The ITO, Ward-5(3)(1), Ahmedabad V. Smt. Dharaben Mitesh Shah, Ahmedabad

ITA 1949/AHD/2015

• Counselvise Citation: [2018] 122 COUNSELVISE.COM (IT) 3916 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 3 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-10-2018
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: Not Allotted
• Assessment Year: 2012-2013
• Appeal Filed On: 02-07-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: VARTIK CHOKSHI VIJAY RANJAN
• Keywords: Business income
• Section: 143(3); 11A; 131

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, AHMEDABAD BEFORE SHRI RAJPAL YADAV, JUDICIAL MEMBER AND SHRI WASEEM AHMED, ACCOUNTANT MEMBER ./ ITA NO. 1949/AHD/2015 / ASSESSMENT YEAR: 2012-13 ITO, WARD 5(3)(1), AHMEDABAD- 380 009. VS. SMT. DHARABEN MITESH SHAH, 31, HARSH SARDARNAGAR SOCIETY, BHIMNATH MAHADEV, NR. SHREYAS CROSSING, PALDI, AHMEDABAD. / (APPELLANT) / (RESPONDENT) ASSESSEE BY : SHRI MUDIT NAGPAL, SR.D.R. REVENUE BY : SHRI VARTIK CHOKSHI, VIJAY RANJAN & MS. IRA KAPOOR, A.R. / DATE OF HEARING : 30.07.2018 / DATE OF PRONOUNCEMENT : 03.10.2018 / O R D E R PER WASEEM AHMED, ACCOUNTANT MEMBER: THE CAPTIONED APPEAL HAS BEEN FILED AT THE INSTANCE OF T HE REVENUE AGAINST THE APPELLATE ORDER OF THE LEARNED COMMISSIONER OF IN COME-TAX (APPEALS)-5 AHMEDABAD [CIT(A) IN SHORT] VIDE APPEAL NO.CIT(A)- 5/ITO.WD.5(3)(1)/65/2014-15 DATED 30.04.2015 ARISING FROM THE ASSESSMENT ORDER PASSED UNDER SECTION 143(3) OF THE INCOME-TAX ACT, 1961 (HEREINAFTER REFERRED TO AS 'THE ACT') DATED 28.01.2015 RELEVANT TO ASSESSMENT YEAR 2012-13. 2. REVENUE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL:- (1) THE LD.CIT (A) HAS ERRED IN LAW AND ON FACTS IN ALLOWI NG THE APPEAL ON THE ISSUE REGARDING ADDITION CT RS. 92 90,500/- MADE ON ACC OUNT OF SHORT TERM CAPITAL GAIN, WITHOUT PROPERLY APPRECIATING THE FA CTS OF THE CASE THAT THE BANACHITTHI HAD NO LEGAL ENFORCEABILITY AS IS DISCUSS ED BY THE A.O IN THE ORDER NOR WAS THE ADVANCE MONEY OF RS.1,00,000/- TRANSACTE D THROUGH BANKING CHANNEL. 2 ITA NO. 1949/AHD/2015 ITO VS. SMT DHARANBEN MITESH SHAH AY : 2012-13 (2) ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE L D.CIT (A) OUGHT TO HAVE UPHELD THE ORDER OF THE ASSESSING OFFICER. (3) IT IS THEREFORE PRAYED THAT THE ORDER OF THE LD. CIT(A ) MAY BE SET ASIDE AND THAT OF THE ORDER OF THE ASSESSING OFFICER BE RESTORED TO THE ABOVE EXTENT. 3. THE SOLITARY ISSUE RAISED BY REVENUE IN THIS APPEAL I S THAT LD CIT(A) ERRED IN DELETING THE ADDITION FOR RS. 92,90,500/- AFTER HAVIN G RELIANCE ON THE BANACHITTHI WHICH HAS NO LEGAL ENFORCEABILITY. 