SHRI RAM SAHAI SHARMA, JAIPUR V. INCOME TAX OFFICER, WARD-7-2, JAIPUR

ITA 185/JPR/2019

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 4578 (ITAT-JAIPUR)
• Duration Of Justice: 1 year(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-02-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2007-2008
• Appeal Filed On: 15-02-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RUNI PAL JCIT DHK
• Assessee Lawyers: M L BORAD
• Keywords: Search and seizure; Loose papers; Document seized; Cost of acquisition; Fair market value; Retraction; Documents seized
• Section: 48; 13; 22; 131; 148; 28

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCH B, JAIPUR JH FOT; IKY JKWO] U;KF;D LNL; ,O A JH FOE FLAG ;KNO] YS[KK LNL; DS LE{K BEFORE: SHRI VIJAY PAL RAO, JM & SHRI VIKRAM SINGH YADAV, AM VK;DJ VIHY LA- @ ITA NO. 1508/JP/2018 FU/KZKJ.K O'K Z @ ASSESSMENT YEAR : 2007-08. LATE SHRI SHRINARAYAN SHARMA, (THROUGH SON & LEGAL HEIR SHRI SURAJ SHARMA) S/O LATE SHRI LALARAM SHARMA, 2, LALA PATEL KI DHANI, JHALANA ROAD, MALVIYA NAGAR, JAIPUR. CUKE VS. THE INCOME TAX OFFICER, WARD 7(2), JAIPUR. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO. FPJPS 9135 B VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT VK;DJ VIHY LA- @ ITA NO. 185/JP/2019 FU/KZKJ.K O'K Z @ ASSESSMENT YEAR : 2007-08. SHRI RAM SAHAI SHARMA, S/O LATE SHRI LALARAM SHARMA, 2, LALA PATEL KI DHANI, JHALANA ROAD, MALVIYA NAGAR, JAIPUR. CUKE VS. THE INCOME TAX OFFICER, WARD 7(2), JAIPUR. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO. FPJPS 9136 C VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY : SHRI M.L. BORAD (ADVOCATE) JKTLO DH VKSJ LS@ REVENUE BY : SMT. RUNI PAL (JCIT) LQUOKBZ DH RKJH[K@ DATE OF HEARING : 04.02.2020. ?KKS'K .KK DH RKJH[K@ DATE OF PRONOUNCEMENT : 21/02/2020. VKNS'K@ ORDER PER VIJAY PAL RAO, JM : THESE TWO APPEALS BY THE BROTHER ASSESSEES ARE DIR ECTED AGAINST TWO SEPARATE ORDERS OF LD. CIT (A) DATED 16.10.2018 AND 17.12.2018 RESPECTIVELY FOR THE 2 ITA NOS. 1508/JP/2018 & 185/JP/2019 LATE SHRI SHRINARAYAN SHARMA & SHRI RAM SAHAI SHAR MA, JAIPUR. ASSESSMENT YEAR 2007-08. SINCE THE ISSUES INVOLVED IN THESE TWO APPEALS ARE IDENTICAL AND AROSE FROM THE SAME SET OF FACTS AND CIRCUMSTANCES BEING SALE OF AGRICULTURAL LAND BY THE CO-OWNERS, THEREFORE, THES E TWO APPEALS ARE CLUBBED TOGETHER FOR THE PURPOSE OF HEARING AND DISPOSAL. THE ASSESSEES HAVE RAISED COMMON GROUNDS IN THESE APPEALS AS UNDER :- ITA NO. 1508/JP/2018 : 1. THAT THE ADDITIONS OF RS. 1,47,85,500/- SUSTA INED BY THE LEARNED CIT (APPEALS) ARE MOST ARBITRARY, UNJUST AND UNTENA BLE IN FACT AND IN LAW AND IN THE ALTERNATIVE IT IS HIGHLY EXCESSIVE W .R.T. FACTS AND CIRCUMSTANCES OF THE CASE AND THE ADDITIONS SUSTAIN ED ARE ALSO VITIATED IN LAW BECAUSE IT IS BASED ON NO DOCUMENTARY EVIDEN CE WHATSOEVER. 2. THAT THE FINDINGS GIVEN BY THE LEARNED CIT (APPE ALS) IN THE IMPUGNED ORDER PARTICULARLY IN PARA 6.2.11 READING, I FIND THAT THE TRANSACTIONS RECORDED ON PAGE NO. 15 TO 18 WERE ACT UAL TRANSACTIONS AND WERE RELATED TO PAYMENT OF SALE CONSIDERATION T O THE SELLERS OF THE LAND INCLUDING THE ASSESSEE BUT THE SELLER INTENTIO NALLY WANTED TO BE ESCAPE FROM TAX LIABILITIES AND OTHER CONSEQUENCES UNDER THE I.T. ACT. IN VIEW OF ABOVE, IT IS HELD THAT THE TOTAL SALE CO NSIDERATION OF RS. 12,30,84,000/- WAS ESTABLISHED WHEREIN THE APPELLAN TS SHARE (1/8 TH ) AT RS. 1,53,85,500/- WAS RIGHTLY ASSESSED IN HIS HANDS OF APPELLANT ON ACCOUNT OF LONG TERM CAPITAL GAIN ARE MOST ARBITRA RY, WHIMSICAL, IMAGINARY AND WITHOUT ANY BASIS AND LIABLE TO BE CA NCELLED. 3. THAT THE FINDING RECORDED BY THE LEARNED CIT (A) IN LAST LINES OF PARA 6.2.3 READING, IN CONTRAVENTION OF HIS OWN S TATEMENTS, HE ADMITTED IN SUBMISSIONS THAT HE HAD RECEIVED RS. 12 LAC THROUGH CHEQUE OF ALLAHABAD BANK BEARING NUMBER 296156. TH EREFORE, THE APPELLANTS CONTENTION OF NOT HAVING RECEIVED MONEY IS FOUND TO BE INCORRECT IS FALSE AND FAR AWAY FROM TRUTH. 4. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE THE LEARNED CIT (A) ERRED IN SUSTAINING ASSESSEES SHARE IN THE SOL D AGRICULTURAL LAND AT 1/8 PART AS AGAINST CORRECT SHARE OF ASSESSEE AT 1/ 16 PART, WHICH SUSTENANCE OF ASSESSEES SHARE AS 1/8 PART AGAINST CORRECT SHARE OF 1/16 TH PART IS UNJUSTIFIED AND NOT MAINTAINABLE IN LAW. 3 ITA NOS. 1508/JP/2018 & 185/JP/2019 LATE SHRI SHRINARAYAN SHARMA & SHRI RAM SAHAI SHAR MA, JAIPUR. 