The ITO, Ward-6(4), Ahmedabad V. Shri Bharat Jayantibhai Sanghvi, Ahmedabad

ITA 1875/AHD/2012

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 6324 (ITAT-AHMEDABAD)
• Duration Of Justice: 4 year(s) 7 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-04-2017
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: D
• Next Hearing Date: 21-02-2017
• Assessment Year: 2009-2010
• Appeal Filed On: 27-08-2012
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: OM PRAKASH MEENA
• Assessee Lawyers: S N SOPARKAR
• Keywords: Capital asset; Business income; Salary income; Cost of acquisition; Corroborative evidences; Assessment record
• Section: 143(3); 133(6)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD D BENCH BEFORE: SHR I RAJPAL YADAV , JUDICIAL MEMBER AND SHRI AMARJIT SINGH, ACCOUNTANT MEMBER THE ITO, WARD - 6(4), AHMEDABAD (APPELLANT) VS SHRI DILIPBHAI JAYANTIBHAI SANGHVI, 35, LALIT WAREHOUSE, NAROL, AHMEDABAD PAN: ANXPS2817B (RESPONDENT) THE ITO, WARD - 6(4), AHMEDABAD (APPELLANT) VS SHRI KETANBHAI JAYANTILAL SANGHVI, 35, LALIT WAREHOUSE, NAROL, AHMEDABAD PAN: ANXPS2824E (RESPONDENT) I T A NO . 1873 / A HD/20 12 A SSESSMENT YEAR 200 9 - 10 ITA NO. 1874 /AHD/20 12 ASSESSMENT YEAR 200 9 - 10 ITA NO. 1875 /AHD/20 12 ASSESSMENT YEAR 200 9 - 10 I.T.A NO. 1873 TO 1875 /AHD/20 12 A.Y. 2009 - 10 PAGE NO ITO VS. SHRI DILIPBHAI JAYANTIBHAI SANGHVI & OTHERS 2 THE ITO, WARD - 6( 4), AHMEDABAD (APPELLANT) VS SHRI BHARATBHAI JAYANTIBHAI SANGHVI, 35, LALIT WAREHOUSE, NAROL, AHMEDABAD PAN: AFHPS7827R (RESPONDENT) REVENUE BY : S H RI OM PRAKASH MEENA , SR. D . R. ASSESSEE BY: S H RI S.N. SOPARKAR , A.R. DATE OF HEARING : 21 - 03 - 2 017 DATE OF PRONOUNCEMENT : 06 - 04 - 2 017 / ORDER P ER : AMARJIT SINGH, ACCOUNTANT MEMBER : - THESE THREE REVENUE S APPEAL S FILED BY DIFFERENT ASSESSEES FO R A.Y. 2009 - 10 , AR ISE FROM ORDER OF THE CIT(A) - XI, AHMEDABAD ALL DATED 21 - 06 - 2012 IN APPEAL NOS. CIT(A) - XI/306/WD. 6(4)/11 - 12 , CIT(A) - XI/307/WD. 6(4)/11 - 12 & CIT(A) - XI/300/WD. 6(4)/11 - 12 ; RESPECTIVELY, IN PROCEEDINGS UNDER SECTION 143(3) OF THE INCOME TA X ACT, 1961; IN SHORT THE ACT . 2. THE REVENUE HAS RAISED FOLLOWING GROUNDS OF APPEAL: - I) THE ID. CIT(A) HAS ERRED IN LAW AND ON FACTS IN DELETING THE ADDITION OF RS.2,81,56,500 / - ON ACCOUNT OF SUPPRESSION OF SHORT TERM CAPITAL GAIN. I.T.A NO. 1873 TO 1875 /AHD/20 12 A.Y. 2009 - 10 PAGE NO ITO VS. SHRI DILIPBHAI JAYANTIBHAI SANGHVI & OTHERS 3 II) THE ID. CIT(A) HAS ERRED IN LAW AND ON FACTS IN HOLDING THAT THE TRANSFER EFFECTED BY WAY OF 'AGREEMENT FOR SALE WITHOUT POSSESSION' DATED 20.05.2008 BETWEEN THE A SSESSEE AND KAMAL MANUBHAI SANGHVI WAS A VALID TRANSFER. II I) THE CIT(A) HAS ERRED IN L AW AND ON FACTS IN HOLDING THAT THE SALE CONSIDERATION OF RS.8,44,69,500/ - RECEIVED BY KAMAL MANUABHAI GOHIL WAS ASSESSABLE IN HIS HANDS AND NOT IN THE HANDS OF THE ASSESSEE AND HIS CO - OWNERS. 3. AS ALL THESE THREE APPEALS HAVE SIMILAR FACTS BUT DIFFE RENT ASSESSEES, SO WE TAKE ITA NO. 1873/AHD/2012 (ASSESSEE - DILIPBHAI JAYANTIBHAI SANGHVI) AS THE LEAD CASE AND DECIDE ALL OF THEM ACCORDINGLY. 4. IN THIS CASE, RETURN OF INCOME DECLARING INCOME OF RS. 18 ,3 4 , 440/ - WAS FILED ON 8 TH OCTOBER, 2009. SUBSEQUE NTLY, THE CASE WAS SEL ECTED FOR SCRUTINY BY ISSUING NOTICE U/S. 143(2) OF THE ACT ON 17 TH AUGUST, 2010. IN T HE RETURN OF INCOME, THE ASSESSEE HAD DECLARED INCOME FROM SALARY, BUSINESS INCOME, INTEREST INCOME, AND SHORT TERM CAPITAL GAIN ON SALE OF LAND F OR WHICH THE ASSESSEE WAS ASKED TO PRODUCE SUPPORTING EVIDENCES. DURING THE COURSE OF APPELLATE PROCEEDINGS, FOR VERIFICATION, IN THIS CONNECTION, THE ASSESSING OFFICER HAS NOTICED THAT DURING THE YEAR UNDER CONSIDERATION , THE ASSESSEE HAS SOLD A PIECE OF LAND AT VILLAGE SANATHAL SHOWING SALE OF CONSIDERATION OF RS . 