Sudhir Kumar.D.Shah - Individual, Hyderabad V. Dy. CIT, Central Circle-2, Hyderabad

ITA 1868/HYD/2013

• Counselvise Citation: [2019] 115 COUNSELVISE.COM (IT) 7061 (ITAT-HYDERABAD)
• Duration Of Justice: 5 year(s) 9 month(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-10-2019
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: DB-B
• Next Hearing Date: 21-10-2019
• Assessment Year: 2006-2007
• Appeal Filed On: 30-12-2013
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: Y V S T SAI
• Keywords: Capital asset; Earning of tax free income; Set aside; Capital Gains
• Section: 195; 92

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCHES B: HYDERABAD BEFORE SHRI V. DURGA RAO, JUDICIAL MEMBER AND SHRI D.S. SUNDER SINGH, ACCOUNTANT MEMBER ITA NO. A.Y. APPELLANT RESPONDENT 1864/HYD/13 2002-03 SHRI SUDHIR KUMAR D.SHAHINDIVIDUAL, HYDERABAD [PAN: CBNPS2483M] DEPUTY COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE-2, HYDERABAD 1865/HYD/13 2003-04 1866/HYD/13 2004-05 1867/HYD/13 2005-06 1868/HYD/13 2006-07 1869/HYD/13 2007-08 1870/HYD/13 2008-09 FOR ASSESSEE : SHRI K.C.DEVDAS, AR FOR REVENUE : S HRI Y.V.S.T.SAI, CIT - DR DATE OF HEARING : 2 1 - 1 0 - 2019 DATE OF PRONOUNCEMENT : 25 - 10 - 2019 O R D E R PER BENCH : THE FIRST COMMON ISSUE RAISED BY ASSESSEE IN ALL THES E APPEALS IS THE ADDITION MADE BY THE ASSESSING OFFICER (AO) ON ACCOUNT OF DRAWINGS. SUDHIR KUMAR D.SHAH INDIVIDUAL (GROUP CASES) :- 2 -: 2. THE FACTS OF ALL THE APPEALS ARE IDENTICAL AND FOR THE SAKE OF CONVENIENCE, WE EXTRACTED THE FACTS FROM THE APPEAL OF THE AY.2002-03. DURING THE ASSESSMENT PROCEEDINGS, THE A O FOUND THAT THE ASSESSEE HAS NOT DECLARED THE DRAWING TO MEET THE DOMESTIC HOUSEHOLD EXPENDITURE. HENCE, THE AO PRO POSED TO MAKE THE ADDITION OF RS.1 LAKH ON ACCOUNT OF NO DRAW INGS FOR THE AY.2002-03. THE LD.AR OF THE ASSESSEE APPEAR ED ON 28-12-2009 BEFORE THE AO AND SUBMITTED THAT SHRI SUDHIR KUMAR D.SHAH (HUF) HAS MET ALL THE HOUSEHOLD EXPENSES AND THE ASSESSEE WAS LEADING A NORMAL LIFE, HAVING LITTLE EXPENSES, THUS ARGUED THAT NO ADDITION IS WARRANTED ON ACCOUNT OF LESS DRAWINGS. THE AO OBSERVED THAT THE ASSESSEE IS LIVING WITH HIS WIFE AND SON AND HAVING LOT OF IMMOVEABLE PROPERTIES AND GETTING RENTAL INCOME. THE AO ASKED TO SUBMIT THE CASH FLOW STATEMENT AND ALSO REQUESTED TO FILE STATEMENT OF AFFAIRS O F HUF AND EXPLAIN THE DRAWINGS WITH THE DETAILS OF DOMES TIC EXPENSES. SINCE THE ASSESSEE FAILED TO FURNISH THE INFORMATION CALLED-FOR, THE AO MADE THE ADDITION OF RS.1 LAKH ON ACCOUNT OF NO DRAWINGS FOR THE ASSESSMENT YEAR 2002-03. IDEN TICAL ADDITION WAS MADE FOR THE AYS.2003-04, 2004-05 & 2006 -07. A SUM OF RS.2 LAKHS WAS ADDED FOR THE AYS.2007-08 AN D 2008-09 ON ACCOUNT OF NO DRAWINGS. THE DETAILS OF ADD ITIONS MADE FOR THE IMPUGNED ASSESSMENT YEARS FOR NO DRAWIN GS, YEAR-WISE AS UNDER: SUDHIR KUMAR D.SHAH INDIVIDUAL (GROUP CASES) :- 3 -: SUDHIR KUMAR D.SHAH (INDIVIDUAL) A.Y. DRAWING ADDED AS INCOME IN INDIVIDUAL HANDS IN RS. 2002 - 03 1,00,000 2003 - 04 1,00,000 2004 - 05 1,00,000 2005 - 06 NIL 2006 - 07 1,00,000 2007 - 08 2,00,000 2008 - 09 2,00,000 2.1. AGAINST THE SAID ORDER, ASSESSEE WENT ON APPEAL B EFORE THE CIT(A) AND THE LD.CIT(A) CONFIRMED THE ORDER OF A O. AGAINST WHICH THE ASSESSEE FILED APPEALS BEFORE THE TR IBUNAL. 