SUNIL KUMAR, Jaipur V. ITO, BEHROR

ITA 265/JPR/2015

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 5213 (ITAT-JAIPUR)
• Duration Of Justice: 1 year(s) 4 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-08-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2009-2010
• Appeal Filed On: 19-03-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RAJENDRA SINGH CIT DHK
• Keywords: Unexplained investment; Source of fund; Corroborative evidences
• Section: 131; 69; 148

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES, JAIPUR JH HKKXPAN] YS[KK LNL; ,OA JH YFYR DQEKJ] U;KF;D LN L; DS LE{K BEFORE: SHRI BHAGCHAND, AM & SHRI LALIET KUMAR, JM VK;DJ VIHY LA-@ ITA NO. 265/JP/2015 FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2009-10 SUNIL KUMAR, S/O- SHRI BHARAT SINGH, VPO- JAAT BEHROR, MUNDAWAR, ALWAR (RAJ) CUKE VS. INCOME TAX OFFICER, WARD-BEHROR. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO.: BZCPS 1287 D VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY : SHRI P.C. PARWAL (CA) JKTLO DH VKSJ LS@ REVENUE BY : SHRI RAJENDRA SINGH (ADDL.CIT) LQUOKBZ DH RKJH[K@ DATE OF HEARING : 13/07/2016 MN?KKS'K .KK DH RKJH[K @ DATE OF PRONOUNCEMENT : 13/08/2016 VKNS'K@ ORDER PER: LALIET KUMAR, J.M. THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER DATED 15/01/2015 PASSED BY THE LD CIT(A), ALWAR FOR THE A. Y. 2009-10. THE SOLE GROUND TAKEN BY THE ASSESSEE IN APPEAL IS AS U NDER:- 1 THE LD. CIT(A) HAS ERRED ON FACTS AND IN LAW IN CONFIRMING THE ADDITION OF RS. 50,00,000/- ON ACCOU NT OF ALLEGED UNEXPLAINED INVESTMENT IN AGRICULTURAL LAND. ITA 265/JP/2015_ SUNIL KUMAR VS ITO 2 2. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE IS STATED TO BE AN AGRICULTURIST AND HAS NOT FILED ANY RETURN OF INCOM E. THE RETURN WAS FILED BY THE ASSESSEE ON 17/10/2011 IN PURSUANCE OF THE N OTICE RECEIVED U/S 148 OF THE INCOME TAX ACT, 1961 (IN SHORT THE ACT) DATED 15/09/2011. IN THE SAID RETURN OF INCOME, THE ASSESSEE HAD SHOWN T OTAL INCOME OF RS. 30,760/-. THEREAFTER, A NOTICE U/S 143(2) OF THE AC T WAS ISSUED ON 26/10/2012 AND THE DATE OF HEARING WAS FIXED ON 16/1 1/2012. THE LD A.O. NOTICED THAT DURING THE YEAR UNDER CONSIDERATI ON, THE ASSESSEE PURCHASED SIX ACRES OF LAND LOCATED AT NAGAL UGRA TE JU, TEHSIL BAWAL, HARYANA FROM SHRI PREM CHAND, S/O- RAM NARAYAN, R/O - VILLAGE- SHAHPUR, POST-NAGAL UGRA (BAWAL) THROUGH IKRARNAMA F OR A CONSIDERATION OF RS. 50 LACS AND PAYMENT OF THE SAID AMOUNT WAS MA DE IN TWO INSTALLMENTS I.E. RS. 20 LACS ON 14/7/2008 AND RS. 30 LACS ON 30/11/2008. THE LD ASSESSING OFFICER ASKED VIDE ORDE R SHEET DATED 26/10/2012 TO PRODUCE DOCUMENTARY EVIDENCE IN RESPE CT OF THE INVESTMENT MADE BY THE ASSESSEE . DURING THE ASSESS MENT PROCEEDINGS, THE ASSESSEE PRODUCED VARIOUS DOCUMENTS