CHANDRA KALA SHARMA, Jaipur V. ITO, Jaipur

ITA 29/JPR/2017

• Counselvise Citation: [2018] 119 COUNSELVISE.COM (IT) 1633 (ITAT-JAIPUR)
• Duration Of Justice: 1 year(s) 10 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-11-2018
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: SMC
• Assessment Year: 2010-2011
• Appeal Filed On: 09-01-2017
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Capital asset; Cost of acquisition; Fair market value; Onus to prove
• Section: 143(3); 69

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHE S, 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. 29/JP/2017 FU/KZKJ.K O'K Z @ ASSESSMENT YEAR :2010-11 CHANDRA KALA SHARMA, 75, MAHAVEER NAGAR, TONK PHATAK, JAIPUR CUKE VS. ITO, WARD-6(3), JAIPUR LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO.: AIDPS4009C VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ L S@ ASSESSEE BY : SHRI RAJEEV SOGANI (CA) JKTLO DH VKSJ LS @ REVENUE BY : SMT NEENA JEPH (ADDL.CIT) LQUOKBZ DH RKJH[ K@ DATE OF HEARING : 27/08/2018 MN?KKS'K.KK DH RKJH[ K@ DATE OF PRONOUNCEMENT: 15/11/2018 VKNS'K@ ORDER PER: VIKRAM SINGH YADAV, A.M. THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER OF LD. CIT(A)-5, JAIPUR DATED 16.09.2016 FOR A.Y. 2010-11 WHEREIN THE ASSESSEE HAS TAKEN FOLLOWING GROUNDS OF APPEAL. IN THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW THE LD. CIT(A) HAS ERRED IN CONFIRMING THE ACTION OF LD. AO IN TAXING A SUM OF RS. 16,39,500/- AS ALLEGED UNEXPLAINED DEPOS ITS IN BANK U/S 69 OF INCOME TAX ACT, 1961. THE ACTION OF LD. C IT(A) IS ILLEGAL, UNJUSTIFIED, ARBITRARY AND AGAINST THE FACTS OF THE CASE. RELIEF MAY PLEASE BE GRANTED BY DELETING THE SAID ADDITION OF RS. 16,39,500/. ITA NO. 29/JP/2017 CHANDRA KALA SHARMA, JAIPUR VS. ITO, JAIPUR 2 2. AT THE OUTSET, THE LD. AR REQUESTED FOR PERMISSI ON TO RAISE ADDITIONAL GROUND OF APPEAL AS UNDER:- IN THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD AO HAS ERRED IN MAKING THE ADDITION OF ADVANCE MONEY R ECEIVED U/S 69 WITHOUT RECOURSE TO SECTION 51. ACTION OF THE L D AO IS ILLEGAL . RELIEF MAY PLEASE BE GRANTED BY QUASHING THE ASSESS MENT ORDER BEING ILLEGAL AND VOID AB INITIO. 3. IT WAS SUBMITTED THAT THE ADDITIONAL GROUND IS A PURELY LEGAL GROUND AND ALL RELEVANT FACTS ARE ON RECORD AND ARE EMERGING OUT OF THE ORDER OF THE ASSESSING OFFICER U/S 143(3) OF THE AC T. AFTER HEARING BOTH THE PARTIES, THE ADDITIONAL GROUND BEING A PURELY L EGAL GROUND, THE SAME IS BEING ADMITTED FOR ADJUDICATION. 