2.2. DURING THE APPEAL HEARING, THE LD.AR ARGUED THAT T HE ASSESSEE IS HAVING RENTAL INCOME, AGRICULTURAL INCOM E AND RECEIVED THE INCOME FROM SALE OF AGRICULTURAL LANDS IN THE RELEVANT ASSESSMENT YEARS UNDER CONSIDERATION. THE DETA ILS OF THE INCOME ADMITTED BY THE ASSESSEE YEAR WISE ASUNDER: INCOME RETURNED BY THE HUF IN THE ORIGINAL RETURN A.Y. RENTAL INCOME (GROSS) RS. AGRICULTURAL INCOME RS. INCOME FROM AGRICULTURAL LAND SALE (CLAIMED AS EXEMPT) RS. TOTAL INCOME RS. 2002 - 03 1,03,000 1,50,000 -- 2,53,000 2003 - 04 2,25,100 1,50,000 45,00,000 48,75,100 2004 - 05 3,46,620 1,50,000 -- 4,96,620 2005 - 06 3,58,620 1,50,000 -- 5,08,620 2006 - 07 2,89,200 1,45,700 96,00,000 1,00,34,900 2007 - 08 3,18,000 1,50,000 21,09,893 25,77,893 2008 - 09 3,04,200 1,60,000 -- 4,64,200 SUDHIR KUMAR D.SHAH INDIVIDUAL (GROUP CASES) :- 4 -: SINCE THE ASSESSEE IS HAVING SUBSTANTIAL INCOME FROM VARIOUS SOURCES AND ALSO IS HAVING SUBSTANTIAL EXEMPT INCOME, THE LD.AR SUBMITTED THAT THE ASSESSEE HAD SUFFICIENT DRAWIN GS AND NO ADDITION IS REQUIRED AND HENCE, REQUESTED TO DELETE THE ADDITION. 2.3. ON THE OTHER HAND, LD.DR SUPPORTED THE ORDERS OF L OWER AUTHORITIES. 2.4. WE HAVE HEARD BOTH THE PARTIES AND GONE THROUGH THE MATERIAL PLACED ON RECORD. THE AO MADE THE ADDITION FO R NON- SUBMISSION OF INFORMATION EXPLAINING THE EXPENDITURE SOURCES FOR HOUSE-HOLD DRAWINGS. ASSESSEE DURING THE ASSESS MENT PROCEEDINGS HAS NEITHER SUBMITTED THE CASH FLOW STATEMENT NOR FURNISHED THE REQUIRED INFORMATION BEFORE THE AO. THE LD.CIT(A) HAS ALSO EXAMINED THE ISSUE IN DETAIL AND C ONFIRMED THE ORDER OF AO. BEFORE US, THE ASSESSEE EXCEPT FURNIS HING THE INFORMATION WITH REGARD TO THE INCOME RETURNED BY THE ASSESSEE IN HUF STATUS, NO OTHER INFORMATION SUCH AS CA SH FLOW STATEMENT, EXPENDITURE INCURRED FOR DRAWINGS, NATU RE OF EXPENSES ETC., AND THE SOURCES THEREOF WERE FURNISHED . THEREFORE, WE HOLD THAT THE ASSESSEE DID NOT EXPLAIN THE ACTUAL EXPENDITURE FOR DOMESTIC PURPOSES AND THE SOURCES THER EOF WERE ALSO NOT FURNISHED. THE EXPENDITURE ESTIMATED BY THE AO @ RS.1 LAKH P.A. FOR THE AYS.2002-03 TO 2006-07 @ RS. 2 LAKHS FOR THE AYS.2007-08 & 2008-09 IS REASONABLE, K EEPING IN VIEW OF THE STATUS OF ASSESSEE BEING THE OWNER OF THE LARGE TRACTS OF LANDS AND WE DO NOT SEE ANY REASON TO INTERFER E WITH THE ORDER OF LD.CIT(A) AND THE SAME IS UPHOLD. SUDHIR KUMAR D.SHAH INDIVIDUAL (GROUP CASES) :- 5 -: 2.5. IN THE RESULT, THE APPEALS OF ASSESSEE FOR THE AYS .2002- 03, 2003-04, 2004-05, 2006-07 TO 2008-09 ARE DISMISS ED ON THIS ISSUE. 3. THE NEXT ISSUE IS RELATED TO THE ADDITION OF RS.20 LA KHS FOR EXTRA CONSIDERATION RECEIVED ON SALE OF AGRICULTU RAL LAND AT CHILKOOR VILLAGE, MOINABAD MANDAL. THIS ISSUE IS RE LATED TO THE AY.2005-06. BRIEF FACTS OF THE CASE ARE THAT DURING THE ASSESSMENT PROCEEDINGS, THE AO FOUND THAT THE ASSESSEE F ILED RETURN OF INCOME ON 18-12-2009 AND ADMITTED THE SALE OF 2.00 ACRES OF AGRICULTURAL LAND AT CHILKURU VILLAGE OF RAJ ENDRA NAGAR MANDAL FOR RS.6 LAKHS. THE ASSESSEE DID NOT FU RNISH THE DOCUMENTARY EVIDENCE FOR PURCHASE OF LAND AS WELL AS THE SOURCE OF INVESTMENT. THE ASSESSEE AND HIS BROTHER SHR I SUNIL KUMAR D.SHAH, HAVE JOINTLY SOLD 4 ACRES OF LANDED P ROPERTY SITUATED AT CHILKURU VILLAGE TO M/S.ANURADHA PROPERTIES PVT. LTD., FOR A REGISTERED VALUE OF RS.12 LAKHS, OUT OF WH ICH, ASSESSEES SHARE WAS RS.6 LAKHS. HOWEVER, AS PER THE DOCUMENTARY EVIDENCE FOUND DURING THE COURSE OF SEARC H, THE TOTAL SALE CONSIDERATION WAS RS.52 LAKHS, OUT OF WHICH, ASSESSEES SHARE WAS RS.26 LAKHS. THE AO ACCEPTED T HE SUM OF RS.6.00 DISCLOSED BY THE ASSESSEE AS EXEMPT INCOME AND TAXED THE REMAINING AMOUNT OF RS.20.00 LAKHS AS UN-DISCLOSED INCOME. 