAVE UP HIS RIGHTS IN THE LAND JOINTLY HELD BY THE AOP OF THE ASSESSEE AND HIS BROTHER SHRI SID DHARTH S. PATEL. THE RIGHTS OVER HIS PORTION OF LAND OF 32 BIGHAS IN VILLAGE AM PAD WAS GIVEN UP FOR A PRICE OF RS.2.50 LACS RECEIVED ON 22.2.1996. BESIDES, SHRI R AHUL S PATEL SOLD HIS RIGHTS IN GREEN ACRES MOTELS PVT. LTD. TO HIS SISTER-IN-LA W SMT. AVANI J. MEHTA, WIFE OF SHRI SIDDHARTH S. PATEL. IN RESPONSE TO A NOTICE DA TED 22.7.1998 ISSUED BY THE ASSESSING OFFICER[AO IN SHORT], SHRI RAHUL S PATEL VIDE HIS LETTER DATED 1-08- 1998 WHILE ENCLOSING A COPY OF AGREEMENT SUBMITTED THAT HE HAD SOLD HIS SHARE IN LAND ADMEASURING 15-29-73 HECTARES FOR A SUM OF RS.2.50 LACS. THE AO FURTHER NOTICED THAT A PART OF THIS LAND IS USED BY SHRI SI DDHARTH S. PATEL AND THE ASSESSEE FOR A BUILDING PROJECT KNOWN AS GREEN ACR ES MOTELS PVT. LTD. WHEREIN BIG COTTAGES WERE CONSTRUCTED. THE SAID LAND WAS BE ING SOLD AT A PRICE OF RS.1.70 LACS TO RS.2.00 LACS PER BIGHA, WHICH INCLUDED COS T OF LAND AND DEVELOPMENT CHARGES. THE ASSESSEE HIMSELF HAD SHOWN SALE PRICE OF THIS LAND @RS.40,000/- TO RS.60,000/-PER BIGHA WHILE IN THE CASE OF SHRI S IDDHARTH S. PATEL IN ASSESSMENT YEAR 1997-98, HE SOLD THE SAME LAND FOR RS.1.17 LACS PER BIGHA. ON ENQUIRY FROM THE DEPUTY COLLECTOR, STAMP DUTY, BARO DA, THE AO ASCERTAINED THAT THE LAND PRICES FOR SUCH AGRICULTURAL LAND WITHOUT WATER IN REVENUE SURVEY NO.2- 1, BLOCK NO.8, SURVEY NO.2-1-1 BLOCK NO.14A, SURVEY NO.2-4-1, BLOCK NO.14B IN VILLAGE AMPAD, DIST BARODA WAS RS.3,80,000/- PER H ECTARE AS PER JANTRI. IN THE LIGHT OF THESE FACTS, THE AO WAS OF THE OPINION THA T THE ASSESSEE SUPPRESSED SALE PRICE OF LAND SLD TO HIS BROTHER SHRI SIDDHARTH S P ATEL. TO A QUERY BY THE AO REGARDING THE DRAFT FAMILY SETTLEMENT IN THE FORM OF MOU SEIZED DURING THE SEARCH, THE ASSESSEE SUBMITTED THAT THE SAME WAS O NLY A DRAFT AND NOT IMPLEMENTED AND, THEREFORE, THE ADDITION CANNOT BE MADE PURELY ON SUSPICION. THE ASSESSEE DENIED HAVING RECEIVED EITHER ANY COTT AGE IN HIS NAME IN GREEN ACRES MOTELS PVT. LTD. NOR ANY CASH AGAINST SALE OF THE LAND. AS REGARDS SALE PRICE OF RS.1,17,434/- PER BIGHA OF THE SAID LAND B Y SHRI SIDHDHARTH S. PATEL, THE ITA NO.1743 AND 1745/AHD/2000 SHRI RAHUL S PATEL AND SIDDHARTH S. PATEL 5 ASSESSEE SUBMITTED THAT THIS WAS DEVELOPMENT COST. REGARDING REPLY OF THE DY. COLLECTOR, STAMP DUTY, AMPAD, BARODA MENTIONING PRI CE OF RS.3.80 LACS PER HECTARE AS ON 1.4.1997, THE ASSESSEE ARGUED THAT TH IS WAS NOT APPLICABLE IN FEBRUARY 1996, BEING BASED ON EITHER SOLITARY INSTA NCE OF TRANSACTION OR ON THE AVERAGE PRICE OF VARIOUS LAND TRANSACTIONS. SINCE T HE ASSESSEE IN HIS FURTHER SUBMISSIONS FILED ON 6-1-1999 STATED THAT AVERAGE P RICE IN SURROUNDING AREAS OF THE LAND WAS RS.4250 PER BIGHA, THE AO ASKED THE AS SESSEE TO FURNISH EVIDENCE IN SUPPORT OF THIS CONTENTION AND FURTHER PROVE THA T THE LAND PRICE WAS RS.8,000/- PER BIGHA. HOWEVER, NO REPLY WAS SUBMITTED BY THE A SSESSEE. INSTEAD, IN HIS LETTER DATED 12-2-1999, THE ASSESSEE SUBMITTED AS U NDER: (1) AS