4. DURING THE COURSE OF HEARING, THE LD AR SUBMITTE D THAT THE FACTS OF THE CASE ARE THAT THE APPELLANT HAD A HOUSE PROP ERTY SITUATED AT PLOT NO. 16, VINAYAK VIHAR COLONY, DURGAPURA, JAIPU R. THIS HOUSE PROPERTY WAS AGREED TO BE SOLD VIDE IKRARNAMA DATED 01.05.2009 TO SHRI LADUJI KHARBAS S/O SHRI LADUJI KHARBAS S/O SHR I GHISAJI KHARBAS, RESIDENT OF CHIMANPURA, TEHSIL SANGANER, DISTRICT J AIPUR. THE TOTAL SALE CONSIDERATION AGREED TO BETWEEN THE PARTIES WA S RS. 35,00,000. THE BUYER HAD PAID RS. 15,00,000/- AS ADVANCE AT TH E TIME OF EXECUTION OF IKRARNAMA AND REST OF THE CONSIDERATIO N WAS TO BE PAID WITHIN 2 MONTHS OF EXECUTION OF IKRARNAMA. IT WAS A GREED THAT ON PAYMENT OF BALANCE CONSIDERATION WITHIN THE STIPULA TED TIME OF TWO MONTHS, THE APPELLANT (SELLER) WOULD EXECUTE / REGI STER SALE DEED IN FAVOUR OF BUYER. IT WAS SPECIFICALLY AGREED BETWEEN THE SELLER AND THE ITA NO. 29/JP/2017 CHANDRA KALA SHARMA, JAIPUR VS. ITO, JAIPUR 3 BUYER THAT IF BALANCE CONSIDERATION IS NOT PAID WIT HIN THE STIPULATED TIME, THE IKRARNAMA WOULD STAND CANCELLED. THE APPE LLANT DEPOSITED THE CASH RECEIVED OF RS. 15,00,000/- AS MENTIONED A BOVE, IN HER BANK ACCOUNT. BEFORE THE LD. AO, IT WAS EXPLAINED THAT T HE CASH DEPOSITED IN THE BANK ACCOUNT WAS OUT OF THE ADVANCE MONEY RECEI VED FOR SALE OF HOUSE PROPERTY AS ABOVE. SOURCE OF THE MONEY ADVANC ED BY THE BUYER WAS EXPLAINED BY WAY OF SUBMITTING KHATONI AND GIRD AWARI. THE BUYER SHRI LADUJI KHARBAS COULD NOT BE PRODUCED AS HE HAD EXPIRED ON 22.12.2010. HOWEVER, HIS SON SHRI GOPAL APPEARED BE FORE THE LD. AO ON 18.1.2013 AND CONFIRMED THE AMOUNT PAID BY HIS FATH ER TO THE APPELLANT. LD. AO WAS NOT CONVINCED AND HE ADDED TH E AMOUNT OF RS. 16,39,500/- DEPOSITED IN THE BANK OBSERVING THAT ID ENTITY, CREDITWORTHINESS AND GENUINENESS IS NOT PROVED. 5. IT WAS FURTHER SUBMITTED BY THE LD AR THAT LOWER AUTHORITIES HAVE DOUBTED THE GENUINENESS OF IKRARNAMA FOR THE REASON S THAT IT WAS ON A PLAIN PAPER AND THAT IT WAS NEITHER REGISTERED NOR NOTARIZED. IT IS HUMBLY SUBMITTED THAT IT IS GENERAL PRACTICE IN REAL ESTAT E TRANSACTIONS TO EXECUTE SUCH IKRARNAMA ON PLAIN PAPER WITHOUT HAVIN G IT REGISTERED OR NOTARIZED. WHEN ULTIMATE SALE IS MADE, ON COMPLIANC E OF CONDITIONS, FORMAL SALE DEED IS EXECUTED. IT IS ALSO SUBMITTED THAT LAW OF EVIDENCE IS NOT STRICTLY APPLIED TO THE PROVISIONS OF INCOME TAX ACT, 1961 AS HAD BEEN LAID DOWN BY THE HON'BLE SUPREME C OURT IN THE CASE OF CHUHARMAL VS CIT (1988) 172 ITR 250 (SC). IT WAS FURTHER SUBMITTED THAT THE LD. LOWER AUTHORITIES HAVE DOUBT ED THE GENUINENESS OF THE TRANSACTION, FOR THE REASON THAT NEITHER THE LAND IS SOLD NOR MONEY IS RETURNED. IT IS SUBMITTED THAT