TARUN GOEL, Jaipur V. ITO, Jaipur

ITA 245/JPR/2017

• Counselvise Citation: [2019] 112 COUNSELVISE.COM (IT) 2251 (ITAT-JAIPUR)
• Duration Of Justice: 2 year(s) 8 month(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-12-2019
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2007-2008
• Appeal Filed On: 30-03-2017
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: BK GUPTA; RUNI PAL JCIT DH
• Keywords: Reopening of assessment; Unexplained investment; Search and seizure; Document seized; Tangible material; Documents seized
• Section: 143(3); 69B; 274; 148; 132; 144

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHE S,B JAIPUR JH FOT; IKY JKO] U;KF;D LNL; ,OA JH FOE FLAG ;KNO] YS[KK LNL; DS LE{K BEFORE: SHRI VIJAY PAL RAO, JM & SHRI VIKRAM SINGH YADAV, AM VK;DJ VIHY LA- @ ITA NO. 245/JP/2017 FU/KZKJ.K O'K Z @ ASSESSMENT YEAR : 2007-08 SH. TARUN GOEL, G-2, VINOBA MARG, C-SCHEME, JAIPUR-302001. CUKE VS. THE ITO, WARD-6(5), JAIPUR. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO.: ABTPG 9246 Q VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESP ONDENT VK;DJ VIHY LA- @ ITA NO. 274/JP/2017 FU/KZKJ.K O'K Z @ ASSESSMENT YEAR : 2007-08 THE ACIT, CIRCLE-6 JAIPUR. CUKE VS. SH. TARUN GOEAL, G-2, VINOBA MARG, C-SCHEME, JAIPUR-302001. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO.: ABTPG 9246 Q VIHYKFKHZ@ AP PELLANT IZR;FKHZ@ RESPONDENT VK;DJ VIHY LA- @ ITA NO. 246/JP/2017 FU/KZKJ.K O'K Z @ ASSESSMENT YEAR : 2007-08 SH. ARUN GOEAL, G-2, VINOBA MARG, C-SCHEME, JAIPUR-302001. CUKE VS. THE ITO, WARD-6(3), JAIPUR. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO.: AASPG 4962 D VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT ITA NO. 245 TO 247/JP/2017 & 265, 274 & 275/JP/2017 SHRI TARUN GOEL VS. ITO & ORS. 2 VK;DJ VIHY LA- @ ITA NO. 275/JP/2017 FU/KZKJ.K O'K Z @ ASSESSMENT YEAR : 2007-08 THE ACIT, CIRCLE-6 JAIPUR. CUKE VS. SH. ARUN GOEAL, G-2, VINOBA MARG, C-SCHEME, JAIPUR-302001. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO.: AASPG 4962 D VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT VK;DJ VIHY LA- @ ITA NO. 247/JP/2017 FU/KZKJ.K O'K Z @ ASSESSMENT YEAR : 2008-09 M/S PINKCITY REALITY P. LTD., G-2, VINOBA MARG, C-SCHEME, JAIPUR - 302001. CUKE VS. THE ITO, WARD-6(2), JAIPUR. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO.: AAECP 2647 K VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT VK;DJ VIHY LA- @ ITA NO. 265/JP/2017 FU/KZKJ.K O'K Z @ ASSESSMENT YEAR : 2008-09 THE ITO, WARD- 6(2) JAIPUR. CUKE VS. M/S PINKCITY REALITY P. LTD., G-2, VINOBA MARG, C-SCHEME, JAIPUR-302001. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO.: AAECP 2647 K VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ L S@ ASSESSEE BY : SHRI ROHAN SOGANI (C.A.) JKTLO DH VKSJ LS @ REVENUE BY : SHRI B.K. GUPTA (CIT) & SMT. RUNI PAL (JCIT) LQUOKBZ DH RKJH[ K@ DATE OF HEARING : 27/11/2019 MN?KKS'K.KK DH RKJH[ K@ DATE OF PRONOUNCEMENT: 03/12/2019 VKNS'K@ ORDER ITA NO. 245 TO 247/JP/2017 & 265, 274 & 275/JP/2017 SHRI TARUN GOEL VS. ITO & ORS. 3 PER BENCH: THESE THREE SET OF CROSS APPEALS ARE DIRECTED AGAI NST THREE SEPARATE ORDERS OF THE LD. CIT(A), AJMER DATED 11.0 1.2017 IN THREE RELATED ASSESSEES FOR THE ASSESSMENT YEARS 2007-08 & 2008-09 RESPECTIVELY. 2. SINCE, THESE THREE SET OF CROSS APPEALS ARISING ARE FROM THE COMMON AND ITENDICAL FACTS AS WELL AS INVOLVING COM MON ISSUE THEREFORE, FOR THE SAKE OF CONVENIENCE THESE APPEAL S ARE CLUBBED TOGETHER FOR THE PURPOSE OF HEARING AND DISPOSAL. F OR THE PURPOSE OF RECORDING THE FACTS THE CROSS APPEALS IN CASE OF SH RI ARUN GOEL IN ITA NO. 246/JP/2017 AND 275/JP/2017 ARE TAKEN AS LEAD C ASE. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS:- 1. IN THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW THE LD. AO ERRED IN REOPENING THE ASSESSMENT OF THE ASSESSE E UNDER SECTION 148 OF THE INCOME TAX ACT, 1961. THE ACTION OF LD. AO IS ILLEGAL, UNJUSTIFIED, ARBITRARY AND AGAINST THE FAC TS OF THE CASE. RELIEF MAY PLEASE BE GRANTED BY QUASHING THE REASSE SSMENT PROCEEDING, BEING ILLEGAL AND WITHOUT ANY BASIS. 2. THE ASSESSEE CRAVES HIS RIGHT TO ADD, AMEND OR A LTER ANY OF THE GROUNDS ON OR BEFORE THE HEARING. THE ASSESSEE HAS ALSO FILED AN ADDITIONAL GROUND WH ICH READS AS UNDER:- ITA NO. 245 TO 247/JP/2017 & 265, 274 & 275/JP/2017 SHRI TARUN GOEL VS. ITO & ORS. 4 IN THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN L AW, LD. AO HAS ERRED IN ISSUING NOTICE U/S 148 OF INCOME TAX ACT, 1961 WITHOUT OBTAINING PROPER SANCTION U/S 151 OF THE INCOME TAX ACT, 1961. THE ACTION OF LD. AO IS ILLEGAL, UNJUSTIFIED, ARBIT RARY AND AGAINST THE FACTS OF THE CASE. RELIEF MAY PLEASE BE GRANTED BY QUASHING THE REASSESSMENT PROCEEDING, BEING ILLEGAL AND WITH OUT JURISDICTION. THE REVENUE IN THE CROSS APPEAL HAS RAISED THE FOLL OWING GROUNDS:- 1. WHETHER ON THE FACTS AND CIRCUMSTANCES OF THE C ASE AND THE LD. CIT(A) WAS JUSTIFIED IN DELETING THE ADDITION U /S 69B OF RS. 4,35,26,854/- MADE BY THE AO FOR UNEXPLAINED AND UN DISCLOSED INVESTMENT IN PURCHASE OF IMMOVABLE PROPERTIES. 2. THE APPELLANT CRAVES ITS RIGHTS TO ADD, AMEND OR ALTER ANY OF THE GROUNDS ON OR BEFORE THE HEARING. 