25 , 17 ,0 00/ - AGAINST THIS SALE CONSIDERATION, THE ASSESSEE HAS CLAIMED COST OF ACQUISITION OF RS. 16,55 , 100/ - AND COMPUTED SHORT TERM CAPITAL GAIN OF RS. 8 , 61 , 900/ - . IN THIS CONNECTION, DURIN G THE COURSE OF APPELLATE PROCEEDINGS, THE ASSESSING OFFICER ASKED THE ASSESSEE TO PRODUCE I.T.A NO. 1873 TO 1875 /AHD/20 12 A.Y. 2009 - 10 PAGE NO ITO VS. SHRI DILIPBHAI JAYANTIBHAI SANGHVI & OTHERS 4 THE SUPPORTING DOCUMENT IN SUPPORT OF SALE CONSIDERATION AS WELL AS COST OF ACQUISITION OF THE SOLD LAND. ON PERUSAL OF DOCUMENT SALE DEED DATED 28 TH FEBRUARY, 200 9, THE ASSESSING OFFICER NOTICED THAT NON - AGRICULTURAL LAND SITUATED AT BLOCK NO. 131, MOUJE SANATHAL, TAL. SANAND, ADMEASURING 11 , 837 SQ. MT. WAS OWNED BY THE ASSESSEE ALONG WITH HIS TWO BROTHERS VIZ BHARAT SANGHAVI AND KETAN SANGHAVI RESPECTIVELY AND T HE SAME WAS SOLD TO APPLEWOODS ESTATE PVT. LTD FOR A T OTAL SALE CONSIDERATION OF RS. 9,20,20,500/ - . THE ASSESSING OFFICER HAS FURTHER NOTICED THAT AS PER PARA 7 ON PAGE 4 OF THE SALE DEED OUT OF THE SALE CONSIDERATION AN AMOUNT OF RS. 8 , 44 , 69 , 500/ - WAS P AID TO S HRI KAMAL MANUBHAI GOHIL A CONFIRMING PARTY WHEREIN ONLY AN AMOUNT O F RS. 75,51,000/ - WAS DISTRIBUTED AMONG THE ASSESSEE AND HIS TWO BROTHERS AS VENDORS. THE ASSESSING OFFICER HAS FURTHER STATED THAT THE ASSESSEE ALONG WITH HIS TWO BROTHERS SHOU LD HAVE RIGHTLY RECEIVED THE TOTAL CONSIDERATION OF RS. 9,20, 20, 500/ - ON WHICH THE CAPITAL GIVEN FOR TAXATION SHOULD HAVE BEEN OFFERED IN THE RATIO OF THEIR OWNERSHIP. ON QUESTIONING THE ASSESSEE REGARDING GENUINENESS OF RS. 8 , 44 , 69 , 500/ - PASSED TO CONFIR MING PARTY , THE ASSESSEE EXPLAINED , THE AGREEMENT FOR SALE WITHOUT POSSESSION DATED 28 TH MAY, 2008. MADE WITH THE CONFIRMING PARTY. ON EXAMINATION OF THE SALE DEED , IT WAS NOTICED BY THE ASSESSING OFFICER THAT THE AGREEMENT FOR SALE WAS NOT A REGISTERED DOCUMENT AND IT WAS MERELY NOTARIZED THROUGH A GOVT. APPOINTED NOTARY. DURING THE COURSE OF ASSESSMENT PROCEEDINGS THE ASSESSEE WAS ASKED TO FURNISH COPY OF RETURN OF INCOME, IF ANY, FILED BY SHRI KAMAL MANUBHAI GOHIL FOR A.Y 2009 - 10 AND ALSO TO FURNISH COPY OF BANK ACCOUNT OF SHRI KAMAL MANUBHAI I.T.A NO. 1873 TO 1875 /AHD/20 12 A.Y. 2009 - 10 PAGE NO ITO VS. SHRI DILIPBHAI JAYANTIBHAI SANGHVI & OTHERS 5 GOHIL . REGARDING THE QUERY OF THE ASSESSING OFFICER TO PRODUCE SHRI SHRI KAMAL MANUBHAI GOHIL FOR EXAMINATION AND SUBMIT THE BANK ACCOUNT OF SHRI SHRI KAMAL MANUBHAI GOHIL ALONG WITH THE RETURN IT WAS SUBMITTED BY THE ASSESSEE THAT PAN NUMBER H AS ALREA DY B EEN GIVEN AND SHRI SHRI KAMAL MANUBHAI GOHIL IS A SEPARATE ENTITY, AND REQUESTED TO ISSUE SEPARATE NOTICE TO SHRI SHRI KAMAL MANUBHAI GOHIL UNDER THE PROVISION OF SECTION 133(6) OF THE IT. ACT .THE ASSESSING OFFICER FURTHER STATED THAT D URING THE COU RSE OF ASSESSMENT PROCEEDINGS THE ASSESSEE ATTEMPTED TO DIVERT THE TAX LIABILITY TO SHRI KAMAL GOHIL BY ARGUING THAT SALE PROCEEDS HAD BEEN PAID TO HIM AND HE WAS LIABLE TO PAY DUE TAX ON SUCH INCOME AND TAXING THE SAME AMOUNT AGAIN IN THE HANDS OF THE ASS ESSEE WOULD AMOUNT TO DOUBLE TAXATION. THE ASSESSING OFFICER STATED THAT ARGUMENT OF THE ASSESSEE WAS NOT SUPPORTED WITH THE EVIDENCE THAT SHRI KAMAL GOHIL HAD DISCLOSED SUCH INCOME IN HIS RETURN OF INCOME, IF ANY, FILED AND PAID THE DUE TAX. THE ASSESSIN G OFFICER HAD MADE ADDITION ON ACCOUNT OF SUPPRESSION OF SHORT TERM CAPITAL GAINS . 5 . AGGRIEVED AGAINST THE ORDER OF ASSESSING OFFICER, THE ASSESSEE FILED APPEAL BEFORE THE LD. CIT. THE LD. CIT(A) HAS DELETED THE ADDITION BY OBSERVING AS UNDER: - 2.5 ' THE FACTS INVOLVED IN THIS CASE ARE SUMMARIZED AS UNDER. (I) APPELLANT ALONGWITH HIS TWO BROTHERS (CO - OWNERS) PURCHASED 11,837 SQ. MTS. OF AGRICULTURE LAND AT MOUJE SANATHAL, TAL. SANAND DIST. AHMEDABAD AT A TOTAL COST OF RS.49,65,300/ - (II) THE COST OF LAND PER CO - OWNER WORKS OUT TO RS.16,55,100/ - ,(45 , 65,300/3) I.T.A NO. 1873 TO 1875 /AHD/20 12 A.Y. 2009 - 10 PAGE NO ITO VS. SHRI DILIPBHAI JAYANTIBHAI SANGHVI & OTHERS 6 (III) AGREEMENT FOR SALE WITHOUT POSSESSION IN RESPECT OF THIS LAND WAS EXECUTED BY THE APPELLANT AND OTHER TWO CO - OWNERS WITH SHRI KAMAL MANUBHAI GOHIL ON 20 - 5 - 2008. THIS AGREEMENT WAS DUL Y NOTARIZED. (IV) SHRI KAMAL MANUBHAI GO HIL HAD PAID A SUM OF RS.51,000/ - AS ADVANCE MONEY AS PER THE TERMS OF AGREEMENT DTD.20 - 5 - 2008. (V) AS PER TERMS OF THIS AGREEMENT, THE SALE WAS TO BE COMPLETED WITHIN SIX MONTHS OF THIS AGREEMENT (VI) AS P ER TERMS OF THIS AGREEMENT, APPELLANT ALONGWITH OTHER TWO