5. THAT THE ALTERNATIVE GROUND OF APPEAL IS THAT TH E LEARNED CIT (A) FAILED TO TAKE INTO CONSIDERATION THE FACT THAT ADD ITIONS ON ACCOUNT OF ALLEGED CASH PAYMENT OF RS. 11,34,84,000/- BY MADAN MOHAN GUPTA, DIRECTOR OF SHRI KALYAN BUILDMART PVT. LTD. IS MADE TWICE ONCE IN THE HANDS OF ALL THE SIX CO-OWNERS PROPORTIONATELY AND AGAIN THE HANDS OF THE POWER OF ATTORNEY HOLDER SHRI RADHEY SHYAM SHAR MA. 6. THE APPELLANT CRAVES LEAVE TO ADD, ALTER, AMEND, SUBSTITUTE ONE AND MORE GROUNDS OF APPEAL AS AND WHEN NECESSARY. ITA NO. 185/JP/2019 : 1. THAT THE ADDITIONS OF RS. 1,47,85,500/- SUSTA INED BY THE LEARNED CIT (APPEALS) ARE MOST ARBITRARY, UNJUST AND UNTENA BLE IN FACT AND IN LAW AND IN THE ALTERNATIVE IT IS HIGHLY EXCESSIVE W .R.T. FACTS AND CIRCUMSTANCES OF THE CASE AND THE ADDITIONS SUSTAIN ED ARE ALSO VITIATED IN LAW BECAUSE THESE ARE BASED ON NO DOCUMENTARY EV IDENCE WHATSOEVER. 2. THAT THE FINDINGS GIVEN BY THE LEARNED CIT (APPE ALS) IN THE IMPUGNED ORDER PARTICULARLY IN PARA 6.2.11 READING, I FIND THAT THE TRANSACTIONS RECORDED ON PAGE NO. 15 TO 18 WERE ACT UAL TRANSACTIONS AND WERE RELATED TO PAYMENT OF SALE CONSIDERATION T O THE SELLERS OF THE LAND INCLUDING THE ASSESSEE BUT THE SELLER INTENTIO NALLY WANTED TO BE ESCAPE FROM TAX LIABILITIES AND OTHER CONSEQUENCES UNDER THE I.T. ACT. IN VIEW OF ABOVE, IT IS HELD THAT THE TOTAL SALE CO NSIDERATION OF RS. 12,30,84,000/- WAS ESTABLISHED WHEREIN THE APPELLAN TS SHARE (1/8 TH ) AT RS. 1,53,85,500/- WAS RIGHTLY ASSESSED IN HIS HANDS OF APPELLANT ON ACCOUNT OF LONG TERM CAPITAL GAIN ARE MOST ARBITRA RY, WHIMSICAL, IMAGINARY AND WITHOUT ANY BASIS AND LIABLE TO BE CA NCELLED. 3. THAT THE FINDING RECORDED BY THE LEARNED CIT (A) IN LAST LINES OF PARA 6.2.3 READING, IN CONTRAVENTION OF HIS OWN S TATEMENTS, HE ADMITTED IN SUBMISSIONS THAT HE HAD RECEIVED RS. 12 LAC THROUGH CHEQUE OF ALLAHABAD BANK BEARING NUMBER 296156. TH EREFORE, THE APPELLANTS CONTENTION OF NOT HAVING RECEIVED MONEY IS FOUND TO BE INCORRECT IS AMBIGUOUS, CONFUSING AND CONVEYS NO M EANING. 4. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE THE LEARNED CIT (A) ERRED IN SUSTAINING ASSESSEES SHARE IN THE SOL D AGRICULTURAL LAND AT 1/8 PART AS AGAINST CORRECT SHARE OF ASSESSEE AT 1/ 16 PART, WHICH SUSTENANCE OF ASSESSEES SHARE AS 1/8 PART AGAINST CORRECT SHARE OF 1/16 TH PART IS UNJUSTIFIED AND NOT MAINTAINABLE IN LAW. 4 ITA NOS. 1508/JP/2018 & 185/JP/2019 LATE SHRI SHRINARAYAN SHARMA & SHRI RAM SAHAI SHAR MA, JAIPUR. 5. THAT THE ALTERNATIVE GROUND OF APPEAL IS THAT TH E LEARNED CIT (A) FAILED TO TAKE INTO CONSIDERATION THE FACT THAT ADD ITIONS ON ACCOUNT OF ALLEGED CASH PAYMENT OF RS. 11,34,84,000/- BY MADAN MOHAN GUPTA, DIRECTOR OF SHRI KALYAN BUILDMART PVT. LTD. IS MADE TWICE ONCE IN THE HANDS OF ALL THE SIX CO-OWNERS PROPORTIONATELY AND AGAIN THE HANDS OF THE POWER OF ATTORNEY HOLDER SHRI RADHEY SHYAM SHAR MA. 2. THE BRIEF FACTS LEADING TO THE CONTROVERSY ARE T HAT THE ASSESSEES ARE ILLITERATE PERSONS AND BY OCCUPATION AGRICULTURISTS. THESE TW O ASSESSEES ALONG WITH THEIR TWO REAL BROTHERS AND TWO COUSIN BROTHERS TOTAL 6 CO-OW NERS SOLD THEIR AGRICULTURAL LAND MEASURING 0.99 HECTARE IN VILLAGE CHAINPURA, TEHSIL SANGANER, MALVIYA NAGAR, JAIPUR VIDE SALE DEEDS DATED 24.08.2006. THIS LAND WAS AN ANCESTRAL PROPERTY, THEREFORE, EACH OF THE BROTHERS OF THE ASSESSEES WAS HAVING 1/ 8 TH SHARE AND THEIR COUNTERPART COUSINS WAS HAVING 1/4 TH SHARE EACH IN THE TOTAL LAND IN QUESTION. THOUGH THE ASSESSEES WERE NOT THE EXCLUSIVE CO-OWNERS BUT THE OTHER LEGAL HEIRS WERE ALSO HAVING THEIR SHARES IN THE SAID LAND. SINCE THE MU TATION IN THE REVENUE RECORD WAS IN THE NAMES OF THESE BROTHERS AND THEIR COUSIN BRO THERS, THEREFORE, THE SALE DEEDS WERE EXECUTED BY THESE PERSONS. THE LAND WAS SOLD TO M/S. SHRI KALYAN BUILDMART PVT. LTD. THROUGH ITS DIRECTORS SHRI MADAN MOHAN GU PTA AND HIS WIFE SMT. SHASHIKALA GUPTA. THE TOTAL SALE CONSIDERATION AS PER THE 4 ( FOUR) SALE DEEDS WAS RS. 96,00,000/- AND THE STAMP DUTY VALUATION WAS DETERM INED AT RS. 99,00,000/-. ON 23 RD MAY, 2013 THERE WAS A SURVEY AND SEARCH OPERATION AT THE PREMISES OF SHRI RAJENDRA KUMAR JAIN AND OTHER GROUPS INCLUDING THE RESIDENCE OF SHRI MADAN MOHAN GUPTA AND HIS WIFE SMT. SHASHIKALA GUPTA. DURING T HE SEARCH AND SEIZURE OPERATION SOME DOCUMENTS WERE FOUND AND