PER THE TALATI RECORDS THE SALE PRICE OF TH E LAND IN THE PERIOD 1994 TO 1996 IN AMPAD REGION VARIED FROM RS.10000/- TO R S.50000/- PER BIGHA. THUS, THE VARIATION IN SALE PRICE WAS FROM 2 0% TO 100% . THE SALE PRICES OBTAINED FROM THE DY. COLLECTOR, STAMP DUTY, BARODA WAS APPROXIMATELY RS.90000/- PER BIGHA, WHICH INDICATES EVEN MORE VARIATION IN SALE PRICE. THEREFORE, THE ASSESSEE CO NTENDED THAT THE SALE PRICE OF THE LAND IN A PARTICULAR AREA QUOTED VARY TO A LARGE EXTENT. (2) THE ASSESSEE SUBMITTED THAT THE LAND SOLD BY TH EM IS KOTER LAND WHICH IS NOT CULTIVABLE. THEREFORE ITS PRICE IS LESS. (3) THE DRAFT OF FAMILY SETTLEMENT PREPARED BY THE FAMILY MEMBERS AND FOUND DURING SEARCH WAS ONLY A DRAFT AND NOT AN AGR EEMENT AND THEREFORE IT CAN NOT BE RELIED UPON. THE AMOUNT ACT UALLY PAID IS RS.10,50,000/- TOWARDS LAND AND SHARES OF GREEN ACR ES MOTELS PVT. LTD. (4) WITHOUT PREJUDICE TO THE ABOVE, THE ASSESSEE HA S SUBMITTED THAT THE PRICE OF THIS LAND SOLD BY HIM HAS BEEN ACCEPTED BY THE DY. REGISTRAR, STAMP DUTY AT RS.5 LACS INSTEAD OF RS. 2.5 LACS AN D THE STAMP DUTY IS PAYABLE ON THE AMOUNT OF RS.5 LACS. SUCH PRICES IS DISPUTED BY THE ASSESSEE. ITA NO.1743 AND 1745/AHD/2000 SHRI RAHUL S PATEL AND SIDDHARTH S. PATEL 6 2.2. IN THE LIGHT OF THE AFORESAID SUBMISSIONS OF T HE ASSESSEE, THE AO CONCLUDED AS UNDER: (1) 32 VIGAS OF LAND AT AMPAD VILLAGE IS TRANSFERR ED BY THE ASSESSEE TO HIS BROTHER SHRI S. S. PATEL FOR A SMALL AMOUNT OF RS.250000/- WHICH MEANS RS.8000/- OR LESS PER VIGHA. AS AGAINST THIS, SHRI S. S. PATEL HAS SOLD THE SAME LAND TO VARIOUS OTHER PURCHASERS AT A PRICE OF RS.1.17 LACS PER VIGHA OR MORE. THE DIFFERENCE IN S ALE PRICE OF THE SAME LAND AT RS.8000/- PER VIGHA AND AT RS.1.17 LAC S PER VIGHA IS QUITE SUBSTANTIAL. SUCH DIFFERENCE IN THE SALE PRIC E OF THE SAME LAND IS NOT POSSIBLE. THE LAND AT SURVEY NO.2-7, 2-1-1- & 2-4-1 AT VILLAGE AMPAD IS SOLD BY SHRI S. S. PATEL TO VARIOUS CUSTOM ERS IN THE PROJECT GREEN ACRES MOTELS PVT. LTD. FOR RS. 1.17 L ACS PER VIGHA TO RS.2.00 LACS PER VIGHA. EVEN IF WE CONSIDER THAT TH E DEVELOPMENT COST OF THE LAND IS APPROXIMATELY RS.80000/- TO RS. 1.00 LACS PER VIGHA, EVEN THEN THE BASIC LAND COST OF AMPAD LAND IS CHARGED BY THE ASSESSEES BROTHER AT RS.30000/- TO RS.60000/- PER VIGHA INSTEAD OF RS.8000/- . BOTH THE ASSESSEE AND SHRI S . S. PATEL HAVE FAILED TO EXPLAIN THE DIFFERENCE IN SALE PRICE OF L AND. THEY FAILED TO EXPLAIN AS TO HOW THE SAME LAND WAS SOLD BY THE ASS ESSEE TO SHRI S. S. PATEL AT LOW PRICE OF RS.8000/- PER VIGHA WHE REAS THE SAME LAND WAS SOLD BY SHRI S. S. PATEL TO OTHER CUSTOMER S AT A HIGH PRICE OF RS.30000/- TO RS.60000/- PER VIGHA. THE SHARP DI FFERENCE IN SALE PRICE COULD NOT BE EXPLAINED BY THE ASSESSEE. THIS ESTABLISH THE SUPPRESSION OF SALE PRICE IN CASE OF THE ASSESSEE. (2) IT IS A PREVALENT FACT THAT THE SALE PRICE OF T HE LAND INCLUDES TRANSACTIONS BY BOTH CHEQUES AS WELL AS CASH AMOUNT. CHEQUE AMOU NTS ARE RECORDED TRANSACTIONS AND CASH AMOUNT REMAINS UNREC ORDED. IN THE CASE OF ASSESSEE