4. BRIEFLY STATED FACTS ARE THAT THE ASSESSEE IS AN INDIVI DUAL AND HAS DECLARED HER INCOME SALARY, CAPITAL GAIN AND INCOME FROM OTHER SOURCES. THE ASSESSEE ALONG WITH HER SPOUSE HAS PURCHASED AND SOLD TWO PLOTS BEARING NOS. 11 AND 11A LOCATED IN SANAND DISTRICT. THE ASSESSEE AND HER SPOUSE WAS OWNER OF THESE TWO PLOTS IN EQUAL RATIO. THE ASSESSEE DURING THE YEAR HAS SHOWN A SHORT TERM CAPITAL GAIN OF RS. 4,85,230/- ON THE SALE OF SUCH PLOTS. THE NECESSARY DETAILS OF PURCHASE AND SALES OF THE PLOTS STATED AS UNDER: SR NO. PARTICULARS SALE- VALUE SALE-DATE COST- VALUE COST- DATE BOOK- GAIN 1. PLOT NO.11 4180,000 27.04.11 3937,615 27.08.10 242,385 2. PLOT NO.11A 4180,500 27.04.11 3937,615 27.08.10 242,885 8360,500 7875,230 485,270 4.1 HOWEVER, THE AO ON PERUSAL OF SALE DEED OBSERVED TH AT EACH PLOT WAS SOLD FOR RS. 1,76,51,000/- ONLY. ACCORDINGLY, THE SHARE OF THE ASSESSEE FOR EACH PLOT IN THE SALE CONSIDERATION COMES OUT AT RS. 88,25,500/- AG GREGATING TO RS. 1,76,51,000/- FOR BOTH THE PLOTS. ON QUESTION BY THE AO ABOUT THE MISMATCH AS DISCUSSED ABOVE, THE ASSESSEE SUBMITTED THAT THESE PLOT S WERE SOLD TO M/S. NIKSHAL PROPERTIES PVT. LTD. FOR RS. 83,61,000/- EACH AS PER BAN ACHITTHI MADE BETWEEN THEM DATED 6 TH SEPTEMBER, 2010. 3 ITA NO. 1949/AHD/2015 ITO VS. SMT DHARANBEN MITESH SHAH AY : 2012-13 4.2 HOWEVER, M/S. NIKSHAL PROPERTIES PVT. LTD. (NPPL) SU BSEQUENTLY AGREED TO SALE SUCH PLOTS TO M/S. ARDOR STRUCTURE PVT. LTD. (ASPL) FOR TOTAL CONSIDERATION OF RS. 1,76,51,000/- FOR EACH PLOT VIDE AGREEME NT DATED 11-02- 2011. IN THE AGREEMENT DATED 11-02-2011 THE ASSESSEE WAS SHOWN AS SELLER, ASPL WAS SHOWN AS THE PURCHASER WHEREAS, NPPL WAS SHOWN AS CONF IRMING PARTY. THUS, THE ASSESSEE CLAIMED THAT ITS SHARE IN THE SALE PRI CE IS FOR RS. 83,61,000/- ONLY. THE NECESSARY DETAILS OF THE SHARE OF ASSESSEE ALON G WITH HER SPOUSE AND CONFIRMING PARTY STANDS AS UNDER: TOTAL SALE VALUE VENDORS SHARE CONFIRMING PARTYS SHARE PLOT NO.11 RS.1,76,51,000/- RS.83,61,000/- DIVIDEND BETWEEN ASSESSEE AND SPOUSE IN EQUAL RATIO OF RS.41,81,500/- EACH RS.92,90,000/- PLOT NO.11A RS.1,76,51,000/- RS.83,61,000/- DIVIDEND BETWEEN ASSESSEE AND SPOUSE IN EQUAL RATIO OF RS.41,80,500/- EACH RS.92,90,000/- TOTAL RS. 3,53,02,000/- RS.1,67,22,000/- DIVIDEND BETWEEN ASSESSEE AND SPOUSE IN EQUAL RATIO OF RS.83,61,000/- EACH RS.1,85,80,000/- 4.3 HOWEVER, THE AO MADE CERTAIN OBSERVATIONS FROM THE B ANACHITTHI MADE