SEIZED FROM THE RESID ENCE OF SHRI MADAN MOHAN 5 ITA NOS. 1508/JP/2018 & 185/JP/2019 LATE SHRI SHRINARAYAN SHARMA & SHRI RAM SAHAI SHAR MA, JAIPUR. GUPTA INCLUDING A DIARY CONTAINING VARIOUS ENTRIES. IN THE STATEMENT RECORDED DURING THE SEARCH AND SEIZURE OPERATION, SHRI MADAN MOHAN GUPTA STATED THAT FOR PURCHASE OF THE LAND IN QUESTION, A TOTAL AMOUNT OF RS. 12,3 0,84,000/- WHICH INCLUDES RS. 96,00,000/- THROUGH CHEQUES AND RS. 11,34,84,000/- IN CASH WAS PAID. THIS INFORMATION WAS FORWARDED TO THE AO OF THE ASSESSEE S BEFORE US AND CONSEQUENTLY ON THE BASIS OF THE SAID INFORMATION FORWARDED BY T HE INVESTIGATION WING JAIPUR VIDE LETTER DATED 16/20.01.2014, THE AO REOPENED THE ASS ESSMENTS OF THE ASSESSEES BY ISSUING NOTICE UNDER SECTION 148 ON 28 TH MARCH, 2014. IN RESPONSE TO THE SAID NOTICE, THE ASSESSEES FILED THE RETURN OF INCOME ON 11.06.2014 WHEREBY THE TOTAL INCOME DECLARED BY THE ASSESSEE INCLUDES LONG TERM CAPITAL GAIN OF RS. 5,22,150/-. THE ASSESSEES ALSO DECLARED AGRICULTURAL INCOME WHI CH WAS NOT IN DISPUTE. THE ASSESSEES RAISED OBJECTION AGAINST THE NOTICE UNDER SECTION 148 VIDE LETTER DATED 26.12.2014 WHICH WAS REJECTED BY THE AO AS PER ORDE R DATED 16.02.2015. THE AO THEN PROCEEDED TO ASSESS THE INCOME OF THE ASSESSEE S ON ACCOUNT OF ON MONEY RECEIVED FOR SALE CONSIDERATION TO THE TUNE OF RS. 1,47,85,500/- AS A SHARE OF EACH BROTHER OF THE ASSESSEES. THE AO ACCORDINGLY MADE ADDITION OF THE SAID AMOUNT OF RS. 1,47,85,500/- AS UNDISCLOSED LONG TERM CAPITAL GAIN IN THE HANDS OF EACH OF THE BROTHERS OF THE ASSESSEES. THE ASSESSEES CHALLENGE D THE ACTION OF THE AO BEFORE THE LD. CIT (A) BUT COULD NOT SUCCEED. 3. BEFORE US, THE LD. A/R OF THE ASSESSEES HAS SUBM ITTED THAT THE ASSESSEES ARE ILLITERATE AGRICULTURISTS AND MORE THAN 75 TO 80 YE ARS OLD. THE REGULAR SOURCE OF INCOME RIGHT FROM THE BEGINNING TILL DATE IS INCOME FROM AGRICULTURE OPERATION ON THE 6 ITA NOS. 1508/JP/2018 & 185/JP/2019 LATE SHRI SHRINARAYAN SHARMA & SHRI RAM SAHAI SHAR MA, JAIPUR. AGRICULTURAL LAND. SINCE THE ASSESSEES WERE NOT HA VING ANY OTHER TAXABLE INCOME, THEREFORE, NO RETURNS OF INCOME WERE BEING FILED BY THEM. THE LD. A/R HAS FURTHER SUBMITTED THAT IN THE RETURN OF INCOME FILED IN RES PONSE TO NOTICE UNDER SECTION 148, THE ASSESSEES SHOWN THE CAPITAL GAIN AFTER REDUCING INDEXED COST OF ACQUISITION FROM THE SALE CONSIDERATION OF RS. 6,00,000/- EACH. THE SAID SALE CONSIDERATION WAS RECEIVED BY THE ASSESSEES BY WAY OF ACCOUNT PAYEE C HEQUE. THE LD. A/R HAS SUBMITTED THAT THOUGH THE ASSESSEES RECEIVED THE SA LE CONSIDERATION OF RS. 12,00,000/- AS PER THE SALE DEEDS, HOWEVER, THERE A RE OTHER CO-OWNERS, NAMELY, CHUNILAL, KANHAIYALAL AND SURESH AND THE ASSESSEES HAVE PAID SHARE OF THE SALE CONSIDERATION TO THESE CO-OWNERS. THESE OTHER CO-OWNERS ARE ALSO DE-FACTO CO-OWNERS SINCE THE YEAR 1977 IN COMPLIANCE TO THE NAGAR BHUMI (ADHIKTAM SEEMA & VINIYAMAN) ADHINIYAM, 1976. HE HAS REFERRED TO T HE RELEVANT RECORD WITH NAGAR SANKULAN VIBHAG, JAIPUR TO SHOW THAT ALL THESE OTHE R CO-OWNERS WERE HAVING THEIR RIGHTS OVER THE LAND AND, THEREFORE, THE ASSESSEES HAVE SHARED THE SALE CONSIDERATION WITH THEM. THE LD. A/R HAS FURTHER CONTENDED THAT T HERE WAS NO DOCUMENTARY EVIDENCE EITHER FOUND DURING THE COURSE OF SEARCH O R OTHERWISE BROUGHT ON RECORD BY THE AO TO SHOW THAT THE ASSESSEES HAVE RECEIVED ANY CONSIDERATION IN CASH. THE AO HAS MADE THE ADDITION BASED ON THE STATEMENT OF SHR I MADAN MOHAN GUPTA RECORDED DURING THE SEARCH AND SEIZURE. HOWEVER, DURING THE ASSESSMENT PROCEEDINGS, THE AO AGAIN CALLED SHRI MADAN MOHAN GUPTA AND RECORDED HIS STATEMENT UNDER SECTION 131 OF THE IT ACT ON 2 ND MARCH, 2015 WHEREIN HE DENIED TO HAVE GIVEN ANY CA SH AMOUNT TO THE ASSESSEES AND OTHER CO-OWNERS TOWARDS THE PURCHASE OF LAND IN QUESTION. THUS STATEMENT MADE BY A THIRD PERSON AL LEGING PAYMENT OF CASH TO THE 7 ITA NOS. 1508/JP/2018 & 185/JP/2019 LATE SHRI SHRINARAYAN SHARMA & SHRI RAM SAHAI SHAR MA, JAIPUR. ASSESSEES CANNOT BE A BASIS FOR ADDITION IN THE HAN DS OF THE ASSESSEES WHEN THE SAID PERSON HAS SUBSEQUENTLY DENIED OF GIVING ANY CASH T OWARDS PURCHASE OF THE SAID LAND. THEREFORE, THE STATEMENT RECORDED BEHIND THE BACK OF THE ASSESSEES CANNOT BE MADE THE BASIS OF ASSESSMENT WHEN DURING THE ASS ESSMENT PROCEEDINGS SHRI MADAN MOHAN GUPTA HAS DENIED HAVING PAID ANY CASH T O THE ASSESSEES. THE AO