HIMSELF I.E. INCASE OF GREEN ACRES MOTELS PVT. LTD. A PROJECT CONSTRUCTED ON AMPAD LAND, IT WAS ADMITTED DURING SEARCH THAT THE ASSESSEE IS RECEIVING 20 TO 30% UNACCOUNTED ON MONEY ON BOOKING OF COTTAGES. THIS INCLUDES ON MONEY RECEIVE D ON LAND ON WHICH SUCH COTTAGES WERE CONSTRUCTED. ON THE BASIS OF THIS ADMISSION ADDITIONS WERE MADE IN THE HANDS OF GREEN ACRES MOT ELS PVT. LTD. IN A. Y. 1994-95 TO A. Y. 1996-97. THE ASSESSEE DISPUTED SUCH ADDITIONS IN APPEAL AND NOW ASSESSEE HAS AVAILED KAR VIVAD SAMAD HAN SCHEME 1998 TO OFFER TAX ON SUCH ADDITIONS. (3) DURING SEARCH ONE DRAFT FAMILY SETTLEMENT WAS SEIZED FROM NANDANVAN FARM HOUSE. THIS DRAFT CLEARLY SAYS THAT REGARDING GREEN ACRES MOTELS PVT. LTD., IT IS SETTLED BETWEEN FAMILY MEMBERS THA T SHRI S. S. PATEL WILL PAY RS. 20 LACS IN 3 INSTALLMENTS TO SHRI R. S. PAT EL AND R. S. PATEL IN TURN WILL TRANSFER HIS RIGHTS IN AMPAD LAND AND HIS SHARES IN GREEN ITA NO.1743 AND 1745/AHD/2000 SHRI RAHUL S PATEL AND SIDDHARTH S. PATEL 7 ACRES MOTELS PVT. LTD., TO S. S. PATEL OR TO HIS NO MINEE. AS PER THE SETTLEMENT THE EXACT TERMS WERE ARRIVED BETWEEN SHR I R. S. PATEL AND S. S. PATEL BY WHICH R. S. PATEL WAS REQUIRED TO TA KE RETIREMENT FROM THE DIRECTORSHIP OF GREEN ACRES MOTELS PVT. LTD. AN D HE WAS ALSO REQUIRED TO TRANSFER HIS SHARE OF LAND IN AMPAD TO S. S. PATEL. AGAINST THIS R. S. PATEL WAS RECEIVING A CONSIDERATION OF R S.20,00,000/-. ONCE SUCH TERMS WERE ARRIVED THERE WAS NO REASON FOR THE REVISION OF CONSIDERATION OF RS.20 LACS. TIME AND AGAIN ASSESSE E HAS BEEN ASKED TO EXPLAIN HOW HE RECEIVED ONLY RS.2.5 LACS INSTEAD OF RS.20 LACS AS MENTIONED IN THE AGREEMENT. EVEN IF THIS IS A DRAFT SETTLEMENT ONLY, IT PROVIDED US THE SOLID BASIS TO UNDERSTAND THE EXACT NATURE OF TRANSACTIONS ENTERED INTO BY SHRI R. S. PATEL AND S . S. PATEL. AS PER THIS AGREEMENT ITSELF, LAND IS TRANSFERRED TO S. S. PATEL AND THE SHARES OF GREEN ACRES MOTELS PVT. LTD. WERE TRANSFERRED TO SMT. AVANI S. PATEL, WIFE OF S. S. PATEL. R. S. PATEL WAS RETIRED AS A DIRECTOR FROM GREEN ACRES MOTELS PVT. LTD. IN FEBRUARY 1996. THIS PART IS FULLY CONDUCTED BETWEEN THE TWO PARTIES AS GIVEN IN THE A GREEMENT. HOWEVER, AGAINST SUCH TRANSFER, THE ASSESSEE I.E. S HRI R. S. PATEL RECEIVED ONLY RS. 250000/- INSTEAD OF RS.2000000/- AGAINST TRANSFER OF LAND. THIS SUPPRESSION OF SALE PRICE OF LAND FROM R S.20 LACS TO RS.2.5 LACS COULD NOT BE EXPLAINED BY THE ASSESSEE. IT IS, THEREFORE, HELD THAT THE ASSESSEE HAS SUPPRESSED THE LAND PRICE BY RS.17 .5 LACS. THIS AMOUNT IS THEREFORE ADDED IN THE HANDS OF THE ASSES SEE AS UNACCOUNTED CONSIDERATION IN THE LAND SOLD TO SHRI S. S. PATEL. (4) EVEN IF THE LAND PRICE OF AMPAD LAND IS TAKEN A T RS.60,000/- PER VIGHA, TOTAL PRICE OF LAND TRANSFERRED BY THE ASSESSEE TO SHRI S.S PATEL COME TO RS. 20 LACS APPX. HOWEVER, AS PER THE RATES GIVE N BY THE DY. COLLECTOR,STAMP DUTY-BARODA, THE RATE OF THIS AMPAD LAND FOR A RAVINE AND UNCULTIVABLE LAND IS RS. 3.80 PER HECTARE I.E. RS. 97,000/- PER VIGHA.IF THIS PRICE IS TAKEN AS BASIS