IN THE FORM OF AFFIDAVIT FROM HIS FATHER SHRI BHARAT SINGH, AFFIDAVIT OF SHRI SAT YAVEER SINGH AND OTHER DOCUMENTS. THE LD ASSESSING OFFICER HAD ALSO RECORD ED THE STATEMENT OF SHRI DEER PAL AND SHRI HUKAM SINGH. HOWEVER, THE LD ASSESSING OFFICER ITA 265/JP/2015_ SUNIL KUMAR VS ITO 3 WAS NOT SATISFIED WITH THE STATEMENT OF THE SAID WITNE SSES AND ALSO THE AFFIDAVIT, MADE THE ADDITION OF RS. 50 LACS TO THE INCOME OF THE ASSESSEE ON ACCOUNT OF UNEXPLAINED INVESTMENT FROM HIS UNDIS CLOSED SOURCE OF INCOME. 3. BEING AGGRIEVED BY THE ORDER OF THE LD ASSESSING OFFICER, THE ASSESSEE CARRIED THE MATTER IN 1 ST APPEAL BEFORE THE LD. CIT(A), WHO HAD UPHELD THE ORDER OF THE LD ASSESSING OFFICER BY OBS ERVING AS UNDER:- 4.11 A CAREFUL ANALYSIS OF THE ABOVE FACTS ONLY R EVEAL THAT THE APPELLANT HAS FAILED TO FURNISH ANY EVIDENCE EV EN AT THE STAGE OF APPELLATE PROCEEDINGS WITH REGARD TO THE SOURCES OF FUNDS FOR THE PURCHASE OF AGRICULTUR AL LAND FOR AN AMOUNT OF RS. 50 LACS. ALL THE EFFORTS OR THE EXPLANATIONS GIVEN BY THE APPELLANT HAVE BEEN EXAMINED BY THE AO AND WERE FOUND TO BE SELF SERVING IN NATURE AND WITHOUT ANY SUPPORTING EVIDENCE. IN VIEW OF THESE FACTS, I HOLD THAT AO WAS JUSTIFIED IN MAKING AN ADDITION ON ACCOUNT OF UNEXPLAINED INVESTMENT. ACCORDINGLY, I CONFIRM AN ADDITION OF RS. 50 LACS MADE BY THE AO ON ACCOUNT OF UNEXPLAINED INVESTMENT FOR PURCHASE OF AGRICULTURAL LAND. IN THE RESULT, THE APPEAL IS DISMISSED. ITA 265/JP/2015_ SUNIL KUMAR VS ITO 4 4. NOW THE ASSESSEE IS IN APPEAL BEFORE US. THE LD AR OF THE ASSESSEE HAS SUBMITTED THAT FROM THE FACTS STATED A BOVE AND THE EVIDENCE PRODUCED BEFORE THE LOWER AUTHORITIES, IT I S EVIDENT THAT BOTH THE AUTHORITIES HAVE NOT CONSIDERED THESE EVIDENCES IN PROPER PERSPECTIVE AND MADE/CONFIRMED THE ADDITION WITH A P RE-DETERMINED MIND. THE EXPLANATION AND THE EVIDENCES IN RESPECT O F EACH OF THE ISSUES RAISED BY THE LOWER AUTHORITIES IS AS UNDER:- (I) THE FACT THAT ASSESSEE IS ONLY HAVING SHARE IN THE LAND PURCHASED THROUGH AGREEMENT FROM SH. PREM CHAND IS EVIDENCED BY THE CONSENT DEED DULY NOTARIZED ON 21.06.2008 MADE ON A STAMP PAPER DATED 27.03.2008, WHERE SH. HUKUM SINGH AND SH. SATVEER HAVE GIVEN THE CONSENT THAT ASSESSEE CAN GET THE AGREEMENT IN HIS NAME FOR THE ENTIRE LAND AS THEY ARE UNABLE TO HAVE THEI R NAME IN THE AGREEMENT AS THEY ARE RESIDING OUTSIDE DUE TO EMPLOYMENT. THIS CONSENT DEED WAS NOT HELD TO BE BOGUS/SHAM. IT MAY BE NOTED THAT NO QUESTION ON THI S ISSUE WAS ASKED BY THE AO IN THE STATEMENT DATED 20.03.2013 RECORDED BY HIM. FURTHER, AFFIDAVIT OF S H. SATVEER WHERE HE AFFIRMED THAT HE IS 1/4 TH CO-OWNER IN THE SAID LAND IS NOT CONTROVERTED. THEREFORE, BY IGNORIN G THESE EVIDENCES, IT WAS INCORRECT ON PART OF THE LOWER AUTH ORITIES TO HOLD THAT ASSESSEE