Shri Chandrakant N.Patel, Ahmedabad V. The Income tax Officer,Ward-14(3), Ahmedabad

ITA 2272/AHD/2012

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 1135 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 9 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-07-2016
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: D
• Next Hearing Date: 27-06-2016
• Assessment Year: 2009-2010
• Appeal Filed On: 09-10-2012
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: SHIV SEWAK
• Assessee Lawyers: PF JAIN
• Keywords: Unexplained investment; Onus to prove
• Section: 131; 69; 63

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD D BENCH AHMEDABAD BEFORE SHRI S. S. GODARA, JUDICIAL MEMBER AND SHRI MANISH BORAD, ACCOUNTANT MEMBER ITA. NO.2272/AHD/12 (ASSESSMENT YEAR:2009-10) SHRI CHANDRAKANT N. PATEL 2, SHREE VALLABHKUNJ CO.OP.SOC. NEAR MAHA PRABHU BETHAK, NARODA, AHMEDABAD - 380025 APPELLANT VS. THE INCOME-TAX OFFICER, WARD 14(3), AHMEDABAD RESPONDENT PAN: ABNPP2158G / BY ASSESSEE : SHRI P. F. JAIN, A.R. / BY REVENUE : SHRI SHIV SEWAK, SR. D.R. /DATE OF HEARING : 27.06.2016 /DATE OF PRONOUNCEMENT : 11.07.2016 ORDER PER S. S. GODARA, JUDICIAL MEMBER THIS ASSESSEES APPEAL FOR ASSESSMENT YEAR 2009-10, ARISES FROM ORDER OF THE CIT(A) - XXI, AHMEDABAD, DATED 17.09.2012 PA SSED IN PROCEEDINGS U/S.143(3) OF THE INCOME TAX ACT, 1961, HEREINAFTER THE ACT. 2. THE ASSESSEES SOLE SUBSTANTIVE GROUND CHALLENGE S THE CIT(A)S ORDER AFFIRMING ASSESSING OFFICERS ACTION MAKING SECTION 69 ADDITION OF ITA NO.2272/AHD/2012 (SHRI CHANDRAKANT N. PATEL VS. ITO) A.Y. 2009-10 - 2 - UNEXPLAINED INVESTMENTS IN PURCHASE OF AGRICULTURAL LAND AMOUNTING TO RS.83,13,850/-. 3. WE COME TO RELEVANT FACTS FIRST. THIS ASSESSEE ALONG WITH ONE SHRI GIRISH RAMANLAL VYAS PURCHASED AGRICULTURAL LAND AD MEASURING 2 HECTARES 23 ACRES AND 56 SQ.MTRS. IN KHATA NO.745, SURVEY NO.10 36, VILLAGE KATHWADA, TALUKA DASCROI, DIST. AHMEDABAD BY WAY OF REGISTERE D PURCHASE DEED DATED 29.09.2008. THE SALE CONSIDERATION THEREIN READS A SUM OF RS.78,50,000/- FOLLOWED BY STAMP DUTY AND REGISTRATION CHARGES OF RS.3,85,000/- AND 78,850/-; RESPECTIVELY. THERE IS FURTHER NO DISPUT E THAT THE SALE DEED STOOD CANCELLED ON 30.06.2010 BEFORE THE SUB-REGISTRAR HI MSELF. THE ISSUE HOWEVER IN THE INSTANT CASE IS ABOUT THE SOURCE OF THE ABOV E STATED PURCHASE CONSIDERATION AND EXPENSES TOTALING TO RS.83,13,850 /- WHICH HAS NO BEARING SO FAR AS CANCELLATION OF THE SALE DEED CONCERNED. THIS ASSESSEE SHRI CHANDRAKANT N. PATEL WASHED AWAY HIS HANDS BY ADOP TING STAND THAT THE CO- PURCHASER SHRI GIRISH RAMANLAL VYAS WAS IN FACT THE REAL PURCHASER HAVING BORNE THE ENTIRE PURCHASE PRICE AND HIS NAME WAS ME RELY IN THE CAPACITY OF A FRIEND. THE OTHER CO-VENDEE IN FACT EXECUTED AN AF FIDAVIT DATED 22.06.2010 SUPPORTING THE ASSESSEES CASE. HE TOOK A CONTRARY