THAN THE SAL E PRICE OF ASSESSEES LAND GOES MUCH HIGHER THAN RS. 20 LACS. HOWEVER, DE PENDING ON THE SEIZED MATERIALS ANNEXURE-A1 DATED 30.6.1994 SEIZED FROM NADANVAN FARM HOUSE-PAGE 24 & 25, THE VALUE OF THIS LAND IS TAKEN AT RS. 20 LACS FIXED BETWEEN TWO PARTIES AS PER SETTLEMENT AR RIVED IN THE FAMILY. (5) THE ASSESSEE HAS ALSO ADMITTED THAT THE DY. REG ISTRAR STAMP DUTY,BARODA, HAS VALUED THIS LAND AT RS. 5 LACS INS TEAD OF RS. 2.5 LACS.THIS ESTABLISHES OUR STAND. THIS SHOWS THAT TH E ASSESSEE HAS SUPPRESSED THE VALUE OF LAND. (6) THE ASSESSEE HAS MADE SUBSTANTIAL INVESTMENT IN VARIOUS NEW IMMOVABLE PROPERTY THIS YEAR. THE ASSESSEE HAS PURC HASED NEW OFFICE PROPERTY FOR RS.4,11,510/-.THE ASSESSEE HAS ALSO PU RCHASED NEW AGRICULTURAL LAND AT RS. 1,07,801/-.THE ASSESSEE HA S BOOKED A NEW BUNGLOW FOR RS. 17 LACS. IT IS WELL KNOWN FACT THAT THE TRANSACTION OF ITA NO.1743 AND 1745/AHD/2000 SHRI RAHUL S PATEL AND SIDDHARTH S. PATEL 8 IMMOVABLE PROPERTY INVOLVED PAYMENT OF PART CONSIDE RATION IN CASH. SUCH PURCHASE OF IMMOVABLE PROPERTY BY ASSESSEE ARE CORROBORATIVE EVIDENCE TO ESTABLISH THAT THE ASSESSEE HAS RECEIVE D UNACCOUNTED CASH ON LAND SALE OF AMPAD LAND TO SHRI S.S.PATEL. 2.3 . IN VIEW OF HIS AFORESAID FINDINGS, THE AO HE LD THAT THE ASSESSEE HAD SUPPRESSED LAND PRICE BY RS.17.50 LACS AND ACCORDIN GLY ,MADE THE ADDITION TO THE TOTAL INCOME OF THE ASSESSEE SHRI RAHUL S PATEL , CONSIDERING THE AMOUNT AS UNACCOUNTED CONSIDERATION. 2.4 LIKEWISE, IN THE CASE OF SHRI S. S. PATEL SIMI LAR AMOUNT OF RS. 17.50 LACS WAS ADDED U/S 69B OF THE ACT. 3. ON APPEAL IN THE CASE OF SHRI RAHUL S PATEL, IT WAS CONTENDED AS UNDER: I) THE MOU IN QUESTION IS A DRAFT IS NOT DISPUTED. II) THE TIME GAP BETWEEN THE DATE OF MOU I.E. 30/4/ 1994 AND ACTUAL SALE OF PROPERTY IN FEB06 LEADING TO BELIEVE THE P OSSIBILITY OF RENEGOTIATION OF TERMS. (III) THE DRAFT MOU IS UNSIGNED AND ALSO CONTAIN TH E REQUIREMENT OF PAYMENT OF POST DATED CHEQUES BY SHRI SIDDARTH PATE L AND IF THIS MOU IS DEEMED AS EXECUTED, HE OUGHT TO HAVE GIVEN C HEQUES AND THIS WOULD HAVE REFLECTED IN HIS ACCOUNTS OR THROUG H ANY OTHER MEANS. THE ABSENCE OF SUCH CHEQUES IS SUFFICIENT IN DICATOR TO PROVE THE NON-EXECUTION OF THE SAID MOU. (IV) THE MOU IS DRAFTED BY A THIRD PERSON HAVING NO EXPERIENCE OR EXPERTISE AND WHEN THE LD. A. O. WANTED TO PLACE SU CH A HEAVY RELIANCE ON SUCH DOCUMENTS HE OUGHT TO HAVE EXAMINE D HIM TO VERIFY THE CONTENTS WHICH HE HAS CONVENIENTLY AVOID ED FOR OBVIOUS REASONS. (V) THE SAID MOU CONTAINS VARIOUS BLANKS SPACES WHI CH ARE LEFT BLANK PENDING DECISION. (VI) THE MOU CATEGORICALLY STATES THAT SHRI RAHUL P ATEL SHALL TRANSFER SHARES IN GREEN ACRES AS WELL AS RIGHT IN AOP FOR T HE AGREED CONSIDERATION. DESPITE THESE RECITALS, THE LD. A. O . HAS ASSUMED AND PRESUMED THAT THE CONSIDERATION IS ONLY FOR SAL E OF LAND. THIS ASSUMPTION ITSELF IS CONTRARY TO THE CONTENTS OF TH E MATERIAL RELIED UPON. ITA NO.1743 AND 1745/AHD/2000 SHRI RAHUL S PATEL AND SIDDHARTH S. PATEL 9 (VII) THE MENTION BY WAY OF SPECIFIC NOTE THAT THE SAID MOU IS A DRAFT AND WILL BE FINALLY DRAFTED BY A LAWYER IS ENOUGH E VIDENCE TO SHOW THAT THE SAID MOU WAS ALSO ONLY INTENDED AND NOT TH E RECITALS OF AGREED TERMS. 