CO - OWNERS WERE OBLIGED TO SELL THE IMPUGNED LAND EITHER TO SHRI KAMAL MANUBHAI GOHIL OR TO ANY OTHER PARTY SUGGESTED BY SHRI KAMAL MANUBHAI GOHIL. (VII) AS PER CLAUSE NO.5 OF THIS AGREEMENT, APPEL LANT ALONGWITH OTHER TWO CO - OWNERS WAS REQUIRED TO SETTLE/SOLVE ALL CLAIMS/OBJECTIONS/DISPUTES WHICH MAY BE RECEIVED/ARISE DURING THE INVESTIGATION OF TITLE AND/OR MAKE GOOD ALL DEFECTS/QUERIES WHICH MAY BE FOUND DURING THE INV ESTIGATION OF TITLE. APPELLAN T FURNISHED EVIDENCE TO SUBSTANTIATE THAT IT HAS UNDERTAKEN PROCESS OF INVESTIGATION OF TITLES. IN THIS REGARD, APPELLANT HAD SUBMITTED COPY OF TITLE REPORTS, CERTIFICATES ISSUED BY M/S. SHANTILAL & CO., ADVOCATES & SOLICITORS, WHICH WAS RECEIVED BY THE AP PELLANT ON 15 - 12 - 2008. (VIII) OPINION IN RESPECT OF TITLE WAS ALSO RECEIVED ON 13 - 1 - 2009 FROM M/S.K.NANAVATI & GANDHI ASSOCIATES, ADVOCATES, SOLICITORS & NOTARY (IX) THE IMPUGNED AGRICULTURE LAND WAS SOLD BY THE APPELLANT ALONGWITH OTHER TWO CO - OWNERS ON 20 - 2 - 2009 TO M/S. APPLEWOODS ESTATE PVT. LTD. THE LAND WAS SOLD FOR A CONSIDERATION OF RS.9,20,20,500/ - . (X) IN THIS SALE DEED PURCHASER HAS BEEN NAMED AS M/S. APPLEWOODS ESTATE PVT. LTD. AND THE SELLERS ARE APPELLANT AND OTHER 2 CO - OWNERS. THE APP ELLANT ALONGWITH OTHER TWO CO - OWNERS ARE MENTIONED AS VENDORS. (XI) IN THE SALE DEED DTD.20 - 2 - 2009 SHRI KAMAL MANUBHAI GOHIL IS STATED TO BE A CONFIRMING PARTY. HIS PHOTOGRAPH ALONGWITH HIS COMPLETE ADDRESS AND PAN, THUMB IMPRESSION AND SIGNATURES ARE A VAILABLE ON THE SALE DEED. THIS WAY, SHRI KAMAL MANUBHAI GOHIL HAS BEEN UNAMBIGUOUSLY IDENTIFIED AS A CONFIRMING PARTY IN THE SALE DEED DTD.20 - 2 - 2009. (XII) SALE DEED DTD.20 - 2 - 2009 IS HAVING A SEPARATE ANNEXURE TITLED 'RECEIPT'. IN THIS ANNEX URE IT IS CLEARLY MENTIONED THAT VENDORS (I.E. APPELLANT AND OTHER TWO CO - OWNERS) HAVE RECEIVED A SUM O F RS.75,51,000/ - OUT OF TOTAL SALE CONSIDERATION OF RS.9,20,20,500/ - . EVEN THE DETAILS OF PAYMENTS MADE TO VENDORS HAS BEEN MENTIONED IN THIS ANNEXURE. T HE DETAILS OF PAYMENTS MADE TO VENDORS AS MENTIONED IN THIS ANNEXURE ARE SUMMARIZED AS UNDER. I.T.A NO. 1873 TO 1875 /AHD/20 12 A.Y. 2009 - 10 PAGE NO ITO VS. SHRI DILIPBHAI JAYANTIBHAI SANGHVI & OTHERS 7 SR. NO. AMOUNT CHEQUE NO.& DATE REMARKS 1 51,000/ - CASH AMOUNT PAID BY CONFIRMING PARTY, SHRI KAMAL MANUBHAI GOHIL IN CASH TO VEN DORS 2 25,00,000/ - 216303 DTD. 5 - 8 - 08 PAID BY CONFIRMING PARTY, SHRI KAMAL MANUBHAI GOHIL TO THE VENDOR, TO SHRI DILIPBHAI J.SANGHVI 3 25,00,000/ - 216304 DTD. 5 - 8 - 08 PAID BY CONFIRMING PARTY, SHRI KAMAL MAN UBHAI GOHIL TO THE VENDOR, TO SHRI KETANBHAI J.SANGHVI 4 25,00,000/ - 216305 DTD. 5 - 8 - 08 PAID BY CONFIRMING PARTY, SHRI KAMAL MANUBHAI GOHIL TO THE VENDOR, TO SHRI BHARATBHAI J.SANGHVI TOTAL 75,51,000/ - (XIII) IN THE BOOKS OF APPLEWOODS ESTATE PVT.LTD., THE LEDGER ACCOUNT OF SHRI KAMAL MANUBHAI GOHIL IS OPENED. IN THIS ACCOUNT, TOTAL SALE CONSIDERATION OF RS.9,20,20,500/ - IS RECORDED AS PAID TO SHRI KAMAL MANUBHAI GOHIL. THESE PAYMENTS WERE MAD E THROUGH BANKING CHANNELS. IN THIS ACCOUNT ALSO M/S.APPLEWOODS ESTATE PVT. LTD. HAD MADE A CONTRA ENTRY OF RS.75,51,000/ - IN THE NAME OF APPELLANT AND HIS TWO BROTHERS. THIS FURTHER INDICATES THAT APPELLANT ALONGWITH HIS TWO BROTHERS HAVE RECEIVED A SUM O F RS.75,51,000/ - ONLY AS A RESULT OF THIS TRANSACTION. (XIV) ALL THE PAYMENTS RECEIVED BY SHRI KAMAL MANUBHAI GOHIL FROM M/S.APPLEWOODS ESTATE PVT.LTD. ARE REFLECTED IN HIS BANK ACCOUNT BEARING NO.003138230009958 WITH NUTAN NAGRIK SAHKARI BANK LTD. PERUSA L OF THIS ACCOUNT REVEALS THAT CHEQUE NOS.216303, 216304 AND 216305 ISSUED IN FAVOUR I.T.A NO. 1873 TO 1875 /AHD/20 12 A.Y. 2009 - 10 PAGE NO ITO VS. SHRI DILIPBHAI JAYANTIBHAI SANGHVI & OTHERS 8 OF THE APPELLANT AND HIS TWO BROTHERS WERE CLEARED ON 7 - 8 - 2008. THE CHEQUES ARE AMOUNTING TO RS.75,00,000/ - (25,00,000 X 3). 