3.1. AGAINST THE ORDER OF THE AO, THE ASSESSEE WENT ON A PPEAL BEFORE THE CIT(A), WHO CONFIRMED THE ORDER OF AO. AG AINST THE ORDER OF LD.CIT(A), ASSESSEE FILED AN APPEAL BEFORE US. SUDHIR KUMAR D.SHAH INDIVIDUAL (GROUP CASES) :- 6 -: 3.2. DURING THE APPEAL HEARING, THE ASSESSEE HAS RAIS ED ADDITIONAL GROUNDS VIDE PETITION DT.21-10-2019. THE A DDITIONAL GROUNDS RAISED BY THE ASSESSEE READS AS UNDER: 1. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS )-1, HYDERABAD ['LD.CIT(A)'] ERRED IN CONFIRMING THE ADDITION OF R S 20,00,000 BEING EXTRA CONSIDERATION RECEIVED ON SALE OF AGRICULTURA L LANDS AT CHILKOOR VILLAGE, MOINABAD MANDAL WHEN THE ASSESSING OFFICER HAS NOT TAXED THE RECORDED CONSIDERATION OF RS 6,00,000 AND CLAIM ED AS EXEMPT IN THE RETURN OF INCOME SINCE IT IS AGRICULTURAL LANDS NOT FALLING WITHIN THE DEFINITION OF THE CAPITAL ASSET. 2. WITHOUT PREJUDICE TO GROUNDS RAISED, THE LD.CIT( A) FAILED TO NOTE THAT THE ASSESSING OFFICER ERRED IN CHARGING TAX ON THE UNDISCLOSED INCOME ON SALE OF LAND ADDED AT RS. 20,00,000 AT NO RMAL RATES AS AGAINST THE SPECIAL RATE OF 20% APPLICABLE TO LONG TERM CAPITAL GAINS. 3. ANY OTHER GROUND(S) THAT MAY BE URGED AT THE TIM E OF HEARING. ALONG WITH THE APPEAL MEMO, THE ASSESSEE RAISED THE GROUND CHALLENGING THE CONFIRMATION OF ADDITION OF RS. 20.00 LAKHS IN RESPECT OF UNDISCLOSED INCOME ON SALE OF AG RICULTURAL LAND. BY THE ADDITIONAL GROUNDS, THE ASSESSEE RAISED O BJECTION, STATING THAT THE ASSESSEE HAD SOLD THE PIECE OF AGRICULT URAL LANDS AND RECEIVED THE CONSIDERATION OF RS.26 LAKHS. THE ADMITTED SALE CONSIDERATION OF RS.6.00 LAKHS, WAS ACCE PTED BY THE AO AND ALLOWED THE EXEMPTION, WHICH ESTABLISHES THAT SALE OF AGRICULTURAL LAND WAS ACCEPTED BY THE DEPARTMENT. HAVING ALLOWED THE EXEMPTION OF RS.6 LAKHS, THE ASSESSEE CONTE NDED THAT THE AO OUGHT TO HAVE ALLOWED THE ENTIRE SALE CONSIDER ATION AS EXEMPT, SINCE, RECEIPT REPRESENT THE SALE CONSIDERA TION OF AGRICULTURAL LAND. ON THE OTHER HAND, THE LD.DR OBJECTED FOR ADMISSION OF ADDITIONAL GROUNDS. SUDHIR KUMAR D.SHAH INDIVIDUAL (GROUP CASES) :- 7 -: 3.3. WE HAVE HEARD TO THE PARTIES AND FIND MERIT IN THE SUBMISSIONS MADE BY THE LD.AR. IN THIS CASE, THE ENTIR E MATERIAL IS AVAILABLE ON RECORD AND NO ENQUIRY OR IN VESTIGATION IS REQUIRED TO ADJUDICATE THE ADDITIONAL GROUND. HEN CE, WE ADMIT THE ADDITIONAL GROUNDS RAISED BY THE ASSESSEE. 