IKRARNAMA CLEARLY ITA NO. 29/JP/2017 CHANDRA KALA SHARMA, JAIPUR VS. ITO, JAIPUR 4 MENTIONED THAT THE SAME WOULD STAND CANCELLED IF BA LANCE PAYMENT IS NOT MADE BY THE BUYER WITHIN THE STIPULATED TIME OF TWO MONTHS. SINCE, BUYER COULD NOT MAKE THE PAYMENT WITHIN THE STIPULATED TIME, HE LOST THE RIGHT TO GET THE REFUND. IT WAS FURTHE R SUBMITTED THAT THE LOWER AUTHORITIES HAVE INVOKED THE HUMAN PROBABILIT IES RELYING ON THE JUDGMENT OF HON'BLE SUPREME COURT IN THE CASE OF CI T VS DURGA PRASAD MORE 82 ITR 540 (SC) AND SUMATI DAYAL VS CIT 214 ITR 801 (SC). IT IS HUMBLY SUBMITTED THAT IT IS NOT HUMAN IMPROBA BLE THAT THE BUYER FAILED TO MAKE THE PAYMENT WITHIN THE STIPULA TED TIME AND, CONSEQUENTLY, LOST THE RIGHT TO GET THE REFUND. IT WAS FURTHER SUBMITTED THAT THE LOWER AUTHORITIES HAVE CONFIRMED THE ADDITION TREATING IT AS THE CASE OF FRESH CASH CREDITS. IT I S HUMBLY SUBMITTED THAT ADVANCE AGAINST SALE OF PROPERTY IS NOT AKIN TO CAS H CREDIT. A PERSON, WHO HAS RECEIVED ADVANCE AGAINST SALE OF PROPERTY, CANNOT BE FASTENED WITH AN ONUS TO PROVE THE SOURCE OF THE BUYER. 6. IT WAS FURTHER SUBMITTED THAT THE LD. CIT(A) HAS DOUBTED THE CREDITWORTHINESS OF THE BUYER. LD CIT(A) BASED ON W EBSITE ' EANDSDACNET.NIC.IN ' AND CALCULATED THE ANNUAL INCOME AT RS. 5742 FOR THE RELEVANT YEAR. WEBSITE ' EANDSDACNET.NIC.IN ' / IS MANAGED BY 'DIRECTORATE OF ECONOMICS AND STATISTICS ', GOVERNMENT OF INDIA. THIS WEBSITE GIVES STATISTICS OF AVERAGE OF ALL INDIA AND NOT RELATED TO ANY PARTICULAR AREA AN D THEREFORE IS NOT RELEVANT. OTHERWISE ALSO, THE CALCULATION ARE F ULL OF ERRORS. 7. IT WAS FURTHER SUBMITTED THAT THE LD CIT(A) FUR THER OBSERVED THAT IS IMPROBABLE THAT SUCH LARGE AMOUNT OF SAVING OF RS. 15 LACS WOULD HAVE BEEN KEPT AT THE RESIDENCE OF THE BUYER, BASED ON ITA NO. 29/JP/2017 CHANDRA KALA SHARMA, JAIPUR VS. ITO, JAIPUR 5 STATEMENTS OF THE SON OF BUYER THAT ADVANCE WAS GIV EN OUT OF SAVINGS AND NO LOAN WAS TAKEN FOR THIS PURPOSE. IT IS HUMBL Y SUBMITTED THAT SOURCE OF ABOVE ADVANCE COULD ONLY BE EXPLAINED BY THE BUYER AND NOT BY HIS SON. IT IS POSSIBLE THAT SON DOES NOT KN OW THE FULL FACTS OF THE SOURCE OF ADVANCE. 8. REGARDING THE ADDITIONAL GROUND OF APPEAL, THE L D. AR SUBMITTED THAT LD. LOWER AUTHORITIES HAVE MISDIRECTED THEMSEL VES IN TAXING THE SUM U/S 69 FOR NOT FULFILLING THREE CONDITIONS I.E. IDENTITY, CREDITWORTHINESS AND GENUINENESS. IT IS HUMBLY SUBM ITTED THAT AMOUNT RECEIVED TOWARDS ADVANCE FOR TRANSFER OF CAP ITAL ASSET CANNOT BE TAXED U/S 69 OF I.T. ACT, 1961. THERE ARE SPECIF IC SECTIONS TO DEAL WITH THE FORFEITED AMOUNT IN CASE OF SALE