3. FIRST WE TAKE UP THE APPEAL OF THE REVENUE WHERE IN THE ISSUE OF ADDITION MADE BY THE AO U/S 69B OF THE ACT IS INVOL VED AS THE SAID ADDITION WAS DELETED BY THE LD. CIT(A) WHILE PASSIN G THE IMPUGNED ORDER. THE BRIEF FACT LEADING TO THE CONTROVERY ARE THAT THE ASSESSEE IS INDIVIDUAL AND FILED HIS RETURN OF INCOME FOR THE Y EAR UNDER CONSIDERATION ON 31.10.2007 DECLARING TOTAL INCOME OF RS. 64,03,650/-. THE ASSESSMENT WAS COMPLETED U/S 143(3) OF THE ACT ON 10.08.2009 WHEREBY THE AO ACCEPTED THE RETURN OF INCOME. THERE AFTER, THE ASSESSMENT WAS REOPENED BY ISSUING A NOTICE U/S 148 OF THE ACT ON 20.03.2014 WHEREBY THE AO PROPOSED TO ASSESS THE ON MONEY PAYMENT ITA NO. 245 TO 247/JP/2017 & 265, 274 & 275/JP/2017 SHRI TARUN GOEL VS. ITO & ORS. 5 MADE BY THE ASSESSEE FOR PURCHASE OF LANDS AS FOUND IN THE STATEMENT OF SHRI MADAN MOHAN GUPTA AS RECORDED U.S 132(2) OF THE ACT IN SEARCH AND SEIZURE PROCEEDINGS CARRIED OUT ON 23.05.2013 A ND THEREAFTER THE STATEMENT OF SHRI SHANKA LAL SAINI AND SHRI KANHIYA LAL SAINI WERE ALSO RECORDED ON 05.08.2013. THE ASSESSING OFFICER WHILE PASSING THE REASSESSMENT ORDER ON 27.03.2015 HAS MADE AN ADDITI ON OF RS. 83,46,000/- ON ACCOUNT OF UNEXPLAINED INVESTMENT IN PURCHASE OF LAND. THE ASSESSEE CHALLENGED THE ACTION OF THE AO BEFORE THE LD. CIT(A) AND ALSO CHALLENGED THE VALIDITY OF REOPENING OF THE AS SESSMENT. THE LD. CIT(A) DELETED THE ADDITION MADE BY THE AO BY RECOR DING THE REASONS THAT THE AO HAS MADE THE ADDITION ON THE BASIS OF T HE IMPOUNDED MATERIAL WHEREIN NOTHING INCRIMINATING MATERIAL IS FOUND AGAINST THE ASSESSEE AND NOT EVEN AN ENTRY WAS FOUND RECORDED I N RESPECT OF THE TRANSACTION OF PURCHASE OF LANDS BY THE ASSESSEE FR OM SHRI MADHO LAL SAINI, SHRI SHANKA LAL SAINI AND SHRI KANHIYA LAL SAINI. FURTHER, THERE IS NO ALLEGATION OR REFERENCE OF THE TRANSACTION OF TH E ASSESSEE OR NAME OF THE ASSESSEE WAS MADE BY SHRI MADAN MOHAN GUPTA IN HIS STATEMENT RECORDED U/S 132(4) OF THE ACT. THEREFORE, THE LD. CIT(A) FOUND THAT WITHOUT ANY INCRIMINATING MATERIAL THE AO HAS MADE THE ADDITION ONLY ON THE PRESUMPTION OF ON MONEY PAYMENT BY THE ASSES SEE. FURTHER IN ITA NO. 245 TO 247/JP/2017 & 265, 274 & 275/JP/2017 SHRI TARUN GOEL VS. ITO & ORS. 6 THE ASSESSMENT FRAMED IN CASE OF SHRI MADHO LAL SAI NI, SHRI SHANKA LAL SAINI AND SHRI KANHIYA LAL SAINI THE AO HAS ASSESSE D THE CAPITAL GAIN FROM SALE OF LAND TO THESE THREE ASSESSEEES ON THE BASIS OF THE SALE CONSIDERING RECORDED IN THE SALE DEED AND THEREFORE , THE AO ACCEPTED THE SALE CONSIDERATION AS RECORDED IN THE SALE DEED . THE LD. CIT(A) AFTER DECIDING THE ISSUE ON MERITS IN FAVOUR OF THE ASSES SEE HAS NOT PROPOSED TO DECIDE THE ISSUE OF VALIDITY OF REOPENING. THUS BOTH THE DEPARTMENT AS WELL AS ASSESSEE FILED THESE CROSS APPEAL. 4. THE LD. DR HAS SUBMITTED THAT DURING THE COURSE OF SEARCH AND SEIZURE ACTION U/S 132(2) OF THE ACT IN CASE OF MAD AN MOHAN GUPTA CERTAIN RECORD WAS SEIZED CONTAINING ENTRIES OF TRA NSACTIONS OF PURCHASE OF LANDS BY SHRI MADHO LAL SAINI, SHRI SHANKAR LAL SAINI AND SHRI KANHIYA LAL SAINI. IN THE STATEMENT RECORDED U/S 13 2(4) OF THE ACT MODAN MOHAN GUPTA HAS ADMITTED THAT THESE ENTRIES A RE RELATED TO THE SALE AND PURCHASE TRANSACTION OF SHRI MADHO LAL SAI NI, SHRI SHANKAR LAL SAINI AND SHRI KANHIYA LAL SAINI. THUS, THE SEIZED MATERIAL CLEARLY DISCLOSED THE ON MONEY PAYMENT BY THESE SAINI FAMIL Y MEMBERS FOR PURCHASE OF LANDS AS RECORDED AT PAGE 22 TO 25 OF T HE SEIZED DOCUMENTS. THEY HAVE ALSO ACCEPTED THE FACTS THAT T HE LANDS WERE PURCHASE FROM THE SOURCES OF THEIR LANDS SOLD TO SH RI ARUN GOEL, SHRI ITA NO. 245 TO 247/JP/2017 & 265, 274 & 275/JP/2017 SHRI TARUN GOEL VS. ITO & ORS. 7 TARUN GOEL AND M/S PINKCITY REALITY P. LTD. THE ASS ESSEE IN THESE APPEALS. THE LD. CIT/DR HAS SUBMITTED THAT THE INVE STMENT THAT MADE BY THE OWNER OF THE LAND SOLD TO THESE ASSESSEE FRO M THE SOURCE OF SALE CONSIDERATION AS RECEIVED FROM THESE ASSESSEES THEN IT CAN BE REASONABLY INFERRED THAT THE ON MONEY PAYMENT BY TH ESE SAINI FAMILY MEMBERS IS NOTHING BUT RECEIVED FROM THE ASSESSEES IN THESE CASES. THE LD. DR HAS POINTED OUT THAT THE SEIZED MATERIAL CLEARLY REVEALS THE DETAILS OF THE LANDS PURCHASE BY SAINI FAMILY MEMBE RS AND RATE IS ALSO GIVEN IN THE SEIZED MATERIAL. THE SAID FACT WAS ALS O EXPLAINED BY SHRI MADAN MOHAN GUPTA IN HIS STATEMENT THEREFORE, ONCE THE FACT OF PAYMENT OF THE ON MONEY BY THESE SAINI BROTHERS AND FAMILY MEMBERS IS ESTABLISHED FROM THE SEIZED MATERIAL THEN, THE S OURCE OF THE SAID PAYMENT IS NOTHING BUT THE CASH PAYMENT BY THE ASSE SSEE IN RESPECT OF THE LAND PURCHASED BY THEM FROM THE SAINI FAMILY ME MBERS. THE LD. DR HAS FURTHER CONTENDED THAT WHEN ALL THE OTHER ENTRI ES ON THE REST OF THE PAGES RECORDING THE NAME OF THE SELLERS, THE AMOUNT MENTIONED IN THE CHEQUE, AREA OF THE LAND INVOLVED, REGISTRATION EXP ANSES ARE ACCEPTED BY THE SANIS THEN THEIR DENIED OF CASH ENTRIES AS RECORDED IN THE SEIZED MATERIAL IS NOT ACCEPTABLE. THESE ENTRIES HAVE BEEN MADE/RECORDED BY SHRI MADAN MOHAN GUPTA AND SINCE IT HAS BEEN ADMITT ED BY SHRI ITA NO. 245 TO 247/JP/2017 & 265, 274 & 275/JP/2017 SHRI TARUN GOEL VS. ITO & ORS. 8 SHANKAR LAL SAINI AND SHRI KANHIYA LAL SAINI IN THE STATEMENT THAT THEY ARE NOT WELL EDUCATED SO SHRI MANDAN MOHANGUPTA WAS WORKING AS A MIDDLE MAN AND THE ENTRY RECORDED BY HIM IN THE SEI ZED MATERIAL IS GIVING THE CORRECT PICTURE OF THE TRANSACTION. THE LD. DR HAS FURTHER SUBMITTED THAT SANIS HAVE ADMITTED THEIR ONLY SOUR CE OF INVESTMENT IN LANDS PURCHASED IS THE SALE OF LAND AT JAISINGHPUR TO THE ASSESSEESS NAMELY SHRI ARUN GOEL, SHRI TARUN GOEL AND M/S PINK CITY REALITY P. LTD. THEREFORE, THE RESPECTIVE AMOUNTS OF ON MONEY IN TH E HANDS OF THESE THREE ASSESSEES TOTAL AMOUNT OF RS. 10.3 CRORES HAS ESCAPED ASSESSMENT IS PROVED BY THE SEIZED MATERIAL COUPLED WITH THE STATEMENT OF SHRI MADAN MOHAN GUPTA, SHRI SHANKAR LAL SAINI A ND SHRI KANHIYA LAL SAINI. HE HAS RELIED UPON THE ORDERS OF THE ASSESSI NG OFFICER. 