IGNORING THE STATEMENT RECORDED UNDER SECTION 131 O F THE IT ACT DURING THE COURSE OF ASSESSMENT PROCEEDINGS HAS MADE THE ADDITION ON THE BASIS OF THE STATEMENT RECORDED BY THE INVESTIGATION WING JAIPUR. THE LD. A/R HAS FURTHER SUBMITTED THAT EVEN THE ENTRIES RECORDED IN THE SEIZED MATERIAL AT PAGES 15 TO 18 OF EXHIBIT A-1 HAVE NO NEXUS WITH THE SALE OF AGRICULTURAL LAND IN QUESTION BY THE ASSESSEE ALONG WITH THE 5 (FIVE) OTHER CO-OWNERS VIDE SALE DEEDS D ATED 24.08.2006. THE LD. A/R HAS SUBMITTED THAT THESE 4 (FOUR) LOOSE PAPERS ARE NOT SPEAKING DOCUMENTS AS THERE IS NO DATE AND NO OTHER DETAILS OF RECEIPT OF PAYMENT IS MENTIONED IN THESE DOCUMENTS. MOREOVER, NOTHING HAS BEEN MENTIONED AS TO FOR WHAT PURPOSE OR FOR WHAT TRANSACTION THESE DETAILS ARE RECORDED. FURTHER, N ONE OF THE LOOSE PAPERS BEAR ANY SIGNATURE OF ANY OF THE PERSONS. THEREFORE, ALL TH ESE FOUR LOOSE PAPERS ARE DEAF AND DUMB DOCUMENTS NOT CONVEYING ANY MEANING OR SENSE. WHEN THERE IS NO DESCRIPTION ABOUT THE TRANSACTION OR THE NAMES OF T HE ASSESSEES, THEN THESE DOCUMENTS IN ITSELF CANNOT BE REGARDED AS INCRIMINA TING MATERIAL AGAINST THE ASSESSEES PARTICULARLY REGARDING ANY ON MONEY RECEI VED. THEREFORE, THESE DOCUMENTS ARE NOT SUFFICIENT TO DRAW ANY ADVERSE IN FERENCE AGAINST THE ASSESSEES IN THE ABSENCE OF ANY CORROBORATIVE EVIDENCE TO SHOW T HAT THE ALLEGED AMOUNT OF RS. 11,34,84,000/- WAS ACTUALLY PAID BY THE PURCHASER I N ADDITION TO WHAT HAS BEEN 8 ITA NOS. 1508/JP/2018 & 185/JP/2019 LATE SHRI SHRINARAYAN SHARMA & SHRI RAM SAHAI SHAR MA, JAIPUR. DISCLOSED IN THE REGISTERED SALE DEEDS. THEREFORE, THE AO HAS NOT BROUGHT ANY POSITIVE MATERIAL OR PROOF ON RECORD TO ESTABLISH T HAT THE SEIZED MATERIAL REVEALS THE PAYMENT OF SALE CONSIDERATION IN CASH OVER AND ABOV E THE SALE CONSIDERATION RECORDED IN THE SALE DEEDS. THE SALE DEEDS EXECUTE D BY THE PARTIES AND REGISTERED ARE DOCUMENTARY PROOF OF SALE CONSIDERATION IN RESP ECT OF THE LAND IN QUESTION WHICH WAS PAID BY WAY OF ACCOUNT PAYEE CHEQUES AT THE TIM E OF EXECUTION OF SALE DEEDS. EVEN THE ENTRIES IN THE LOOSE PAPERS EXHIBIT A-1 PE RTAIN TO DIFFERENT DATES OF FINANCIAL YEARS 2007-08 TO 09-10 AND NONE OF THESE ENTRIES AR E RELEVANT FOR THE ASSESSMENT YEAR UNDER CONSIDERATION. THEREFORE, THESE ENTRIES CANNOT BE REGARDED AS IN RESPECT OF THE PURCHASE AND SALE TRANSACTION OF LAND IN QUE STION. THE ADDITION HAS BEEN MADE BY THE AO MERELY ON THE BASIS OF SUSPICION AND PRESUMING THAT THE ENTRIES IN THE LOOSE PAPERS SEIZED DURING THE COURSE OF SEARCH FROM THE RESIDENCE OF SHRI MADAN MOHAN GUPTA RELATE TO THE CASH PAYMENT IN RES PECT OF THE SALE OF THE AGRICULTURAL LAND IN QUESTION BY THESE ASSESSEES TO M/S. SHRI KALYAN BUILDMART PVT. LTD. ONCE SHRI MADAN MOHAN GUPTA HAS CATEGORICALLY DENIED IN HIS STATEMENT RECORDED BY THE AO ON 10 TH FEBRUARY, 2015 ANY SUCH CASH PAYMENT, THEN IN THE ABSENCE OF ANY DOCUMENTARY EVIDENCE TO INDICATE THE CASH PAYMENT IN RESPECT OF THE SAID TRANSACTION, THE ADDITION MADE BY THE AO IS NO T JUSTIFIED AND LEGALLY SUSTAINABLE. THE LD. A/R HAS FURTHER SUBMITTED THAT EVEN AFTER T HE SALE OF THE AGRICULTURAL LAND IN QUESTION BY THE ASSESSEES TO M/S. SHRI KALYAN BUILD MART PVT. LTD. FILED AN APPLICATION TO THE JAIPUR DEVELOPMENT AUTHORITY (JDA) FOR CONVE RSION OF THE LAND INTO COMMERCIAL USE INSTEAD OF AGRICULTURAL USE UNDER SE CTION 90B OF THE RAJASTHAN LAND REVENUE ACT 1956. SUBSEQUENTLY M/S. SHRI KALYAN BU ILDMART PVT. LTD. ALSO 9 ITA NOS. 1508/JP/2018 & 185/JP/2019 LATE SHRI SHRINARAYAN SHARMA & SHRI RAM SAHAI SHAR MA, JAIPUR. PURCHASED ADJOINING AGRICULTURAL LAND BEARING KHASR A NO. 403/148 AND KHASRA NO. 148/2/1 MEASURING 0.58 HECTARE FROM A COMPANY NAMED PARADISE COMPLEX PVT. LTD. ON 04.04.2007 FOR A CONSIDERATION OF RS. 72,00,000/ -. THE LD. A/R HAS REFERRED TO THE SALE DEED DATED 04.04.2007 AS PART OF THE PAPER BOOK AND SUBMITTED THAT WHEN THE SUBSEQUENT SALE OF THE AGRICULTURAL LAND IS ALS O FOR THE SIMILAR CONSIDERATION, THEN THE SALE CONSIDERATION SHOWN IN THE SALE DEEDS DATE D 24.08.2006 CANNOT BE DOUBTED. EVEN OTHERWISE THE SEIZED MATERIAL FOUND FROM THE P OSSESSION OF SHRI MADAN MOHAN GUPTA RELATES TO HIM AND HIS COMPANY AND DO NOT REL ATE TO THE ASSESSEES. THE ADDITION HAS BEEN MADE IN THE HANDS OF THE ASSESSEE S WITHOUT A CORRESPONDING ADDITION MADE IN THE HANDS OF SHRI MADAN MOHAN GUPT A. THIS CLEARLY SHOWS