OF PROPER TY. SECTION 51 IS REPRODUCED BELOW FOR READY REFERENCE: 51. ADVANCE MONEY RECEIVED. WHERE ANY CAPITAL ASSET WAS ON ANY PREVIOUS OCCASIO N THE SUBJECT OF NEGOTIATIONS FOR ITS TRANSFER, ANY ADVANCE OR OTHER MONEY RECEIVED AND RETAINED BY THE ASSESSEE IN RESPECT OF SUCH NEGOTIA TIONS SHALL BE DEDUCTED FROM THE COST FOR WHICH THE ASSET WAS ACQU IRED OR THE WRITTEN DOWN VALUE OR THE FAIR MARKET VALUE, AS THE CASE MA Y BE, IN COMPUTING THE COST OF ACQUISITION: PROVIDED THAT WHERE ANY SUM OF MONEY, RECEIVED AS A N ADVANCE OR OTHERWISE IN THE COURSE OF NEGOTIATIONS FOR TRANSFE R OF A CAPITAL ASSET, HAS BEEN INCLUDED IN THE TOTAL INCOME OF THE ASSESSEE FOR ANY PREVIOUS YEAR IN ACCORDANCE WITH THE PROVISIONS OF CLAUSE (IX) OF SUBSECTION (2) OF SECTION 56, THEN, SUCH SUM SHALL NOT BE DEDUCTED ITA NO. 29/JP/2017 CHANDRA KALA SHARMA, JAIPUR VS. ITO, JAIPUR 6 FROM THE COST FOR WHICH THE ASSET WAS ACQUIRED OR T HE WRITTEN DOWN VALUE OR THE FAIR MARKET VALUE, AS THE CASE MAY BE, IN COMPUTING THE COST OF ACQUISITION.' IN VIEW OF ABOVE SPECIFIC SECTION 51, THE ADVANCE M ONEY RECEIVED AND RETAINED BY THE APPELLANT IN PURSUANCE OF NEGOTIATI ONS SHALL BE DEDUCTED FROM THE COST OF ASSET, WHENEVER SUCH ASSE T IS SOLD. APPELLANT HAS NOT YET SOLD THE AFORESAID HOUSE PROP ERTY. WHENEVER, SHE WILL SELL AFORESAID HOUSE PROPERTY, SUCH ADVANC E AMOUNT WILL BE DEDUCTED FROM THE COST OF HOUSE PROPERTY. 9. IT WAS SUBMITTED BY THE LD AR THAT THE ADVANCE M ONEY, IF FORFEITED IS BROUGHT TO TAX U/S 56(2)(IX) OF I.T. A CT, 1961 BY THE FINANCE ACT, 2014 W.E.F. 01.04.2015 I.E. AY 2015-16 . SECTION 56(2)(IX)IS REPRODUCED BELOW FOR READY REFERENCE. 56: INCOME FROM OTHER SOURCES (2) IN PARTICULAR, AND WITHOUT PREJUDICE TO THE GEN ERALITY OF THE PROVISIONS OF SUB-SECTION (1), THE FOLLOWING INCOME S, SHALL BE CHARGEABLE TO INCOME-TAX UNDER THE HEAD 'INCOME FRO M OTHER SOURCES', NAMELY : (IX)ANY SUM OF MONEY RECEIVED AS AN ADVANCE OR OTHE RWISE IN THE COURSE OF NEGOTIATIONS FOR TRANSFER OF A CAPITAL AS SET, IF, (A) SUCH SUM IS FORFEITED; AND ITA NO. 29/JP/2017 CHANDRA KALA SHARMA, JAIPUR VS. ITO, JAIPUR 7 (B) THE NEGOTIATIONS DO NOT RESULT IN TRANSFER OF SUCH CAPITAL ASSET; THEREFORE, SUCH FORFEITED ADVANCE MONEY CANNOT BE T AXED AS 'INCOME FROM OTHER SOURCES FOR THE RELEVANT YEAR. IN VIEW O F THE ABOVE, THE ACTION OF ID. AO IN INVOKING SECTION 69 IS BAD IN L AW AND, THEREFORE, RELIEF MAY PLEASE BE DESERVED TO BE QUASHED. 10. THE LD DR IS HEARD WHO HAS VEHEMENTLY ARGUED TH E MATTER AND RELIED ON THE FINDINGS OF THE LOWER AUTHORITIES. 