3.1. RELYING UPON THE DECISIONS IN THE CASE OF CIT& VS CHAMANLAL DHINGRA, 121 TAXATION 272, 273 (ALLAHABAD), ACIT VS. SHAILES H SHAH,63 ITD 153(MUM.),CIT VS A. RAMAN & CO. 67 ITR 11(SC) AND C IT VS CALCUTTA DISCOUNT COMPANY LTD., 91 ITR 8 (SC), DHIRAJLAL GIRDHARLAL V S. CIT,26 ITR 736(SC), DHAKESHWARI COTTON MILLS,26 ITR 775(SC), LALCHAND B HAGAT AMBICA RAM,37 ITR 2888(SC), UMACHARAN SHAW 7 BROS.,37 ITR 271(SC) AND OMAR SALAY MOHAMED SAIT,37 ITR 151(SC), THE ASSESSEE PLEADED THAT THE ADDITION HAS BEEN MADE WITHOUT VERIFICATION OF THE FACTS AND MERELY ON SUS PICION. IT WAS FURTHER SUBMITTED THAT THERE WAS NO BASIS FOR CONSIDERATION OF RS.20. 00 LACS AS IS PRESUMED TO BE THE SALE PRICE OF THE LAND ONLY AS IT WAS CLEARLY S TATED THAT SHRI RAHUL S. PATEL IN CONSIDERATION HAD TO TRANSFER HIS SHARE IN GREEN AC RES MOTELS PVT. LTD.. EVEN IN TERMS OF THE DRAFT MOU, THE ASSESSING OFFICER ACCEP TED RECEIPT OF RS.8.00 LACS FOR TRANSFER OF HIS SHARE IN GREEN ACRES MOTELS PV T. LTD WHILE BANK LIABILITY IN RESPECT OF AOP LAND IS NOT IN DISPUTE AND THE AMOUN T OF SUCH LIABILITY ON THE DATE OF TRANSFER IS APPROXIMATELY RS.5.75 LACS. IN THESE CIRCUMSTANCES, THE NET SURPLUS WOULD BE RS.3.75 LACS (RS. 20.00 LACS RS. 8.00 LA CS RS.2.50 LACS RS.5.75 LACS), IT WAS CONTENDED. 4. IN THE LIGHT OF THE AFORESAID SUBMISSIONS, THE LEARNED CIT(A) DELETED THE ADDITION HOLDING AS UNDER: 7 THE CONTENTIONS OF THE APPELLANT, THE ASSESSING OFFICER AND FACTS ON RECORDS ARE CONSIDERED CAREFULLY. IT IS OBSERVED TH AT THE ASSESSING OFFICER HAS MADE ADDITION OF RS.17.50 LACS BY HEAVILY RELYI NG ON THE DRAFT MOU WHICH WAS FOUND DURING THE SEARCH ON 30.6.1994. THE DRAFT OF THE MOU IS PERUSED. THE DRAFT OF THE MOU IS DATED 30.4.94, WHE REAS THE SEARCH WAS CARRIED OUT ON 30.6.94 I. E. AFTER A GAP OF TWO MON THS. THIS DRAFT IS NOT SIGNED BY ANY OF THE PARTIES INVOLVED IN THE SETTLE MENT BUT WAS SIGNED BY SHRI B. C. PATEL, UNCLE OF THE APPELLANT. IT IS FUR THER OBSERVED THAT THE APPELLANT HAS RELINQUISHED HIS RIGHT AND SOLD LAND ON 20.2.96. IN THE DRAFT, ITA NO.1743 AND 1745/AHD/2000 SHRI RAHUL S PATEL AND SIDDHARTH S. PATEL 10 IT IS MENTIONED THAT THIS IS NOT A FINAL AGREEMENT AND THE MOU WAS SIGNED ONLY BY SHRI B. C. PATEL. IT IS FURTHER MENTIONED I N THE DRAFT THAT THE DETAILED AGREEMENT SHALL BE DRAFTED BY A LAWYER AND BEFORE T HE SAME IS PUT ON THE STAMP PAPER IT WOULD BE SHOWN TO THE PARTIES INVOLV ED IN SETTLEMENT. IT IS SEEN THAT NO ACTION WAS TAKEN IN PURSUANCE OF THE T ERMS OF THE SAID DRAFT DURING THE PERIOD 30.4.94 TO 30.6.96. IT IS FURTHER NOTED THAT DURING THE SEARCH NO MATERIAL WAS FOUND OR THE CONCERNED PARTI ES STATED IN THE STATEMENT RECORDED DURING THE SEARCH THAT THE TERMS OF THE DRAFT ARE AGREED BY THEM AND ITS TERMS WILL BE EXECUTED IN FU TURE. THERE IS NO EVIDENCE ON RECORD TO SHOW THAT THE PARTIES AGREED FOR