5. ON THE OTHER HAND, THE LD. AR HAS SUBMITTED THAT THE ASSESSEE PURCHASED THE LAND SITUATED AT VILLAGE JAISINGHPURA , BANKROTA, JAIPUR FOR A PURCHASE OF CONSIDERATION OF RS. 2,07,80,000/- FR OM SHRI MADHO LAL SAINI VIDE SALE DEED DATED 01.09.2006. THE RETURN O F INCOME FILED BY THE ASSESSEE WAS SUBJECTED TO SCRUTINY ASSESSMENT A ND THE AO DID NOT DOUBTED ANY PAYMENT OF ONE MONEY WHILE PASSING THE SCRUTINY ASSESSMENT U/S 143(3) OF THE ACT ON 10.08.2009. SUB SEQUENTLY, THE ASSESSING OFFICER HAS INITIATED THE PROCEEDINGS U/S 147/148 OF THE ACT ITA NO. 245 TO 247/JP/2017 & 265, 274 & 275/JP/2017 SHRI TARUN GOEL VS. ITO & ORS. 9 SOLELY ON THE BASIS OF THE INFORMATION RECEIVED FRO M THE INVESTIGATION WING AND WITHOUT ANY OTHER CORROBORATIVE EVIDENCE. THE AO HAS MADE THE ADDITION ON ACCOUNT OF UNEXPLAINED INVESTMENT I N PURCHASE OF LAND MERELY ON THE BASIS OF ASSUMPTION AND PRESUMPTION W ITHOUT ANY EVIDENCE TO SHOW THAT THE ASSESSEE HAS PAID ANY AMO UNT OVER AND ABOVE THE SALE CONSIDERATION SHOWN IN THE SALE DEED WHICH HAS BEEN DULY EXECUTED AND REGISTERED. THEREFORE, IT IS RELE VANT EVIDENCE TO SHOW THE TRANSITION OF PURCHASE AND SALE OF THE AGRICULT URAL LAND AND ACTUAL SALE CONSIDERATION PAID BY THE ASSESSEE. HENCE, IN THE ABSENCE OF ANY OTHER CONTRARY FACTS OR MATERIAL THE CONTENTS AND T ERMS AND CONDITION AS WELL AS CONSIDERATION SHOWN IN THE SALE DEED CANNOT BE DISPUTED. THE LD. AR HAS REFERRED TO THE STATEMENT OF SHRI MADAN MOHAN GUPTA AND SUBMITTED THAT NEITHER ANYTHING RECORD IN THE SEIZE D MATERIAL IN RESPECT OF THE PURCHASE OF LAND BY THE ASSESSEE NOR SHRI MA DAN MOHAN GUPTA ALLEGED ANYTHING REGARDING THE PAYMENT OF ON MONEY BY THE ASSESSEE. FURTHER, IN THEIR STATEMENTS SHRI SHANKAR LAL SAINI AND SHRI KANHIYA LAL SAINI HAVE CLEARLY STATED THAT THEY PURCHASED THE L AND BY MAKING THE PAYMENT THROUGH CHEQUE AND NO PAYMENT WAS MADE IN C ASH. THUS NONE OF THE STATEMENTS RECORDED BY THE DEPARTMENT O F SHRI MANDAN MOHAN GUPTA, SHRI SHANKAR LAL SAINI AND SHRI KANHIY A LAL SAINI REVEALED ITA NO. 245 TO 247/JP/2017 & 265, 274 & 275/JP/2017 SHRI TARUN GOEL VS. ITO & ORS. 10 ANY INCRIMINATING MATERIAL AGAINST THE ASSESSEE. TH E AO HAS JUST ASSUMED THE PAYMENT OF ON MONEY ON THE BASIS OF THE SEIZED MATERIAL WHEREIN SOME ENTRIES WERE FOUND REGARDING THE CASH PAYMENT BY SHRI MADHO LAL SAINI, SHRI SHANKAR LAL SAINI AND SHRI KA NHIYA LAL SAINI. THOSE TRANSACTION ARE NOT RELATED TO THE ASSESSEES AND TH EREFORE, ONCE THE SAINI HAVE DENIED ANY PAYMENT OF CASH AND CLEARLY S TATED IN THEIR STATEMENTS THAT THEY PURCHASED THE PROPERTY AGAINST THE PAYMENT OF CHEQUE AND NO CASH WAS PAID THEN THE ADDITION MADE BY THE AO IN RESPECT OF CASH PAYMENT FOR PURCHASE OF LAND BY ASS ESSEE IS WITHOUT ANY BASIS BUT ONLY ON THE BEING PRESUMPTION AND SUR MISES. THE LD. AR HAS RELIED UPON THE ORDERS OF THE LD. CIT(A) ON THI S ISSUE AND SUBMITTED THAT IN THE ABSENCE OF ANY MATERIAL DISCLOSING ANY CASH PAYMENT BY THE ASSESSEES TO THE SAINI FOR PURCHASE OF THE PROPERTY THE ADDITION IS NOT SUSTAINABLE. HE HAS FURTHER POINTED OUT THAT EVEN I N THE ASSESSMENT FRAMED IN THE HAND OF SHRI MADHO LAL SAIN, SHRI SHA NKAR LAL SAINI AND SHRI KANHIYA LAL SAINI THE ASSESSING OFFICER HAS AC CEPTED THE SALE CONSIDERATION IN THEIR HAND AS RECORDED IN THE SALE DEEDS. THEREFORE, WHEN THE SALE CONSIDERATION WAS NOT DISTURBED BY TH E AO OF THESE SELLERS THEN THE PRESUMPTION OF THE ASSESSING OFFIC ER FOR PAYMENT OF CASH OVER AND ABOVE SALE CONSIDERATION RECORDED THE SALE DEED IS ITA NO. 245 TO 247/JP/2017 & 265, 274 & 275/JP/2017 SHRI TARUN GOEL VS. ITO & ORS. 11 CONTRARY TO THE VERY FACT WHICH IS RECORDED IN THE REGISTER SALE DEED AND ACCEPTED THE AO BY SHRI MADHO LAL SAINI, SHRI SHANK AR LAL SAINI AND SHRI KANHIYA LAL SAINI. THE LD. AR HAS POINTED OUT THAT THE ASSESSE PURCHASED THE LAND IN QUESTION FROM SHRI MADHO LAL SAINI ON 01.09.2006 WHEREIN SHRI MADHO LAL SAINI ALONG WITH HIS SONS PU RCHASES THE LAND THROUGH SHRI MADAN MOHAN GUPTA ON 18.12.2007 WHICH IS AFTER MORE THAN 15 MONTHS FROM THE DATE OF PURCHASE BY THE ASS ESSEE THEREFORE, NO TRANSACTION INVOLVING THE HUGE CASH CAN BE LINKE D TO THE PREVIOUS TRANSACTION WHICH HAPPENED ALMOST 15 MONTHS BEFORE IT UNTIL AND UNLESS A DIRECT OR LIVE LINK IS ESTABLISHED BETWEEN TWO. O N THE ONE HAND, THE AO HAS RELIED UPON THE STATEMENTS OF SAINI AND AT THE SAME TIME HE HAS IGNORED THE RELEVANT AND PERTINENT PART OF THE STATEMENTS WHEREIN THEY HAVE DENIED ANY PAYMENT OF CASH. HENCE, THE AR HAS SUBMITTED THAT THE LD. CIT(A) IS JUSTIFIED FOR DELETING THE A DDITION ON THIS ACCOUNT. 6. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AS WELL AS THE RELEVANT MATERIAL ON RECORD. THE DETAILS OF THE LANDS PURCHA SED BY THESE THREE ASSESSEES FROM THREE SHRI MADHO LAL SAINI, SHRI SHA NKAR LAL SAINI AND SHRI KANHIYA LAL SAINI ARE AS UNDER:- S. NO. ADDRESS OF PROPERTY DATE OF TRANSACTIO N NAME OF PURCHASER AMOUNT AS MENTIONED IN THE SALE DEEDS. 1. VILLAGE - JAISINGHPURA, 08.06.2007 M/S PINKCITY REALITY 93,20,000/ - ITA NO. 245 TO 247/JP/2017 & 265, 274 & 275/JP/2017 SHRI TARUN GOEL VS. ITO & ORS. 12 BANKROTA, JAIPUR. PVT. LTD. 2. VILLAGE - JAISINGHPURA, BANKROTA, JAIPUR. 12.09.2007 M/S PINKCITY REALITY PVT. LTD. 30,20,000/ - 3. VILLAGE - JAISINGHPURA, BANKROTA, JAIPUR. 01.09.2006 SH. ARUN GOEL, DIRECTOR 2,07,80,000/ - 4. VILLAGE - JAISINGHPURA, BANKROTA, JAIPUR. 04.11.2006 SH. TARUN GOEL, DIRECTOR 80,80,000/ - 5. VILLAGE - JAISINGHPURA, BANKROTA, JAIPUR. 04.11 .2006 SH. TARUN GOEL, DIRECTOR 80,80,000/ - TOTAL 4,92,80,000/ - THESE TRANSACTIONS WERE DULY RECORDED IN THE BOOKS OF ACCOUNTS AND ALSO DECLARED IN THE RETURN OF INCOME FILED BY THES E ASSESSEE. IN CASE OF SHRI ARUN GOEL HE HAS PURCHASED THE LAND IN QUESTIO N FROM SHRI MADHO LAL SAINI VIDE REGISTERED SALE DATED 01.09.2006 FOR A CONSIDERATION OF RS. 2,07,80,000/- THE ASSESSING OFFICER ACCEPTED TH E RETURN INCOME WHILE PASSING THE ORIGINAL ASSESSMENT U/S 143(3) OF THE ACT ON 10.08.2009. SUBSEQUENTLY, THERE WAS SEARCH AND SEIZ URE ACTION IN THE CASE OF SHRI MADAN MOHAN GUPTA UNDER SECTION 132 OF THE ACT ON 23.05.2013. A DIARY WAS SEIZED FROM THE POSSESSION OF THE SHRI MADAN MOHAN GUPTA CONTAINING CERTAIN TRANSACTIONS REGARDI NG THE PURCHASE OF LANDS BY SHRI MADHO LAL SAINI ALONG WITH HIS TWO SO NS SHRI SHANKAR LAL SAINI AND SHRI KANHIYA LAL SAINI. THE DETAILS RECOR DED IN THE SEIZED DIARY FOUND FROM SHRI MADAN MOHAN GUPTA REVEAL THE PAYME NT OF CASH IN RESPECT OF THE LAND PURCHASE BY SAINI FAMILY MEMBER S I.E. FATHER AND SONS. THE STATEMENT OF SHRI MADAN MOHAN GUPTA WAS R ECORDED BY ITA NO. 245 TO 247/JP/2017 & 265, 274 & 275/JP/2017 SHRI TARUN GOEL VS. ITO & ORS. 13 INVESTIGATION WING IN WHICH HE HAS EXPLAINED THE TR ANSACTIONS OF LAND PURCHASED BY SAINI FAMILY MEMBERS. THE DEPARTMENT A LSO RECORDED THE STATEMENTS OF SHRI SHANKAR LAL SAINI AND SHRI KANHI YA LAL SAINI AND IN THEIR STATEMENT THEY HAVE ACCEPTED THE SAID TRANSAC TION OF PURCHASED OF LAND AS IT WAS THROUGH REGISTERED SALE DEEDS BUT TH EY HAVE SPECIFICALLY DENIED ANY PAYMENT OF CASH OVER AND ABOVE THE PURCH ASE CONSIDERATION SHOWN IN THE RESPECTIVE SALE DEEDS THROUGH CHEQUES. ON SPECIFIC QUERRY BY THE DEPARTMENT THEY SAID THAT THEY HAVE PAID PUR CHASE CONSIDERATION THROUGH CHEQUE AND THE SOURCES OF THE SAID PAYMENT IS THE SALE OF LAND BY THEM TO SHRI ARUN GOEL , SHRI TARUN GOEAL AND PI NKCITY REALITY PVT. LTD. THEREFORE, IN THE SEARCH AND SEIZURE PROCEEDIN GS AND IN THE SUBSEQUENT INVESTIGATION WHAT WAS DETECTED BY THE D EPARTMENT IS THE SEIZED MATERIAL CONTAINING THE TRANSACTION OF LAND PURCHASED BY SHRI MADHO LAN SAINI, SHRI SHANKAR LAL SAINI AND SHRI KA NHIYA LAL SAINI ALL FAMILY MEMBERS. SINCE, SOME CASH PAYMENT WAS RECORD ED IN THE SEIZED MATERIAL THEREFORE, THE ASSESSING OFFICER OF THE AS SESSEES BEFORE US TOOK A VIEW THAT THE ALLEGED CASH PAYMENT BY THESE SAINI FAMILY MEMBERS IS SOURCED FROM THE CASH PAYMENT MADE BY TH E ASSESSEE FOR PURCHASE OF LAND VIDE SALE DEED DATED 01.09.2006 IN CASE OF SHRI ARGUN GOEL SALE DEED DATED 04.11.2006 IN CASE OF SHRI TAR UN GOEL SALE DEED ITA NO. 245 TO 247/JP/2017 & 265, 274 & 275/JP/2017 SHRI TARUN GOEL VS. ITO & ORS. 14 DATED 08.06.2007 AND 12.09.2007 IN CASE OF M/S PINK CITY REALITY PVT. LTD. THE AO HAS ASSUMED THE PAYMENT OF CASH ONLY ON THE BASIS OF SOME TRANSACTIONS RECORDED IN THE SEIZED MATERIAL R EGARDING THE PAYMENT OF CASH BY SAINI BROTHERS AND FATHER IN RES PECT OF PURCHASE OF LAND AND THE SOURCE OF WHICH IS ASSUMED AS SALE CON SIDERATION RECEIVED FROM THE ASSESSEE. IT IS PERTINENT TO NOTE THAT THE ALLEGED SEIZED MATERIAL CONTAINS NOTHING REGARDING ANY TRANSACTION BETWEEN THE ASSESSEES AND SAINI FAMILY MEMBERS AND THE ENTRIES FOUND IN THE SEIZED MATERIAL ARE CONFINED ONLY TO THE PURCHASE OF LAND BY SAINI FAMILY MEMBERS. THEREFORE, THE SEIZED MATERIAL ITSELF DOES NOT REVEALS ANY TRANSACTION OF PAYMENT OF CASH BY THE ASSESSEES BR OTHERS IN RESPECT OF PURCHASE OF LAND FROM TWO BROTHERS AND FATHER. FURT HER, IN THE STATEMENT OF SHRI MADAN MOHAN GUPTA NOTHING INCRIMI NATING WAS DISCLOSED AGAINST THE ASSESSEE BUT HE HAS EXPLAINED THE NATURE OF TRANSACTIONS RECORDED IN THE SEIZED MATERIAL REGARD ING THE PURCHASE OF LAND BY THE SAINI FAMILY MEMBERS. THE DEPARTMENT TH EN ALSO CONDUCTED FURTHER INQUIRY BY RECORDING STATEMENTS OF SHRI SHA NKAR LAL SAINI AND SHRI KANHIYA LAL SAINI AND SPECIFICALLY ASKED THE Q UESTION REGARDING THE PAYMENT OF CASH BUT BOTH THESE BROTHERS HAVE DENIED THE PAYMENT OF CASH IN RESPECT OF THE LAND PURCHASED BY THEM. HOWE VER THE INQUIRY ITA NO. 245 TO 247/JP/2017 & 265, 274 & 275/JP/2017 SHRI TARUN GOEL VS. ITO & ORS. 15 CONDUCTED BY DEPARTMENT FROM SAINI BROTHERS IS DIRE CTED TOWARD THE