11. WE HAVE HEARD THE RIVAL CONTENTIONS AND PURSUED THE MATERIAL AVAILABLE ON RECORD. WE DONOT SEE ANY INFIRMITY IN THE FINDINGS OF THE LD CIT(A) WHICH HAS ELABORATELY EXAMINED THE MATTER IN LIGHT OF EVIDENCES BROUGHT ON RECORD AS WELL AS ON THE THEOR Y OF HUMAN PROBABILITY AND HIS FINDINGS WHICH ARE CONTAINED AT PARA 2.3 AND 2.4 ARE HEREBY CONFIRMED WHICH READS AS UNDER: 2.3 I HAVE CONSIDERED THE FACTS OF THE CASE, THE ASSESSMENT ORDER AND THE SUBMISSIONS OF THE APPELLANT. THE BRIEF FAC TS OF THE CASE ARE THAT THE ASSESSEE HAD DEPOSITED CASH AMOUNTING TO R S. 16,39,500 IN HIS BANK ACCOUNTS WITH MALVIYA URBAN CO-OPERATIVE B ANK AND ORIENTAL BANK OF COMMERCE ON VARIOUS DATES FROM 05-05-2009 T O 31-03-2010. ON BEING QUESTIONED ABOUT THE SOURCE OF SUCH CASH D EPOSIT, THE ASSESSEE STATED THAT SHE HAD RECEIVED CASH OF RS. 1 5 LAKH AS ADVANCE AGAINST SALE OF ONE OF HER PROPERTIES AT DURGAPURA. NO EXPLANATION WAS FURNISHED IN RELATION TO THE BALANCE AMOUNT OF CASH DEPOSIT OF RS. ITA NO. 29/JP/2017 CHANDRA KALA SHARMA, JAIPUR VS. ITO, JAIPUR 8 1,39,500. THE AO NOTED THAT IN RESPECT OF THE CLAIM ED CASH ADVANCE OF RS. 15 LAKH, THE ASSESSEE FILED A COPY OF AN AGREEM ENT DATED 01-05- 2009 AS PER WHICH IT WAS AGREED TO SELL THE PROPERT Y FOR RS. 35 LAKH TO THE PURCHASER NAMELY SH. LADU KHARVAS. THE AO OBSER VED THAT THE SAID AGREEMENT WAS ON A PLANE PAPER WHICH HAS NEITHER BE EN NOTARISED NOR HAS IT BEEN REGISTERED. IT WAS ALSO NOTED THAT THE PURPORTED PURCHASER DIED ON 22-12-2010 AND ALSO THAT THE AGREEMENT WAS FINALLY CANCELLED APPARENTLY DUE TO THE DEATH OF THE PURCHASER. IT WA S FURTHER NOTED THAT THE CASH ADVANCE OF RS. 15 LAKH WAS NOT RETURNED BA CK BY THE ASSESSEE TO THE LEGAL HEIRS OF THE PURCHASER. IN VIEW OF THE PECULIAR FACTS OF THE CASE THE AO ASKED THE ASSESSEE TO ESTABLISH THE IDE NTITY AND CREDITWORTHINESS OF THE PERSON FROM WHOM THE AMOUNT WAS RECEIVED AS WELL AS THE GENUINENESS OF THE TRANSACTION. IN THIS REGARD THE AO OBSERVED THAT THE FACT AS TO WHETHER THE SIGNATURE ON THE AGREEMENT IS OF SH. LAADU OR SOMEONE ELSE COULD NOT BE ESTABLISH ED SINCE THE AGREEMENT IS ON A PLANE PAPER AND IS NEITHER REGIST ERED NOR NOTARISED. THE AO CONCLUDED THAT THE PURPORTED AGREEMENT WAS O NLY A SELF SERVING DOCUMENT WHICH CANNOT BE RELIED UPON. REGAR DING THE CREDITWORTHINESS OF THE CREDITOR, THE ASSESSEE PROD UCED THE SON OF SH. LAADU KHARVAS WHOSE STATEMENT WAS RECORDED BY THE A O. IT WAS STATED BY SH. GOPAL, SON OF SH. LAADU KHARVAS, THAT SH. LA ADU WAS DERIVING INCOME FROM THE CROP OF BAJRA CULTIVATED ON 51 'BIG NAS' OF LAND OWNED BY THE FAMILY CONSISTING OF MORE THAN 12 PERSONS. S