3.4. DURING THE APPEAL HEARING, LD.AR SUBMITTED THAT THE ASSESSEE HAD SOLD AGRICULTURAL LAND AND RECEIVED THE TOTAL CONSIDERATION OF RS.26 LAKHS, OUT OF WHICH RS.6 LAKHS WAS DISCLOSED, IN THE REGISTERED SALE DEED. THE REMAININ G RS.20 LAKHS WAS NOT DISCLOSED SINCE, THE LAND-IN-QUESTION W AS AGRICULTURAL LAND AND THE ENTIRE SALE CONSIDERATION R EQUIRED TO BE ALLOWED AS EXEMPTION. LD.AR FURTHER SUBMITTED THAT TH E AO ALLOWED RS.6 LAKHS AS EXEMPT INCOME AND TAXED ONLY THE BALANCE SUM OF RS.20 LAKHS, WHICH WAS RECEIVED OVER AND ABOVE THE REGISTERED SALE DEED CONSIDERATION. THE LD.A R ALSO SUBMITTED THAT THE TOTAL SALE CONSIDERATION WAS RS.26 LAKH S FOR SALE OF AGRICULTURAL LAND. SINCE, THE SALE OF AG RICULTURAL LAND IS EXEMPT, THE LD.AR ARGUED THAT THE ADDITION MADE BY TH E AO AS UN-DISCLOSED INCOME IS REQUIRED TO BE DELETED. ALTERNATIVELY, LD.AR ARGUED THAT SINCE THE SALE WAS ON ACCOUNT OF CAPITAL ASSET, THE SAME IS REQUIRED TO BE TAXED @20% OF NORMAL RATES. 3.5. THE LD.DR SUPPORTED THE ORDERS OF THE LOWER AUTHO RITIES AND ARGUED THAT THE AO HAD ASSESSED THE RECEIPT AS UNDISCLOSED INCOME, SINCE, THE SAID RECEIPT WAS NOT DI SCLOSED IN THE RETURN OF INCOME FILED THUS ARGUED THAT THE AO H AS SUDHIR KUMAR D.SHAH INDIVIDUAL (GROUP CASES) :- 8 -: RIGHTLY TAXED THE SAME AS UN-DISCLOSED INCOME WHICH THE LD.CIT(A) CONFIRMED AND NO INTERFERENCE IS CALLED FO R. 3.6. WE HAVE HEARD BOTH THE PARTIES AND GONE THROUGH THE MATERIAL PLACED ON RECORD. IN THE INSTANT CASE, THE ASSE SSEE HAD SOLD THE PROPERTY FOR A CONSIDERATION OF RS.76 LA KHS AND DISCLOSED THE SUM OF RS.6 LAKHS IN THE REGISTERED SALE DEED. DURING THE ASSESSMENT PROCEEDINGS, THE AO FOUND THAT THE ASSESSEE HAD RECEIVED RS.26 LAKHS AND THE CONSIDERATI ON RECEIVED OVER AND ABOVE THE SALE DEED DOCUMENT WAS NO T DISCLOSED IN THE RETURN OF INCOME. THEREFORE, THE AO MADE AN ADDITION OF RS.20 LAKHS AS UN-DISCLOSED INCOME. TH OUGH IT IS REBUTTABLE PRESUMPTION, AS PER SECTION 114(E) OF THE I NDIAN EVIDENCE ACT, THE ADMISSION MADE BEFORE THE SUB-REGISTR AR OFFICE IS VALID EVIDENCE. SINCE THE ASSESSEE HAD REG ISTERED THE LAND FOR A CONSIDERATION OF RS.12 LAKHS AND THE ASSES SEES SHARE BEING 50%, THE CONSIDERATION TO BE CONSIDERED FO R EXEMPTION UNDER AGRICULTURAL INCOME IS ONLY RS.6.00 LAKHS, (THE ASSESSEES SHARE) BUT NOT RS.26.00 LAKHS. ACCORDI NGLY, THE ARGUMENT OF THE ASSESSEE THAT HAVING ACCEPTED RS.6 LAKHS AS AGRICULTURAL INCOME THE REMAINING AMOUNT OF RS.26 LAK HS REQUIRED TO BE CONSIDERED AS EXEMPT INCOME ON ACCOU NT OF SALE OF AGRICULTURAL LAND DOES NOT HOLD WATERS. THERE FORE, THE ASSESSEES SUBMISSION TO ALLOW EXEMPTION FOR THE ENTIRE AMOUNT OF RS.26 LAKHS IS REJECTED. THE IDENTICAL ISSU E WAS CONSIDERED BY THE CO-ORDINATE BENCH OF THIS TRIBUNAL ( B BENCH) IN THE CASE OF CHILUVURI S.R.K. RAJU VS. ITO IN ITA NO.415/HYD/2016 FOR THE AY.2011-13, DT.13-07-2017 AND HELD THAT - THE CONSIDERATION RECEIVED OVER AND ABOVE THE SUDHIR KUMAR D.SHAH INDIVIDUAL (GROUP CASES) :- 9 -: REGISTERED SALE DEED IS TO BE TAXED AS UN-DISCLOSED INCOME . FOR THE SAKE OF CLARITY AND CONVENIENCE, WE EXTRACT THE RE LEVANT PART OF THE ORDER OF THE CO-ORDINATE BENCH ON THE SIMIL AR FACTS, WHEREIN THIS TRIBUNAL HELD THAT THE SALE CONSIDERATION RECEIVED OVER AND ABOVE THE REGISTERED SALE DEED HAS TO BE T AXED AS UN- EXPLAINED INCOME . 