STAND IN HIS OWN ASSESSMENT THROUGH A REPLY FILED ON 22.12.2011 PLEA DING THEREIN THAT NO PAYMENT OF THE PURCHASE PRICE WAS IN FACT MADE SINC E THE ENTIRE TRANSACTION WAS BASED ON A FRAUDULENT POWER OF ATTORNEY AND SAM E STOOD CANCELLED LATER ON. HE FURTHER STATED TO HAVE EXECUTED THE AFFIDAV IT IN QUESTION IN ORDER TO GET THE ASSESSEE OUT OF POLICE CASES BY DOING SMALL FAV OUR. THE ASSESSING OFFICER REJECTED ALL THIS EXPLANATION TO TREAT HIM AS THE SOLE VENDEE HAVING INVESTED THE GROSS SUM IN QUESTION OF RS.83,13,850/ -. ITA NO.2272/AHD/2012 (SHRI CHANDRAKANT N. PATEL VS. ITO) A.Y. 2009-10 - 3 - 4. THE CIT(A) IN HIS LOWER APPELLATE ORDER SUMS UP ASSESSING OFFICERS FINDING AND ASSESSEES ARGUMENT AS UNDER: 4. THE BRIEF FACTS OF THE CASE AS OBSERVED BY THE AO BEFORE MAKING THE ADDITION OF RS.83,13,850/- ARE UNDER: A) THAT THE ASSESSEE AND SHRI GIRISH RAMANLAL VYAS HAVE PURCHASED AN AGRICULTURAL LAND JOINTLY ADMEASURING TWO HECTARES, 23 ACRES AND 56 SQ. METERS FOR A TOTAL CONSIDERATION OF RS.78,50,000/-. PURCHASE DEED WAS EXECUTED AND REGISTERED IN THE OFFICE OF SUB-REGIST RAR, AHD-7, ODHAV, AHMEDABAD AT SR. NO. 11870 - 2003 ON 29.09.2008. B) THAT THE ENTIRE SALE CONSIDERATION OF RS.78.5 LA CS WAS PAID IN CASH IN PIECEMEAL. THIS FACTUM OF PAYMENT IN CASH IS EVIDEN T IN COLUMN NO. 11 ON PAGE 19 & 20 OF THE PURCHASE DEED. THE STAMP DUTY P AYMENT OF RS.3.85 LACS AND REGISTRATION CHARGES OF RS.78,850/- WERE P AID BY THE PURCHASERS IN CASH. THE TOTAL COST OF LAND THUS COMES OUT TO BE RS.83,13,850/-. C) THAT THE AO HAS OBSERVED THAT THE ASSESSEE IS TH E FIRST PARTY OF THE STATED PURCHASE DEED. D) THAT DURING THE COURSE OF ASSESSMENT PROCEEDINGS , THE AO HAD SUMMONED THE ASSESSEE AS WELL AS OTHER CO-OWNER SHRI GIRISH RAMANLAL VYAS U/S. 131 OF THE ACT AND RECORDED THE STATEMENT OF BOTH THE C O-OWNERS. UNDER OATH, THE ASSESSEE HAS SUBMITTED BEFORE THE AO THAT THE E NTIRE PURCHASE PRICE OF RS78.5 LACS WITH STAMP AND REGISTRATION CHARGES WAS PAID BY SHRI GIRISH RAMANLAL VYAS ALONE. E) THAT THE AO, WHILE RECORDING THE STATEMENT OF SH RI GIRISH RAMANLAL VYAS, ALSO OBSERVED QUESTION NO.5 THAT SHRI GIRISH RAMANL AL VYAS SUBMITTED UNDER OATH THAT HE PAID ONLY RS.11 LACS AS A TOKEN MONEY. SHRI GIRISH RAMANLAL VYAS ALSO SUBMITTED UNDER OATH THAT STAMP DUTY AND REGISTRATION EXPENSES WERE INCURRED EQUALLY BY BOTH THE PURCHASE RS AND THE DOCUMENT FOR REGISTRATION WERE PURCHASED IN CASH (REFER QUES TION NO.6 OF THE STATEMENT). SHRI GIRISH RAMANLAL VYAS ALSO SUBMITTE D UNDER OATH THAT OUT OF A TOTAL TOKEN PAYMENT OF RS.LL LACS, 50% WAS PAI D BY THE APPELLANT IN THE SAME WAY, 50% AMOUNT OF STAMP DUTY AND REGISTRATION CHARGES WERE PAID BY THE APPELLANT. THE AO OBSERVED GLARING CONTRADIC TIONS IN THE AFFIDAVIT FILED BY SHRI GIRISH RAMANLAL VYAS AND STATEMENT RE CORDED U/S. 131 OF THE ACT BY HIM. F) THAT THE AO HAS GIVEN OPPORTUNITY TO THE A PPELLANT TO CROSS-EXAMINE THE OTHER CO-OWNER, SHRI GIRISH RAMANLAL VYAS WHICH WAS DULY DONE BY THE APPELLANT. 