EXECUTION OF THE MOU. IN MY VIEW, THE ASSESSING OFFICER CANNOT RELY ON THIS DOCUMENT AFTER A PERIOD OF 22 MONTHS AND HOLD THAT THE TRANSACTION WAS CARRIED OUT BY THE APPELLANT IN EXECUTION OF THE SAID MOU UNLESS HE HA D STRONG REASONS OR EVIDENCES FOR DOING SO. THE ASSESSING OFFICER HAS A LSO RELIED ON THE PREVAILING RATES AT SURROUNDING AREAS AND ALSO THE RATES OF LAND AT WHICH SHRI S. S. PATEL SOLD THE LAND. ON THE OTHER HAND, THE APPELLANT STATED THAT THE LAND SOLD BY SHRI S. S. PATEL WAS DEVELOPED LAN D IN WHICH SUBSTANTIAL EXPENDITURE WAS INCURRED AND LOT OF LANDS WERE WAST ED FOR CREATING ROADS AND OTHER FACILITIES. THE APPELLANT HAS ALSO REFERR ED TO THE LETTER OF THE DY. COLLECTOR OF STAMPS WHICH WAS ALSO PRODUCED BEFORE THE ASSESSING OFFICER ACCEPTING THE VALUE OF THE TRANSFERRED LAND AT RS.5 LAKHS AS AGAINST RS.2.50 LAKHS SHOWN BY THE APPELLANT. IT IS OBSERVE D THAT THE ASSESSING OFFICER HAS IGNORED FURTHER AMOUNT OF RS.8 LAKHS PA ID BY SHRI S. S. PATEL TO THE APPELLANT ON ACCOUNT OF TRANSFER OF SHARES IN G AMPL WHICH WAS ALSO INCLUDED IN RS. 20 LAKHS AS PER TERMS OF THE MOU. T HE ASSESSING OFFICER FURTHER IGNORED THE BANK LIABILITY OF RS.11.50 LAKH S OUT OF WHICH THE APPELLANTS SHARE COMES TO RS.5.75 LAKHS WHICH AFTE R THE SALE OF LAND THE APPELLANT WILL NOT BE REQUIRED TO PAY TO THE BANK. THUS, I AGREE WITH THE APPELLANTS CONTENTIONS THAT EVEN AFTER GOING BY TH E TERMS OF MOU THE SURPLUS REMAINED TO RS.3.75 LAKHS AND NOT RS.17.50 LAKHS AS ADDED BY THE ASSESSING OFFICER. FURTHER, THE ASSESSING OFFIC ER HAS NOT BROUGHT OUT ANY MATERIAL OR EVIDENCE WHICH MAY SHOW THAT ANY EX TRA MONEY IS PAID BY THE APPELLANT THAN SHOWN BY HIM. THE DECISION OF TH E HONBLE SUPREME COURT IN THE CASE OF CIT& VS. A. RAMAN & CO. 67 ITR 11 (SUPRA) AND CIT& VS CALCUTTA DISCOUNT CO. LTD. , 91 ITR 8 (SUPR A) RELIED ON BY THE APPELLANT IS APPLICABLE IN HIS CASE, WHICH PROHIBIT S THE ASSESSING OFFICER TO TAX NOTIONAL INCOME. IT IS OBSERVED THAT THE ASSESS ING OFFICER HAS MADE SERIES OF PRESUMPTIONS RELYING ON EVIDENCE OF MOU W HICH WAS VAGUE , INCOMPLETE AND UNSIGNED. THE SAID MOU WAS WRITTEN A BOUT 22 MONTHS BACK WITH NO INDICATION OF AGREEMENT AMONG THE PART IES INVOLVED AND WITH NO INDICATION THAT ITS TERMS WOULD BE EXECUTED IN F UTURE. AFTER EXAMINING THE FACTS OF THE CASE, I HOLD THAT THE ASSESSING OF FICER WAS NOT JUSTIFIED IN MAKING ADDITION OF RS.17.50 LAKHS ON ACCOUNT OF SUP PRESSION OF SALE PRICE OF THE LAND BY THE APPELLANT. THE ADDITION OF THIS AMOUNT, IS THEREFORE, DELETED. ITA NO.1743 AND 1745/AHD/2000 SHRI RAHUL S PATEL AND SIDDHARTH S. PATEL 11 5. RELYING UPON HIS AFORESAID FINDINGS, THE LD. CI T(A) DELETED A SIMILAR ADDITION IN THE CASE OF SHRI S. S. PATEL ,INTER AL IA, WHILE REFERRING TO THE DECISIONS IN THE CASE OF RUBY BUILDERS,63 TTJ 202(AHMEDABAD) & NISHANT HOUSING DEVELOPMENT PVT. LTD.,52 ITD 103(PATNA). 