IS THE COMPLETE OWNER OF THIS LAND. ITA 265/JP/2015_ SUNIL KUMAR VS ITO 5 (II) SH. HUKUM SINGH HAS CONTRIBUTED RS. 11 LACS IN PURCHASE OF THIS LAND. IN SUPPORT OF THE SOURCE OF THIS INVESTM ENT, EVIDENCE OF SALE OF AGRICULTURAL LAND BY HIM FOR RS.5,87,000/- ON 01.09.2008 WAS FILED. FURTHER, FROM HIS BANK ACCOUNT, THERE IS A WITHDRAWAL OF RS.1,60,000/- ON 25.11.2008. IN HIS STATEMENT, HE HAS STATED THAT HI S ANNUAL AGRICULTURAL INCOME IS RS. 2 LACS. HE ALSO STATED T HAT HAS GIVEN RS. 8 LACS TO THE ASSESSEE ABOUT 5 YEARS BACK . ALL THESE EVIDENCES SHOWS HIS CREDITWORTHINESS TO CONTRIB UTE RS. 11 LACS IN PURCHASE OF THE LAND BUT THE SAME WER E IGNORED BY THE LOWER AUTHORITIES. THEREFORE, THE FIND ING OF THE CIT(A) THAT SH. HUKUM SINGH FAILED TO FURNISH E VIDENCE WITH REGARD TO SOURCE OF FUND IS INCORRECT. (III) SH. SATVEER CONTRIBUTED RS. 11 LACS IN PURCHA SE OF THIS LAND. HE HAS STATED IN HIS AFFIDAVIT THAT HE AND HIS BROTHER DHARAMVEER SOLD AGRICULTURAL LAND FOR RS.12 LACS. F URTHER, SH. DHARAMVEER HAS FILED AN AFFIDAVIT WHERE HE STATE D THAT HE HAS GIVEN HIS SHARE IN THE SALE PROCEEDS TO SATV EER. THUS, THE SOURCE OF FUND IN THE HAND OF SATVEER TO G IVE HIS CONTRIBUTION FOR PURCHASE OF LAND IS FULLY ESTABLIS HED. THE LOWER AUTHORITIES HAVE NOT GIVEN ANY COGNIZANCE TO T HESE DOCUMENTARY EVIDENCES AND THEREFORE THE FINDING OF LOWER AUTHORITIES IN THIS CONNECTION IS INCORRECT. (IV) SH. BHARAT SINGH, FATHER OF THE ASSESSEE, HAS GIVEN RS.22 LACS TO THE ASSESSEE FOR PURCHASE OF THE LAND. SH. BHARAT SINGH IN HIS AFFIDAVIT HAS AFFIRMED THAT HE RECEIVE D THIS ITA 265/JP/2015_ SUNIL KUMAR VS ITO 6 AMOUNT FROM SH. DHEERPAL S/O SH. GOPI RAM ON 20.06. 2008 AGAINST SALE OF HIS AGRICULTURAL LAND. THE PROOF OF THE LANDHOLDING WAS FILED. SH. BHARAT RAM HAS ALSO EXECU TED AN AFFIDAVIT ON 24.08.2011 I.E. BEFORE THE ISSUE OF NO TICE U/S 148 WHERE THE FACT OF HAVING RECEIVED RS. 22 LACS F ROM DHEERPAL S/O GOPI RAM AGAINST THE SALE OF HIS LAND WAS STATED. THE AO HAS RECORDED THE STATEMENT OF DHEERPA L WHERE HE AFFIRMED THIS FACT. SH. DHEERPAL HAS GIVEN THE AMOUNT OF RS. 22 LACS OUT OF THE SALE PROCEEDS OF T HE LAND FOR RS.43,60,000/- ON 05.05.2008. HIS BANK ACCOUNT ALSO SHOWS A DEPOSIT OF RS. 48 LACS ON 06.05.2008 OUT OF WHICH HE HAS WITHDRAWN RS. 40 LACS ON 10.06.2008 OUT OF WHIC H RS.22 LACS WAS GIVEN TO SH. BHARAT SINGH ON 20.06.20 08. ALL THESE EVIDENCES CLEARLY PROVES THAT SH. DHEERPAL GA VE RS. 22 LACS TO SH. BHARAT SINGH WHO GAVE THIS AMOUNT TO THE ASSESSEE FOR THE PURCHASE OF LAND. ALL THESE FACTS ARE CONFIRMED BY SH. DHEERPAL IN HIS STATEMENT ALSO. NO CONTRARY EVIDENCE IS BROUGHT ON RECORD BY THE LOWER AUTHORITIES. THEREFORE, THE FINDING OF CIT(A) THAT TH E EVIDENCE PRODUCED BY THE ASSESSEE LACKS SUBSTANCE A ND MERIT IS ONLY ON