4.2 DURING THE COURSE OF APPELLATE PROCEEDINGS, THE APPELLANT REBUTTED THE OBSERVATION OF THE AO. THE RELEVANT PORTION OF THE SUBMISSIONS ARE REPRODUCED HEREIN AS UNDER FOR THE SAKE OF CONVENIENCE: 'THESE FINDINGS OF THE ASSESSING OFFICER ARE REBUTT ED AS UNDER. ITA NO.2272/AHD/2012 (SHRI CHANDRAKANT N. PATEL VS. ITO) A.Y. 2009-10 - 4 - 1. AS NOTED IN THE ASSESSMENT ORDER ASSESSEE FILED RETURN OF INCOME 22-07- 2009 AND HIS CASE WAS SELECTED FOR SCRUTINY UNDER C ASS AND NOTICE U/S 143(2) DATED 20-08-2010 WAS ISSUED AND SERVED TO THE ASSES SEE. THE RETURN OF INCOME WAS PROCESSED U/S 143(1) ON 09-08-2010. WHILE FILING RE TURN OF INCOME THE ASSESSEE DID NOT HAVE THE PREMONITION OR THIRD EYE TO SEE THAT H IS RETURN WILL BE TAKEN UP UNDER SCRUTINY AND THEREFORE THE ALLEGATION THAT HE HAS R ESORTED TO CANCELLATION AGREEMENTS TO AVOID PAYMENT OF TAX BECOMES BASELESS . 2. THE OTHER PARTY TO THE SALE DEED SHRI GIRISHSKUM AR RAMANLAL VYAS HAS EXECUTED AFFIDAVIT ON 22-06-2010 POINTING OUT THAT THE DOCUMENT OF AGRICULTURAL LAND WAS EXECUTED ON 29-09-2008 VIDE REGISTRATION N O.11870. BUT THE REAL FACT IS THAT THE ALLEGED CASH CONSIDERATION OF RS.78 T 50,000 WAS PAID BY GIRISH RAMANLAL ALONE AND THIS LAND HAS BEEN PURCHASED BY HIM ALONE . FURTHER HE HAS ALSO CLARIFIED THAT AS JOINT OWNER THE NAME OF SHRI CHANDRAKANT NA THALAL BEING ASSESSEE HAS BEEN SHOWN AS FRIEND ONLY. IN THIS LAND CHANDRAKANT NATHALAL HAS NO SHARE OR RIGHT OF WHATSOEVER . HE HAS ALSO CLARIFIED THAT TH E EXPENDITURE TOWARDS STAMP, REGISTRATION FEES HAS BEEN INCURRED BY HIM ALONE. A LL THESE FACTS HAVE BEEN AVERRED ON OATH AFFIRMING THEM TO BE TRUE AND CORRECT WITH FULL AWARENESS THAT EXECUTING FALSE AFFIDAVIT IS AN OFFENCE IN THE EYE OF THE LAW . THIS AFFIDAVIT HAS BEEN SOLEMNLY AFFIRMED BEFORE NOTARY APPOINTED BY THE GOVERNMENT OF INDIA AND HE HAS ALSO BEEN DULY IDENTIFIED BY AN ADVOCATE. 3. THE ABOVE CATEGORICAL FACTUAL AVERMENTS MADE ON OATH BY SHRI GIRISH RAMANLAL VYAS WHO IS ALSO PARTY TO THE SALE DEED PR OVES BEYOND DOUBT THE CONTENTIONS OF THE ASSESSEE THAT HE HAS NOT INVESTE D ANY AMOUNT IN THE LAND AND HE HAS NOT INCURRED ANY EXPENDITURE TOWARDS ANY STAMP DUTY AND REGISTRATION CHARGES. IT IS PERTINENT TO POINT OUT THAT THIS AFF IDAVIT HAS BEEN EXECUTED BEFORE THE RETURN OF INCOME FILED BY THE ASSESSEE WAS SELECTED FOR SCRUTINY BECAUSE THE DATE OF NOTICE ISSUED U/S 143(2) IS 20-08-2010 WHEREAS THE DATE OF AFFIDAVIT IS 22-06- 2010.WHEN THE AFFIDAVIT WAS EXECUTED THE ASSESSEE D ID NOT HAVE ANY INFORMATION IN ADVANCE THAT IN THE MONTH OF AUGUST, 2010 HIS RETUR N WILL BE PICKED UP FOR SCRUTINY. THE LEARNED I.T.O IN PARA 9(H) PAGE 18 OF THE ASSES SMENT ORDER HAS GIVEN VARIOUS DATES TO PROVE THE