CASH PAYMENT BY THEM AND HAS NOTHING TO DO WITH THE CASH RECEIVED BY THEM FROM THE ASSESSEE BEFORE US. THE LD. CIT(A) HA S CONSIDERED THIS ISSUE IN THE LIGHT OF THE MATERIAL, EVIDENCE AND OT HER RELEVANT FACTS AS UNDER:- I HAVE GONE THROUGH THE ASSESSMENT ORDER, WRITTEN SUBMISSION, IMPOUNDED MATERIAL AND STATEMENTS RELIE D UPON BY THE AO CAREFULLY. NOWHERE AT PAGE NO.25 OF THE I MPOUND MATERIAL, ON WHICH THE AO HAS RELIED UPON, FOR MAKI NG THE ADDITION OF RS.4,35,26,854/-, ANY MENTION OF THE PR OPERTY PURCHASED BY THE APPELLANT OR THE NAME OF THE APPEL LANT IS FOUND. SHRI MADAN MOHAN GUPTA IN HIS STATEMENT HAS NOWHERE STATED THAT ANY AMOUNT OF CASH WAS PAID BY THE APPELLANT TO SHRI MADHO LAL SAINI, SHRI SHANKAR LAL SAINI AND SHRI KHANIYA LAL SAINI OVER AND ABOVE THE CONSIDERA TION MENTIONED IN THE REGISTERED SALE DEED IN RESPECT OF THE PROPERTIES PURCHASED BY THE APPELLANT FROM THESE PE RSONS. IN THEIR STATEMENTS RECORDED ON OATH, NEITHER SHRI SHA NKAR LAL SAINI NOR SHRI KHANIYA LAL SAINI HAS STATED THAT TH EY HAVE RECEIVED ANY CASH FROM THE APPELLANT, OVER AND ABOV E THE CONSIDERATION RECORDED IN THE SALE DEED IN RESPECT OF THE PROPERTIES SOLD BY THEM TO THE APPELLANT. THEY, IN AN UNAMBIGUOUS MANNER HAVE DENIED HAVING RECEIVED ANY CASH FROM THE APPELLANT. AFTER GOING THROUGH THE IMPOUND ED MATERIAL, AND STATEMENTS OF SHRI MADAN MOHAN GUPTA, SHRI SHANKAR LAL SAINI AND SHRI KHANIYA LAL SAINI. I AM OF THE CONSIDERED VIEW THAT THE AO HAS MADE THE ADDITION O N THE BASIS OF REPLY OF SHRI SHANKAR LAL SAINI AND KHANIY A LAL SAINI TO QUESTION NO.7 IN THEIR STATEMENTS RECORDED ON 05 .08.2013. IN THEIR REPLY TO QUESTION NO.7 D`I;K VKI }KJK [KJHNH X;H BU LEIFR;KSA DKS L=KSR LI'V DHFT, BOTH OF THEM HAD REPLIED AS UNDER: ITA NO. 245 TO 247/JP/2017 & 265, 274 & 275/JP/2017 SHRI TARUN GOEL VS. ITO & ORS. 16 EGKSN;] GEUS TKS TEHU VKFN [KJHNH GS OG GEKJS }KJ K T;FLAIQJK ESA CSPH XBZ TEHU LS IZKIR JKFK ESA LS [KJHNH XBZ FKH BU LH KH O;OGKJKSA DKS GEUS GEKJH VK;DJ FOOJF.K;KSA ESA FN[KK J[KK GS FTLDS LEF KZU ES ESA VIUH FU/KKZJ.K O'KZ 2007&2008 LS 2012&2013 RD DH VK;DJ F OOJ.KH;KSA DH IZFR ESA VKIDS DK;KZY; ESA FNUAKD 08-08-2013 RD IZL RQR DJ NQWAXKA THE AO HAS COMPLETELY IGNORED THE ANSWER OF SHRI KH ANIYA LAL SAINI AND SHANKAR LAL SAINI, GIVEN IN REPLY TO QUES TION NO.11 WHEREIN, AT THE LAST SENTENCE OF THE REPLY, THEY HA VE STATED THAT JH ENUEKSGU XQIRK US ;G FOOJ.K I`'B LA[;K 21 LS 25 D;KSA NTZ FD;K GS EQ>S BL CKJS ESA DKSBZ TKUDKJH UGH GS GEUS RKS T KS HKH TEHUS [KJHNH GS MLDK LEIW.KZ HKQXRKU PSD }KJK GH FD;K GSA RFKK DKSB Z HKQXRKU UXN ESA UGH FD;K GSA IN REPLY TO QUESTION NO.12 AGAIN BOTH OF THEM STATE D THAT EGKSN; TSLK DH ESUSA IWOZ ESA HKH CRK;K GS FD ES ,D DE I<+ K FY[KK O;FDR GWWA VKSJ T;KNK DQN TKURK UGH GWWA ESA RKS BRUK DGUK PKGRK GW WA FD GEUS TKS HKH TEHUS [KJHNH GS OKS DSOY PSD }KJK HKQXRKU DJ DS GH [KJHNH GSA EQ>S UGHA IRK DH JH ENUEKSGU XQIRK TH US ;G LC D;KSA VKS J DSLS FY[K DJ J[KK GSA BL CKJS ESA EQ>S DKSBZ TKUDKJH UGHA GSA OS GH BL CKJS ESA CRK LDRS GSA THE AO HAS MADE THE ADDITION DRAWING THE CONCLUSION THAT SINCE AT PAGE NO. 25 OF THE IMPOUND MATERIAL AMOUNT OF RS.10,32,24,417/- (CASH) HAS BEEN MENTIONED AGAINST THE PROPERTIES PURCHASED BY SHRI MADHO LAL SAINI, SHRI KHANIYA LAL SAINI AND SHRI SHANKAR LAL SAINI, THEREFORE, THE AM OUNT OF RS.10,32,24,417/- HAS BEEN PAID BY SHRI TARUN GOYAL (RS.3,38,49,566/-), SHRI ARUN GOYAL (RS.4,35,26,854 /-) AND M/S PINKCITY REALTY PVT. LTD. (RS.2,58,47,997/-) TO SHRI MADHO LAL SAINI, SHRI KHANIYA LAL SAINI AND SHRI SHANKAR LAL SAINI TOWARDS THE PURCHASE OF LAND FROM THESE PERSONS, OV ER AND ABOVE THE CONSIDERATION RECORDED IN THE SALE DEED. HOWEVER, IT ITA NO. 245 TO 247/JP/2017 & 265, 274 & 275/JP/2017 SHRI TARUN GOEL VS. ITO & ORS. 17 IS SEEN FROM THE COPY OF THE ASSESSMENT ORDERS OF S HRI SHANKAR LAL SAINI, SHRI KHANIYA LAL SAINI AND SHRI MADHOLAL SAINI FOR THE ASSESSMENT YEAR 2007-08, FILED BY THE APPELLANT, THAT THE AO OF THESE PERSONS HAVE ASSESSED THE CAPI TAL GAIN ON SALE OF LAND TO SHRI TARUN GOYAL, SHRI ARUN GOYA L AND M/S PINKCITY REALTY PVT. LTD. IN THE HANDS OF SHRI SHAN KAR LAL SAINI AND KHANIYA LAL SAINI ONLY ON THE BASIS OF SALES CO NSIDERATION RECORDED IN THE SALES DEED:NO SALES CONSIDERATION, WHICH ACCORDING TO THE AO WAS PAID IN CASH OVER AND ABOVE , THE SALE CONSIDERATION RECORDED IN THE SALES DEED HAS BEEN T AKEN INTO ACCOUNT BY THE AO OF SHRI SHANKAR LAL SAINI AND KHA NIYA LAL SAINI FOR THE PURPOSE OF COMPUTING CAPITAL GAIN IN THEIR HANDS ON SALE OF LAND TO SHRI TARUN GOYAL, SHRI ARUN GOYA L AND M/S PINKCITY REALTY PVT. LTD. FURTHER, THE APPELLANT HA S ALSO FILED COPIES OF THE ASSESSMENT ORDER IN THE CASE OF SHRI SHANKAR LAL SAINI (A.Y. 2008-09 & 2009-10) AND SHRI KHANIYA LAL SAINI (A.Y. 2007-08) AND SHRI MADHO LAL SAINI (A.Y. 2007- 08) FROM WHICH IT CAN BE SEEN THAT THE AO OF THESE PERSONS H AVE TREATED THE AMOUNT OF CASH CLAIMED TO HAVE BEEN PAI D BY THESE PERSONS TOWARDS PURCHASE OF PROPERTIES AT AME R AND CHOUMU AS UNEXPLAINED INVESTMENT. THUS, THE AOS OF THESE THREE PERSONS HAVE ASSESSED THEIR INCOME ACCEPTING THE SALES CONSIDERATION RECORDED IN THE SALES DEED IN RESPECT OF THE PROPERTIES SOLD BY THESE PERSONS TO SHRI