SURMISES AND CONJECTURES. (V) THE ASSESSEE OWNS A DUMPER HAVING REGISTRATION N O. HR55A-6310 WHICH WAS TRANSFERRED IN HIS NAME ON 14.08.2007. HE SOLD THIS VEHICLE FOR RS.6 LACS TO S H. NARENDRA SINGH ON 11.11.2008. COPY OF THE SALE LETT ER IS AT. THIS CLEARLY EVIDENCED THE SOURCE OF RS. 6 LACS WITH THE ITA 265/JP/2015_ SUNIL KUMAR VS ITO 7 ASSESSEE FOR MAKING PAYMENT TOWARDS PURCHASE OF LAND . THIS DOCUMENTARY EVIDENCE WAS IGNORED BY THE CIT(A) IN HOLDING THAT ASSESSEE HAS FAILED TO FURNISH EVIDENC E WITH REGARD TO SALE OF TRUCK OR RECEIPT OF MONEY. THUS, T HE SOURCE OF RS. 6 LACS FOR INVESTMENT IN THE LAND IS FULLY ESTABLISHED. HE FURTHER SUBMITTED THAT THE LOWER AUTHORITIES HAVE MADE THE ADDITION ON ACCOUNT OF UNEXPLAINED INVESTMENT IN PURCHASE OF AGRICULTURAL LAND U/S 69. IT IS A FACT ON RECORD THAT ASSESSEE HAS NO SOURCE OF INCOME OTHER THAN AGRICULTURAL INCOME AND DUMPER INCOME FO R FEW MONTHS UPTO THE DATE OF ITS SALE. EVEN THE LOWER AUTHORITIES HAV E NOT FOUND ANY OTHER SOURCE OF INCOME IN THE HANDS OF THE ASSESSEE. HENC E, IT CANNOT BE PRESUMED THAT ASSESSEE HAS ANY UNDISCLOSED INCOME WH ICH IS USED FOR MAKING INVESTMENT IN LAND. IN THESE CIRCUMSTANCES, EVEN IF THE SOURCE OF INVESTMENT IS NOT FOUND TO BE SATISFACTORY EXPLAINE D, NO ADDITION CAN BE MADE IN THE PECULIAR FACTS OF THE CASE IN VIEW OF HONBLE SUPREME COURT DECISION IN CASE OF CIT VS. P.K. NOORJEHAN 237 ITR 570. IN THIS CASE, ASSESSEE WAS A MUSLIM LADY AGED 20 YEARS. SHE MADE CERTAIN INVESTMENTS IN LAND. THE EXPLANATION OF ASSESSEE REG ARDING THE SOURCE OF THE PURCHASE MONEY FOR THESE INVESTMENTS WAS THAT TH E SAME WERE FINANCED FROM OUT OF THE SAVINGS FROM THE INCOME OF THE PROPERTIES ITA 265/JP/2015_ SUNIL KUMAR VS ITO 8 WHICH WERE LEFT BY HER MOTHERS FIRST HUSBAND. THE SA ID EXPLANATION OFFERED BY THE ASSESSEE WAS REJECTED AND ADDITION WAS MADE U/S 69. THE TRIBUNAL, HOWEVER, HELD THAT EVEN THOUGH THE EXPLANAT ION ABOUT THE NATURE AND SOURCES OF THE PURCHASE MONEY WAS NOT SAT ISFACTORY BUT IN THE FACTS AND CIRCUMSTANCES OF THE CASE IT WAS NOT P OSSIBLE FOR THE ASSESSEE TO EARN THE AMOUNT INVESTED IN THE PROPERT IES AND THAT BY NO STRETCH OF IMAGINATION COULD THE ASSESSEE BE CREDIT ED WITH HAVING EARNED THIS INCOME IN THE COURSE OF THE ASSESSMENT YEAR OR WAS EVEN IN A POSITION TO EARN IT FOR A DECADE OR MORE. THE TRIBUN AL TOOK THE VIEW THAT ALTHOUGH THE EXPLANATION OF THE ASSESSEE WAS LIABLE TO BE REJECTED, S. 69 OF THE ACT CONFERRED ONLY A DISCRETION ON THE ITO TO DEAL WITH THE INVESTMENT AS INCOME OF THE ASSESSEE AND THAT IT DI D NOT MAKE IT MANDATORY ON HIS PART TO DEAL WITH THE INVESTMENT AS INCOME OF THE ASSESSEE AS SOON AS THE LATTERS EXPLANATION HAPPEN ED TO BE REJECTED. ACCORDING TO THE HIGH COURT, THE TRIBUNAL HAD NOT CO MMITTED ANY ERROR