ALLEGATION OF ESCAPEMENT OF TAXA TION LIABILITY BY THE ASSESSEE BUT THESE FACTS THAT AFFIDAVIT WAS EXECUTED MUCH PRIOR TO THE DATE OF SCRUTINY PROCEEDINGS HAS BEEN TOTALLY IGNORED BECAUSE THESE FACTS DISPEL THE THEORY OF AFTERTHOUGHT AND NEGATES THE ALLEGATION OF TAX AVOI DANCE AGAINST THE ASSESSEE. BY THIS DOCUMENTARY EVIDENCE THE BURDEN OF PROOF ON TH E ASSESSEE THAT NO INVESTMENT HAS BEEN MADE BY HIM IS FULLY DISCHARGED. 4. THE ASSESSEE HAS CAME TO KNOW THAT THE ASSESSMEN T OF SHRI GIRISH RAMANLAL VYAS HAVING PAN:ABIPV 5929R FOR A. Y.2009- 10 HAS ALSO BEEN PASSED UNDER SCRUTINY AND FROM THE SAID ASSESSMENT ORDER I T IS NOTICED THAT SAME ADDITION OF RS.83,13,850 HAS BEEN MADE IN HIS CASE FOR THE P URCHASE OF SAME AGRICULTURAL LAND ON SUBSTANTIVE BASIS AND THIS ADDITION IN THE HANDS OF GIRISH RAMANLAL VYAS HAS BEEN MADE ON THE BASIS OF ABOVE REFERRED AFFIDA VIT EXECUTED BY HIM ON 22-06- 2010 THIS FACT ALSO PROVES BEYOND DOUBT THE STAND O F THE ASSESSEE THAT NO INVESTMENT HAS BEEN MADE BY HIM AND THEREFORE THE Q UESTION OF ANY ADDITION IN HIS HANDS DOES NOT ARISE BECAUSE THE SAID ADDITION HAS ALREADY BEEN MADE IN THE HANDS OF GIRUSH RAMANLAL VYAS WHO IS THE REAL PERSON FOR THE ALLEGED LAND TRANSACTION. THIS IS IN CONSONANCE WITH THE PRINCIPLE OF LAW LAI D DOWN BY THE SUPREME COURT IN ITA NO.2272/AHD/2012 (SHRI CHANDRAKANT N. PATEL VS. ITO) A.Y. 2009-10 - 5 - THE CASE OF ITO V/S C.H.ATCHAIAH 218 ITR 239, THAT A.O CAN AND HE MUST TAX THE RIGHT PERSON AND THE RIGHT PERSON ALONE1. 5. SALE DEED BEARING NO.11870 DATED 29-09-2008 HAS BEEN EXECUTED BETWEEN ASSESSEE AND GIRISH RAMANLAL VYAS AS PURCHASER AND SHRI BIJALBHAI KHENGASRBHAI RABARI RESIDING AT MORALI GAM DIST. GANDHINAGAR. AS MENTIONED IN THE SALE DEED THIS LAND HAS BEEN PURPORTED TO HAVE BEEN PURCHASED BY THE SELLER FROM THE ORIGINAL LAND OWNERS SHRI RANCHHODBHAI BHALABHAI, R AMABHCII BHALABHAI AND SHUSHILABEN BHALABHAI. CANCELLATION DEED DATED 30-0 6-2010 OF THE SALE DEED HAS BEEN DULY REGISTERED WITH THE SUB-REGISTRAR VIDE RE GISTRATION NO.9173 BETWEEN ASSESSEE AND GRIRISH RAMANLAL VYAS ON ONE SIDE AND BIJALBHAI KHENGARBHAI RABARI ON OTHER SIDE POINTING OUT THAT THE IMPUGNED SALE DEED REGISTERED ON 29-09- 2008 WAS NULL AND VOID SINCE INCEPTION AND THE POSS ESSION OF THE LAND WAS NOT GIVEN AND THE POSSESSION OF THE LAND REMAINED WITH THE ORIGINAL OWNERS AT THAT TIME AND EVEN TO-DAY ALSO. IT HAS BEEN FURTHER CLARIFIED THAT NO PAYMENT ON EXECUTION OF SALE DEED WAS PAID TO THE SELLER. IT MAY KINDLY BE NOTED THAT THIS CANCELLATION DEED 30-06-2010 HAS ALSO TAKEN PLACE PRIOR TO THE INITIA TION OF SCRUTINY PROCEEDINGS WHICH HAS TAKEN PLACE IN THE MONTH OF AUGUST.2010. 