THAT THE STATEMENT RECORDED AT THE TIME OF SEARCH AND SEIZUR E CANNOT BE RELIED UPON AS THE POSSIBILITY OF GIVING A STATEMENT BY SHRI MADAN MOH AN GUPTA TO SAVE HIMSELF AND AVOID HIS OWN TAX LIABILITY. THUS THE LD. A/R HAS SUBMITTED THAT THE ADDITION MADE BY THE AO WITHOUT ANY INCRIMINATING MATERIAL IS NOT SU STAINABLE AND THE SAME IS LIABLE TO BE DELETED. IN SUPPORT OF HIS CONTENTION, HE HAS R ELIED UPON VARIOUS DECISIONS AS UNDER :- ACIT VS. SATYAPAL WASAN (2007) 295 ITR (AT)352 (JABALPUR) CIT VS. PAWAN SHARMA 53 TAX WORLD 2 (RAJASTHAN HC) CIT VS. MAVERICK SHARE BROKERS PVT. LTD. 57 TAX WORLD 87 (RAJASTHAN HC) 10 ITA NOS. 1508/JP/2018 & 185/JP/2019 LATE SHRI SHRINARAYAN SHARMA & SHRI RAM SAHAI SHAR MA, JAIPUR. CIT VS. BALRAM PRASAD 150 ITR 687 DCIT VS. M/S. COUNTRYWIDE BUILDESTATE PVT. LTD. 48 TAX WORLD 50 (ITAT JAIPUR) M/S. RAMESHWARAM TOLLS VS. ITO 55 TAX WORLD 97 (ITAT JAIPUR) KAMAKSHI HOSPITALITY PVT. LTD. VS. DCIT ITA NO. 481/JP/2016 (ITAT JAIPUR) THE LD. A/R HAS ALSO RELIED UPON THE DECISION OF TH IS TRIBUNAL DATED 28 TH MARCH, 2018 IN CASE OF SHRI RAJENDRA KUMAR JAIN IN ITA NOS. 293 , 294, 295 & 408/JP/2017. 3.1. ON THE OTHER HAND, THE LD. D/R HAS SUBMITTED T HAT IT IS A CASE OF NO RETURN OF INCOME FILED BY THE ASSESSEE AND REOPENING OF THE A SSESSMENT BASED ON THE INFORMATION RECEIVED FROM INVESTIGATION WING ABOUT THE RECEIPT OF ON MONEY FOR SALE OF LAND BY THE ASSESSEES. FURTHER THERE WAS NO COM PLIANCE TO THE NOTICE ISSUED BY THE AO. THE LD. D/R HAS REFERRED TO THE SEIZED MAT ERIAL AND SUBMITTED THAT THE ENTRIES IN THESE DOCUMENTS REVEAL CASH PAYMENT BY S HRI MADAN MOHAN GUPTA AS A CONSIDERATION PAID TOWARDS THE PURCHASE OF AGRICULT URAL LAND FROM THE ASSESSEES. SHE HAS FURTHER CONTENDED THAT THE LOOSE PAPERS CLEARLY SHOW THAT THE PAYMENT WAS MADE THROUGH ONE SHRI RAMESHWAR PRASAD SHARMA (RPS) . THE SAID PERSON WAS A POWER OF ATTORNEY HOLDER OF THE ASSESSEES FOR SALE OF THE LAND AND, THEREFORE, THE PAYMENT WAS RECEIVED BY THE ASSESSEES THROUGH SHRI RAMESHWAR PRASAD SHARMA. THE RETRACTION OF THE STATEMENT BY SHRI MADAN MOHAN GUPTA IS NOT VALID AND 11 ITA NOS. 1508/JP/2018 & 185/JP/2019 LATE SHRI SHRINARAYAN SHARMA & SHRI RAM SAHAI SHAR MA, JAIPUR. ACCEPTABLE AFTER SUCH A LONG PERIOD. IN SUPPORT OF HER CONTENTION, SHE HAS RELIED UPON THE DECISION OF HONBLE JURISDICTIONAL HIGH CO URT DATED 30 TH OCTOBER, 2018 IN CASE OF PCIT VS. ROSHAN LAL SANCHETI IN DBIT APPEA L NO. 47/2018. THE LD. D/R HAS FURTHER CONTENDED THAT EVEN THERE WAS A GAP OF RECE IPT OF SALE CONSIDERATION FROM SALE DEED DATED 24.08.2006 WHEREAS THE CHEQUES WERE ENCASHED ON 12 TH SEPTEMBER, 2006. IN HIS STATEMENT RECORDED DURING THE SEARCH AND SEIZURE, SHRI MADAN MOHAN GUPTA ADMITTED TO HAVE PAID TOTAL AMOUN T OF RS. 12,30,84,000/- ON ACCOUNT OF PURCHASE OF THE AGRICULTURAL LAND IN QUE STION SITUATED AT VILLAGE CHAINPURA, NEAR JAWAHAR CIRCLE, JAIPUR. THE ASSESSEE HAS NOT DISPUTED THE TRANSACTION OF SALE OF THE LAND IN QUESTION TO M/S. SHRI KALYAN BUILDMA RT PVT. LTD. THROUGH SHRI MADAN MOHAN GUPTA. THE LD. D/R HAS REFERRED TO THE STATE MENT OF SHRI MADAN MOHAN GUPTA RECORDED ON 23 RD MAY, 2013 AND 27 TH MAY, 2013 BY THE INVESTIGATION WING AND SUBMITTED THAT HE HAS EXPLAINED THE ENTRIES IN THE SEIZED MATERIAL AND SPECIFICALLY STATED IN HIS ANSWER TO QUESTION NO. 1 5 THAT RPS MEANS RAMESHWAR PRASAD SHARMA AND THE ENTRIES ARE REGARDING THE ACC OUNTS OF SHRI RAMESHWAR PRASAD SHARMA FOR THE LAND SITUATED BEHIND EP (ENTE RTAINMENT PARADISE). ONCE HE HAS EXPLAINED THE ENTRIES IN THE SEIZED MATERIAL BE ING THE CASH PAYMENT ON ACCOUNT OF THE LAND IN QUESTION, THEN THE SUBSEQUENT DENIAL OF THE SAID TRANSACTION WITHOUT ANY SUPPORTING DOCUMENTS OR EXPLAINING THE CIRCUMST ANCES CANNOT BE ACCEPTED. SHE HAS RELIED UPON THE ORDERS OF THE AUTHORITIES BELOW . 12 ITA NOS. 1508/JP/2018 & 185/JP/2019 LATE SHRI SHRINARAYAN SHARMA & SHRI RAM SAHAI SHAR MA, JAIPUR. 4. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AS WELL AS THE RELEVANT MATERIAL ON RECORD. THE AO HAS PROCEEDED TO ASSESS THE LONG TE RM CAPITAL GAIN ON ACCOUNT OF THE SALE CONSIDERATION RECEIVED IN CASH BY THE ASSE SSEES AND OTHER CO-OWNERS AS PER THE INFORMATION RECEIVED FROM THE INVESTIGATION WIN G JAIPUR. THE ENTIRE ASSESSMENT ORDER IS PASSED ON THE BASIS OF THE SAID INFORMATIO N FORWARDED BY THE INVESTIGATION WING WHEREIN SOME LOOSE PAPERS WERE FOUND AND SEIZE D DURING THE COURSE OF SEIZURE ACTION CARRIED ON 23 RD MAY, 2013 IN CASE OF SHRI RAJENDRA KUMAR JAIN GROU P INCLUDING THE RESIDENTIAL PREMISES OF SHRI MADAN MOHAN GUPTA. THESE LOOSE PAPERS WERE FOUND FROM THE RESIDENCE OF SHRI MADAN MOHAN GUPTA MARKED AS EXHIBIT A-1 AND RELEVANT PAGES 15 TO 18 CONTAINING VARIOUS ENTRIES OF THE FIGURES UNDER THE HEADING OF RPS, THE TOTAL AMOUNT CALCULATED AS PER THESE ENTRIES WAS RS. 12,30,84,000/-. SHRI MADAN MOHAN GUPTA IN HIS STATEMENT RECORDED DU RING THE COURSE OF SEARCH HAS EXPLAINED THAT THESE ENTRIES ARE REGARDING THE TRAN SACTION OF PURCHASE OF LAND IN QUESTION FROM THE ASSESSEES AND OTHER CO-OWNERS VID E SALE DEEDS DATED 24.08.2006 AND THE SALE CONSIDERATION WAS PAID IN CHEQUES AS W ELL AS IN CASH. THE AO HAS COPIED TWO OF THE SEIZED DOCUMENTS AT PAGES 4 & 5 O F THE ASSESSMENT ORDER AS UNDER :- 13 ITA NOS. 1508/JP/2018 & 185/JP/2019 LATE SHRI SHRINARAYAN SHARMA & SHRI RAM SAHAI SHAR MA, JAIPUR. 14 ITA NOS. 1508/JP/2018 & 185/JP/2019 LATE SHRI SHRINARAYAN SHARMA & SHRI RAM SAHAI SHAR MA, JAIPUR. 15 ITA NOS. 1508/JP/2018 & 185/JP/2019 LATE SHRI SHRINARAYAN SHARMA & SHRI RAM SAHAI SHAR MA, JAIPUR. IT IS CLEAR FROM THE ENTRIES RECORDED IN THESE SEIZ ED DOCUMENTS THAT THE FIRST ENTRY IS SHOWN ON 31 ST DECEMBER, 2007 AND THEREAFTER THE ENTRIES ARE SHOW N FROM 15.08.2008 TO 23.09.2009. ALL THESE ENTRIES ARE AG AINST THE NAMES OF THE PERSONS WRITTEN IN SHORT BEING RPS, G. RAM, RP AND SO ON. THE ALLEGED CASH PAYMENTS ARE THE ENTRIES AGAINST RPS AND SHRI MADAN MOHAN GUPTA IN HIS STATEMENT HAS STATED THAT THESE PAYMENTS WERE MADE TO SHRI RAMESHWAR PRA SAD SHARMA. THUS IT IS CLEAR THAT NONE OF THE ENTRIES RECORDED IN THE SEIZED DOC UMENTS AGAINST RPS ARE CONTEMPORANEOUS TO THE SALE DEEDS DATED 24.08.2006 BUT ALL THESE ENTRIES ARE ON SUBSEQUENT DATES AND THERE IS A GAP OF ABOUT 1 YE AR TO 3 YEARS 3 MONTHS. THEREFORE, PRIMA FACIE THESE ENTRIES IN THE SEIZED MATERIAL HAVE NO NEXUS WITH THE TRANSACTION OF SALE BY THE ASSESSEES VIDE SALE DEED S DATED 24.08.2006 BUT ALL THESE ALLEGED PAYMENTS ARE MADE ON SUBSEQUENT DATES AND T HAT TOO AFTER A GAP OF MORE THAN ONE YEAR TO MORE THAN 3 YEARS. IT IS BEYOND I MAGINATION THAT ON MONEY PAYMENT FOR PURCHASE OF LAND CAN BE DEFERRED TO SUC H A LONG PERIOD AFTER THE EXECUTION OF SALE DEEDS, RATHER SUCH PAYMENTS ARE B EING PAID PRIOR TO THE EXECUTION OF SALE DEED. WE FURTHER NOTE THAT SHRI MADAN MOHA N GUPTA IN HIS STATEMENT EXPLAINED THAT THIS MONEY WAS RECEIVED BY HIM FROM ONE SHRI RAJENDRA KUMAR JAIN BUT THE LAND WAS PURCHASED IN THE NAME OF M/S. SHRI KALYAN BUILDMART PVT. LTD. OWNED BY SHRI MADAN MOHAN GUPTA AND HIS WIFE SMT. S HASHIKALA GUPTA. FURTHER SHRI MADAN MOHAN GUPTA SUBSEQUENTLY TRANSFERRED THE SAID COMPANY I.E. M/S. SHRI KALYAN BUILDMART PVT. LTD. TO SHRI NAVRATAN KOTHARI , SHRI VIMAL CHAND SURANA HUF AND SHRI KAUSHAL CHAND SURANA. THEREFORE, THIS STA TEMENT OF SHRI MADAN MOHAN 16 ITA NOS. 1508/JP/2018 & 185/JP/2019 LATE SHRI SHRINARAYAN SHARMA & SHRI RAM SAHAI SHAR MA, JAIPUR. GUPTA THAT THE SAID PAYMENT WAS RECEIVED FROM SHRI RAJENDRA KUMAR JAIN FOR PURCHASE OF LAND HAS NO BASIS BUT IT IS CONTRARY TO THE UNDISPUTED FACT OF PURCHASE OF LAND IN THE NAME OF M/S. KALYAN BUILDMART PVT. LTD. AND SUBSEQUENTLY TRANSFERRING THE SAID COMPANY TO SOME OTHER PERSONS AND NOT TO S HRI RAJENDRA KUMAR JAIN. THE POSSIBILITY OF MAKING A SELF SERVING STATEMENT TO A VOID THE TAX LIABILITY CANNOT BE RULED OUT WHEN SUCH AN EXPLANATION WAS ABSOLUTELY C ONTRARY TO THE UNDISPUTED FACT OF PURCHASE OF LAND AND SUBSEQUENTLY SALE OF THE CO MPANY. A STATEMENT MADE BY A PERSON IS NO DOUBT RELEVANT AND MATERIAL EVIDENCE A GAINST HIM BUT IF THE SAID STATEMENT ALLEGES THE UNEXPLAINED OR UNDISCLOSED IN COME IN THE HANDS OF A THIRD PERSON THEN THE MERE STATEMENT OF A PERSON CANNOT B E A BASIS OF ADDITION OR ASSESSMENT IN THE HANDS OF THE OTHER PERSON. THEREF ORE, EVEN OTHERWISE THE ASSESSMENT CANNOT BE ON THE SOLE BASIS OF THE STATE MENT MADE BY SHRI MADAN MOHAN GUPTA UNTIL AND UNLESS THE ASSESSEE BE GIVEN AN OPPORTUNITY TO CROSS EXAMINATION. THE AO CALLED SHRI MADAN MOHAN GUPTA TO FURTHER EXAMINE HIM DURING THE ASSESSMENT PROCEEDINGS AND RECORDED HIS STATEME NT ON 2 ND MARCH, 2015. IN HIS STATEMENT SHRI MADAN MOHAN GUPTA HAS CLEARLY STATED IN HIS ANSWER TO QUESTION NO. 4 THAT HE HAS PURCHASED THE