2.6 THE RELEVANT LEGAL PROVISIONS FOR THE PURP OSE OF THIS APPEAL ARE DISCUSSED IN THE BELOW MENTIONED PARAS. (A) HON'BLE SUPREME COURT IN THE CASE OF CIT V/S. B.C.SRINIVASA SETTY (1981) 128 !TR 294 HAS DISCUSSED THE SCOPE OF SECTIONS 45 AND 48 OF THE IT. ACT. IT WAS HELD BY HON'BLE APEX COURT T HAT SECTION 45 AND 48 ARE INTER DEPENDENT. SECTION 45 IS CHARGING SECTION AND SECTION 48 IS A COMPUTATION PROVISION. GENERALLY OPERATION OF CHARGING PROVISION CANNOT BE EFFECTED BY COMPUTATION PROVISION, BUT IF IN A CASE COMPUTATION U/S.48 - CANNOT BE MADE THEN CHARGING PROVISION OF SECTION 45 WILL FAIL BECAUSE THE SAME CANNOT BE GIVEN EFFECT TO (B) TAXABLE CAPITAL GAINS IS TO BE COMPUTED AS PER THE PROVISIONS OF SECTION 48 OF IT. ACT. THE SECTION 48 READS AS UNDER. 'INCOME CHARGEABLE UNDER THE HEAD ' CAPITAL GAINS' SHALL BE COMPUTED BY DEDUCTING FROM THE FULL VALUE OF THE CONSIDERATION RECEIVED OR ACCRUING AS A RESULT OF TRANSFER OF CAPITAL ASSET. FOLLOWING AMOUNTS NAMELY......' THE UNAMBIGUOUS READING OF THIS SECTION REVEALS THAT UNDER .THE HEAD CAPIT AL GAIN AMOUNTS RECEIVED OR ACCRUED TO THE ASSESSEE AS A RESULT OF TRANSFER OF CAPITAL ASSET ARE LIABLE TO BE TAXED UNDER THE PROVISIONS OF CAPITAL GAIN TAX. TO TAX ANY AMOUNT AS CAPITAL GAINS, IT IS MANDATORY TO PROVE THAT THESE AMOUNTS ARE RECEIVED BY TH E ASSESSEE OR ACCRUED TO THE ASSESSEE AS A RESULT OF TRANSFER OF CAPITAL ASSET. IN THE ABSENCE OF CLINCHING EVIDENCES TO PROVE, THE FACT OF RECEIPT OR ACCRUAL, CONSIDERATION IN QUESTION CANNOT BE TAXED UNDER THE HEAD CAPITAL GAIN. (C) IN THE CASE O F K.P. VARGHESE V/S. ITO (1981) 131 ITR 597 (S.C.) IT WAS HELD THAT UNDER THE SCHEME OF TAXATION OF CAPITAL GAINS, ONLY REAL GAIN IS TAXED AND NO NOTIONAL GAIN WHICH MAY HAVE NEVER BEEN RECEIVED BY THE ASSESSEE. IT IS FURTHER OBSERVED THAT STARTING POINT O F SECTION 48 IS FULL VALUE OF CONSIDERATION RECEIVED OR ACCRUING. WHAT IN FACT WAS NEVER ACCRUED OR WAS NEVER RECEIVED CANNOT BE COMPUTED AS CAPITAL GAIN U/S.48. (D) HON'BLE SUPREME COURT IN THE CASE OF CIT V/S.GEORGE HENDERSON & CO.LTD. 66 ITR 622 HAS DEFINED THE TERM 'FULL VALUE OF CONSIDERATION' AS USED IN SECTION 48 OF THE IT. ACT. IT IS HELD BY APEX COURT THAT 'FULL VALUE OF CONSIDERATION FOR WHICH THE SALE, EXCHANGED OR TRANSFER OF CAPITAL ASSET IS MADE' APPEARING IN SECTION 12B OF INDIAN INCO ME - TAX ACT, 1922 (CORRESPONDING TO PRESENT SECTION 48 I.T.A NO. 1873 TO 1875 /AHD/20 12 A.Y. 2009 - 10 PAGE NO ITO VS. SHRI DILIPBHAI JAYANTIBHAI SANGHVI & OTHERS 9 OF THE IT. ACT, 1961), DOES NOT MEAN MARKET VALUE OF THE ASSET TRANSFERRED BUT THE PRICE BARGAINED FOR THE PURPOSE OF SALE ETC. THE CONSIDERATION FOR THE TRANSFER OF CAPITAL ASSET IS WHAT TRANSFEROR REC EIVES IN. LIEU OF ASSETS HE PARTS WITH, VIZ. MONEY OR MONEYS WORTH. (E) IT IS HELD BY APEX COURT IN THE CASE OF CIT V/S.DHANRAJGIRI RAJA NARASINGIRJI (1973) 91 ITR 544 (S.C.) THAT IT IS NTTT OPEN TO THE DEPARTMENT TO PRESCRIBE WHAT EXPENDITURE ASSES SEE SHOUJD - INCUR. EVERY BUSINESSMAN KNOWS HIS INTEREST BEST. IT IS FURTHER HELD BY HON'BLE COURTS THAT IT IS NOT FOR THE COURT OR I.T. AUTHORITY TO SUGGEST OR ADVISE, TO PRESUME OR SURMISE AS TO THE EXPEDIENCE OF ANY EXPENDITURE/TRANSACTION. ONCE IT IS EST ABLISHED THAT AMOUNT WAS GENUINELY EXPENDED AND IT WAS EXPENDED FOR A PARTICULAR PURPOSE, THE ONLY DISCRETION THAT IS LEFT TO THE AUTHORITY UNDER THE ACT IS TO COMPLY THE LAW ON THE BASIS OF SUCH ESTABLISHED FACT OR FINDING. THE ABOVE ILLUSTRATIONS HAS BEE N - CITED JUST TO ILLUSTRATE THE FACT THAT I.T. AUTHORITIES CANNOT DICTATE THE TERMS OF AGREEMENT. IT SHOULD BE LEFT TO THE CONTRACTING PARTIES HOW TO TRANSACT AND FOR WHAT CONSIDERATION TO TRANSACT. EVERY PARTY AT THE TIME OF CONTRACT WILL SAFEGUARD ITS INT ERESTS. THE I.T. AUTHORITIES CANNOT DECIDE CONTRACTING PARTIES, CONFIRMING PARTIES THE SALE CONSIDERATION AND APPORTIONING SALE CONSIDERATION BETWEEN SELLER S A ND CONFIRMING PARTIES. 