6. ANOTHER DOCUMENT TITLED AS KABULAT CUM INDEMNITY BOND HAS BEEN EXECUTED ON 30-6-2010 DULY REGISTERED WITH THE SUB- REGISTRAR VIDE REGISTRATION NO.9185 BETWEEN SHRI BIJALBHAI KHENGARBHAI RABARI, DESAI MELABHAI GOKABHAI, CHANDRAKANAAT NATHALAL PATEL (ASSESSEE) AND GIRISH RAMANLAL VYAS ON ONE SIDE AND SHRI RANCHHODBHAI BHALABHAI PATEL, RAMABHAI BHALABHAI PATEL AND SHUSHILABEN BHALABHAI PATEL ALL ORIGINAL OWNERS OF THE LAND UNDER CONSIDERATION ON OTHER SIDE . IN THIS DOCUMENT IT HAS BEEN SPECIF ICALLY MENTIONED THAT THE DOCUMENT NO. 11870 DATED 29-09-2008 WAS NOT IMPLEME NTED SINCE BEGINNING AND NO POSSESSION OF THE LAND WAS GIVEN TO THE PURCHASE RS AND THE EARLIER DEEDS EXECUTED ARE HEREBY CANCELLED. IT MAY KINDLY BE NOT ED THAT THIS DEED DATED 30-06- 2010 HAS ALSO TAKEN PLACE PRIOR TO THE INITIATION O F SCRUTINY PROCEEDINGS WHICH HAS TAKEN PLACE IN THE MONTH OF AUGUST.2010. 7. IT IS ALSO RELEVANT TO POINT OUT THAT SPECIAL SU IT NO 474/2008 WAS FILED ON 23-10-2008 AS MENTIONED ABOVE. PURSUANT THIS SUIT F ILED BY THE ORIGINAL LAND LORD SHRI RANCHODBHAI BHALABHAI PATEL AND OTHERS AGAINST (1) SHRI BIJALABHAI KHENGARBHAI RABARI AND(2) DESAI MELABHAI GOKABHAI T HE COURT HAS ISSUED NOTICE OF HEARING DATED 23-10-2008 FIXING HEARTING ON 06-1 1-2008. FURTHER COURT HAS ALSO APPOINTED COURT COMMISSIONER WHICH HAS VISITED THE SITE AND THE COURT COMMISSIONER HAS GIVEN REPORT ON 26-10-2008 THAT TH E LAND UNDER SUIT IS IN POSSESSION OF RANCHODBHAI BHALABHAI AND OTHERS AND HAVE POINTED OUT THAT THE OPPOSITE PARTIES HAS NOT ATTENDED OR REMAINED PRESE NT ON THE SITE AND ACCORDINGLY THIS PANCHNAMA WAS RECORDED. 8. ALL THESE LEGAL PROCEEDINGS HAS TAKEN PLACE IN THE YEAR 2008 BEFORE DUE DATE OF FILING OF RETURN FOR A.Y.2009-10. BECAUSE O F CRIMINAL COMPLAINT IN THE YEAR 2008 AND THE CIVIL SUIT ALSO FILED IN THE YEAR 2008 THE PARTIES TO THE BOGUS SALE DEED WERE FORCED TO EXECUTE CANCELLATION DEEDS TO ESCAPE , LEGAL ACTIONS CONSEQUENCES. THE IMPUGNED SALE DEEDS WERE EXECUTED IN THE MONTH OF SEPTEMBER ,2008 IN THE MONTH OF OCTOBER 2008 ITSELF THE LAND OWNERS ON ITA NO.2272/AHD/2012 (SHRI CHANDRAKANT N. PATEL VS. ITO) A.Y. 2009-10 - 6 - 9. COMING TO KNOW OF SUCH FORGED DEEDS SWIFTLY MOVE D THE COURT FOR THE INTERVENTION AND DECLARING THE SAID DEEDS AS NULL A ND VOID AB-INITIO. WITHOUT ENQUIRING IN TO THESE LEGAL DOCUMENTS BROUGHT TO HI S NOTICE AND THE DATES OF WHICH FALL IN THE F.Y 2008-09, HAVE BEEN IGNORED AND HE H AS MADE OBSERVATION THAT THE CANCELLATION DEEDS HAS TAKEN PLACE IN THE F.Y.2010- 11 AND THEREFORE HE HAS NOT TAKEN COGNIZANCE OF THESE DOCUMENTS IGNORING THE SE TTLED LEGAL PRINCIPLES LAID DOWN BY THE SUPREME COURT THAT ALL THE SURROUNDING CIRCUMSTANCES IMPINGING ON THE ISSUE UNDER CONSIDERATION HAS TO BE TOKEN IN TO CONSIDERATION BEFORE MAKING THE ASSESSMENT. (REFER TO DECISION OF SUMATI DAYAL 214 ITR 801 S.C) THEREFORE THE FINDINGS/OBSERVATIONS/ COMMENTS APPEARING ON PAGE 1 6 OF ASSESSMENT ORDER ARE CONTRARY TO THE LAW AND THEREFORE DESERVED TO BE RE JECTED. 