BETWEEN THE ASSESSEE AND NPPL, AS DETAILED UNDER: I. THE BANACHITTHI WAS EXECUTED ON A PLANE PAPER WITHOUT USI NG ANY NON JUDICIAL STAMP PAPERS. II. THE BANACHITTHI WAS NOT NOTARIZED. III. THE BANACHITTHI WAS NOT REGISTERED UNDER THE INDIAN REGISTRA TION ACT 1908. IV. M/S. NPPL HAS MADE AN ADVANCE PAYMENT OF RS.1,00,000/- FOR E ACH PLOT IN CASH. IT WAS FURTHER AGREED THAT POSSESSION SHAL L BE HANDED OVER 4 ITA NO. 1949/AHD/2015 ITO VS. SMT DHARANBEN MITESH SHAH AY : 2012-13 TO M/S. NPPL AFTER THE RECEIPT OF THE ENTIRE SALE CON SIDERATION AND ACCORDINGLY SALE DEED WILL BE EXECUTED. V) IT WAS ALSO AGREED THAT SALE/PURCHASE DEED WILL BE CO MPLETED WITHIN THE 3 MONTHS OF GETTING THE TITLE OF THE PROPERTY CLEARED. 4.4 IN VIEW OF THE ABOVE, THE AO HELD THAT THE BANACHITTHI BETWEEN THE ASSESSEE AND NPPL HAS NO EVIDENTIARY VALUE. ACCORDINGLY, T HE ASSESSEE WAS SHOW-CAUSED PROPOSING THE ADDITION OF RS. 97,75,770/- BEING T HE SHARE OF NPPL. THE ASSESSEE IN COMPLIANCE TO IT SUBMITTED THAT SHE HAS SHOWN CORRECT AMOUNT OF SALE CONSIDERATION AS WELL AS SHORT TERM CAPITAL GAIN. 4.5 THE AO FURTHER ISSUED A NOTICE U/S 131 OF THE ACT TO THE DIRECTOR OF M/S. NPPL WHO HAS CONFIRMED THE TRANSACTION OF RECEIP T OF PAYMENT OF RS. 92,90,000/- FOR EACH PROPERTY. THE DIRECTOR OF NPPL ALSO ADMIT TED THE FACT THAT THE MONEY WAS DEPOSITED IN THE BANK ACCOUNT. 4.6 HOWEVER, THE AO BEING DISSATISFIED HELD THAT THE EN TIRE TRANSACTION HAS BEEN MADE BY THE ASSESSEE TO REDUCE THE TAX BURDEN. ACC ORDINGLY, THE AO HELD THAT IT WAS A COLORABLE DEVICE MADE BY THE ASSESSEE TO ESCAPE FOR T HE TAX LIABILITY. ACCORDINGLY, THE AO MADE THE ADDITION FOR RS. 92,90,000/- IN THE HANDS OF THE ASSESSEE. 5. AGGRIEVED, ASSESSEE PREFERRED AN APPEAL TO LD CIT(A) . THE ASSESSEE BEFORE THE LD CIT(A) SUBMITTED THAT THE TRANSACTION M ADE WITH NPPL WAS GENUINE TRANSACTION AND IT WAS DULY REFLECTED IN THE B OOKS OF ACCOUNTS. THE PAYMENT WAS MADE THROUGH BANKING CHANNEL. SUBSEQUENT TO T HE BANACHATTHI, THE REGISTERED SALE DEED WAS MADE ON THE BASIS OF AGRE EMENT OF SALE. THE FACT WAS ALSO CONFIRMED BY THE DIRECTOR OF NPPL IN HIS STAT EMENT RECORDED U/S 131 OF THE ACT. 5 ITA NO. 1949/AHD/2015 ITO VS. SMT DHARANBEN MITESH SHAH AY : 2012-13 5.1 THE AO TREATED THE TRANSACTION AS COLORABLE DEVICE MER ELY ON THE BASIS OF DOUBT AND WITHOUT FINDING OUT ANY DEFECT IN THE EV IDENCES PRODUCED BEFORE HIM. 5.2 THE ASSESSEE ALSO SUBMITTED THAT THE BANACHITTHI WITH NPPL WAS ENFORCEABLE UNDER THE PROVISIONS OF LAW. THEREFORE, TH E FINDING OF THE AO IS INCORRECT. 