7. WE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL PLACED ON RECORD. THE ASSESSEE HAS SOLD T HE PROPERTY SITUATED AT ATHREYHAPURAM IN SURVEY NO. 16 6/11 ADMEASURING 0.25 FOR A SUM OF RS. 50,000/- BY SALE DEED DATED 10-06-2009, WHICH WAS REGISTERED IN THE O/O T HE SUB- REGISTRAR, ATHREYAPURAM. THE DOCUMENT WAS SIGNED B Y ASSESSEE AND DULY REGISTERED AND THE STAMP DUTY WAS PAID FOR RS. 50,000/- WHICH WAS ACCEPTED BY THE SUB-REGI STRAR. THE ASSESSEE ALSO SOLD 0.77 ACRES OF THE AGRICULTUR AL LAND SITUATED AT ATHREYAPURAM IN SURVEY NO. 166/13 WET L AND 0.50 ACRES FOR A CONSIDERATION OF RS. 1.00 LAKH AND SURVEY NO. 166/11 WET LAND ADMEASURING 0.27 ACRES FOR A SU M OF RS. 54,000/- AND REGISTERED WITH THE SUB-REGISTRAR. AS PER THE REGISTERED SALE DEED, THE ASSESSEE HAD RECEIVED A SUM OF RS. 2.04 LAKHS FOR A SALE OF 1.02 ACRES OF LAND SIT UATED AT ATHREYAPURAM. THE SAID LAND WAS DULY REGISTERED BY THE ASSESSEE AND STAMP DUTY WAS PAID FOR RS. 2.04 LAKHS . NO OTHER EVIDENCE, EXCEPT A COPY OF AGREEMENT WRITTEN ON PLAIN PAPER, DATED 08-08-2009, WAS PRODUCED BY THE ASSESS EE EVIDENCING FOR SALE CONSIDERATION OF RS. 12.00 LAKH . THE COPY OF THE AGREEMENT WAS ON A PLAIN PAPER AND IT WAS NO T REGISTERED AND SIGNED BY THE ASSESSEE BUT NOT SIGNE D BY THE SECOND PARTY (PURCHASER). THE AGREEMENT WAS SAID T O BE FOR SALE OF LAND AT ATHREYAPURAM IN SURVEY NO. 166/11, THE SAID LAND WAS ALREADY SOLD ON 10-06-2009 AND HENCE, NO FURTHER AGREEMENT IS NECESSARY. THE COPY OF SALE AGREEMENT, WHICH WAS PRODUCED BY THE ASSESSEE, WAS SIGNED BY THE ASS ESSEE BUT THERE WAS NO SIGNATURE OF THE BUYER (SECOND PAR TY). FOR VALID AGREEMENT CONSENT OF BOTH THE PARTIES IS NECE SSARY AND WITHOUT THE CONSENT OF THE SECOND PARTY THE AGREEME NT IS INVALID AND CANNOT BE ENFORCED. IN THE INSTANT CASE , THE AGREEMENT WAS SIGNED BY THE ASSESSEE HIMSELF AND TH E DOCUMENT WAS NEITHER DULY REGISTERED NOR EVEN WRITT EN ON STAMPED PAPER. THEREFORE, WE ARE UNABLE TO ACCEPT T HE GENUINENESS OF THE SALE AGREEMENT PRODUCED BY THE ASSESSEE SUDHIR KUMAR D.SHAH INDIVIDUAL (GROUP CASES) :- 10 -: AND IN OUR CONSIDERED OPINION, THE SAID DOCUMENT I S A SELF- SERVING DOCUMENT TO EVADE THE INCOME TAX AS RIGHTLY ARGUED BY THE LD. DR. FURTHER ANY AGREEMENT OF SALE OF IM MOVABLE PROPERTY IS REQUIRED TO BE REGISTERED AS PER THE AM ENDED PROVISIONS OF A.P. GOVERNMENT. FOR READY REFERENCE, WE REPRODUCE HERE UNDER SEC. 17(1) CLAUSE (G) OF THE R EGISTRATION ACT, 1988. 17. DOCUMENTS OF WHICH REGISTRATION IS COMPULSORY. (L) THE FOLLOWING DOCUMENTS SHALL BE REGISTERED, IF THE PRO PERTY TO WHICH THEY RELATE IS SITUATE IN A DISTRICT IN WHICH, AND IF THEY HAVE BEEN EXECUTED ON OR AFTER THE DATE ON WHICH, ACT NO . XVI OF 1864, OR THE INDIAN REGISTRATION ACT, 1866, OR THE INDIAN REGISTRATION ACT, 1871, OR THE INDIAN REGISTRATION ACT, 1877, OR THIS ACT CAME OR COMES INTO FORCE, NAMELY: (G) AGREEMENT OF SALE OF IMMOVABLE PROPERTY OF HE VALUE OF ONE HUNDRED RUPEES AND UPWARDS]; ** [ INSERTED BY A.P. AMENDMENT ACT 4 OF 1999 W.E.F .1-4-1999 ROVIDED THAT THE STAT E GOVERNEMNT MAY, BY ORDER PUBLISHED IN THE OFFICEAL GAZATTE EXE MPT FROM THE OPERATION OF THIS SUB-SECTION ANY LEASES EXECUTED I N ANY DISTRICT, OR PART OF A DISTRICT, THE TERMS GRANTED BY WHICH D O NOT EXCEED FIVE YEARS AND THE ANNUAL RENT RESERVED BY WHICH DO NOT EXCEED FIFTY RUPEES. {(1A) THE DOCUMENTS CONTAINING CONTRACTS TO TRANSFE R FOR CONSIDERATION, ANY MOVABLE PROPERTY FOR THE PURPOSE OF SECTION 53A OF THE TRANSFER OF PROPERTY ACT, 1882 (4 OF 188 2) SHALL BE REGISTERED IF THEY HAVE BEEN EXECUTED ON OR AFTER T HE COMMENCEMENT OF THE REGISTRATION AND THE RELATED LA WS (AMENDMENT ACT, 2001 AND IF SUCH