10. AFTER SUBMISSION OF THESE LEGAL DOCUMENTS WHICH HAVE ALSO BEEN EXECUTED PRIOR TO INITIATION OF SCRUTINY PROCEEDING AND IF T HE ASSESSING OFFICER WAS DOUBTING THESE DOCUMENTS AND CONSIDERING THESE DOCUMENTS AS AN AFTERTHOUGHT THEN HE WAS UNDER LEGAL OBLIGATION TO MAKE INDEPENDENT INQUIRIE S TO ASCERTAIN THE REAL FACTS . BUT NO SUCH INQUIRIES HAVE BEEN MADE TO FIND OUT WH ETHER THE ORIGINAL LAND OWNER HAVE RECEIVED ANY CONSIDERATION, WHETHER THEY HAVE PARTED WITH THE POSSESSION OF THE LAND AND IN THE ABSENCE OF ANY EVIDENCE GATHERE D BY THE ASSESSING OFFICER CONTRADICTING THESE LEGALLY EXECUTED DOCUMENTS NO A DVERSE INFERENCE COULD HAVE BEEN DRAWN AGAINST THE ASSESSEE BY SIMPLY MAKING A BARE/BALD STATEMENT THAT THESE ARE AFTER THOUGHT AGREEMENT. FOR MAKING SUCH STATEM ENT THERE WAS NO BASIS BEFORE THE ASSESSING OFFICER AND HENCE THE ENTIRE FINDING OF THE ASSESSING OFFICER GETS VITIATED LEGALLY AS WELL AS FACTUALLY. 11. IN VIEW OF ABOVE FACTS AND CIRCUMSTANCES THE ADDIT ION OF RS.83,13,850/- MADE U/S. 69 AS UNEXPLAINED INVESTMENT DESERVES TO BE DELETED IN ITS ENTIRETY.' 4.3 I HAVE PERUSED THE ASSESSMENT ORDER, PAPER-BOOK ALONG WITH OTHER EVIDENCES FILED BY THE APPELLANT AND MATERIAL ON RE CORD, LAM NOT INCLINED TO AGREE WITH THE CONTENTIONS OF THE APPELLANT BECAUSE OF TH E FOLLOWING REASONS: (A) THE FACT OF CASH PAYMENT OF RS.78.5 LACS AS ME NTIONED IN THE SALE DEED IN COLUMN NO. 4 ON PAGE NO.L 2 & 13 IS CLEAR AND OVERW HELMING. SUCH CASH CONSIDERATION HAS BEEN RECEIVED AND THE POSSESSION OF THE PROPERTY HAS BEEN HANDED OVER WHICH IS ALSO ACCEPTED BY THE PURC HASER AS PER THIS REGISTRATION DOCUMENT. (B) THE SUBMISSION OF THE APPELLANT IN THE ENTIRE S ALE DEED HAS BEEN CANCELLED SUBSEQUENTLY AND A POLICE COMPLAINT LODGED, THE AFF IDAVIT IS MADE JUST TO FAVOUR THE APPELLANT AND THEREFORE STATEMENT RECORD ED U/S. 131 OF THE ACT IS TRUE AND CORRECT AND FINAL AND IS DEVOID OF MERITS AS IT IS CONTRARY TO FACTS MENTIONED IN PURCHASE DEED AND AS WELL AS AFFIDAVIT FILED BY SHRI GIRISH RAMANLAL VYAS. IT MAY BE NOTICED THAT THE FACTS IN THE AFFIDAVIT BY SHRI GIRISH RAMANLAL VYAS ARE COMPLETELY IN VARIANCE TO THE FACTS SUBMITTED UNDER OATH BEFORE THE AO. (C) THE PLEA OF THE APPELLANT THAT SUBSTANTIVE ADD ITIONS HAVE ALREADY BEEN MADE IN THE CASE OF SHRI GIRISH RAMANLAL VYAS AND H ENCE NO ADDITION IS WARRANTED IN HIS CASE IS ALSO DEVOID OF ANY MERIT B ECAUSE WHEN THERE IS A DOUBT AS TO WHICH PERSON AMONGST THE TWO WAS LIABLE TO BE ASSESSED, ITA NO.2272/AHD/2012 (SHRI CHANDRAKANT N. PATEL VS. ITO) A.Y. 2009-10 - 7 - PARALLEL PROCEEDINGS MAY BE TAKEN AGAINST THE BOTH AND ALTERNATIVE ASSESSMENTS MAY ALSO BE FRAMED. (I) CITVS. DURGAWATI SINGH (ALL.) 234 ITR 249; AND (II) BANYAN & BERRY VS. CIT (GUJ.) 222 ITR 831 4.4 IT CAN FURTHER BE ADDED THAT PROTECTIVE ASSESSM ENTS WHERE INCOME PRIMA- FACIE APPEARED TO BE INCOME OF EITHER OF TWO PARTIE S, THE IT AUTHORITIES' ACTION OF ASSESSING INCOME PROTECTIVELY HAS BEEN HELD JUSTIFI ED EVEN BY HON'BLE SUPREME COURT OF INDIA LALJI HARIDAS VS. ITO & ANR. (S.C. ) 43 ITR 387. 