2.7 THE APPEAL IN HAND HAS TO BE DECIDED WITHIN THE FACTUAL AND LEGAL MATR IX AS MENTIONED IN PARA 2.5 AND 2.6 OF THIS ORDER. IT IS SEEN THAT IN THE ASSESSMENT ORDER THE LD.A.0. HAD DISCUSSED IN DETAILS ABOUT THE AGREEMENT FOR SALE WITHOUT POSSESSION DTD.20 - 5 - 2008. HE HAS DISCUSSED IN DETAILS PROVISIONAJOF TRANSFER OF PROPERTY AC T AND THE DECISION OF HON'BLE SUPREME COURT IN THE CASE OF SURAJ LAMP & INDUSTRIES PVT. LTD. V/S. STATE OF HARYANA (2011) STPL (WEB.) 879. IN MY CONSIDERED VIEW, THE ENTIRE DISCUSSION MADE BY THE A.O. IS BESIDES THE POINT AS CAPITAL ASSET HAS NOT BEEN SOLD THROUGH THIS AGREEMENT. THIS IS A SUBSIDIARY AGREEMENT WHICH ONLY SUBSTANTIATE THE FACT OF CONFIRMING PARTY IN THE AGREEMENT TO SALE DTD.20 - 5 - 2008. THE AGREEMENT TO SALE VIDE WHICH AGRICULTURE LAND SITUATED AT MOUJE: SANATHAL, TAL. SANAND WAS SOLD WAS REG ISTERED ON 20 - 5 - 2008 AND THE A.O. HAD NOT MADE ANY DISCUSSION IN RESPECT OF THIS AGREEMENT TO SALE. IN FACT, THIS IS MOST IMPORTANT DOCUMENT FOR THE PURPOSE OF I.T. ACT AS TAXABLE SHORT TERM CAPITAL GAIN HAS BEEN WORKED OUT ON THE BASIS OF THIS AGREEMENT. THE A.O. HAS NOT QUESTIONED THE GENUINENESS OF THIS AGREEMENT, ON THE OTHER HAND THE A.O. HAD USED THE FACTS AND FIGURES AVAILABLE ON THIS AGREEMENT FOR COMPUTING SHORT TERM CAPITAL GAIN. SINCE THE A.O. HAS NOT CHALLENGED THE GENUINENESS OF THE SALE AGREEM ENT REGISTERED ON 20 - 2 - 2009 THE SAME HAS TO BE TAKEN AS GENUINE DOCUMENTS. I.T.A NO. 1873 TO 1875 /AHD/20 12 A.Y. 2009 - 10 PAGE NO ITO VS. SHRI DILIPBHAI JAYANTIBHAI SANGHVI & OTHERS 10 2.8 THE A.O. VIDE DETAILED DISCUSSIONS HAD REACHED TO A CONCLUSION THAT SHRI KAMAL MANUBHAI GOHIL WAS NOT HAVING ANY INTEREST IN THE AGRICULTURE LAND SITUATED AT MOUJE: SANATHAL AS AGREEMENT FOR SALE WITHOUT POSSESSION DTD.20 - 5 - 2008 WAS NOT A VALID AGREEMENT AS PER THE PROVISIONS OF TRANSFER OF PROPERTY ACT. AS DISCUSSED IN PARA 2.6 ABOVE, THE A.O. CANNOT EXAMINE THE EXPEDIENCY OF AGREEMENT. THE A.O. IS HAVING A LIMITED JURISDICTION OF EXAMINING THE GENUI NENESS OF THE AGREEMENT. ONCE TH E GENUINENESS OF THE AGREEMENT IS ESTABLISHED, ONLY DISCRETION LEFT TO THE ASSESSING AUTHORITY IS TO COMPLY THE LAW AS PRESCRIBED IN THE I.T. ACT. DURING THE ASSESSMENT PROCEEDINGS AS WELL AS REMAND RE PORT PROCEEDINGS THE A.O. HAS NOT BROUGHT ANYTHING ON RECORD TO PROVE THAT AGREEMENT DTD.20 - 5 - 2008 WAS NOT GENUINE. IN THE ABSENCE OF SUCH VITAL EVIDENCES, AGREEMENT DTD. 20 - 5 - 2008 HAS TO BE TAKEN AS GENUINE AGREEMENT. I AM ALSO INCLINED TO ACCEPT THE GENU INENESS OF THIS AGREEMENT AS AGR ICULTURE LAND SITUATED AT MOUJE SANATHAL WAS TRANSACTED AS PER THE TERMS AND CONDITIONS MENTIONED IN THIS AGREEMENT AND THE SALE OF THIS LAND WAS REGISTERED VIDE SALE AGREEMENT DTD.20 - 2 - 2009. IT WILL BE WORTHWHILE TO MENTION THAT VIDE AGREEMENT DTD.20 - 5 - 2008 , THE AGRICULTURE LAND WAS SOLD TO SHRI KAMAL MANUBHAI GOHIL FOR A CONSIDERATION OF RS. - 75,51,000/ - . IN THE REGISTERED SALE AGREEMENT DTD.20 - 2 - 2009, VENDORS WERE PAID SAL E CONSIDERATION OF RS.75,51,000/ - ONLY. IN THE AGREE MENT WITHOUT POSSESSION DTD.20 - 5 - 2008 THE APPELLANT AND OTHER TWO CO - OWNERS WERE OBLIGED TO SELL THE IMPUGNED AGRICULTURE LAND TO SHRI KAMAL MANUBHAI GOHIL OR TO A PARTY RECOMMENDED BY SHRI KAMA! MANUBHAI GOHIL. THE AGRICULTURE LAND SITUATED AT MOUJE: SANA THAL WAS SOLD VIDE REGISTERED SALE DEED DTD.20 - 2 - 2009 WITH THE CONSENT OF SHRI KAMAL MANUBHAI GOHIL. THIS FACT IS FURTHER SUBSTANTIATED BY THE FACT THAT SHRI KAMAL MANUBHAI GOHIL IS THE CONFIRMING PARTY IN THE AGREEMENT TO SALE DATED 20 - 2 - 2009. IT IS SUBMI TTED BY THE APPELLANT THAT M/S.APPLEWOODS ESTATE PVT. LTD. WAS RECOMMENDED BY SHRI KAMAL MANUBHAI GOHIL AND THIS FACT REMAINS UNCONTROVERTED. AS PER THE TERMS OF AGREEMENT FOR SALE DTD.20 - 5 - 2008 THE APPELLANT AND OTHER CO - OWNERS WERE REQUIRED TO MAKE NECES SARY INVESTIGATION IN THE TITLE OF THE LAND AND GET THE SAME CLEARED. THE EVIDENCES AVAILABLE ON RECORD REVEALS THAT APPELLANT HAS MADE DUE DILIGENCE IN THIS RESPECT AND THE APPELLANT GOT THE TITLE INVESTIGATED AND THE LEGAL OPINION OBTAINED BY THE APPELLA NT INDICATE THAT THE TITLE OF THE LAND IS CLEAR. NECESSARY LEGAL OPINIONS IN THIS REGARD ARE ALREADY AVAILABLE ON THE RECORD. THE ABOVE FACTS CLEARLY ESTABLISHED EVEN THE GENUINENESS OF THE SALE AGREEMENT WITHOUT POSSESSION DTD. 20 - 5 - 2008. 