DOCUMENTS ARE NOT REGISTERED ON OR AFTER SUCH COMMENCEMENT, THEN, THEY SHALL HAV E NO EFFECT FOR THE PURPOSES OF THE SAID SECTION 53A} 8. IN THE INSTANT CASE, THE AGREEMENT PRODUCED BY T HE ASSESSEE WAS NOT REGISTERED AND HENCE, WE ARE UNABL E TO ACCEPT THE SAME AS VALID EVIDENCE. IN THIS CASE, T HE ASSESSEE HAS RECEIVED RS.2.04 LAKHS TOWARDS SALE OF LAND AS DISCUSSED ABOVE. ONCE THE IMMOVABLE PROPERTY IS REGISTERED, THE SALE CONSIDERATION IN THE REGISTERED SALE DOCUMENT IS CO NSIDERED TO BE THE FINAL CONSIDERATION, SINCE THE STAMP DUTY AN D OTHER TAXES FOR TRANSFER OF PROPERTY WAS PAID AS PER THE CONSIDERATION RECORDED IN THE REGISTERED SALE DEED. THE CONTENTION OF THE ASSESSEE THAT HE HAS RECEIVED RS. 12 LAKHS, BUT REGISTERED THE DOCUMENT ONLY FOR RS. 2.04 LAKHS IS NOT ACCEPTABLE ARGUMENT AND SUCH DOUBLE STANDARDS ARE N OT ACCEPTABLE AS HELD BY HONBLE SUPREME COURT IN THE CASE OF COIMBATORE SPINNING & WEAVING CO. LTD (SUPRA) RELIED UPON BY THE SUDHIR KUMAR D.SHAH INDIVIDUAL (GROUP CASES) :- 11 -: LD. DR. FURTHER, THE LD. AR DID NOT PLACE ANY EVID ENCE TO SHOW THAT THE BUYER HAS PAID THE AMOUNT OF RS. 12 L AKHS AND ADMITTED THE SAID AMOUNT IN HIS (BUYER) RETURN OF I NCOME FURTHER HONBLE PUNJAB AND HARYANA HIGH COURT IN [2010] 195 TAXMAN 273 (PUNJ. & HAR.) PARAMJIT SINGH .V.INCOME-TAX OFFICER ON SIMILAR FACTS HELD THAT IT IS A WELL-KNOWN PRINCIPLE THAT NO ORAL EVIDENCE IS ADMISSIBLE ONCE THE DOCUMENT CONTAINS ALL THE TERMS AND CONDITIONS. SECTIONS 91 AND 92 OF THE INDIAN EVIDEN CE ACT, 1872 INCORPORATE THE AFORESAID PRINCIPLE. ACCORDING TO SECTION 91, WHEN TERMS OF A CONTRACT, GRANTS OR OTHER DISPOSITIONS OF PROPERTY HAVE BEEN REDUCED TO THE F ORM OF DOCUMENTS, THEN NO EVIDENCE IS PERMISSIBLE TO BE GI VEN IN PROOF OF ANY SUCH TERMS OF SUCH GRANT OR DISPOSITIO N OF THE PROPERTY EXCEPT THE DOCUMENT ITSELF OR THE SECONDAR Y EVIDENCE THEREOF. ACCORDING TO SECTION 92, ONCE THE DOCUMENT IS TENDERED IN EVIDENCE AND PROVED AS PER THE REQUI REMENTS OF SECTION 91, THEN NO EVIDENCE OF ANY ORAL AGREEME NT OR STATEMENT WOULD BE ADMISSIBLE AS BETWEEN THE PARTIE S TO ANY SUCH INSTRUMENT FOR THE PURPOSES OF CONTRADICTI NG, VARYING, ADDING TO OR SUBTRACTING FROM ITS TERMS. T HEREFORE, IT FOLLOWS THAT NO ORAL AGREEMENT CONTRADICTING/VARYIN G THE TERMS OF A DOCUMENT CAN BE OFFERED. ONCE THE AFORES AID PRINCIPAL IS CLEAR, THEN IN THE INSTANT CASE, OSTENSIBLE SALE CONSIDERATIONDISCLOSED IN THE SALE DEED HAD TO BE ACCEPTED AND IT COULD NOT BE CONTRADICTED BY ADDUCING ANY ORAL EVIDENCE. THEREFORE, THE ORDER OF THE TRIB UNAL DID NOT SUFFER FROM ANY LEGAL INFIRMITY IN REACHING TO THE CONCLUSION THAT THE AMOUNT SHOWN IN THE REGISTERED SALE DEED WAS RECEIVED BY THE VENDORS AN D DESERVED TO BE ADDED TO THE GROSS INCOME OF THE ASSESSEE. [PARA 4]. 9. IN THE INSTANT CASE SALE DEED WAS REGISTERED WIT H ALL THE TERMS AND CONDITIONS OF SALE WHICH IS A CONCLU SIVE PROOF OF SALE CONSIDERATION AND SQUARELY COVERED BY THE D ECISION CITED (SUPRA) AND NO OTHER EVIDENCE WAS PROVIDED BY THE LD. A.R. THEREFORE, WE HOLD THAT THE ASSESSEE HAS RECEIVED ONLY RS. 2.04 LAKHS BUT NOT RS. 12.00 LAKHS. THE S OURCE OF CASH BALANCE AS ON 01-04-2010 AMOUNTING TO RS. 14,79,100/- REMAINED UNEXPLAINED AND RIGHTLY CONFIR MED BY THE LD. CIT(A). THEREFORE, WE