TARUN GOYA L, SHRI ARUN GOYAL AND M/S PINKCITY REALTY PVT. LTD. AS TRU E AND CORRECT. THE AO OF THESE PERSONS HAVE ALSO NOT ACCE PTED SALES CONSIDERATION OF THE LAND SOLD BY THESE PERSONS TO SHRI TARUN GOYAL, SHRI ARUN GOYAL AND M/S PINKCITY REALTY PVT. LTD. AS THE SOURCE OF CASH PAYMENT (RS.10,32,24,417/-) CLAIMED TO HAVE BEEN MADE BY THESE PERSONS, RATHER IT HAS BEEN TREA TED AS UNEXPLAINED CASH PAYMENT. AFTER GOING THROUGH THE ASSESSMENT ORDER, IMPOUNDED MATERIAL, STATEMENT OF SHRI MADAN MOHAN GUPTA, SHRI SHANKAR LAL SAINI AND SHRI KHANIYA LAL SAINI AND ASSESSMENT ORDERS OF SHRI MADHO LAL SAINI, SHRI SHANKAR LAL SAINI AND SH RI KHANIYA ITA NO. 245 TO 247/JP/2017 & 265, 274 & 275/JP/2017 SHRI TARUN GOEL VS. ITO & ORS. 18 LAL SAINI, I HAVE NO HESITATION IN HOLDING THAT THE AO DID NOT HAVE ANY EVIDENCE TO SHOW THAT ANY CASH, OVER AND A BOVE THE SALES CONSIDERATION RECORDED IN THE SALE DEED, WAS PAID BY SHRI TARUN GOYAL, SHRI ARUN GOYAL AND M/S PINKCITY REALTY PVT. LTD. TOWARDS PURCHASE OF LANDS TO SHRI MADHO LAL SA INI, SHRI SHANKAR LAL SAINI AND SHRI KHANIYA LAL SAINI. THE C ONCLUSION OF THE AO THAT SINCE SHRI SHRI MADHO LAL SAINI, SHR I SHANKAR LAL SAINI AND SHRI KHANIYA LAL SAINI HAVE PAID CASH (RS.10,32,24,417/-) TOWARDS THE PURCHASE OF LAND AT AMER AND CHOUMU TEHSIL, THEREFORE, THIS CASH MUST HAVE B EEN PAID BY SHRI TARUN GOYAL, SHRI ARUN GOYAL AND M/S PINKCI TY REALTY PVT. LTD. TO THESE PERSONS TOWARDS THE PURCHASE OF THEIR LAND IS FARFETCHED AND NOT BASED ON ANY DOCUMENTARY OR O RAL EVIDENCE. AN ADDITION MADE WITHOUT ANY BASIS CANNOT BE SUSTAINED. THEREFORE, THE ADDITION OF RS.4,35,26,85 4/- MADE BY THE AO IN THE HANDS OF THE APPELLANT UNDER THE H EAD 'UNDISCLOSED INVESTMENTS IN PURCHASES OF PROPERTIES UNDER SECTION 69B' IS HEREBY DELETED. THE GROUND OF APPEA L IS ALLOWED. 7. WE HAVE ALSO CAREFULLY PERUSED THE STATEMENTS OF SHRI MADAN MOHAN GUPTA AS PRODUCED BEFORE US AS PER DIRECTIONS OF THE BENCH TO THE DEPARTMENT AS WELL AS STATEMENTS OF SHRI SHA NKAR LAL SAINI AND SHRI KANHIYA LAL SAINI AND FOUND THAT NOTHING INCRI MINATING HAS BEEN STATED IN THE STATEMENT OF SHRI MADAN MOHAN GUPTA A S WELL AS IN THE STATEMENT OF SAINI BROTHERS ABOUT THE CASH PAYMENT BY THE ASSESSEES IN RESPECT OF THE LAND PURCHASED BY THEM. THEREFORE, E VEN IF THE SEIZED MATERIAL ALONG WITH THE STATEMENTS OF SHRI MADAN MO HAN GUPTA AND ITA NO. 245 TO 247/JP/2017 & 265, 274 & 275/JP/2017 SHRI TARUN GOEL VS. ITO & ORS. 19 SAINI BROTHERS ARE TAKEN INTO CONSIDERATION NOTHING HAS COME OUT TO BE REGARDED AS ANY INCRIMINATING MATERIAL OR FACT TO R EVEAL ANY CASH PAYMENTS BY THE ASSESSEES FOR PURCHASE OF LANDS IN QUESTION. THE ADDITION MADE BY THE AO IS SOLELY ON HIS OWN PRESUM PTION OF PAYMENT OF CASH WITHOUT ANY TANGIBLE MATERIAL OR EVIDENCE I N SUPPORT OF HIS DECISION. WHEN THE SEIZED MATERIAL FOUND FROM SHRI MADAN MOHAN GUPTA AS WELL AS OTHER MATERIAL GATHERED DURING POS T SEARCH INQUIRY HAS NOT ESTABLISHED ANY DIRECT OR PROXY CONNECTION WITH THE TRANSACTION OF PURCHASE OF LAND BY THE ASSESSEES THEN THE ASSUMPTI ON AND PRESUMPTION OF THE AO THAT THE ASSESSEE MIGHT HAVE PAID CASH OVER AND ABOVE THE CONSIDERATION SHOWN IN THE SALE DEEDS IS ONLY SURMISES AND CONJECTURES. WE NOTE THAT THE ASSESSING OFFICER OF THE SAINI BROTHERS AND FATHER WHILE FRAMING THE ASSESSMENT U/S 144 R.W .S. 147 OF THE ACT DATED 18.03.2015 ACCEPTED THE SALE CONSIDERATION AS RECORDED IN THE SALE DEEDS FOR THE PURPOSE OF THE ASSESSING THE CAP ITAL GAIN. THE AO HOWEVER, MADE ADDITIONS ON ACCOUNT OF UNEXPLAINED I NVESTMENT BY THEM ON ACCOUNT OF CASH PAYMENT REFLECTED IN THE SE IZED MATERIAL. THEREFORE, THE AO HAS NOT DISTURBED THE SALE CONSID ERATION RECEIVED BY SAINI BROTHERS AND FATHER IN RESPECT OF SALE OF LAN D TO THE ASSESSEES BEFORE US. THE SAID FINDING OF THE ASSESSING OFFICE R IN CASE OF SAINI ITA NO. 245 TO 247/JP/2017 & 265, 274 & 275/JP/2017 SHRI TARUN GOEL VS. ITO & ORS. 20 BROTHERS AND FATHER DEMOLISHED THE CASE OF THE AO P RESUMING THE PAYMENT OF CASH BY THE ASSESSEES BEFORE US FOR PURC HASE THE LAND FROM SAINI FAMILY MEMBERS. ACCORDINGLY, WHEN THE TRANSAC TION OF SALE OF LAND AND SALE CONSIDERATION IS ACCEPTED BY THE AO OF THE SAINI FAMILY MEMBERS AS RECORDED IN THE SALE DEEDS THEN THE ADDI TION MADE BY THE AO ON ACCOUNT OF CASH PAYMENT BY THE ASSESSEES U/S 69B OF THE ACT HAS NO LEGS TO STAND IN THE ABSENCE OF ANY INCRIMIN ATING MATERIAL BUT THE SAID ADDITION IS MERELY BASED ON ASSUMPTION OF THE AO. ACCORDINGLY, WE DO NOT FIND ANY ERROR OR ILLEGALITY IN THE IMPUG NED ORDER OF THE LD. CIT(A) QUA THIS ISSUE. 8. THE IDENTICAL ISSUE HAS BEEN RAISED BY THE REVEN UE IN THE OTHER TWO APPEALS AND THEREFORE, IN VIEW OF OUR FINDINGS ON THIS ISSUE THE APPEALS OF THE REVENUE IN CASE OF SHRI TARUN GOEAL AND M/S PINKCITY REALITY PVT. LTD. ALSO DESERVES TO BE DISMISSED. 9. IN THE ASSESSEES APPEAL THE ASSESSEE HAS RAISE D THE ISSUE OF VALIDITY OF REOPENING OF ASSESSMENT THOUGH ALL THRE E ASSESSEES JAVE RAISED THE ADDITIONAL GROUND AND VALIDITY OF REOPEN ING HOWEVER, AT THE TIME OF HEARING, THE LD. AR OF THE ASSESSEE HAS STA TED AT BAR THAT THE ASSESSEE IN CASE OF SHRI TARUN GOEAL AND M/S PINKCI TY REALITY PVT. LTD. DOES NOT PRESS THE ISSUE OF VALIDITY OF REOPENING. ACCORDINGLY, THE CROSS ITA NO. 245 TO 247/JP/2017 & 265, 274 & 275/JP/2017 SHRI TARUN GOEL VS. ITO & ORS. 21 APPEALS IN CASE OF SHRI TARUN GOEAL AND M/S PINKCIT Y REALITY PVT. LTD. IN ITA NO. 245/JP/2017 & ITA NO. 247/JP/2017 ARE DISMI SSED BEING NOT PRESSED. 