5.3 THE AGREEMENT MADE WITHOUT USING THE NON JUDICIAL S TAMP PAPER BUT ON THE PLANE PAPERS CANNOT BE REGARDED AS NON-GENUINE. 5.4 UNDER THE REGISTRATION ACT, 1908, IT IS NOT COMPULSORY THAT THE TRANSACTION INVOLVING IMMOVABLE PROPERTY IS TO BE REGIST ERED. 5.5 M/S. NPPL HAS DULY CONFIRMED THE TRANSACTION IN THE S TATEMENT RECORDED U/S 131(1) OF THE ACT AND THE SAME WAS DULY DIS CLOSED IN THE BOOKS OF ACCOUNT. THE ASSESSEE NOWHERE CONNECTED WITH THE DISCL OSURE MADE BY NPPL IN THE BOOKS OF ACCOUNT WHETHER IT WAS SHORT TERM CAPITAL GAIN OR BUSINESS INCOME. THE LD CIT(A) AFTER CONSIDERING THE SUBMISSION OF TH E ASSESSEE OBSERVED AS UNDER: I. THE TRANSACTIONS AS DISCUSSED ABOVE WAS DULY ADMITTED IN THE STATEMENT FURNISHED U/S 131 OF THE ACT DATED 26-12-2013 BY TH E DIRECTOR OF NPPL NAMELY DHARMESHBHAI ISHWARBHAI PATNI. II. THE SHARE OF NPPL IN THE SALE PRICE AMOUNTING TO RS. 92,90,000.00 FOR EACH PLOT WAS DULY RECEIVED BY IT THROUGH BANKING CHANNEL. III. THERE WAS NOTHING ADVERSE FOUND IN THE BOOKS OF ACCOUN TS OF M/S NPPL. AS SUCH, THE INCOME ON THE PURCHASE AND SALE OF IM PUGNED PLOTS OF LAND WERE DULY OFFERED TO TAX IN ITS BOOKS O F ACCOUNTS. INDEED, 6 ITA NO. 1949/AHD/2015 ITO VS. SMT DHARANBEN MITESH SHAH AY : 2012-13 THE AMOUNT OF INCOME WAS SHOWN BY THE NPPL WHICH WAS Q UITE LESS BUT THAT DOES NOT LEAD TO THE CONCLUSION THAT M/S. NPP L HAS EVADED TAX LIABILITY. IV. THERE WAS NO CROSS EXAMINATION CARRIED OUT BY THE AO F OR THE STATEMENT RECORDED U/S 131 OF THE ACT. THE VALIDITY OF B ANACHITTHI TRANSACTION HAVE BEEN UPHELD BY THE HONBLE ITAT AHMED ABAD IN THE CASE OF HARESHBHAI RAVJIBHAI VASANI VS. DEPARTMENT OF INCOM E TAX IN IT(SS)A NO.24/AHD/2010. V. THE REGISTRATION OF BANACHITTHI IS NOT COMPULSORY AND T HEREFORE NON- REGISTRATION OF THE SALE CANNOT SURPASS THE REAL EVIDEN CE AVAILABLE ON RECORD. VI. THE HONBLE GUJARAT HIGH COURT IN THE CASE OF TARABEN D /O. NANUBHAI KASANBHAI PATEL VS. SHAILESHBHAI RANGILABHAI PATEL NO.199 WI TH C.A. NO.6470 OF 2012 WITH APPEAL FROM ORDER NO.200 OF 2012 WITH C.A. NO.6471 OF 2012 HAS UPHELD THE VALIDITY OF BANACHITTHI. VII. THE HONBLE SUPREME COURT IN THE CASE OF BRIJMOHAN VS . SUGRABEGAM REPORTED IN LAWS (SC) 1990-7-11 SCC-1990-4-147/JT-1990-3- 255/CDJ (SC) 1990-0-190 CIVIL APPEAL NOS. 1893 OF 1989 AND 1984 OF 1989 HAS DECIDED THE SIMILAR ISSUE IN FAVOR OF THE ASSESSEE. 