H. LAADU WAS NOT ASSESSED TO TAX AND HIS SON EXPRESSED IGNORANCE ABO UT THE QUANTUM OF INCOME DERIVED FROM AGRICULTURE. IT WAS HOWEVER STA TED BY SH. GOPAL THAT HIS FATHER USED TO KEEP HIS SAVINGS AT HOME AN D THE PAYMENT FOR THE PROPOSED PURCHASE OF LAND WAS MADE OUT OF SUCH SAVINGS. THE AO ITA NO. 29/JP/2017 CHANDRA KALA SHARMA, JAIPUR VS. ITO, JAIPUR 9 NOTED THAT NO TANGIBLE EVIDENCE WAS PRODUCED BY THE SON OF SH. LAADU REGARDING AVAILABILITY OF CASH OF RS. 15 LAKH WITH SH. LAADU. THE AO ALSO QUESTIONED SH. GOPAL ON THE ISSUE OF REFUND OF CASH ADVANCE BY THE ASSESSEE SINCE IT WAS SURPRISING THAT THE SONS OF DECEASED PURCHASER HAD NOT MADE ANY ATTEMPTS TO RECOVER THE SAID AMOUNT FROM THE ASSESSEE. IN REPLY SH. GOPAL STATED THAT TALKS WERE GOING ON FOR RECOVERY BUT THE SAID AMOUNT HAS NOT BEEN RECOVERED . DURING THE APPELLATE PROCEEDINGS IT WAS CONFIRMED BY THE AR TH AT THE AMOUNT HAS NOT BEEN REFUNDED TILL DATE WHICH IS AROUND 7 YEARS FROM THE CLAIMED TRANSACTION. FURTHER NO EVIDENCE REGARDING ANY EFFO RTS MADE TO RECLAIM THE AMOUNT WERE FURNISHED BY EITHER SH. GOPAL OR TH E ASSESSEE. THE AO THEREFORE NOTED THAT THE SUBSEQUENT CONDUCT OF T HE ALLEGED BUYER AND SELLER SHOWED THAT AGREEMENT IN QUESTION WAS CO NCOCTED AND AN AFTER THOUGHT OF THE ASSESSEE IN ORDER TO SIMPLY EX PLAIN THE CASH DEPOSITS. IN REJECTING THE VERSION OF THE ASSESSEE THE AO HAS APPLIED THE RATIO OF THE DECISIONS OF HONOURABLE APEX COURT IN THE CASE OF CIT VS. DURGA PRASAD MORE 82 ITR 540 (SC) AND SUMATI DA YAL VS. CIT 214 ITR 801 (SC), SINCE THERE IS NO TANGIBLE EVIDENCE T O SHOW THAT THE ALLEGED AGREEMENT HAD ACTUALLY BEEN ENTERED INTO. T HE AO FURTHER OBSERVED THAT THIRD INGREDIENT OF GENUINENESS OF TR ANSACTION IS ALSO NOT ESTABLISHED GIVEN THE FACT THAT THE ALLEGED TRANSAC TION IS IN CASH AND NOT THROUGH THE BANK CHANNEL. AGAIN APPLYING THE TE ST OF HUMAN PROBABILITIES AS LAID DOWN BY THE APEX COURT, THE A SSESSEE FAILED MISERABLY IN PROVING THE GENUINENESS OF CASH TRANSA CTION AS WELL AS THE AGREEMENT ITSELF. 2.4 AFTER CONSIDERING THE SUBMISSIONS OF THE APPELL ANT AS WELL AS ITA NO. 29/JP/2017 CHANDRA KALA SHARMA, JAIPUR VS. ITO, JAIPUR 10 FACTS AND ISSUES STATED BY THE AO, I FIND THAT THE AO IS JUSTIFIED IN TREATING THE IMPUGNED CASH DEPOSITS AS UNEXPLAINED . THE ALLEGED AGREEMENT WHICH IS THE ONLY EVIDENCE PUT FORTH BY T HE ASSESSEE, SUFFERS FROM SERIOUS LACUNAE WHICH RENDERS THE AGRE EMENT TO BE BEYOND THE REALM OF HUMAN PROBABILITIES. FIRSTLY TH E AGREEMENT IS NEITHER REGISTERED NOR NOTARISED. THE SAME IS TYPED ON 2 PAGES BEING PLANE PAPERS. THE SIGNATURE OF THE