IN TAKING INTO ACCOUNT THE COMPLETE ABSENCE OF RESO URCES OF THE ASSESSEE AND ALSO THE FACT THAT HAVING REGARD TO HER AGE AND THE CIRCUMSTANCES IN WHICH SHE WAS PLACED SHE COULD NOT BE CREDITED WITH HA VING MADE ANY INCOME OF HER OWN AND IN THESE CIRCUMSTANCES THE TRIB UNAL WAS RIGHT IN REFUSING TO MAKE AN ADDITION OF THE VALUE OF THE IN VESTMENTS TO THE ITA 265/JP/2015_ SUNIL KUMAR VS ITO 9 INCOME OF THE ASSESSEE. LD. COUNSEL APPEARING FOR T HE REVENUE, HAS URGED THAT THE TRIBUNAL AS WELL AS THE HIGH COURT WERE IN ERROR IN THEIR INTERPRETATION OF S. 69 OF THE ACT. IT WAS HELD BY H ONBLE SUPREME COURT AS UNDER:- WE ARE UNABLE TO AGREE. AS POINTED OUT BY THE TRIB UNAL, IN THE CORRESPONDING CLAUSE IN THE BILL WHICH WAS INTRODUC ED IN PARLIAMENT, THE WORD 'SHALL' HAD BEEN USED BUT DURING THE COURS E OF CONSIDERATION OF THE BILL AND ON THE RECOMMENDATION OF THE SELECT COMMITTEE, THE SAID WORD WAS SUBSTITUTED BY THE WOR D 'MAY'. THIS CLEARLY INDICATES THAT THE INTENTION OF PARLIAMENT IN ENACTING S. 69 WAS TO CONFER A DISCRETION ON THE ITO IN THE MATTER OF TREATING THE SOURCE OF INVESTMENT WHICH HAS NOT BEEN SATISFACTOR ILY EXPLAINED BY THE ASSESSEE AS THE INCOME OF THE ASSESSEE AND THE ITO IS NOT OBLIGED TO TREAT SUCH SOURCE OF INVESTMENT AS INCOME IN EVE RY CASE WHERE THE EXPLANATION OFFERED BY THE ASSESSEE IS FOUND TO BE NOT SATISFACTORY. THE QUESTION WHETHER THE SOURCE OF THE INVESTMENT S HOULD BE TREATED AS INCOME OR NOT UNDER S. 69 HAS TO BE CONSIDERED I N THE LIGHT OF THE FACTS OF EACH CASE. IN OTHER WORDS, A DISCRETION HA S BEEN CONFERRED ON THE ITO UNDER S. 69 OF THE ACT TO TREAT THE SOUR CE OF INVESTMENT AS THE INCOME OF THE ASSESSEE IF THE EXPLANATION OFFER ED BY THE ASSESSEE IS NOT FOUND SATISFACTORY AND THE SAID DISCRETION H AS TO BE EXERCISED KEEPING IN VIEW THE FACTS AND CIRCUMSTANCES OF THE PARTICULAR CASE. IN THE INSTANT CASE, THE TRIBUNAL HAS HELD THAT THE DI SCRETION HAD NOT BEEN PROPERLY EXERCISED BY THE ITO AND THE AAC IN T AKING INTO ACCOUNT THE CIRCUMSTANCES IN WHICH THE ASSESSEE WAS PLACED AND THE TRIBUNAL HAS FOUND THAT THE SOURCES OF INVESTMENTS COULD NOT BE TREATED AS INCOME OF THE ASSESSEE. THE HIGH COURT H AS AGREED WITH THE SAID VIEW OF THE TRIBUNAL. WE ALSO DO NOT FIND ANY ERROR IN THE SAID FINDING RECORDED BY THE TRIBUNAL. THERE IS THU S NO MERIT IN THESE APPEALS AND THE SAME ARE ACCORDINGLY DISMISSED. THE RATIO OF THIS DECISION IS ALSO APPLICABLE IN THE PRESENT CASE IN AS MUCH AS IN CASE, THE SOURCE OF INVESTMENT EXPLAINED BY THE ASSESSEE IS ITA 265/JP/2015_ SUNIL KUMAR VS ITO 10 NOT FOUND TO BE SATISFACTORY, IN THE ABSENCE OF ANY OTHER SOURCE OF INCOME HAVING BEEN BROUGHT IN RECORD BY THE LOWER AU THORITIES, ADDITION U/S 69 IS NOT JUSTIFIED. IN VIEW OF ABOVE, THE ADDIT ION MADE BY THE AO AND CONFIRMED BY THE LD. CIT(A) IS UNJUSTIFIED AND T HE SAME BE DELETED. 