5.6 IN VIEW OF ABOVE, THE LD CIT(A) DELETED THE ADDITION MADE BY THE AO BY OBSERVING AS UNDER: 4.16. IN VIEW OF THE AFORESAID DISCUSSION, IT IS CLEAR THAT THE APPELLAN T HAS SUBMITTED ALL THE DOCUMENTS IN SUPPORT OF THE TRANSACTIONS CARRIED OUT AND TO EXAMINE THE VERACITY OF THE TRANSACTIONS THE AO HAS ALSO EXAMINED THE CONFIRMING PARTY NAMELY MS. NIKSHAL PROPERTY PVT. LTD. NOTHING ADVERSE WAS FOUND BY THE AO IN THE DOCUMENTS AND EVIDENCES SUBMITTED IN SUPPORT OF THE TRANSACTIONS AND IN THE STATEMENT RECORDED OF CONFIRMING PART. FURTHER T HE INCOME DERIVED BY THE APPELLANT AND HER HUSBAND HAVE BEEN SHOWN AS SHORT TE RM CAPITAL GAIN IN THEIR RETURNS OF INCOME. SIMILARLY THE CONFIRMING PART Y NAMELY 7 ITA NO. 1949/AHD/2015 ITO VS. SMT DHARANBEN MITESH SHAH AY : 2012-13 M/S. NIKSHAL PROPERTIES PVT. LTD. HAS ALSO RECORDED THE TRANSACTIONS IN ITS BOOKS OF ACCOUNTS AND OFFERED THE INCOME IN ITS BOOKS OF ACCOUNTS. 4.17. IN VIEW OF THE AFORESAID DISCUSSION AND CONSIDERING THE SUBMISSIONS OF THE APPELLANT ON THE OBJECTIONS RAISED BY THE AO IN THE ASSESSMENT ORDER, THERE IS NO CASE FOR CONSIDERING THE ENTIRE SALE CONSIDERATION IN THE HANDS OF THE APPELLANT TO DERIVE THE CAPITAL GAIN AND CHARGE THE TAX THEREUPON WHICH THE APPELLANT HAS NEVER EARNED. THUS, THE ADDITION MADE BY THE AO IS FOUND NOT CORRECT AND THE HENCE THE SAME IS DELETED. 5.7 BEING AGGRIEVED BY THE ORDER OF LD CIT(A) REVENUE IS IN APPEAL BEFORE US. 6. THE LD. DR BEFORE US SUBMITTED THAT THERE WAS NO PO SSESSION HANDED OVER BY THE ASSESSEE TO NPPL. THE NPPL HAD SHARE OF TH E PROFIT ON THE SALE OF SUCH PLOT OF LAND MORE THAN 50% WHICH IS AGAINST THE PR OBABILITY. M/S. NPPL HAD INVESTED ONLY 1,00,000/- OF RUPEES AND EARNED A PROFIT OF RS. 92.90 LACS, WHICH IS ACTUALLY THE SHARE OF PROFIT OF THE ASSESSEE. 6.1 THE LD. DR ALSO SUBMITTED THAT THERE WAS NO PAYMENT RECEIVED BY NPPL IN THE BOOKS OF ACCOUNT. AS SUCH THE IMPUGNED EN TRY IS JUST A FAKE ENTRY AND SAME CANNOT BE RELIED UPON. 6.2 THE LD. DR ALSO SUBMITTED THAT THE AGREEMENT HAS NO EVIDENTIARY VALUE AS IT HAS NOT BEEN REGISTERED UNDER THE PROVISIO NS OF REGISTRATION ACT 1908. 6.3 THE LD. DR VEHEMENTLY SUPPORTED THE ORDER OF AO. 8 ITA NO. 1949/AHD/2015 ITO VS. SMT DHARANBEN MITESH SHAH AY : 2012-13 7. ON THE OTHER HAND, LD. AR FILED A PAPER BOOK WHICH IS RUNNING FROM PAGES 1-133 AND SUBMITTED THAT THE PAYMENT WAS MADE TO NPP L THROUGH BANKING CHANNEL. 