ALLEGED BUYER IS ON THE SECOND PAGE OF THE AGREEMENT, ON WHICH THERE IS NO MENTION OF T HE AMOUNTS OF AGREEMENT AND ADVANCE ALLEGEDLY GIVEN. THE FIRST PA GE OF THE AGREEMENT WHICH TALKS OF THE CASH ADVANCE OF RS. 15 LAKH DOES NOT BEAR ANY SIGNATURE OF EITHER THE BUYER OR THE SELLE R OR ANY STAMP OF AUTHORITY, AND IS HENCE TOTALLY SUSCEPTIBLE TO MANI PULATION. THE IMPUGNED AGREEMENT IS THEREFORE NOT A CREDIBLE EVID ENCE FOR THE REASONS DISCUSSED ABOVE. IT IS ALSO IMPORTANT TO NO TE THAT IN CASES WHERE THERE IS COMPLETE LACK OF EVIDENCE AND VERIFI ABILITY OF FACTS, THE CASE HAS TO BE EXAMINED IN THE LIGHT OF PRINCIPLE O F HUMAN PROBABILITIES AS LAID DOWN BY THE HONOURABLE APEX COURT IN THE JU DGEMENTS CITED SUPRA. THE ASSESSE'S VERSION IS FULL OF FACTS WHICH ARE BEYOND THE REALM OF HUMAN PROBABILITIES. FIRSTLY THE AGREEMENT ITSEL F IS DOUBTFUL FOR THE REASONS STATED EARLIER. THIS FACT IS FURTHER REINFO RCED BY THE SUBSEQUENT EVENTS VIZ. NON COMPLETION OF THE TERMS OF AGREEMENT AND FINAL SALE OF LAND AS WELL AS NON REFUNDING OF THE ALLEGED CASH ADVANCE AND ABSENCE OF ANY EVIDENCE OF EFFORTS BEING MADE B Y LEGAL HEIRS OF THE BUYER TO RECOVER THE ADVANCE FOR A LONG PERIOD OF 7 YEARS. ANOTHER IMPORTANT ASPECT TO BE EXAMINED IN SUCH CASES IS TH E CREDITWORTHINESS OF THE PERSON GIVING SUCH ADVANCES. THE GIRDAWARI R ECORD FILED BY THE ASSESSEE SHOWS THAT THE CROP OF BAJRA WAS CULTIVATE D IN 51 `BIGHAS' OF ITA NO. 29/JP/2017 CHANDRA KALA SHARMA, JAIPUR VS. ITO, JAIPUR 11 LAND BELONGING TO THE FAMILY OF THE CREDITOR. IT IS CLAIMED THAT THE CASH ADVANCE WAS MADE OUT OF SAVINGS FROM AGRICULTURAL I NCOME DERIVED THEREFROM. SH. GOPAL HAS NOT STATED THE QUANTUM OF INCOME DERIVED BY THE FAMILY OF SH. LAADU. IN THIS REGARD IT IS NOTED FROM THE GOVERNMENT OF INDIA PUBLICATION ' AGRICULTURAL STATISTICS AT A GLANCE 2014' AVAILABLE AT WEBSITE ' EANDS DACNETNIC.IN' , THAT THE YIELD O F BAJRA IN FINANCIAL YEAR 2009-10 WAS 71 KG PER HECTARE. SINCE THE CREDI TOR HELD 8.26 HECTARES OF LAND, THE YIELD OF BAJRA COMES TO 6038 KG OR 6.038 QUINTAL FOR THE YEAR UNDER CONSIDERATION. FROM THE SAME WEB SITE THE PRICE OF BAJRA IS NOTED AS RS. 915 PER QUINTAL IN 2009 AND R S. 951 PER QUINTAL IN 2010 IN RAJASTHAN. TAKING THE PRICE AS RS. 951 PER QUINTAL FOR THE YEAR UNDER CONSIDERATION, THE GROSS INCOME DERIVED BY TH E CREDITOR COMES TO RS. 5742 FOR THE YEAR UNDER CONSIDERATION. EVEN IF THE COST OF AGRICULTURAL OPERATIONS IS NOT SUBTRACTED FROM THIS AMOUNT, THE INCOME DERIVED BY THE CREDITOR IS INADEQUATE EVEN TO SUPPO RT MORE THAN 12 PERSONS OF FAMILY, LET ALONE RESULT IN SUBSTANTIAL