LAND IN QUESTION AGAINS T CONSIDERATION OF RS. 96,00,000/- PAID THROUGH CHEQUES IN THE NAME OF THE LAND OWNERS. HE HAS AGAIN REITERATED IN REPLY TO QUESTION NO. 5 THAT OTHER TH AN CHEQUES, HE HAS NOT PAID ANY CASH. HE HAS AGAIN REITERATED THAT THE ENTRIES IN THE SEIZED MATERIAL FOUND AND SEIZED FROM HIS HOUSE RELATE TO ONE SHRI RAJENDRA K UMAR JAIN AND THE NAME OF SHRI RAMESHWAR PRASAD SHARMA IS MENTIONED AS PER THE INS TRUCTION OF SHRI RAJENDRA KUMAR JAIN. THEREFORE, WHEN THE AO HAS EXAMINED SHR I MADAN MOHAN GUPTA DURING 17 ITA NOS. 1508/JP/2018 & 185/JP/2019 LATE SHRI SHRINARAYAN SHARMA & SHRI RAM SAHAI SHAR MA, JAIPUR. THE ASSESSMENT PROCEEDINGS, HE HAS DENIED TO HAVE P AID ANY CASH IN RESPECT OF THE TRANSACTION OF LAND IN QUESTION TO THE ASSESSEES AN D OTHER CO-OWNERS. THERE IS NO DISPUTE THAT THE RETRACTION OF STATEMENT BY A PERSO N CANNOT BE ACCEPTED IN HIS OWN DEFENCE IF THERE IS A SUBSTANTIAL TIME GAP. HOWEVE R, WHEN THE SAID STATEMENT WAS TO BE USED AGAINST THE THIRD PERSON, THEN THE WITNESS IS REQUIRED TO BE CROSS EXAMINED BY THE PERSON AGAINST WHOM THE STATEMENT WAS INTEND ED TO BE USED BY THE AO AND, THEREFORE, WHEN THE AO CALLED SHRI MADAN MOHAN GUPT A FOR HIS EXAMINATION, THEN THE STATEMENT RECORDED BY THE AO DURING THE ASSESSM ENT PROCEEDINGS WOULD NOT FALL IN THE CATEGORY OF RETRACTION OF THE STATEMENT BY T HE SAID PERSON BUT THIS IS A STATEMENT RECORDED IN THE PROCEEDINGS OF THE ASSESS EE AND NOT IN THE PROCEEDINGS OF SHRI MADAN MOHAN GUPTA. THEREFORE, THE DECISION RELIED UPON BY THE LD. D/R SHALL HAVE NO APPLICATION IN THE FACTS OF THE PRESE NT CASE WHEN SHRI MADAN MOHAN GUPTA WAS OTHERWISE OUGHT TO HAVE BEEN CALLED FOR C ROSS EXAMINATION BY THE ASSESSEE. THE AO HAS RECORDED CERTAIN FACTS IN PAR A 8 (V) OF THE ASSESSMENT ORDER AS UNDER :- (V) SHRI MADAN MOHAN GUPTA ADMITTED IN HIS STATEM ENTS THAT THIS LAND WAS PURCHASED BY SHRI RAJENDRA KUMAR JAIN THRO UGH HIM. HIS STATEMENTS CANNOT BE IGNORED DUE TO THE REASON THAT SHRI GUPTA IS A CLOSE ASSOCIATE OF SHRI RAJENDRA KUMAR JAIN AS DIRE CTOR OF THEIR COMPANY. THUS THE AO HAS ALSO ACCEPTED THE STATEMENT OF SHRI MADAN MOHAN GUPTA RECORDED DURING THE SEARCH AND POST SEARCH ENQUIRY WHEREIN H E HAS STATED THAT THIS LAND WAS 18 ITA NOS. 1508/JP/2018 & 185/JP/2019 LATE SHRI SHRINARAYAN SHARMA & SHRI RAM SAHAI SHAR MA, JAIPUR. PURCHASED BY SHRI RAJENDRA KUMAR JAIN THROUGH HIM. HOWEVER, AS WE HAVE DISCUSSED THAT SHRI RAJENDRA KUMAR JAIN IS NOWHERE IN THE PICTURE WHEN THE LAND IN QUESTION WAS PURCHASED BY SHRI MADAN MOHAN GUPTA IN THE NAME OF M/S. SHRI KALYAN BUILDMART PVT. LTD. AND SUBSEQUENTLY THE SAI D COMPANY WAS TRANSFERRED TO SHRI NAVRATAN KOTHARI, SHRI VIMAL CHAND SURANA HUF AND SHRI KAUSHAL CHAND SURANA. THEREFORE, SUCH AN AMBIGUOUS STATEMENT NOT EXPLAINING THE TRUE FACTS AS REVEALED FROM THE SALE DEEDS AS WELL AS SUBSEQUENT TRANSFER OF THE SAID COMPANY CANNOT BE A BASIS OF ASSESSMENT IN THE HANDS OF THE THIRD PERSON. THESE CIRCUMSTANCES CLEARLY SHOW THAT THE STATEMENT OF SH RI MADAN MOHAN GUPTA AT THE TIME OF SEARCH AND POST SEARCH ENQUIRY IS NOT FREE FROM AN ATTEMPT TO AVOID HIS OWN TAX LIABILITY AND MAKING A SELF SERVING STATEMENT. THE DEPARTMENT HAS NOT MADE ANY ADDITION ON ACCOUNT OF THIS ON MONEY PAYMENT IN THE HANDS OF SHRI MADAN MOHAN GUPTA EXCEPT PROTECTIVE ASSESSMENT. THEREFORE, THI S FACT ITSELF GOES TO SHOW THE DOUBLE STANDARD APPLIED BY THE DEPARTMENT AS ON ONE HAND NO ADDITION WAS MADE ON ACCOUNT OF ON MONEY PAYMENT IN THE HANDS OF SHRI MADAN MOHAN GUPTA WHEREAS ON THE CONTRARY THE ADDITIONS WERE MADE IN THE HAND S OF THE ASSESSEES ON ACCOUNT OF RECEIPT OF ON MONEY FROM SHRI MADAN MOHAN GUPTA. THERE IS NO DISPUTE THAT THE CONSIDERATIONS AS SHOWN IN THE SALE DEEDS WERE PAID BY SHRI MADAN MOHAN GUPTA THROUGH CHEQUES AND IN THE NAME OF THE LAND OWNERS BEING THE ASSESSEES AND OTHER CO-OWNERS. WHEN THE CHEQUES WERE NOT ISSUED IN THE NAME OF THE ALLEGED RPS THEN THE ALLEGED CASH PAYMENT THAT TOO IN FUTURE DA TES AFTER THE GAP OF MORE THAN ONE YEAR TO MORE THAN 3 YEARS CANNOT BE CONSIDERED AS THE CASH PAYMENT TO THE ASSESSEES. EVEN OTHERWISE SHRI RAMESHWAR PRASAD SH ARMA HAS DENIED TO THE SAID 19 ITA NOS. 1508/JP/2018 & 185/JP/2019 LATE SHRI SHRINARAYAN SHARMA & SHRI RAM SAHAI SHAR MA, JAIPUR. ALLEGED INVOLVEMENT OF CASH PAYMENT AND AN ADDITION WAS ALSO MADE IN HIS HAND BY THE DEPARTMENT. THE