5. AT THE OUTSET, THE LD DR HAS VEHEMENTLY SUPPORTE D THE ORDER OF THE LD CIT(A) AND HAS SUBMITTED THAT THE ASSESSEE HA S MADE AN INVESTMENT OF RS. 50 LACS ON 14/7/2008 AND 30/11/20 08 AND THE ASSESSEE HAS FAILED TO PROVE THE SOURCE OF SUCH INV ESTMENT. IT WAS SUBMITTED THAT EVEN THE WITNESSES PRODUCED BY THE AS SESSEE IN SUPPORT OF THIS CASE HAS ALSO NOT SUPPORTED THE CASE OF THE ASSESSEE. IT WAS, THEREFORE, SUBMITTED THAT THE ADDITION MADE BY THE LD A.O. AND CONFIRMED BY THE LD CIT(A) IS REQUIRED TO BE UPHELD BY THIS TRIBUNAL. 6. WE HAVE HEARD THE RIVAL CONTENTIONS OF BOTH THE PARTIES, PERUSED THE MATERIAL AVAILABLE ON THE RECORD AND ALSO GONE THROUGH THE PAPER BOOKS FILED BY THE ASSESSEE. IN OUR VIEW, THE BASIC DOCUMENT ON THE BASIS OF WHICH THE ENTIRE CASE OF THE REVENUE HINGES IS THE AGREEMENT DATED 11/7/2008 ALLEGEDLY ENTERED INTO BETWEEN SHRI PREM CHAND, S/O- SHRI RAM NARAYAN, R/O- VILLAGE SHAHPUR, TEHSIL BAWAL , DISTRICT REWARI THROUGH POWER OF ATTORNEY HOLDER SHRI ANIL KUMAR AND THE ASSESSEE. IN ITA 265/JP/2015_ SUNIL KUMAR VS ITO 11 THE SAID AGREEMENT, IT IS MENTIONED THAT THE TOTAL CONSIDERATION OF THE PROPERTY AGREED BETWEEN THE PARTIES WAS RS. 54 LACS. OUT OF THE SAID RS. 54 LACS, A SUM OF RS. 20 LACS WERE RECEIVED BY SHRI PREM CHAND THROUGH SHRI ANIL KUMAR ON 10/06/209 AND THE REMAINING AMOU NT OF RS. 30 LACS WAS RECEIVED WAS SHRI PREM CHAND THROUGH GPA ON 30/11 /2008. IN OUR VIEW, THE AGREEMENT DATED 11/7/2008 WAS NOT SIGNED B Y THE ASSESSEE AND MOREOVER, SAID AGREEMENT WAS NEITHER STAMPED NOR REGISTERED. FURTHER , IT IS RECORDED IN THAT JH LQUHY DQEKJ IQ= JH HKJR FLAG] FUOKLH TKV CGJKSM] RGLHY EQ.MKOJ] FTYK& VYOJ 10-06-2009 DJ DSEQ- 20]00]000@& :I;K CHL YK[K :I;K VKT JKST UDN JKSC: XOKGKU OLWY IK FY;S GS IT IS FURTHER RECORDED IN THE AGREEMENT THAT THE TE RM OF THE AGREEMENT WAS UP TO 10/06/2009. THE LD ASSESSING OFFICER HAS F URTHER RECORDED THAT TILL THE DATE OF RECORDING OF THE STATEMENT, N O SALE DEED WAS EXECUTED BY THE SELLER IN FAVOUR OF THE ASSESSEE. W E MAY RECORD THE ASSESSING OFFICER HAS NOT GIVEN ANY FINDING IN RESP ECT TO THE CONSENT INDEED EXHIBITED ON21.6.2008 BY HUKAM SINGH AND SAT VEER SINGH. THE ASSESSING OFFICER HAS ALSO NOT PUT ANY QUESTION WITH RESPECT TO THE VALIDITY OF THE SAID CONSENT DEED IF WE ADMIT THE CO NSENT DEED, THEN THE ASSESSEE WOULD ONLY BE OWNER OF HALF OF THE PROPERTY THOUGH, THE AGREEMENT OF SALE WAS EXECUTED IN HIS FAVOUR FOR THE ENTIRE PROPERTY. ITA 265/JP/2015_ SUNIL KUMAR VS ITO 12 OUT OF THE TOTAL SALE CONSIDERATION OF 54 LACS HUKU M SINGH AND SATVEER SINGH COLLECTIVELY CONTRIBUTED RS 22 LACS. THUS IN O UR OPINION THE THE CONJOINT READING OF THE CONSENT DEED AND THE STATEM ENTS OF HUKUM