SAVINGS OF THE MAGNITUDE CLAIMED BY THE ASSESSEE. IT IS THUS IMPRO BABLE THAT THE CREDITOR HAD ACCUMULATED SAVINGS OF RS. 15 IAKH OUT OF SUCH AGRICULTURAL OPERATIONS. IT IS FURTHER IMPROBABLE THAT SUCH A LA RGE AMOUNT OF SAVINGS WOULD HAVE BEEN KEPT AT THE RESIDENCE OF THE CREDIT OR FOR YEARS TOGETHER. IN HIS STATEMENT SH. GOPAL HAS SPECIFICAL LY STATED THAT CASH ADVANCE WAS GIVEN OUT OF SAVINGS ONLY AND NO LOANS WERE TAKEN FOR THIS PURPOSE. AS NOTED EARLIER THE CREDITOR WAS NOT ASSE SSED TO TAX. HENCE THE QUANTITY OF INCOME AND SAVINGS OF THE CREDITOR NEEDED TO BE EXAMINED FROM THE ANGLE OF HUMAN PROBABILITIES. FOR THE REASONS STATED ABOVE THE ASSESSEE HAS FAILED TO ESTABLISH T HE CREDITWORTHINESS OF CREDITOR. THE AO HAS THUS RIGHTLY CONCLUDED THAT NONE OF THE THREE ITA NO. 29/JP/2017 CHANDRA KALA SHARMA, JAIPUR VS. ITO, JAIPUR 12 ESSENTIAL CONDITIONS OF IDENTITY, CREDITWORTHINESS AND GENUINENESS COULD BE ESTABLISHED BY THE ASSESSEE. IT IS THEREFORE HEL D THAT THE AMOUNT OF CASH DEPOSITS OF RS. 15 LAKH AS WELL AS FURTHER DEP OSITS OF RS. 1,39,500 IN RESPECT OF WHICH NO EXPLANATION HAS BEEN FURNISH ED, AGGREGATING TO RS. 16,39,500 ARE UNEXPLAINED ACCORDINGLY THE ADDIT ION OF RS. 16,39,500 MADE BY THE AO IS UPHELD. 12. REGARDING THE ADDITIONAL GROUND OF APPEAL AND T HE CONTENTION OF THE LD AR REGARDING APPLICABILITY OF 51 AND INSERTI ON OF SECTION 56(2)(IX) BY THE FINANCE ACT, 2014, WE FIND THAT WHERE THE PU RPORTED TRANSACTION FOR TRANSFER OF HOUSE PROPERTY ITSELF HAS BEEN CHAL LENGED AND NOT ACCEPTED AND THE ASSESSEE HAS FAILED TO ESTABLISH T HAT ANY SUCH TRANSACTION WAS CONTEMPLATED AND ACTED UPON, THE EX PLANATION OF THE ASSESSEE REGARDING RECEIVING ADVANCE AGAINST THE SA ID TRANSFER OF HOUSE PROPERTY AND SUBSEQUENT FORFEITURE DOES NOT A RISE AT FIRST PLACE CANNOT BE ACCEPTED. IN LIGHT OF THE SAME, THE CONT ENTIONS SO RAISED BY THE LD AR CANNOT BE ACCEPTED AND ARE HEREBY DISMISS ED. IN THE RESULT, APPEAL FILED BY THE ASSESSEE IS DISM ISSED. PRONOUNCED IN THE OPEN COURT ON 15/11/2018. SD/- SD/- FOT; IKY JKO FOE FLAG ;KNO (VIJAY PAL RAO) (VIKRAM SINGH YADAV) U;KF;D LNL;@ JUDICIAL MEMBER YS[KK LNL;@ ACCOUNTANT MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 15/11/2018. * GANESH. ITA NO. 29/JP/2017 CHANDRA KALA SHARMA, JAIPUR VS. ITO, JAIPUR 13 VKNS'K DH IZFRFYFI VXZSFKR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT- CHANDRA KALA SHARMA, JAIPUR 2. IZR;FKHZ@ THE RESPONDENT- ITO, WARD-6(3), 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. 29/JP/2018} VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASST. REGISTRAR