10. IN CASE OF SHRI ARUN GOEL, THE LD. AR OF THE AS SESSEE HAS CONTENDED THAT ONCE THE ORIGINAL ASSESSMENT WAS COM PLETED U/S 143(3) OF THE ACT AND THE REOPENING IS AFTER 4 YEARS THEN IN THE ABSENCE OF FAILURE ON THE PART OF THE ASSESSEE TO DISCLOSE FUL LY AND TRULY ALL RELEVANT MATERIAL FACTS NECESSARY FOR THE ASSESSMENT THE REO PENING IS INVALID IN VIEW OF THE PROVISO TO SECTION 147 OF THE INCOME TA X ACT. THE LD. AR HAS FURTHER CONTENDED THAT EVEN THE APPROVAL U/S 15 1 OF THE ACT GRANTED BY THE LD. CIT(A) IS NOT VALID AS IT IS OF SUBSEQUENT DATE I.E. 14.04.2014 WHEREAS THE NOTICE U/S 148 ISSUED BY THE AO ON 20.03.2014 BEFORE US, THE LD. AR HAS SUBMITTED THAT IN ABSENCE OF ANY VALID SANCTION THE NOTICE ISSUED U/S 148 OF THE ACT IS VO ID AB INITIO AND THEREFORE, THE REASSESSMENT IS LIABLE TO BE QUASHED . IN SUPPORT OF HIS CONTENTION, HE HAS RELIED UPON THE FOLLOWING DECISI ONS:- DHADDA EXPORTS VS. ITO 58 TAXMANN.COM 176. THE DECISION OF COORDINATE BENCHES DATED 13.12.2017 IN CASE OF SHRI NAVRATTAN KOTHARI VS. ACIT IN ITA NO. 425/JP/2017. ITA NO. 245 TO 247/JP/2017 & 265, 274 & 275/JP/2017 SHRI TARUN GOEL VS. ITO & ORS. 22 SUNITA DHADDA VS. DCIT 148 TTJ 719 (UPHELD BY THE HONBLE JURISDICTIONAL HIGH COURT VIDE JUDGMENT DAT ED 31.07.2017 ALONG WITH DB. INCOME TAX APPEAL NO. 19 7 TO 199/201.) ACCORDINGLY, THE LD. AR HAS SUBMITTED THAT THE REO PENING IS INVALID AND LIABLE TO BE QUASHED. 11. ON THE OTHER HAND, THE LD. DR HAS SUBMITTED THA T AS REGARDS THE APPROVAL U/S 151 OF THE ACT IT IS ONLY A MISTAKE IN WRITING THE DATE AS THE CORRECT DATE IS 14.03.2014 WHICH IS WRITTEN AS 14.04.2014. HE HAS FILED ANOTHER COPY OF SANCTION WHEREIN THE CORRECT DATE IS WRITTEN AS 14.03.2014. THE LD. DR HAS FURTHER SUBMITTED THAT E VEN AS PER THE PROCEEDINGS SHEET OF THE LD. CIT THE CORRECT DATE I S REFLECTED AS ON 14.03.2014. THUS A MERE MISTAKE IN WRITING THE DATE WILL NOT VITIATE THE PROCEEDINGS. 12. AS REGARDS THE REASONS RECORDED BY THE AO, THE LD. DR HAS SUBMITTED THAT WHEN THE ASSESSING OFFICER HAS RECEI VED THE INFORMATION REGARDING THE CASH PAYMENT BY THE SAINI FAMILY MEMB ERS AS PER THE SEIZED MATERIAL AND STATEMENT OF SHRI MADAN MOHAN G UPTA ALONG WITH THE STATEMENT OF THE SAINI BROTHERS THEN, IT CONSTI TUTE A TANGIBLE MATERIAL FOR FORMATION OF BELIEF THAT THE INCOME AS SESSABLE TO TAX IN THE HANDS OF THE ASSESSEES HAS ESCAPED ASSESSMENT. HE H AS FURTHER ITA NO. 245 TO 247/JP/2017 & 265, 274 & 275/JP/2017 SHRI TARUN GOEL VS. ITO & ORS. 23 SUBMITTED THAT THE REASONS RECODED ITSELF SPEAKS AN D MANIFEST THE SATISFACTION OF THE AO THAT THERE IS FAILURE ON THE PART OF THE ASSESSEE TO DISCLOSE FULLY AND TRULY THE RELEVANT FACTS NECESSA RY FOR ASSESSMENT. 13. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AS WEL L AS RELEVANT MATERIAL ON RECORD. THE ASSESSING OFFICER WHILE REO PENING THE ASSESSMENT HAS RECORDED REASONS AS UNDER:- ASSESSMENT U/S 148/143(3) WAS COMPLETED IN THE CAS E ON 08.09.2011 AND ASSESSED INCOME WAS RS. 1,47,49,650/ -. LATER, A SEARCH AND SEIZURE OPERATION U/S 132 OF TH E I.T. ACT, 1961 WAS CARRIED OUT BY INCOME TAX DEPARTMENT, INVESTIGATION WING, JAIPUR ON 23.05.2013 AT THE RES IDENTIAL PREMISES OF SHRI MADAN MOHAN GUPTA, A-30, SARASWATI COLONY, SANAGANER IN THE CASE OF RAJENDRA JAIN, RAJ ENDRA BARDIYA & OTHERS GROUP, JAIPUR AND CERTAIN INCRIMIN ATING DOCUMENTS WERE FOUND AND SEIZED. THE ABOVE INCRIMIN ATING DOCUMENTS INCLUDE DOCUMENTS RELATED TO SALE/PURCHAS E TRANSACTIONS MADE BY SHRI KANHAI LAL, SHRI SHANKAR LAL AND SHRI MADHO LAL SAINI, R/O PATEL NAGER, 22 GODOWN, JAIAPUR. IN THESE DOCUMENTS, IT WAS MENTIONED THAT BY SHRI K ANHAIYA LAL, SHRI SHANKAR LAL AND SHRI MADHO LAL SAINI, R/O PATEL NAGAR, 22 GODOWN, JAIPUR A CASH PAYMENT OF RS. 10, 32, 24, 417/- HAS BEEN MADE FOR THE PURCHASES OF PROPERTIES AND AS PE R THEIR STATEMENTS THEY ADMITTED THAT THE SOURCE OF THEIR I NVESTMENT FOR PURCHASE OF VARIOUS LANDS AND SOME OFFICES AT J AIPUR IS FROM THE SALE CONSIDERATION OF THEIR LAND AT BHANKROTA W HICH HAS BEEN SOLD TO THE ASSESSEE I.E. SHRI TARUN GOEL. B) TAKING NOTE OF THE ABOVE FACT STATEMENTS SHRI KA NHAIYA LAL, SHRI SHANKAR LAL AND SHRI MADHO LAL SAINI WERE RECO RDED WHEREIN ALL OF THEM CATEGORICALLY DENIED FOR HAVING ANY CASH ITA NO. 245 TO 247/JP/2017 & 265, 274 & 275/JP/2017 SHRI TARUN GOEL VS. ITO & ORS. 24 RECEIPTS/PAYMENTS IN RESPECT OF THE PROPERTIES SOLD AND PURCHASED BY THEM. THEY HAVE STATED THAT THE TRANSA CTIONS IN RESPECT OF ALL SALES AND PURCHASES HAVE BEEN MADE O NLY THROUGH BANKING CHANNELS. HOWEVER ALL OTHER DETAILS RELATED TO THE PURCHASES OF THE PROPERTIES I.E. CHEQUE AMOUNT, REG ISTRY AMOUNT, AREA OF THE PROPERTY, ADDRESSES ETC. ARE TH E SAME AS IT WERE IN DOCUMENTS FOUND AT THE HOUSE OF SHRI MADAN MOHAN GUPTA.. AS SUCH, IN VIEW OF THE ABOVE FACT THEIR DE NIAL FOR HAVING CASH TRANSAACTIONS HAS GOT NO FORCE. THE OTH ER DETAILS DULY SUBSTANTIATE THE FACT THAT SHRI KANHAIYA LAL, SHRI