SINGH, CLEARLY EXCLUSIVELY THE SOURCE OF INVESTMENT OF RS 22 LAKHS FOR THE PURCHASE OF LAND. TILL DATE HAS NOT BEEN EXECUTED I N FAVOUR OF THE ASSESSEE, THAT CAN ALWAYS BE EXECUTED IN FAVOUR OF T HE PERSONS WHO HAD PROVIDED THE SALE CONSIDERATION. WE WISH TO SUPPORT FROM THE STATEMENT OF THE ASSESSEE RECORDED BY THE AO IN RESPONSE TO Q UESTION 11 WHICH IS AS UNDER:- IZ'U 11 D`I;K CRK;S FD VKIUS TKS 50]00]000@& IPKL YK[K :-DK BDJKJUKE TEHU DK FD;K GS ML LKSNS DH JFTLVH DJK; K HKH ;K UGHA MRRJ ;G LKSNK ESUSA JH IZSEPUN IQ= JH JKEUKJK;.K LS IKWOJ VKWQ VVKWUH DS VK/KKJ IJ FD;K FKK RFKK BL TEHU DS EKFYD JH VFUY DQEKJ IQ= JH CYOKU DS CHP FD;K GS] BLFY;S BL LKSNS DH JFT LVH VHKH RD UGHA GKS IKBZA FURTHER FROM READING OF THE TERMS AND CONDITIONS OF THE AGREEMENT TO SALE AND THE STATEMENT RECORDED, IT IS CLEAR THAT L AND HAS NOT BEEN TRANSFERRED IN FAVOUR OF THE ASSESSEE AND THE AGREE MENT TO SELL WAS NEITHER SIGNED NOR REGISTERED. THEREFORE, ON THE BAS IS OF THIS AGREEMENT, ITA 265/JP/2015_ SUNIL KUMAR VS ITO 13 NO TRANSFER OF PROPERTY CAN TAKE PLACE. IN VIEW THER EOF, THE RELIANCE OF THE REVENUE ON THE TERMS AND CONDITIONS MENTIONED I N THE AGREEMENT OR BY THE ASSESSEE TO CLAIM THAT THE PROPERTY HAS BEEN PURCHASED BY THE ASSESSEE, IN OUR VIEW, IS NOT IN ACCORDANCE WITH LAW. THE REVENUE AS WELL AS THE ASSESSEE HAVE FAILED TO PRODUCE ANY REVENUE RECORD AFTER THE ALLEGED PURCHASE OF THE PROPERTY IN THE YEAR 2008 T O SHOW THAT THE LAND WAS TRANSFERRED IN THE REVENUE RECORD FROM SHRI PREM CHAND TO THE ASSESSEE. WE ALSO FAIL TO FIND OUT THE COPY OF REVE NUE RECORD SHOWING SHRI PREM CHAND OR HIS GENERAL POWER OF ATTORNEY AS OWNER OF THE AGRICULTURAL LAND MENTIONED IN THE AGREEMENT TO SEL L DATED 11/7/2008. FURTHER THE LD A.O. AT THE TIME OF ASSESSMENT PROCE EDINGS HAS MENTIONED THAT THE ASSESSEE HAS PURCHASED THE LAND BY INVESTING A SUM OF RS. 50 LACS IN THE AGRICULTURAL LAND, IN OUR VIE W, THE SAID CONCLUSION OF THE LD ASSESSING OFFICER SHOULD BE BASED ON SOME CO GENT AND LEGAL DOCUMENTS EXECUTED BETWEEN THE ASSESSEE AND THE SELL ER. THE ASSESSING OFFICER HAS NOT RECORDED ANY STATEMENT OF THE SELLE R UNDER SECTION 131 OF THE ACT, TO SHOW THAT THE SAID LAND WAS SOLD BY HIM F OR A VALUABLE CONSIDERATION TO THE ASSESSEE. THE STATEMENT OF SELL ER NAMELY SHRI PREM CHAND OR HIS ATTORNEY HAVE NOT BEEN RECORDED BY THE LD ASSESSING OFFICER, WHICH COULD PROVE THE RECEIPT OF THE AMOUN T BY THE SAID PERSONS ITA 265/JP/2015_ SUNIL KUMAR VS ITO 14 FROM THE ASSESSEE. THEREFORE, IN OUR VIEW, REVENUE WAS NOT RIGHT IN CONCLUDING THAT THE ASSESSEE HAS INVESTED THE AMOUN T IN THE PROPERTY AND SOME RIGHT HAS ACCRUED IN HIS FAVOUR OF THE ASS ESSEE ON THE BASIS OF THE SAID DOCUMENT. IN OUR VIEW, THE AGREEMENT TO SEL L IS NOT ADMISSIBLE IN LAW AND CANNOT