6. THE REVENUE IS NOW IN APPEAL BEFORE US AGAINST T HE AFORESAID FINDINGS OF THE LEARNED CIT(A). WHILE CARRYING US THROUGH THE O RDER OF THE ASSESSING OFFICER AND THE LEARNED CIT(A), THE LEARNED DR POINTED OUT THAT THE LEARNED CIT(A) HAS NOT CONSIDERED THE FACTS IN PROPER PERSPECTIVE. ON THE OTHER HAND, THE LEARNED AR ON BEHALF OF THE ASSESSEE SUPPORTED THE FINDINGS OF THE LEARNED CIT(A) WHILE RELYING UPON THE DECISIONS REPORTED IN CIT VS. SMT. RAJKUMARI VIMLA DEVI & ANOTHER 279 ITR 360 (ALL.) AND DINESH KUMAR MITTAL V. ITO ,193 ITR 778 (AP). 7. WE HAVE HEARD BOTH THE PARTIES AND GONE THROUGH THE FACTS OF THE CASE. THE DISPUTE IN THESE APPEALS RELATES TO CONSIDERAT ION FOR TRANSFER OF THE RIGHTS OVER THE HALF PORTION OF LAND ADMEASURING 15-29-7 3 HECTARES IN VILLAGE AMPAD , WHICH WAS TRANSFERRED BY SHRI RAHUL S PATEL TO HI S BROTHER SHRI SIDDHARTH S PATEL FOR A PRICE OF RS.2.50 LACS RECEIVED ON 22.2.1996 I N TERM OF AN AGREEMENT STATED TO HAVE BEEN FILED BEFORE THE AO WITH THE SUBMISSIO NS DATED 1.8.1998. THE ASSESSEE SUBMITTED THAT AGREED CONSIDERATION WAS ON LY RS. 2.50 LACS. SHRI RAHUL S PATEL CONTENDED THAT EVEN IN TERMS OF DRAFT MOU, AMOUNT OF RS. 20 LACS WAS STIPULATED, CONSIDERING THE LIABILITIES TOWARD S BANK OF BARODA TOWARDS THE LAND BESIDES TRANSFER OF HIS SHARES WORTH RS. 8 LAC S IN GREEN ACRES MOTELS PVT. LTD.. THE AO, RELYING UPON AN MOU DATED 30.4.94, WH ICH WAS A MERE DRAFT SEIZED DURING THE SEARCH CARRIED OUT ON 30.6.94, MA DE THE IMPUGNED ADDITION OF RS. 17.50 LACS, IGNORING THE CONSIDERATION FOR TRAN SFER OF SHARES WORTH RS. 8 LACS AND THE LIABILITIES TOWARDS BANK OF BARODA. UNDISPU TEDLY, THE SAID DRAFT IS NOT SIGNED BY ANY OF THE PARTIES TO THE SETTLEMENT AND INSTEAD WAS SIGNED BY ONE SHRI B. C. PATEL, UNCLE OF THE ASSESSEE. THERE IS NOTHIN G TO SUGGEST AS TO WHETHER OR NOT ENQUIRIES WERE MADE FROM SHRI B.C. PATEL AND WH AT WAS THE OUTCOME AND WHETHER OR NOT THE SAID DRAFT FRUCTIFIED IN TO AGRE EMENT, DULY SIGNED BY THE CONCERNED PARTIES. AS POINTED OUT BY THE LD. CIT(A) , IT IS MENTIONED IN THE SAID ITA NO.1743 AND 1745/AHD/2000 SHRI RAHUL S PATEL AND SIDDHARTH S. PATEL 12 DRAFT MOU THAT THIS IS NOT A FINAL AGREEMENT AND T HAT THE DETAILED AGREEMENT SHALL BE DRAFTED BY A LAWYER AND BEFORE THE SAME IS PUT ON THE STAMP PAPER IT WOULD BE SHOWN TO THE PARTIES TO THE SETTLEMENT. TH ERE IS NO EVIDENCE ON RECORD THAT ANY ACTION WAS TAKEN IN PURSUANCE TO THE TERMS OF THE SAID DRAFT DURING THE PERIOD 30.4.94 TO 30.6.94 NOR ANY MATERIAL WAS FOUN D DURING THE SEARCH NOR EVEN THE CONCERNED PARTIES CONFIRMED THE AVERMENTS IN TH E DRAFT IN THEIR STATEMENTS RECORDED DURING THE SEARCH. APPARENTLY, THERE IS NO EVIDENCE ON RECORD SUGGESTING THAT THE PARTIES AGREED FOR EXECUTION OF THE MOU . IT IS ONLY ON 20.2.96 THAT SHRI RAHUL S PATEL SOLD THE LAND TO HIS BROTH ER FOR A CONSIDERATION OF RS. 2.50 LACS WHILE THE AO RELIED UPON THE AFORESAID M OU DRAFTED ON 30.4.1994 AND DETERMINED CONSIDERATION OF RS. 20 LACS TOWARDS TRA NSFER OF THE SAID LAND. CONSIDERING THE FACTS AND CIRCUMSTANCES OF THE CASE , WE ARE INCLINED TO AGREE WITH THE FINDINGS OF THE LD. CIT(A) THAT THE NO ADD ITION CAN BE MADE ON THE BASIS OF SAID DRAFT MOU, WITHOUT