DO NOT FIND ANY I NFIRMITY IN THE ORDER OF THE CIT(A) AND THE SAME IS CONFIRME D. ACCORDINGLY, APPEAL OF THE ASSESSEE IS DISMISSED. SUDHIR KUMAR D.SHAH INDIVIDUAL (GROUP CASES) :- 12 -: 3.7. IN THE INSTANT CASE, THE FACT IS THAT THE ASSESSEE HA D REGISTERED THE SALE DEED FOR RS.6 LAKHS, WHICH IS UN DISPUTED. THE ASSESSEE HAD RECEIVED THE SUM OF RS.26 LAKHS, THE REFORE, THE SALE CONSIDERATION RECEIVED OVER AND ABOVE THE REG ISTERED SALE DEED WAS RIGHTLY TAXED AS UN-DISCLOSED INCOME IN THE HANDS OF THE ASSESSEE. ACCORDINGLY, THE APPEAL OF AS SESSEE ON THIS ISSUE INCLUDING THE ADDITIONAL GROUND RAISED BY TH E ASSESSEE IS DISMISSED. 4. THE NEXT ISSUE RAISED BY ASSESSEE FOR THE AY.2006- 07 IS THE ADDITION OF RS.1.00 CRORE MADE ON ACCOUNT OF COMM ISSION. DURING THE ASSESSMENT PROCEEDINGS, THE AO FOUND THAT THE ASSESSEE HAD RECEIVED THE COMMISSION OF RS.1.00 CROR E FROM M/S.DAKSHIN SHELTERS PVT. LTD., AS PER THE DOCUMENTS FO UND AND SEIZED AS ANNEXURE C/PCS/RES/1 AT PG. NOS.162 & 163. THE AO WAS OF THE VIEW THAT THE IT WAS NOTHING BUT COMMI SSION AS PER THE AGREEMENT ENTERED INTO BETWEEN SHRI M.P.AGAR WAL, REPRESENTED BY M/S.PLATINUM PROPERTIES PVT. LTD., AND AMBIENCE PROPERTIES PVT. LTD., WITH MRS.ANJANA SHAH, W/O.SUDHIR KUMAR D.SHAH, DT.20-07-2005. AS PER THE SA ID AGREEMENT, THE ASSESSEE AND HIS WIFE SUPPOSED TO RECE IVE THE AMOUNT OF RS.7.00 CRORES AS COMMISSION FOR ARRANGEME NT LANDED PROPERTIES SITUATED AT SY.NO.159 OF VATTINAGULAPAL LY VILLAGE, RAJENDRA NAGAR MANDAL ON 06-12-2007 FROM V ARIOUS OTHER OWNERS. ORIGINALLY, M/S.PLATINUM PROPERTIES PVT. LTD., HAD ENTERED INTO SUCH AGREEMENT, SUBSEQUENTLY, THE CO MPANY, M/S.DAKSHIN SHELTERS PVT. LTD., WAS FORMED AS SPECIAL PURPOSE VEHICLE (SPV) FOR THE PROJECT OF VATTINAGULAPAL LY LAND, WHERE ALL THE ASSETS AND LIABILITIES OF M/S.PLATINUM PROPERTIES SUDHIR KUMAR D.SHAH INDIVIDUAL (GROUP CASES) :- 13 -: PVT. LTD., WERE TRANSFERRED TO M/S.DAKSHIN SHELTERS PVT. LTD. AS PER THE AGREEMENT, AN AMOUNT OF RS.1 CRORE WAS PAID TO SHRI SUDHIR KUMAR D.SHAH AND THE AMOUNT PAID TO THE ASSESSEE WAS TREATED AS COMMISSION IN THE HANDS OF A SSESSEE BY THE AO AND TAXED THE SAME AS UN-DISCLOSED INCOME. 4.1. AGAINST THE SAID ORDER OF AO, ASSESSEE WENT ON AP PEAL BEFORE THE CIT(A) AND THE LD.CIT(A) CONFIRMED THE ORDE R OF AO. AGAINST THE ORDER OF LD.CIT(A), THE ASSESSEE FILED THE APPEAL BEFORE THE TRIBUNAL. 4.2. DURING THE APPEAL HEARING, LD.AR ARGUED THAT ASSE SSEE HAD AGREED TO PROCURE THE LANDS FOR M/S.DAKSHIN SHELT ERS PVT. LTD., AND FOR PROCUREMENT OF LANDS, M/S.DAKSHIN SHELTE RS PVT. LTD., HAD ACCEPTED FOR PAYMENT OF COMMISSION. HOWEVER, THE ASSESSEE FAILED TO PROCURE THE LANDS IN VIEW OF THE GOVERNMENTS ORDER IN G.O.MS.NO.111, ISSUED BY THE GOVERNMENT OF ANDHRA PRADESH, WHICH RESTRICTS THE CONSTRUCTION ACTIVITY IN THE CITED LANDS. THEREFORE, THE ASSESSEE WAS OBLIGED TO RETURN THE MONEY. LD.AR FURTHER SUBMITTED THAT ASSESSEE HAD SUBMITTED A LETTER TO THE AO REGARDING FAILURE TO PROCURE THE LANDS DUE GOVERNMENT POLICIES F OR CONVERSION OF LAND IN VIEW OF GO NO.111. THIS FACT W AS COMMUNICATED TO M/S.DAKSHIN SHELTERS PVT. LTD., VIDE LETTE R DT.31-08-2006 AND M/S.DAKSHIN SHELTERS PVT. LTD., ALSO REQUESTED TO REFUND THE AMOUNT PAID, THEREFORE, SUBMITTED THAT THERE WAS NO