7.1 THE LD. AR IN SUPPORT OF HIS CLAIM DREW OUR ATTENTI ON ON THE REGISTERED SALE AGREEMENT WHICH IS PLACED ON PAGES 34-69 O F THE PB, WHEREIN THE PAYMENT TO NPPL WAS RECORDED ON THE RELEVANT PAGE 37 OF THE PB. 7.2 THE LD AR FURTHER SUBMITTED THAT THE HONBLE GUJARAT HIGH COURT IN THE CASE OF NANUBHAI KASANBHAI PATEL VS. NAVINKUMAR PATEL AND ANR VS. SHAILESH BHAI RANGIL BHAI PATEL & ORS IN 199 WITH C.A. NO. 6470 OF 2012 WITH APPEAL FROM ORDER NO. 200 OF 2012 WITH C.A. NO. 6471 OF 2012 YEAR 2012 VIDE ORDER DATED 26-02-2013 HAS HELD THAT THE BANACHITTHI ARE ENFO RCEABLE AGREEMENT TO SELL THE PROPERTIES. THEREFORE THE SAME CANNOT BE DOUBTED. 7.3 THE LD. AR FURTHER SUBMITTED THAT THE PROVISION OF INDIAN REGISTRATION ACT 1908 RECOGNIZES THE TRANSACTION OF SALE OF IMMOVABLE PR OPERTY EVEN IF THESE ARE NOT BASED ON REGISTERED DOCUMENTS. THE LD. AR VEHE MENTLY SUPPORTED THE ORDER OF LD. CIT-A. 8. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MAT ERIALS AVAILABLE ON RECORD. IN THE INSTANT CASE, THE ASSESSEE HAS SOLD HER SHARE IN THE PLOT FOR RS. 41,80,000/- FOR EACH PLOT. HOWEVER, THE AO OBSER VED THAT EACH PLOT WAS SOLD TO M/S. ASPL FOR RS. 1,76,51,000/-. OUT OF SUCH AMOUN T, AN AMOUNT OF RS. 92,90,000/- WAS GIVEN TO THE CONFIRMING PARTY, WHICH WAS NOT BELIEVED BY THE AO DURING THE ASSESSMENT PROCEEDINGS. ACCORDINGLY , THE AO MADE THE ADDITION OF RS. 92,90,000/-. 9 ITA NO. 1949/AHD/2015 ITO VS. SMT DHARANBEN MITESH SHAH AY : 2012-13 8.1 FROM THE PRECEDING DISCUSSION, WE NOTE THAT THE ASSE SSEE CLAIMED THAT THE SUM OF RS. 92,90,000/-WAS RECEIVED BY M/S NPPL IN PURSUANC E TO THE BANACHITTHI DATED 06-09-2010. THIS BANACHITTHI DATED 06-09-2010 WAS DISBELIEVED BY THE AO AS IT WAS NOT REGISTERED AND MADE ON NON JUDICIAL STAMP PAPERS. 8.2 IN THIS REGARD, WE FIND IMPORTANT TO REFER THE PROVISIONS OF SECTION 49 OF INDIAN REGISTRATION ACT WHICH READS AS UNDER: '49. EFFECT OF NON-REGISTRATION OF DOCUMENTS REQUIRED TO BE REG ISTERED. NO DOCUMENT REQUIRED BY SECTION 17 OR BY ANY PROVISION OF THE TRANSFER O F PROPERTY ACT, 1882 (4 OF 1882), TO BE REGISTERED SHALL (A) AFFECT ANY IMMOVABLE PROPERTY COMPRISED THEREIN, OR (B) CONFER ANY POWER TO ADOPT, OR (C) BE RECEIVED AS EVIDENCE OF ANY TRANSACTION AFFECTING SUCH PRO PERTY OR CONFERRING SUCH POWER, UNLESS IT HAS BEEN REGISTERED ; PROVIDED THAT AN UNREGISTERED DOCUMENT AFFECTING IMMOVABL E PROPERTY AND REQUIRED BY THIS ACT OR THE TRANSFER OF PROPERTY ACT, 1882 ( 4 OF 1882), TO BE REGISTERED MAY BE RECEIVED AS EVIDENCE OF A CONTRACT IN A SUIT FOR SPECIFIC PERFORMANCE UNDER CHAPTER II OF THE SPECIFIC RELIEF A CT, 1877 (1 OF 1877), OR AS EVIDENCE OF PART PERFORMANCE OF A CONTRACT FOR THE PUR POSES OF SECTION 53A OF THE TRANSFER OF PROPERTY ACT, 1882 (4 OF 1882) OR AS EVIDENCE OF A NY