2.9 IN THE REMAN D REPORT THE ID. A.O. HAD DISCUSSED IN DETAIL PROVISIONS OF SECTION 45 OF THE IT. ACT. THE CONTENTIONS OF THE ID. A.O. IS THAT AS PER THE PROVISIONS OF SECTION 45 I.T.A NO. 1873 TO 1875 /AHD/20 12 A.Y. 2009 - 10 PAGE NO ITO VS. SHRI DILIPBHAI JAYANTIBHAI SANGHVI & OTHERS 11 TRANSFEROR IS TO BE TAXED FOR CAPITAL GAINS IN CASE OF SELLERS OF CAPITAL ASSET. THE PROVISIO NS OF SECTION 45 VIS - A - VIS 48 HAS ALREADY BEEN DISCUSSED BY ME IN PARA 2.6 OF THIS ORDER. IT IS AN ESTABLISHED PROPOSITION OF LAW THAT SECTION 45 AND 48 DOES NOT AFFECT EACH OTHER. AS PER THE PROVISIONS OF IT. ACT, THE CAPITAL GAIN COMPUTED AS PER THE PROV ISIONS OF SECTION 48 OF IT. ACT ARE TO BE CHARGED TO TAX AS PER THE PROVISIONS OF SECTION 45 OF IT. ACT. IT IS CLEAR THAT THE TAXABLE CAPITAL GAINS ARE TO BE COMPUTED AS PER THE PROVISIONS OF SECTION 48 OF IT. ACT. 2.10 THE A.O. HAD ALSO CONTENDED THAT PRO VISIONS OF SECTION 60 ARE ATTRACTED IN THIS CASE. PERUSAL OF SECTION 60 REVEALS THAT IT STARTS WITH THE HEADING 'TRANSFER OF INCOME WHERE THERE IS NO TRANSFER OF ASSETS'. THE VERY PURPOSE AS INDICATED BY HEADING OF THIS SECTION IS TO TAX INCOME ARISING OUT OF AN ASSET IN THE HANDS OF THE TRANSFEROR IF THE ASSET IN QUESTION IS NOT TRANSFERRED. THE PROVISION OF THIS SECTION WILL NOT BE APPLICABLE IN THE INSTANT CASE AS THE IMPUGNED AGRICULTURE LAND HAS BEEN TRANSFERRED VIDE REGISTERED SALE DEED DTD.20 - 2 - 2009. 2.11 AS DISCUSSED ABOVE, CAPITAL GAIN ARISING OUT OF SALE OF AGR ICULTURE LAND SITUATED AT MOUJE: SANATHAL IS TO BE TAXED AS PER THE TERMS AND CONDITIONS OF REGISTERED SALE DEED DTD.20 - 2 - 2009. AS DISCUSSED IN PARA 2.6 ABOVE, CAPITAL GAIN IS TO BE COMPUTED AS PER THE PROVISIONS OF SECTION 48. SECTION 48 PRESCRIBES INCIDENCE OF CAPITAL GAIN ON FULL VALUE OF CONSIDERATION AS RECEIVED OR ACCRUED TO THE APPELLANT. AS PER THE TERMS AND CONDITION OF SALE AGREEMENT DTD.20 - 2 - 2009, FULL VALUE OF CONSIDERATION WHICH H AS BEEN ACCRUED OR RECEIVED BY THE APPELLANT AND OTHER TWO CO - OWNERS IS RS.75,51,000/ - ONLY. THE DETAILS OF CONSIDERATION RECEIVED HAS BEEN MENTIONED IN PARA 2.5(XII) OF THIS ORDER. THE FULL VALUE OF CONSIDERATION HAS BEEN RECEIVED BY THE APPELLANT AND OTHE R CO - OWNERS THROUGH BANKING CHANNELS. THERE IS ABSOLUTELY NO EVIDENCE ON RECORD THAT APPELLANT AND OTHER CO - OWNERS HAD RECEIVED ANYTHING MORE THAN ABOVE MENTIONED SALE CONSIDERATION OF RS.75,51,000/ - . ACCORDINGLY, I AM OF THE FIRM VIEW THAT SALE CONSIDERAT ION OF IMPUGNED AGRICULTURE LAND FOR THE PURPOSE OF SECTION 48 OF THE IT. ACT SHOULD BE TAKEN AT RS.75,51,000/ - ONLY. THE SHARE OF THE APPELLANT IN THIS SALE CONSIDERATION WILL BE RS.25,17,000/ - (75,51,000/3). IN VIEW OF ABOVE, THE A.O. IS DIRECTED TO TAKE FULL VALUE OF THE CONSIDERATION RECEIVED BY THE APPELLANT FOR THE SALE OF CAPITAL ASSET AT RS.25,17,000/ - AND COMPUTE SHORT TERM CAPITAL GAIN ACCORDINGLY. 2.12 IT IS A MATTER OF FACT THAT M/S.APPLEWOODS ESTATE PVT.LTD. HAS PURCHASED THE IMPUGNED AGRICULTU RE LAND FOR A CONSIDERATION OF RS.9,20,20,500/ - . OUT OF THIS CONSIDERATION, APPELLANT AND OTHER CO - OWNERS HAD RECEIVED A SUM OF RS.75,51,000/ - . THIS WAY, SALE CONSIDERATION TO TH E EXTENT OF RS.8,44,69,500/ - ( 9,20,20,500 - 75,51,000) HAS BEEN APPORTIONED BY THE CONFIRMING PARTY, SHRI KAMAL MANUBHAI GOHIL. THIS FACT IS CLEARLY I.T.A NO. 1873 TO 1875 /AHD/20 12 A.Y. 2009 - 10 PAGE NO ITO VS. SHRI DILIPBHAI JAYANTIBHAI SANGHVI & OTHERS 12 ESTABLISHED BY SALE DEED DTD. 20 - 2 - 2009, COPY OF ACCOUNT OF SHRI KAMAL MANUBHAI GOHIL IN THE BOOKS OF M/S. APPLEWOODS ESTATE PVT. LTD. AND THE BANK ACCOUNT OF SHRI KAMAL MANUBHAI GOHIL B EARING NO.003138230009958 WITH NUTAN NAGRIK SAHAKARI BANK LTD. THE A.O. IS DIRECTED TO INITIATE PROCEEDINGS IN THE CASE OF SHRI KAMAL MANUBHAI GOHIL TO TAX THE SALE CONSIDERATION APPORTIONED BY HIM. THE PAN AND OTHER RELEVANT DETAILS OF SHRI KAMAL MANUBHAI GOHIL IS ALREADY ON THE RECORD. THESE GROUNDS OF APPEALS ARE ALLOWED. 6. DURING THE COURSE OF APPELLATE PROCEEDINGS BEFORE US, LD. DEPARTMENTAL REPRESENTATIVE CONTENDED THAT LD. CIT(A) HAS ERRED IN DELETING THE ADDITION MADE BY THE ASSESSING OFFICER BY NOT CONSIDERING THE COMPLETE FINDING OF THE ASSESSING OFFICER BECAUSE THE ASSESSEE COULD NOT INDICATE THE COMPLETE NATURE OF TRANSACTION WITH THE CONFIRMING PARTY AND SUPPORTED THE ORDER OF THE ASSESSING OFFICER. ON THE OTHER HAND, LD. COUNSEL SUPPORTED THE ORDER OF THE ASSESSING OFFICER AND HE ALSO CONTENDED THAT THIS CASE IS COVERED BY THE D E C I SION OF THE CO - ORDINATE BENCH IN THE CASE OF VEDP RAKASH DEVIKINANDAN CHIRIPAL ITA 838/AHD/2013 ORDER DATED 21 - 10 - 2016 . 