4.5 UNDER THE STATED CIRCUMSTANCES, THAT THERE IS A SALE DEED WHEREIN CASH PAYMENT OF RS.78.5 LACS IS EVIDENCED AND STAMP DUTY IS ALSO PAID IN CASH, THE CONTRADICTORY STATEMENT GIVEN BY THE OTHER CO-OWNER I.E. SHRI GIRISH R. VYAS. WHEN COMPARED WITH HIS AFFIDAVIT DATED 22.06.2010 A ND OTHER OVERWHELMING FACTS BROUGHT ON RECORD BY THE AO, I AM OF THE VIEW THAT THE ACTION OF THE AO BY TREATING SUCH VALUE OF INVESTMENTS IN LAND, INCLUDING STAMP DUTY AND REGISTRATION FEE AS UNEXPLAINED IS CORRECT. ACCORDINGLY, I CONFIRM THE ADDITION OF RS.83,13,850/-. 5. LEARNED AUTHORIZED REPRESENTATIVE OPENS UP ASSES SEES ARGUMENTS. HE INTER ALIA SUBMITS THAT THE SALE DEED IN QUESTIO N STANDS NULLIFIED AS BASED ON FRAUDULENT POWER OF ATTORNEY AND IT IS ASSESSEE S CO-VENDEE WHO HAS PAID THE ENTIRE PURCHASE CONSIDERATION EVEN IF THE SAME IS TO BE ADDED WITHOUT PREJUDICE TO THE FORMER STAND. HE FURTHER HIGHLIGH TED THE FACTS BOTH THE LOWER AUTHORITIES HAVE ASSESSED THE VERY SUM ON SUBSTANTI VE BASIS IN CO-PURCHASERS HANDS. THE ASSESSEE ACCORDINGLY SEEKS TO ADD THE E NTIRE SUM IN CASE OF HIS CO-PURCHASER IN VIEW OF HIS AFFIDAVIT DATED 22.06.2 010. LEARNED COUNSEL ACCORDINGLY PRAYS FOR THE ACCEPTANCE OF THE APPEAL. THE REVENUE STRONGLY SUPPORTS THE LOWER APPELLATES ORDER. 6. WE HAVE GIVEN OUR THOUGHTFUL CONSIDERATION TO RI VAL CONTENTIONS. THERE IS NO DISPUTE ABOUT THE FACT THAT THIS ASSESS EE AND HIS CO-PURCHASER ACTED AS VENDEES IN THE REGISTERED SALE DEED IN QUE STION DATED 29.09.2008. THIS INVOLVED GROSS INVESTMENT INCLUDING REGISTRATI ON EXPENSES AMOUNTING TO RS.83,13,850/- IN QUESTION. THIS REGISTERED SALE D EED MENTIONS BOTH VENDEES WITHOUT SPECIFYING THEIR SHARES EITHER IN THE LAND PURCHASED OR IN THE CONSIDERATION MONEY. THE ASSESSEE AND HIS CO-VENDE E ADOPTED MUTUALLY CONTRADICTORY STANDS SO AS TO EVADE THE BURDEN OF E XPLAINING SOURCE OF THE ITA NO.2272/AHD/2012 (SHRI CHANDRAKANT N. PATEL VS. ITO) A.Y. 2009-10 - 8 - GROSS INVESTMENT AMOUNT. THERE CAN BE HARDLY ANY D ISPUTE THAT THIS EXPLANATION WAS SOURCE OF THE INVESTMENT IN QUESTIO N HAS NO BEARING WITH THE FACT THAT THE ABOVE STATED SALE DEED STOOD CANCELLE D LATER ON FOR ANY REASON; WHATSOEVER. WE REITERATE THAT ITS A REGISTERED SA LE DEED CARRYING PRESUMPTION OF TRUTH. WE ARE OF THE OPINION THAT THE ASSESSEE S FIRST ARGUMENT THAT THE SALE DEED CANCELLATION RENDERS THE ENTIRE ISSUE INFRUCTU OUS IS DEVOID OF MERITS. THE SAME STANDS REJECTED. 