SHANKAR LAL AND SHRI MADHO LAL SAINI, R/O PATEL NAGAR, 22 G ODOWN, JAIPUR MADE CASH PAYMENTS FOR THEIR PURCHASES AND A S THEIR SOLE SOURCE OF THESE PURCHASES IS LAND SALE AT BHAN KROTA TO SHRI ARUN GOYAL IN A.Y. 2007-08 AND A.Y.2008-09, SO THIS CASH AMOUNT MUST HAVE BEEN RECEIVED BY THEM FROM SHRI AR UN GOYAL. AS SOURCES AND REASON OF SUCH A HUGE CASH PA YMENT OF RS. 10,32,24,417/- BY SHRI ARUN GOYAL IS NOT KNOWN. C) AS THE SAID CASH AMOUNT OF RS. 10,32,24,417/- PE RTAINS TO THE YEAR UNDER CONSIDERATION. THEREFORE, IN VIEW OF THE ABOVE MENTIONED FACTS I HAVE REASONS TO BELIEVE THAT THE INCOME OF THE ASSESSEE FOR THE YEAR UNDER CONSIDERATION HAS E SCAPED ASSESSMENT TO THE EXTENT OF RS. 10,32,24,417/-WITHI N THE MEANING OF SECTION 147/148 OF THE IT ACT, 1961. AS SUCH, IT IS A FIT CASE TO ISSUE NOTICE U/S 148 OF THE IT ACT, 196 1. THEREFORE, APPROVAL OF CIT -II, JAIPUR IS REQUESTED TO INITIAT E PROCEEDINGS U/S 147 IN THE INSTANCE CASE. THUS, IT IS CLEAR FROM THE REASONS RECORDED BY THE AO THAT HE HAS PROCEEDED ON THE BASIS OF THE SEIZED MATERIAL IN TH E CASE OF SHRI MADAN MOHAN GUPTA AS WELL AS STATEMENTS OF SAINI BROTHERS AND FATHER. THE AO HAS CLEARLY MENTIONED IN THE REASONS THAT THE SA INI BROTHERS HAVE ITA NO. 245 TO 247/JP/2017 & 265, 274 & 275/JP/2017 SHRI TARUN GOEL VS. ITO & ORS. 25 SPECIALLY DENIED IN STATEMENT AS CASH PAYMENT IN RE SPECT OF PURCHASE OF LAND PAYMENT IS MADE ONLY THROUGH BANKING CHANNEL. SINCE THE TRANSACTION OF PURCHASE AND SALE OF THE PROPERTIES ARE NOT IN DISPUTE AND WERE ALSO FOUND IN THE SEIZED MATERIAL THEREFOR E, THE AO HAS FORMED THE BELIEF AS PER THE DETAILS RECORDED IN TH E SEIZED MATERIAL IN RESPECT OF THE LAND PURCHASE AND PAYMENT BY THE SAI NI FAMILY MEMBERS AND EXTRAPOLATED THE SAME TO PRESUME THAT THE SAID CASH PAYMENT OF THE SAINI BROTHERS AND FATHER IS SOURCED FROM THE P AYMENT MADE BY THE ASSESSEE IN RESPECT OF THE LAND PURCHASES FROM SAIN I FAMILY MEMBERS. DESPITE ALL THESE FACTS RECORDED IN THE REASONS THE ASSESSING OFFICER NOWHERE ALLEGED THAT THE INCOME ASSESSABLE TO TAX H AS ESCAPED ASSESSMENT DUE TO THE REASONS OF FAILURE OF THE ASS ESSEE TO DISCLOSE FULLY AND TRULY ALL MATERIAL FACTS NECESSARY FOR HI S ASSESSMENT. THERE IS NO DISPUTE THAT REOPENING OF THE ASSESSMENT IS AFTE R 4 YEARS FROM THE END OF THE RELEVANT ASSESSMENT YEAR AND THEREFORE, FOR INITIATION OF THE PROCEEDINGS U/S 147/148 OF THE ACT IT IS A PRE COND ITION THAT WHEN THE ORIGINAL ASSESSMENT IS FRAMED U/S 143(3) OF THE AC T NO ACTION SHALL BE TAKEN U/S 147 OF THE ACT UNLESS THE INCOME CHARGEAB LE TO TAX HAS ESCAPED ASSESSMENT FOR THE REASON OF FAILURE ON THE PART OF THE ASSESSEE TO DISCLOSE FULLY AND TRULY ALL MATERIAL F ACTS NECESSARY FOR ITA NO. 245 TO 247/JP/2017 & 265, 274 & 275/JP/2017 SHRI TARUN GOEL VS. ITO & ORS. 26 ASSESSMENT. WHEN THE ASSESSING OFFICER HAS NO EVEN ALLEGED THE FAILURE ON THE PART OF THE ASSESSEE TO DISCLOSE FULLY AND T RULY ALL MATERIAL FACTS NECESSARY FOR ASSESSMENT THEN, REOPENING AFTER 4 YE ARS IS NOT SUSTAINABLE AS HIT BY THE PROVISO TO SECTION 147 OF THE IT ACT. 14. FURTHER, WE NOTE THAT AS PER THE APPROVAL OF TH E CIT HE HAS SIGNED WITH DATE 14.04.2014 WHICH IS NOT IN DISPUTE . THE ANOTHER SET OF APPROVAL FILED BY THE LD. DR ITSELF REVEALS THAT TH E DATE IS MENTIONED AS 14.03.2014 THEREFORE, IT APPEARS THAT THE LD. CIT H AS GRANTED APPROVAL TWICE AND THE FIRST APPROVAL BEARS DATE AS 14.04.20 14 WHERE AS THE SECOND SET FILED BY THE LD. DR BEARS THE DATE 14.03 .2014. THE SIGNATURE ON BOTH THESE SETS ARE NOT IN DISPUTE BEING BY THE SAME AUTHORITY AND PERSONS SHRI D.D. GOEL CIT-II RANGE 6, JAIPUR. THUS THEREFORE, CANNOT BE TWO APPROVALS OF THE SAME REASONS RECORDED BY TH E AO ISSUING THE NOTICE U/S 148 OF THE ACT. EVEN OTHERWISE WHEN THE REOPENING IS AFTER 4 YEARS FROM THE END OF THE ASSESSMENT AND ORIGINAL A SSESSMENT WAS COMPLETED U/S 143(3) OF THE ACT THEN IN THE ABSENCE OF ANY ALLEGATION BY THE AO OF FAILURE OF THE ASSESSEE TO DISCLOSE FU LLY AND TRULY ALL MATERIAL FACTS RELEVANT FOR THE ASSESSMENT THE REOP ENING IS NOT VALID AND THE SAME IS QUASHED. ITA NO. 245 TO 247/JP/2017 & 265, 274 & 275/JP/2017 SHRI TARUN GOEL VS. ITO & ORS. 27 IN THE RESULT, THE APPEALS OF THE REVENUE ARE DIS MISSED AND THE CROSS APPEAL OF THE ASSESSEE IN ITA NO. 245/JP/2017 AND 247/JP/2017 ARE DISMISSED AND CROSS APPEAL IN ITA NO. 246/JP/20 17 IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 03/12/2019. SD/- SD/- FOE FLAG ;KNO FOT; IKY JKO (VIKRAM SINGH YADAV) (VIJAY PAL RAO) YS[KK LNL;@ ACCOUNTANT MEMBER U;KF;D LNL;@ JUDICIAL MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 03/12/2019. * SANTOSH. VKNS'K DH IZFRFYFI VXZSFKR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT- 1- SH. TARUN GOEL, JAIPUR. 2- SH. ARUN GOEL, JAIPUR. 3- M/S PINKCITY REALITY P. LTD., JAIPUR. 2. IZR;FKHZ@ THE RESPONDENT- ITO, WARD-6(5), JAIPUR. ACIT, CIRCLE-6, JAIPUR. ITO, WARD, 6(3), JAIPUR. ITO, WARD-6(2), JAIPUR. 3. VK;DJ VK;QDR@ CIT 4. VK;DJ VK;QDR@ CIT(A) 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ@ DR, ITAT, JAIPUR. 6. XKMZ QKBZY@ GUARD FILE {ITA NO. 245 TO 247/JP/2017 & 265, 274 & 275/JP/2017 } VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASST. REGISTRAR