7. WE HAVE HEARD BOTH THE SIDES AND PERU SED THE MATERIAL ON RECORD AND GONE THROUGH THE ORDER S OF THE LOWER AUTHORITIES WITH THE ASSISTANCE OF THE REPRESENTATIVES. WE OBSERVED THAT THE ASSESSING OFFICER REQUESTED THE ASSESSEE TO FURNISH COPY OF RETURN OF INCOME, IF ANY, FILED BY SHRI KAMAL MA NUBHAI GOHIL FOR A.Y 2009 - 10 AND COPY OF BANK ACCOUNT OF SHRI KAMAL MANUBHAI GOHIL, AS CONFIRMING PARTY . WE HAVE NOTICED THAT THE ASSESSEE EXPRESSED HI S INABILITY TO FURNISH THE SAME BY STATING THAT THE INFORMATION MAY BE OBTAINED ON THE BASIS OF PAN NO. AND RESIDENTIAL DETAIL. WE ALSO OBSERVED THAT BECAUSE OF THESE BASIC AND VITAL INFORMATION THE ASSESSING OFFICER I.T.A NO. 1873 TO 1875 /AHD/20 12 A.Y. 2009 - 10 PAGE NO ITO VS. SHRI DILIPBHAI JAYANTIBHAI SANGHVI & OTHERS 13 COULD NOT CARRY OUT THE NECESSARY REQUISITE VERIFICATION . WE OBSERVED THAT THE ASSESSING OFFICER FACED HICCUP TO EXAMIN E AND CRYSTALLIZED TH E DOUBT OVER THE UN REGISTERED AGR EEMENT FOR SALE CALLED BANAKHAT DATED 28 TH MAY, 2008 MADE BY THE ASSESSEE WITH CONFIRMING PARTY SHRI KAMAL GOHIL FOR WANT OF SUPPORTING MATERIAL. WE ARE NOT INCLINED WITH THE OBSERV ATION OF THE LD. CIT(A) THAT T H E A.O. IS HAVING A LIMITED JURISDICTION OF EXAMINING THE GENUINENESS OF THE AGREEMENT. WE CONSIDERED THAT TO EXAMINE THE GENUINENESS OF THE HIGH VALUE TRANSACTIONS OF PAYMENT OF CONSIDERATION TO THE CONFIRMING PARTY IT BECOME IMPERATIV E TO VERIFY T HE VITAL DOCUMENTS AS BANAKHAT ( UNREGISTERED SALE DEED AGREEMENT WITH CONFIRMING PARTY FOR SALE OF LAND WITHOUT POSSESSION ), INCOME TAX RETURN OF THE CONFIRMING PARTY, BANK ACCOUNT OF THE ASSESSEE AND THE CONFIRMING PARTY . WE FIND THAT THESES PRIMARY INDISPENSABLE VERIFICATION AND EXAMINATION OF THE VITAL ELEMENTS AS ELABORATED SUPRA COULD NOT BE CARRIED OUT IN THIS CASE TO UNBLOCK THE DOUBT FOUND IN THE NATURE OF INCONCEIVABLE HIGH VALUE TRANSACTIONS. WE HAVE ALSO CONSIDERED THE CONTENTION OF THE L D. COUNSEL THAT THIS CASE IS COVERED BY THE DECISION OF THE CO - ORDINATE BENCH IN THE CASE OF VEDPRAKASH DEVIKINANDAN CHIRIPAL ITA 838/AHD/2013 ORDER DATED 21 - 10 - 2016 , WE FIND THAT FACTS IN THE CASE OF THE ASSESSEE ARE DISTINGUISHABLE AS IN THE ABOVE CA SE THE INTERMEDIARIES HAVE ALREADY MADE PAYMENT OF TAX FOR THE DIFFERENTIAL AMOUNT WHEREAS IN THE CASE OF THE ASSESSEE EVEN THE PRIMARY VITAL INFORMATION ABOUT THE GENUINENESS OF UNREGISTERED BANAKHAT, TRANSACTIONS IN THE BANK I.T.A NO. 1873 TO 1875 /AHD/20 12 A.Y. 2009 - 10 PAGE NO ITO VS. SHRI DILIPBHAI JAYANTIBHAI SANGHVI & OTHERS 14 ACCOUNT AND FILING OF RETURN OF INCOME BY THE CONFIRMING PARTY HAS NOT BE SUBSTANTIATED WITH SUPPORTING MATERIAL. IN THE CASE OF VEDPRAKASH DEVIKINANDAN CHIRIPAL ITA 838/AHD/2013 ORDER DATED 21 - 10 - 2016 THE LD. COUNSEL AT PAGE 5 OF THAT ORDER HAD CONTENDED THAT THE PERSPECTIVE VEN DEES BY VIRTUE OF AGREEMENT DATED 04.06.2007 HAVE FILED RETURN AND PAID TAXES ON THEIR DIFFERENTIAL AMOUNT OF I.E.RS.54,75000/.IN THIS CONNECTION WE REPRODUCE THE RELEVANT PART OF THE DECISION OF THE COORDINATE BENCH AS UNDER: - 7 .ON WHAT BASIS, THE LD.AO CAN DRAW AN INFERENCE THAT THE SUM OF RS.63 LAKHS WAS THE FULL VALUE OF CONSIDERATION IN THE HANDS OF THE ASSESSEE. APART FROM THE ABOVE, INTERMEDIARIES HAVE ALREADY MADE PAYMENT OF TAX FOR THE DIFFERENTIAL AMOUNT AND THE H ON BLE GUJARAT HIGH COURT IN THE CASE OF PWS ENGINEERS LTD VS. CIT, TAX APPEAL NO.209 OF 2015 HAS OBSERVED THAT THERE SHOULD NOT BE ANY DOUBLE TAXATION ON THE SAME AMOUNT. THE OBSERVATION MADE BY THE HON BLE HIGH COURT IN 6 READS AS UNDER: 6. WE HAVE HE ARD LEARNED COUNSEL FOR THE PARTIES. THE QUESTION OF APPLICABILITY OF SECTION 40A(2) OF THE ACT TO THE RESTRICTED DISALLOWANCE OF RS. 47,90,178/ - IS ALREADY CONCLUDED BY THIS COURT BY THE SAID ORDER DATED 31.3.2015. WE MAY THEREFORE, PROCEED ON THAT BASIS. DESPITE THIS, THE QUESTION THAT STILL SURVIVES IS WHETHER THE REVENUE CAN TAX THE SAME INCOME IN THE HANDS OF THE COMPANY ON WHICH THE DIRECTORS HAD ALREADY PAID THE TAX AT THE SAME RATE AT WHICH THE COMPANY WOULD HAVE BEEN LIABLE TO