BE RELIED UPON FOR THE PURPOSES OF APPROVING THE INVESTMENT IN THE LAND ON ACCOUNT OF SPECIFIC BUYER UNDER SECTION 17 AND 18 OF REGISTRATION ACT. THE NEXT SUBMISSION, WHICH IS REQUIRED BY US TO EXAMINE, WHETHER THE ASSESSEE HAS BEEN ABLE TO EXPLA IN THE SOURCE OF INVESTMENT MADE BY HIM IN PURCHASING THE SAID AGRIC ULTURAL LAND. IN OUR VIEW, THIS ISSUE, IN THE LIGHT OF OUR FINDING GIVEN HEREINABOVE FOR THE NON- ADMISSIBILITY OF THE AGREEMENT AND THE RECEIPT, IS NOT REQUIRED TO BE ADJUDICATED AS IN OUR VIEW THERE IS NO INVESTMENT IN THE PURCHASE OF THE AGRICULTURAL LAND AND MERELY THE STATEMENT OF THE A SSESSEE CANNOT BE CONSIDERED TO BE ADMISSIBLE PIECE OF EVIDENCE TO SH OW THAT THE SOME CRYSTALLIZED RIGHT IN THE FORM OF INVESTMENT WERE MA DE BY HIM IN THE AGRICULTURAL LAND. SINCE WE HAVE HELD THAT THE AGREE MENT IN THE RECEIPT ARE NONEST IN THE EYES OF LAW, THEREFORE, IT CANNOT BE CONSIDERED AS INVESTMENT, IN CONSEQUENCE THEREOF OR THERE CANNOT BE ANY INVESTMENT. THE QUESTION OF INVESTMENT WILL ONLY ARISE WHEN THERE IS A DOCUMENT TO SUPPORT THAT. FURTHER WE FIND THAT THE ASSESSEE HAS BEEN ABLE TO EXPLAIN, ITA 265/JP/2015_ SUNIL KUMAR VS ITO 15 ASSUMING DOCUMENTS ARE ADMISSIBLE IN LAW, SOURCE OF INVESTMENT, WHICH IS REFLECTED FROM THE STATEMENT GIVEN BY THE FATHER OF THE ASSESSEE AND ALSO BY THE PERSON FROM WHOM AS WELL AS ALSO BY THE O THER PERSONS. THE ASSESSEE EXPLAINED THAT RS 11 LACS WERE RECEIVED BY HIM FROM SH. HUKUM SINGH AND SATVEER SINGH. THIS SAID PERSONS HA VE DULY EXPLAINED THE SOURCE OF THE SOURCE. FURTHER RS. 22 LACS WERE R ECEIVED BY THE ASSESSEE FROM HIS FATHER WOULD ALSO BE MANY PLAUSIBL E EXPLANATION OF RECEIPT OF 22 LACS AS SALE CONSIDERATION FOR THE SA LE OF HIS LAND FROM ONE SH GOPI RAM. THE ASSESSEE HIMSELF HAD PRODUCED THE R ECEIPT OF THE RS 6,00,000/-RECEIVED ON ACCOUNT OF SALE OF HIS TRACTOR . THUS THE ASSESSEE WAS ABLE TO EXPLAIN THE COMPLETE SOURCE OF INVESTMEN T OF RS 50 LACS. IN THE LIGHT OF THE ABOVE THE APPEAL OF THE ASSESSEE I S ALLOWED. 7. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED. ORDER PRONOUNCED IN THE OPEN COURT ON 08/08/2016. SD/- SD/- HKKXPAN YFYR DQEKJ (BHAGCHAND) (LALIET KUMAR) YS[KK LNL;@ ACCOUNTANT MEMBER U;KF;D LNL;@ JUDICIAL MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 08 TH AUGUST, 2016 *RANJAN VKNS'K DH IZFRFYFI VXZSFKR @ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ @ THE APPELLANT- SHRI SUNIL KUMAR, ALWAR. ITA 265/JP/2015_ SUNIL KUMAR VS ITO 16 2. IZR;FKHZ @ THE RESPONDENT- THE INCOME TAX OFFICER, WARD-BEHROR. 3. VK;DJ VK;QDR @ CIT 4. VK;DJ VK;QDRVIHY @ THE CIT(A) 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ @ DR, ITAT, JAIPUR 6. XKMZ QKBZY @ GUARD FILE (ITA NO. 265/JP/2015) VKNS'KKUQLKJ @ BY ORDER, LGK;D IATHDKJ @ ASST. REGISTRAR