AO HAS ALSO EXAMINED THE ASSES SEES BY RECORDING THEIR STATEMENTS DURING THE ASSESSMENT PROCEEDINGS AND NO THING INCRIMINATING WAS FOUND FROM THE STATEMENTS OF THE ASSESSEES. THEY HAVE CL EARLY STATED THAT EXCEPT THE SALE CONSIDERATIONS AS RECORDED IN THE SALE DEEDS AND RE CEIVED THROUGH CHEQUES, NO OTHER PAYMENT WAS RECEIVED. THEREFORE, WHEN THE TRANSACT IONS RECORDED IN THE SEIZED MATERIAL HAS NO CONNECTION AND PARTICULARLY HAS NO CONTEMPORANEOUS RELATION WITH THE TRANSACTION OF SALE THROUGH SALE DEEDS DATED 24 .08.2006 THEN THE ASSUMPTION OF THE AO THAT THESE TRANSACTIONS ARE PERTAINING TO TH E SALE CONSIDERATION RECEIVED BY THE ASSESSEES IS WITHOUT ANY BASIS. EVEN OTHERWIS E, ONCE SHRI MADAN MOHAN GUPTA DURING HIS STATEMENT RECORDED BY THE AO HAS CLEARLY DENIED HAVING PAID ANY CASH TO THE ASSESSEES, THEN THERE IS NO BASIS FOR COMING TO THE CONCLUSION THAT THE ASSESSEES HAVE RECEIVED THE ALLEGED CASH AGAINST THE SALE OF AGRICULTURAL LAND IN QUESTION. EXCEPT THE STATEMENT OF SHRI MADAN MOHAN GUPTA RECO RDED DURING THE COURSE OF SEARCH AND POST SEARCH ENQUIRY, THE ALLEGED SEIZED DOCUMENTS DO NOT REVEAL ANY SUCH TRANSACTION EXCEPT THE ENTRIES OF THE AMOUNTS UNDER THE HEAD RPS AND THAT TOO NOT RELATED TO THE PERIOD OR THE TRANSACTION IN QUESTION. THE STATEMENT OF SHRI MADAN MOHAN GUPTA AS RECORDED DURING THE SEARCH AND SEIZURE ACTION CANNOT BE THE BASIS OF THE ADDITION IN THE HANDS OF THE ASSESSEES WHEN IN HIS EXAMINATION DURING THE COURSE OF ASSESSMENT PROCEEDINGS HE HAS DENIED THE ALLEGED PAYMENT OF CASH TO THE ASSESSEES. 20 ITA NOS. 1508/JP/2018 & 185/JP/2019 LATE SHRI SHRINARAYAN SHARMA & SHRI RAM SAHAI SHAR MA, JAIPUR. 4.1. THE AO HAS NOT BROUGHT ON RECORD ANY MATERIAL OR FACTS TO SHOW THAT THE LAND IN QUESTION CARRIES A VALUE OF MORE THAN RS. 12 CRO RES AS ALLEGED AND THEREBY THE ASSESSEES HAVE SUPPRESSED THE SALE CONSIDERATION AS REPORTED IN THE SALE DEEDS. ON THE OTHER HAND, THE ASSESSEES HAVE BROUGHT ON RECOR D A SALE INSTANCE WHEREBY M/S. SHRI KALYAN BUILDMART PVT. LTD. THROUGH ITS DIRECTO R SHRI MADAN MOHAN GUPTA PURCHASED ADJOINING LAND BEARING KHASRA NOS. 403 & 404/148 MEASURING 0.58 HECTARE VIDE SALE DEED DATED 04.04.2007 FOR A CONSI DERATION OF RS. 72,00,000/-. THIS SUBSEQUENT SALE INSTANCE AND SALE CONSIDERATION AS WELL AS THE STAMP DUTY VALUATION OF THE LAND IN QUESTION CLEARLY CORROBORATES THE PR EVAILING FAIR MARKET VALUE AS CLAIMED BY THE ASSESSEES AND DECLARED IN THE SALE D EEDS. THUS IT IS CLEAR THAT THE SUBSEQUENT SALE OF THE ADJOINING LAND AND PURCHASED BY THE SAME PARTY M/S. SHRI KALYAN BUILDMART PVT. LTD. AS WELL AS THE STAMP DUT Y VALUATION OF THE LAND CORROBORATES SALE CONSIDERATION SHOWN IN THE SALE D EEDS EXECUTED BY THE ASSESSEES. THEREFORE, IN THE FACTS AND CIRCUMSTANCES OF THE CA SE THE ADDITION MADE BY THE AO IS DEVOID OF ANY SUBSTANCE OR MERIT BUT SOLELY ON THE PRESUMPTION AND SURMISES WHICH IS NOT SUSTAINABLE WHEN SHRI MADAN MOHAN GUPTA HIMS ELF DURING THE ASSESSMENT PROCEEDINGS HAS DENIED. ACCORDINGLY, THE ADDITION IS DELETED. 5. SINCE THE ADDITIONS MADE IN THE HANDS OF BOTH TH E ASSESSEES ARE BASED ON THE IDENTICAL FACTS AND ARISING FROM THE SAME TRANSACTI ON OF SALE OF LAND, THEREFORE, THIS FINDING IS COMPOSITE AND APPLICABLE IN BOTH THE CAS ES. 21 ITA NOS. 1508/JP/2018 & 185/JP/2019 LATE SHRI SHRINARAYAN SHARMA & SHRI RAM SAHAI SHAR MA, JAIPUR. 6. THOUGH THE ASSESSEES HAVE RAISED THE OTHER GROUN DS OF APPEAL, HOWEVER, ONCE WE HAVE DECIDED THE MAIN ISSUE OF PAYMENT OF C ASH CONSIDERATION, THEN THE OTHER ISSUES BECOME INFRUCTUOUS. 7. IN THE RESULT, APPEALS OF THE ASSESSEES ARE ALLO WED. ORDER IS PRONOUNCED IN THE OPEN COURT ON 21/02/ 2020. SD/- SD/- ( FOE FLAG ;KNO ) ( FOT; IKY JKWO ( VIKRAM SINGH YADAV ) (VIJAY PAL RAO) YS[KK LNL;@ ACCOUNTANT MEMBER U;KF;D LNL;@ JUDICIAL MEMBER JAIPUR DATED:- 21/02/2020. DAS/ VKNS'K DH IZFRFYFI VXZSF'KR@ COPY OF THE ORDER FORWARDED TO: 1. THE APPELLANT- LATE SHRI SHRINARAYAN SHARMA THRO UGH SON AND LEGAL HEIR SHRI SURAJ SHARMA AND SHRI RAM SAHAI SHARMA, JAIPUR. 2. THE RESPONDENT THE ITO WARD 7(2), JAIPUR. 3. THE CIT(A). 4. THE CIT, 5. THE DR, ITAT, JAIPUR 6. GUARD FILE (ITA NO. 1508/JP/2018 AND ITA NO. 185 /JP/2019) VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASSISTANT. REGISTRAR 22 ITA NOS. 1508/JP/2018 & 185/JP/2019 LATE SHRI SHRINARAYAN SHARMA & SHRI RAM SAHAI SHAR MA, JAIPUR.