BE ASSESSED. IN THIS CONTEXT, WE MAY RECALL THAT CONSISTENTLY BEFORE ASSESSING OFFICER, CIT(APPEALS) AND TRIBUNAL, THE ASSESSEE HAD CANVASSED THAT ALL THE FOUR DIRECTORS WHO HAD RECEIVED SUCH REMUNERATION, WERE TAXED IN THE HIGHEST BRACKET OF 30%; AT THE SAME RATE AT WHICH THE ASSESSEE COMPANY AT THE RELEVANT TIME WAS ASSESSED. IN FACT, THE ASSESSEE HAD DEMONSTRATED BEFORE CIT(APPEALS) THAT THE TAX LIABILITY OF THE COMPANY ON SUCH DISPUTED REMUNERATION AMOUNT WAS EXACTLY THE SAME AS THE TAX THE FOUR DIRECTORS HAD PAID TO THE RE VENUE. TO THESE FACTUAL ASPECTS, EVEN THE REVENUE HAS, AT NO STAGE RAISED ANY I.T.A NO. 1873 TO 1875 /AHD/20 12 A.Y. 2009 - 10 PAGE NO ITO VS. SHRI DILIPBHAI JAYANTIBHAI SANGHVI & OTHERS 15 DISPUTE. WE MAY THEREFORE, PROCEED ON THE BASIS THAT THE ELEMENT OF EXCESSIVE REMUNERATION REPRESENTS THAT INCOME OF THE COMPANY WHICH WAS EVENTUALLY TAXED IN THE HANDS OF THE DI RECTORS AT THE SAME RATE AT WHICH; HAD IT NOT BEEN SO DISTRIBUTED; WOULD HAVE BEEN TAXED IN THE HANDS OF THE COMPANY. IN THAT VIEW OF THE MATTER, THE QUESTION OF REVENUE NEUTRALITY WOULD IMMEDIATELY ARISE. A CERTAIN INCOME HAS ALREADY BEEN TAXED IN THE HAN DS OF THE DIRECTORS. PERMITTING THE REVENUE TO TAX THE SAME INCOME AGAIN AT THE SAME RATE IN THE HANDS OF THE PRINCIPAL PAYER WOULD AMOUNT TO DOUBLE TAXATION. ONLY ON THIS COUNT, WE ANSWER QUESTION IN FAVOUR OF THE APPELLANT - ASSESSEE AND AGAINST REVENUE, A LLOW THE APPEAL AND SET ASIDE THE ORDER OF THE TRIBUNAL. THE TAX APPEAL IS DISPOSED OF ACCORDINGLY. 8. TAKING INTO CONSIDERATION ALL THESE FACTS AND CIRCUMSTANCES, WE ARE OF THE VIEW THAT THE LD.CIT(A) WAS NOT JUSTIFIED WHILE CONFIRMING THE ADDITION OF R S.54,75,000/ - . WE ALLOW THIS GROUND OF APPEAL AND DELETE ADDITION. WHEREAS THE FACTS IN THE CASE OF THE ASSESSEE ARE ALTOGETHER DIFFERENT AS THE ASSESSEE FAILED TO PROVIDE THE RELEVANT SUP PORTING DOCUMENTS AND EVIDENCES ABOUT THE PAYMENT OF TAX FOR T HE DIFFERENTIAL AMOUNT BY THE INTERMEDIARIES SHRI KAMAL MANUBHAI GOHIL CONFIRMING PARTY WHO HAD BEEN PAID HUGE AMOUNT OF RS.8,44,69,500/ - WITHOUT TRANSFERRING OF THE SOLD LAND ONLY ON THE BASIS OF UNREGISTERED BANAKHAT AS STATED SUPRA WHERE AS THE ACTUAL OWNER OF THE LAND HAD RECEIVED RS. 75,51,000/ - ONLY. THERE IS NOT A SINGLE EVIDENCE AVAILABLE IN THE ASSESSMENT RECORD TO INDICATE THAT THE ASSESSING OFFICER HAS VERIFIED THE VARIOUS FINANCIAL TRANSACTIONS IN THE AB SENCE OF SUPPORTING DOCUMENTS. AS WOULD B E SEEN FROM THE DISCUSSION IT IS APPARENT THAT THE NECESSARY VERIFICATION WAS NOT CARRIED OUT BY THE ASSESSING OFFICER AS THE PRIMARY LEVEL MATERIAL LIKE RETURN OF INCOME I.T.A NO. 1873 TO 1875 /AHD/20 12 A.Y. 2009 - 10 PAGE NO ITO VS. SHRI DILIPBHAI JAYANTIBHAI SANGHVI & OTHERS 16 AND DETAIL OF PAYMENT OF TAXES BY THE CONFIRMING PARTY WERE NOT AVAILABLE WITH TH E ASSESSING OFFICER AT THE TIME OF THE ASSESSMENT PROCEEDINGS IN THIS CASE, THEREFORE, LOOKING TO THE NATURE OF HIGH VALUE TRANSACTIONS WITH THE INTERMEDIARIES SHRI KAMAL MANUBHAI GOHIL CONFIRMING PARTY AND TO COME TO THE LOGICAL CONCLUSION IT BECOMES IMPERATIVE IN THE INTEREST OF JUSTICE TO VERIFY THE VITAL DOCUMENTS AS BANAKHAT ( UN REGISTERED SALE DEED AGREEMENT) OF SALE OF LAND WITHOUT POSSESSION, INCOME TAX RETURN OF THE CONFIRMING PARTY, BANK ACCOUNT OF THE ASSESSEE AND THE CONFIRMING PART Y. IN VIEW OF THE ABOVE MENTIONED FACTS AND FINDINGS, WE CONSIDER IT MORE APPROPRIATE TO RESTORE THIS CASE TO THE FILE OF THE ASSESSING OFFICER TO DECIDE IT DE NOVO AFTER NECESSARY EXAMINATION AND VERIFICATION OF THE PRIMARY DOCUMENTS AS MENTIONED SUPRA IN THIS ORDER AFTER PROVIDING PROPER OPPORTUNITIES TO THE ASSESSEE. 8. IN THE RESULT, ALL THE THREE APPEALS FILED BY THE REVENUE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PR ONOUNCED IN THE OPEN C OURT ON 06 - 04 - 201 7 SD/ - SD/ - ( RAJPAL YADAV ) ( AMARJIT SINGH ) JUDICIAL MEMBER ACCOUNTANT MEMBER AHMEDABAD : DATED 0 6 /04 /2017 / COPY OF ORDER FORWARDED TO: - 1. ASSESSEE 2. REVENUE I.T.A NO. 1873 TO 1875 /AHD/20 12 A.Y. 2009 - 10 PAGE NO ITO VS. SHRI DILIPBHAI JAYANTIBHAI SANGHVI & OTHERS 17 3. CONCERNED CIT 4. CIT (A) 5. DR, ITAT, AHMEDABAD 6. GUARD FILE. BY ORDER/ , / ,