ASCERTAINING AS TO WHAT HAPPENED IN THE INTERVENING PERIOD. THE ASSESSING OFFICER RELIED ON THE PREVAIL ING RATES IN THE SURROUNDING AREAS AND THE RATES OF LAND AT WHICH SHRI S. S. PAT EL SOLD THE LAND, EVEN WHEN THE SHRI RAHUL S PATEL CONTENDED THAT THE LAND SOLD BY SHRI S. S. PATEL WAS DEVELOPED LAND IN WHICH SUBSTANTIAL EXPENDITURE WAS INCURRED AND LOT OF LANDS WERE WASTED FOR CREATING ROADS AND OTHER FACILITIES . THE ASSESSEE ALSO REFERRED TO A LETTER OF THE DY. COLLECTOR OF STAMPS, ACCEPTING THE VALUE OF THE TRANSFERRED LAND AT RS.5 LAKHS AS AGAINST RS.2.50 LAKHS. IF THE AO HAD ANY DOUBT OVER THE CONSIDERATION FOR TRANSFER OF LAND, HE COULD HAVE R EFERRED THE MATTER TO VALUATION INSTEAD OF BASING HIS CONCLUSIONS ON THE AFORESAID DRAFT MOU DATED 30.4.1994 . MOREOVER, THE AO HAS NOT BROUGHT ANY MATERIAL TO SH OW THAT THE SHRI RAHUL S PATEL HAS RECEIVED ANY EXTRA MONEY THAN WHAT IS STA TED IN THE SALE DEED. IT IS TRUE THAT AN APPARENT MUST BE CONSIDERED REAL UNTIL IT I S SHOWN THAT THERE ARE REASONS TO BELIEVE THAT THE APPARENT IS NOT THE REAL. THE O NUS TO PROVE THAT THE APPARENT IS NOT THE REAL IS ON THE PARTY WHO CLAIMS IT TO BE SO . [ CIT V. DURGA PRASAD MORE ,82 ITR 540 (SC). SINCE THE REVENUE HAVE NOT PLACED ANY MATERIAL BEFORE US THAT CONSIDERATION BEYOND THE AMOUNT OF RS. 2.50 LACS, S TIPULATED IN THE SALE DEED ITA NO.1743 AND 1745/AHD/2000 SHRI RAHUL S PATEL AND SIDDHARTH S. PATEL 13 WAS PAID BY SHRI SIDHHARTH S PATEL TO SHRI RAHUL S PATEL, WE ARE NOT INCLINED TO INTERFERE WITH THE FINDINGS OF THE LD. CIT(A). 7. 1 EVEN OTHERWISE, HONBLE ALLAHABAD HIGH CO URT IN CIT VS. SMT. RAJKUMARI VIMLA DEVI & ANOTHER 279 ITR 360 (ALL.) FOLLOWING THEIR OWN DECISION IN THE CASE OF DINESH KUMAR MITTAL V. ITO [1992] 193 ITR 770 ; [1991] UPTC 1209, HAVE HELD THAT IT CANNOT BE RECOGNISED AS A RULE OF LAW TO T HE EFFECT THAT THE VALUE DETERMINED FOR THE PURPOSE OF STAMP DUTY IS THE ACT UAL CONSIDERATION PASSING BETWEEN THE PARTIES TO A SALE. THE ACTUAL CONSIDERA TION MAY BE MORE OR MAY BE LESS. WHAT IS THE ACTUAL CONSIDERATION THAT PASSED BETWEEN THE PARTIES IS A QUESTION OF FACT TO BE DETERMINED IN EACH CASE, HAV ING REGARD TO THE FACTS AND CIRCUMSTANCES OF THAT CASE. 8. IN VIEW OF THE FOREGOING, WE DO NOT FIND ANY MER IT IN THESE TWO APPEALS AND ACCORDINGLY, DISMISS GROUND NO.1 IN BOTH THE APPEAL S . 9. GROUND NOS. 2 & 3 IN THESE TWO APPEALS , BEING GENERAL IN NATURE, DO NOT REQUIRE ANY SEPARATE ADJUDICATION AND ARE ,THEREFOR E, DISMISSED. 10. IN THE RESULT, BOTH THESE APPEALS ARE DISMISS ED. ORDER PRONOUNCED IN THE OPEN COURT ON 28TH AUGUST,2009 SD/- SD/- (H.L. KARWA) (A.N. PAHUJA) JUDICIAL MEMBER ACCOUNTANT MEMBER DATE: 28TH AUGUST,2009 COPY OF THE ORDER FORWARDED TO: 1. THE ASSESSEES 2. THE A. C. I. T, CIRCLE -1(1) & D. C. I. T, CIRC LE -2(1), AAYAKAR BHAVAN, RACE COURSE CIRCLE,BARODA 3. CIT(A)-IV,BARODA 4. THE CIT CONCERNED 5. THE D.R. ITAT, AHMEDABAD, 6. GUARD FILE ITA NO.1743 AND 1745/AHD/2000 SHRI RAHUL S PATEL AND SIDDHARTH S. PATEL 14 BY ORDER DR / AR, ITAT, AHMEDABAD