COLLATERAL TRANSACTION NOT REQUIRED TO BE EFFECTED BY REGISTERED INSTRUME NT. 8.3 THE PLANE READING OF THE ABOVE PROVISION PROVIDES TH AT AN UNREGISTERED DOCUMENT AFFECTING THE TRANSACTIONS OF I MMOVABLE PROPERTY IS A VALID TRANSACTION. THUS, IT IS CLEAR THAT THE BANACHITTHI M ADE BETWEEN THE ASSESSEE AND NPPL IS ENFORCEABLE UNDER THE PROVISIONS OF LAW. THEREFORE, NO ADVERSE INFERENCE CAN BE DRAWN AGAINST THE ASSESSEE IF TH E BANACHITTHI IS NOT REGISTERED. 10 ITA NO. 1949/AHD/2015 ITO VS. SMT DHARANBEN MITESH SHAH AY : 2012-13 8.4 BESIDES THE ABOVE, WE ALSO NOTE THAT THE HONBLE GUJ ARAT HIGH COURT IN THE CASE OF TARABEN (SUPRA) HAS HELD THAT THE BANACHITTHI ARE ENFORCEABLE. THE RELEVANT EXTRACT OF THE ORDER IS REPRODUCED AS UNDER: (A) LAW OF CONTRACT - BANACHITTI - CIVIL PROCEDURE CODE , 1908 (5 OF 1908) - ORDER 39, RULES 1 & 2 - WHETHER A WRITING IN FORM OF 'BA NACHITTI 1 AN ENFORCEABLE AGREEMENT TO SELL -CONSIDERING FACTS THAT A SUBSTANTI AL AMOUNT HAS BEEN PAID AS PART- PERFORMANCE ETC., HELD, IT IS AN ENFORCEABLE AGREEME NT TO SELL - AGREEMENT NEED NOT BE IN ANY PARTICULAR FORM - WHEN A WRITING CONTAINS ALL ESS ENTIAL REQUIREMENTS OF AGREEMENT, IT IS A BINDING CONTRACT - CONTENTIONS BY DEFENDANTS THA T WRITING IS A MERE DESIRE TO ENTER INTO AGREEMENT IN FUTURE - CONTENTIONS NEGATI VED - ORDER BY LOWER COURT, GRANTING INTERIM INJUNCTION, CONFIRMED. 8.5 IT IS ALSO BEYOND DOUBT THAT THE PAYMENT WAS RECEIVED BY THE NPPL THROUGH BANKING CHANNEL AS EVIDENT FROM REGISTRATION D EED PLACED ON PAGES 34 TO 69 OF THE PAPER BOOK. THE RELEVANT FINDING IS RECORD ED ON PAGE 37 OF THE PAPER BOOK WHICH READS AS UNDER: RS.92,90,000/- RUPEES NINTY TWO LACS NINETY THOUSAND ONLY PAID BY THE PURCHASER TO THE CONFIRMING PARTY BY CHEQUE NO.118729, DATED 28-04-2011 DRAWN ON RAJKOT NAGRIK SAHAKARI BANK LTD. 8.6 SIMILARLY, WE ALSO NOTE THAT THE IMPUGNED TRANSACTION WAS DULY CONFIRMED BY THE DIRECTOR OF NPPL IN THE STATEMENT RECORD ED U/S 131 OF THE ACT. THE DIRECTOR OF NPPL DULY ADMITTED THE FACT IN THE S TATEMENT RECORDED UNDER SECTION 131 OF THE ACT THAT THE IMPUGNED TRANSACTION WAS D ULY DISCLOSED IN ITS BOOKS OF ACCOUNTS. 