COMMISSION RECEIVED BY THE ASSESSEE A ND THE SAME CANNOT BE TAXED AS COMMISSION AND IT WAS TREA TED AS ADVANCE IN THE HANDS OF THE ASSESSEE. HAD IT BEEN SUDHIR KUMAR D.SHAH INDIVIDUAL (GROUP CASES) :- 14 -: COMMISSION, THE DEVELOPER WOULD HAVE DEDUCTED THE TAX AT SOURCE U/S.194H OF THE ACT, THUS, ARGUED THAT THERE IS N O CASE FOR MAKING THE ADDITION AND ACCORDINGLY REQUESTED TO DE LETE THE ADDITION. IN THIS REGARD, THE LD.AR ALSO TAKEN THE S UPPORT OF THE DECISION OF THE ITAT IN ITA NO.481/HYD/2014 IN THE CASE OF ITO VS. DAKSHIN SHELTERS PVT. LTD., DT.08-04-2 015, WHEREIN THE HON'BLE ITAT HELD THAT THE PAYMENT MADE BY M/S.DAKSHIN SHELTERS PVT. LTD., WAS ADVANCE PAYMENT AN D NO TAX WAS REQUIRED TO BE DEDUCTED AT SOURCE. 4.3. ON THE OTHER HAND, LD.DR SUBMITTED THAT THE HON'B LE ITAT HELD THE ISSUE IN FAVOUR OF ASSESSEE NOT TO DEDUC T THE TAX AT SOURCE, SINCE THE PAYMENT WAS ADVANCE PAYMENT AND N OT DEBITED TO THE PROFIT & LOSS A/C. THUS, THE CASE LAW RE LIED UPON BY THE ASSESSEE DOES NOT HELP THE CASE OF ASSESSE E. LD.DR FURTHER ARGUED THAT THE PAYMENT-IN-QUESTION WAS COMMISSION PAYMENT AS EVIDENCED FROM THE AGREEMENTS, THEREFORE, STRONGLY SUPPORTED THE ORDER OF LOWER AUTHOR ITIES AND REQUESTED TO CONFIRM THE ADDITION MADE. 4.4. WE HAVE HEARD BOTH THE PARTIES AND GONE THROUGH THE MATERIAL PLACED ON RECORD. IN THE INSTANT CASE, THE ASSE SSEE HAD RECEIVED A SUM OF RS.1 CRORE FOR PROCUREMENT OF LAND IN VATTINAGULAPALLY VILLAGE. IT IS A FACT THAT THE GOVERNME NT HAD ISSUED THE G.O. VIDE G.O.MS.NO.111, WHICH BARS THE CONSTRUCTION OF THE BUILDING IN THE CITED LANDS. THERE FORE, THE ASSESSEE EXPRESSED HIS INABILITY TO PROCURE THE LAND AND REQUESTED M/S.DAKSHIN SHELTERS PVT. LTD., TO TREAT THE SU M PAID AS ADVANCE FOR WHICH THE COMPANY HAD ACCEPTED . DURING SUDHIR KUMAR D.SHAH INDIVIDUAL (GROUP CASES) :- 15 -: THE APPEAL HEARING, THE ASSESSEE PLACED THE COPY OF TH E LETTER OF M/S.DAKSHIN SHELTERS PVT. LTD., DT.24-08-2006 REQUESTIN G THE ASSESSEE TO REFUND THE AMOUNT PAID AND ASSESSEES LETTER DT.31-08-2006, REQUESTING TO TREAT THE AMOUNT OF RS.1 CROR E AS AN ADVANCE BEFORE US. THE DECISION OF THE HON'BLE ITAT IN ITA NO.481/HYD/2014 IN THE CASE OF ITO VS. DAKSHIN SHELTE RS PVT. LTD., DT.08-04-2015, RELIED UPON BY THE ASSESSEE SUPP ORTS THAT THE SUM PAID WAS AN ADVANCE. THEREFORE, THERE IS NO REASON TO DIS-BELIEVE THE CONTENTION OF ASSESSEE. ACCORDINGLY, WE HOLD THAT THE AMOUNT PAID TO THE ASSESSEE IS AN ADVANCE AND NO ADDITION IS WARRANTED. HENCE, WE SET ASIDE THE ORDER OF LD.CIT(A) AND DELETE THE ADDITION MADE BY THE AO. THE ASSESSEE SUCCEEDS ON THIS GROUND. 5. TO SUM-UP, THE APPEALS FOR THE AYS.2002-03, 2003-0 4, 2004-05, 2005-06, 2007-08 & 2008-09 ARE DISMISSED A ND THE APPEAL FOR THE AY.2006-07 IS PARTLY ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 25 TH OCTOBER, 2019 SD/- SD/- (V. DURGA RAO) (D.S. SUNDER SINGH ) JUDICIAL MEMBER ACCOUNTANT ME MBER HYDERABAD, DATED: 25-10-2019 TNMM SUDHIR KUMAR D.SHAH INDIVIDUAL (GROUP CASES) :- 16 -: COPY TO : 1. SRI SUDHIR KUMAR D.SHAH IND., 4-3-345, 1 ST FLOOR, RBH LANE, KOTI,HYDERABAD. 2.THE DEPUTY COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE-2, HYDERABAD. 3. CIT(APPEALS)-1, HYDERABAD. 4. THE CIT(CENTRAL), HYDERABAD. 5. D.R. ITAT, HYDERABAD. 6. GUARD FILE.