7. WE COME TO ASSESSEES SUBSEQUENT ARGUMENT NOW TH AT IT IS HIS CO- PURCHASE AS PER HIS AFFIDAVIT DATED 22.06.2010 FOLL OWED BY SUBSTANTIVE ASSESSMENT IN HIS CASE WHICH MAKES IMPUGNED ADDITIO N IN HIS HANDS AS NOT SUSTAINABLE. WE DISAGREE WITH THESE CONTENTIONS. WE HAVE ALREADY NARRATED IN PRECEDING PARAGRAPH THAT ASSESSEES CO-PURCHASER HAS TAKEN MANY SELF- CONTRADICTORY STANDS SO FAR AS PAYMENT OF THE ACTUA L SALE CONSIDERATION IS CONCERNED (SUPRA). BOTH THE LOWER AUTHORITIES HAVE ELABORATELY APPRECIATED THE RELEVANT FACTS AS EXTRACTED HEREINABOVE TO CONC LUDE THAT IT IS ACTUALLY ASSESSEES INVESTMENT AND NOT THAT OF HIS CO-PURCHA SER. THERE IS NO EVIDENCE ON RECORD REBUTTING THE SAME. WE FURTHER FIND THAT THIS ASSESSEE HAS BEEN SHOWING AGRICULTURAL INCOME AS PER THE IMPUGNED ORD ER. THIS IS NOT THE CASE WITH CO-PURCHASER SHRI GIRISH KUMAR. WE NOTICE THA T HE IS IN FACT A CLOTH TRADER. THAT BEING THE CASE, THIS CO-PURCHASER COU LD NOT HAVE PURCHASED THE AGRICULTURAL LANDS IN QUESTION UNDER SECTION 63 OF THE BOMBAY TENANCY AND AGRICULTURAL LANDS ACT, 1948 (AS APPLICABLE TO GUJ ARAT STATE). WE FORTIFY BOTH THE LOWER AUTHORITIES CONCLUSIONS HOLDING THE ASSESSEE TO HAVE SPENT THE ENTIRE SUM OF RS.83,13,850/- IN THESE FACTS AND CIR CUMSTANCES. WE RATHER DEEM IT APPROPRIATE TO GO A STEP FURTHER. THIS CO- PURCHASER ADMITTEDLY IS NOT ENTITLED TO PURCHASE AGRICULTURAL LANDS. WE OBSERV E THAT EVEN HE HAD PURCHASED THE LAND IN ASSESSEES NAME, THE LATTER I S THE SOLE OWNER THEREOF AS PER THE PROVISIONS OF THE BENAMI TRANSATIONS (PROHI BITION) ACT 1988. ITA NO.2272/AHD/2012 (SHRI CHANDRAKANT N. PATEL VS. ITO) A.Y. 2009-10 - 9 - 8. THE ASSESSEE HAS FURTHER SOUGHT TO STRENGTHEN HI S CASE BY DRAWING OUR ATTENTION TO SUBSTANTIVE ADDITION OF THE VERY PURCH ASE SUM BEING MADE IN CASE OF SHRI GIRISH KUMAR. WE FIND THAT THE ASSESING OF FICER HAS PASSED THE IMPUGNED ASSESSMENT ORDER IN ASSESSEES CASE ON 8.1 2.2011 AS AGAINST THAT IN HIS CO-PURCHASER ASSESSMENT FRAMED SUBSEQUENTLY ON 26.12.2011. LEARNED AR HAS FILED THIS TRIBUNALS ORDER DATED 09.06.2015 IN ITA NO. 2387/AHD/2012 IN SHRI GIRISH KUMARS CASE DISMISSIN G THE APPEAL AGAINST THE VERY ADDITION FOR NON PROSECUTION. WE DRAW SUPPORT FROM OUR DISCUSSION HEREINABOVE TO CONCLUDE THAT THIS ASPECT IS OFF COU RSE A RELEVANT ONE BUT HAS NO SUBSTANTIVE BEARING SO FAR AS FINDINGS OF THE LO WER APPELLATE AUTHORITIES UNDER CHALLENGE ARE CONCERNED. WE HAVE ALREADY HEL D THIS ASSESSEE TO HAVE PAID THE ENTIRE PURCHASE CONSIDERATION OF RS.83,13, 850/- IN QUESTION FORMING SUBJECT MATTER OF THE IMPUGNED UNEXPLAINED INVESTME NT ADDITION MADE U/S.69 OF THE ACT. THE SAME STANDS CONFIRMED. 9. THIS ASSESSEES APPEAL IS DISMISSED. PRONOUNCED IN THE OPEN COURT ON THIS THE 11 TH DAY OF JULY, 2016. SD/- SD/- (MANISH BORAD) (S . S. GODARA) ACCOUNTANT MEMBER JUDICIAL MEMBER AHMEDABAD: DATED 11/07/2016 TRUE COPY S.K.SINHA / COPY OF ORDER FORWARDED TO:- / REVENUE 2 / ASSESSEE ! / CONCERNED CIT 4 !- / CIT (A) ( )* + ,--. . /0 / DR, ITAT, AHMEDABAD 1 + 23 / GUARD FILE. BY ORDER / . // , . /0