8.7 WE ALSO FIND SUPPORT AND GUIDANCE FROM THE ORDER OF T HIS TRIBUNAL IN THE CASE OF SMT. SAPNABEN DIPAKBHAI PATEL VS. ITO REPORTED IN 73 TAXMANN.COM 288, WHEREIN, IT WAS HELD AS UNDER: SECTION 53A PROVIDES A SHIELD TO DEFEND THE POSSESSION T AKEN BY VIRTUE OF THE AGREEMENT. THE VENDEE CAN CLAIM PROTECTION OF THE POSSES SION EVEN AGAINST THE 11 ITA NO. 1949/AHD/2015 ITO VS. SMT DHARANBEN MITESH SHAH AY : 2012-13 OWNER, I.E., VENDOR, DURING THE PERIOD SALE DEED WAS NOT REGIS TERED. THE PERSON, WHO HAS ACQUIRED THE POSSESSION ON EXECUTION OF AGREEMEN T AS REFERRED TO IN SECTION 53A MAY NOT BE ABLE TO PROTECT HIS POSSESSION ON ACCOUNT OF NON- REGISTRATION OF THE AGREEMENT, BUT FOR ALL OTHER COLL ATERAL PURPOSES, I.E., FOR TENDERING THE AGREEMENT INTO EVIDENCE FOR SUIT FOR SPE CIFIC PERFORMANCE, ETC. IT IS TO BE TREATED AS VALID AGREEMENT. A CONTROVERSY IN THIS AS PECT HAD ARISEN WHETHER SUCH NON-REGISTERED AGREEMENT CAN BE ENTERTAINED IN EVI DENCE OR NOT IN A SUIT FOR SPECIFIC PERFORMANCE. THE DIVISION BENCH OF PUNJAB AND H ARYANA HIGH COURT IN THE CASE OF RAM KISHAN V. BIJEDER MANN [2013] 1 PLR 195 HAS RESO LVED THE COUNTROVERSY AND HELD THAT SUCH UNREGISTERED AGREEMENT CAN BE PRODUCED AS EVIDENCE IN SUIT FOR SPECIFIC PERFORMANCE. IT CAN BE M ADE BASIS OF SUIT FOR SPECIFIC PERFORMANCE. 8.8 IN VIEW OF ABOVE, WE HOLD THAT THE PAYMENT WAS MADE TO NPPL AS P ER THE BANACHITTHI DATED 06-09-2010 WHICH WAS ENFORCEABLE UNDER TH E PROVISIONS OF LAW. THEREFORE, THE PAYMENT MADE TO NPPL CANNOT BE SAID AS A COLORABLE DEVICE USED BY THE ASSESSEE TO ESCAPE THE TAX LIABILITY. HENCE WE DO NOT FIND ANY REASON TO INTERFERE IN THE ORDER OF LD CIT(A). THUS THE GRO UND OF APPEAL OF THE REVENUE IS DISMISSED . 9. IN THE RESULT, THE APPEAL OF THE REVENUE IS DISMISSED . ORDER PRONOUNCED IN THE COURT ON _3 RD _ OCTOBER, 2018 AT AHMEDABAD. SD/- SD/- (RAJPAL YADAV) JUDICIAL MEMBER ( WASEEM AHMED ) ACCOUNTANT MEMBER AHMEDABAD; DATED _03_/10/2018 PRITI YADAV, SR.PS 12 ITA NO. 1949/AHD/2015 ITO VS. SMT DHARANBEN MITESH SHAH AY : 2012-13 ! ' / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ! ' # / CONCERNED CIT 4. ' # () / THE CIT(A) 5, AHMEDABAD. 5. &'( ! , ! , *+, , / DR, ITAT, AHMEDABAD. 6. (- ./ / GUARD FILE. / BY ORDER, & //TRUE COPY// #/$ %& ( DY./ASSTT.REGISTRAR) '(), $* / ITAT, AHMEDABAD 1. DATE OF DICTATION 16/08/2018 (PAGE-8) 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER : .. 18/09/2018 3. OTHER MEMBER .. 4. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR.P. S./P.S 01/10/2018 5. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE D ICTATING MEMBER FOR PRONOUNCEMENT .. 6. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR.P .S./P.S 7. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 8. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK 9. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER 10. DATE OF DESPATCH OF THE ORDER