Smt. Shaikh tanveer Iftekhar Hussain, Latur V. Income-tax Officer,

ITA 296/PUN/2016

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 1811 (ITAT-PUNE)
• Duration Of Justice: 2 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-05-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 25-05-2016
• Assessment Year: 2010-2011
• Appeal Filed On: 29-02-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: DHEERAJ KUMAR JAIN
• Keywords: Opportunity of being heard; Principle of natural justice; Valuation report
• Section: 143(3); 234B; 54

Judgement Text

- IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH SMC , PUNE , BEFORE MS. SUSHMA CHOWLA, JM . / ITA NO. 293 /PN/201 6 / ASSESSME NT YEAR : 20 1 0 - 11 SHAIKH NAWID JABBAR KHAN, CITY CLINIC, NEAR BUS STAND, LATUR 413512 . / APPELLANT PAN: A QHPK9391H VS. THE INCOME TAX OFFICER , WARD - 2, LATUR . / RESPONDENT . / ITA NO. 294 /PN/201 6 / ASSESSMENT YEAR : 20 10 - 11 SHAIKH AKBAR ALTAF HUSSAIN, PROP. AKBAR MOTORS, 4, TAJODDIN NAGAR, LATUR 413512 . / APPELLANT PAN: BFQPS4234E VS. THE INCOME TAX OFFICER, WARD - 2, LATUR . / RESPONDENT . / ITA NO. 29 5 /PN/201 6 / ASSESSMENT YEAR : 20 10 - 11 SHAIKH IFTEKHAR ALTAF HUSSAIN, DRT NO.6, LABOUR COLONY, BESIDES JUNI PRADHIKARAN LATUR 413512 . / APPELLANT PAN: CLBPS0133A VS. THE INCOME TAX OFFICER, WARD - 2, LATUR . / RESPONDENT ITA NO S . 293 TO 296 /PN/20 1 6 SHAIK NAWID JABBAR KHAN & ORS 2 . / ITA NO. 29 6 /PN/201 6 / ASSESSMENT YEAR : 20 10 - 11 SMT. SHAIKH TANVEER IFTEKHAR HUSSAIN, DRT NO.6, LABOUR COLONY, BESIDES JUNI PRADHIKARAN LATUR 413512 . / APPELLANT PAN: CLBPS013 5G VS. THE INCOME TAX OFFICER, WARD - 2, LATUR . / RESPONDENT / APPELLANT BY : SHRI M.K. KULKARNI / RESPONDENT BY : SHRI DHEERAJ KUMAR JAIN / DATE OF HEARING : 2 5. 0 5 .201 6 / DATE OF PRONOUNCEMENT: 27 . 0 5 .201 6 / ORDER PER SUSHMA CHOWLA, J M : TH IS BUNCH OF APPEAL S FILED BY THE RELATED ASSESSEE S ARE AGAINST SEPARATE ORDER S OF CIT (A) - 2 , AURANGABAD , ALL DATED 03 . 02 .20 1 6 RELATING TO ASSESSMENT YEAR 20 1 0 - 11 AGAINST RESPECTIVE ORDER S PASSED UNDER SECTION 143(3) R.W.S. 147 OF THE INCOME - TAX ACT , 1961 (IN SHORT THE ACT) . 2 . THIS BUNCH OF APPEALS RELATING TO THE CO - OWNERS OF THE PROPERTY WERE HEARD TOGETHER AND ARE BEING DISPOSED OF BY THIS CONSOLIDATED ORD ER FOR THE SAKE OF CONVENIENCE. HOWEVER, WE MAKE REFERENCE TO THE FACTS IN ITA NO.293/PN/2016 TO ADJUDICATE THE ISSUE. 3. THE ASSESSEE IN ITA NO.293/PN/2016 HAS RAISED THE FOLLOWING GROUNDS OF APPEAL: - ITA NO S . 293 TO 296 /PN/20 1 6 SHAIK NAWID JABBAR KHAN & ORS 3 1) ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW THE LD. CIT(A) WAS NOT JUSTIFIED IN DISMISSING THE APPEAL OF THE ASSESSEE FILED AGAINST THE ASSESSMENT FRAMED BY THE A.O. UNDER S. 143(3) R.W.S. 147 WHEN NO ESCAPEMENT OF INCOME WAS PROVED AS MANDATED BY LAW. THE CONFIRMED ASSESSMENT BEING ILLE GAL AND WITHOUT JURISDICTION , BE QUASHED. 2) ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW THE ASSESSEE HAD UNEQUIVOCALLY STATED BEFORE THE A.O. THAT HE HAD NOT PAID ANYTHING MORE THAN WHAT WAS STATED. THE ASSESSEE TIME AND AGAIN MADE A REQUEST TO A.O. AND REITERATED BEFORE CIT(A) TO SUMMON THE SELLERS OF THE LAND FOR EXAMINATION AS TO WHETHER THE AMOUNT OF RS.35,26,000/ - STATED TO HAVE BEEN RECEIVED BY THEM COLLECTIVELY FROM FOUR PURCHASERS ON ACCOUNT OF SALE OF LAND WAS CORRECT. THE A.O. FAILED T O SUMMON ANYONE OF THEM. THE A.O. ASSESSED THE INCOME AND THE SAME WAS CONFIRMED BY THE CIT(A) WITHOUT EXAMINING THE SELLER. THE PRINCIPLES OF NATURAL JUSTICE HAVE BEEN BREACHED. THE APPEAL ORDER OF THE LD. CIT(A) BE SET ASIDE. 3) ON THE FACTS AND CIRCUMS TANCES OF THE CASE AND IN LAW THE ASSESSEE CONFIRMED THE FACTS BY FILING THE SWORN AFFIDAVIT BEFORE A.O. THAT NO AUTHORITY THOUGHT IT WORTHWHILE TO EXAMINE THE AFFIANT - ASSESSEE WHICH ACTION WAS AGAINST THE VERDICT OF HON'BLE SUPREME COURT. THE ULTIMATE MEA NING IS THE STATEMENT MADE IN THE AFFIDAVIT WAS GOT ADMITTED AS CORRECT. THE INCOME THEREFORE, BE DIRECTED TO BE ACCEPTED THE SAME. 4) ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW IT WAS THE BOUNDEN DUTY OF THE AUTHORITIES BELOW TO VERIFY THE FAC T AS STATED BY THE PURCHASERS THAT THE SELLERS RECEIVED THE AMOUNT OF SALE CONSIDERATION OF RS.35,26,000/ - THEN WHETHER SUCH INCOME WAS OFFERED BY THEM FOR TAXATION? WITHOUT THIS IT CANNOT BE HELD THAT THEY OFFERED BY THEM FOR TAXATION? WITHOUT THIS IT CANNOT BE HELD THAT THEY DID RECEIVE THE AMOUNT OF R S .35,26,000/ - AS SALE CONSIDERATION FROM THE ASSESSEE. THE INCOME OFFERED BY THE ASSESSEE IN THE RETURN OUGHT TO HAVE BEEN ACCEPTED. 5) ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW THE ASSESSEE PRAYS THAT NO CONSIDERATION MORE THAN THAT WAS PAID FOR ACQUISITION OF PR OPERTY HAS BEEN PROVED WITH COGENT EVIDENCE. THE ASSESSEE HEREWITH HAS BEEN DENIED HIS CLAIM THAT THE SELLER BE EXAMINED IN THIS CASE. THE INCOME ASSESSED IS THEREFORE, NOT ACCORDING TO LAW. 6) ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW THE LEV Y OF INTEREST U/S 234A, 234B AND 234C IS NOT JUSTIFIED. 4. THE FIRST GROUND OF APPEAL RAISED BY THE ASSESSEE BEING GENERAL, IS DISMISSED. THE ISSUE IN GROUNDS OF APPEAL NO.2 TO 5 IS AGAINST THE ADDITION MADE ON ACCOUNT OF PURCHASE PRICE OF LAND PURCHASED BY FOUR PURCHASERS. 5 . BRIEFLY, IN THE FACTS OF THE PRESENT CASE, THE ASSESSEE ALONG WITH OTHER CO - OWNERS HAD PURCHASED A PIECE OF LAND COMPRISING 19R AT S . NO.89/K WITHIN MUNICIPAL LIMITS OF LATUR. THE ASSESSING OFFICER RECEIVED INFORMATION THAT THE AS SESSEE HAD PURCHASED AN IMMOVABLE PROPERTY WORTH RS.37,37,760/ - IN WHICH ITA NO S . 293 TO 296 /PN/20 1 6 SHAIK NAWID JABBAR KHAN & ORS 4 HIS SHARE WAS RS. 9,34,440/ - . DURING THE COURSE OF ASSESSMENT PROCEEDINGS, FROM THE REGISTERED DOCUMENTS, THE ASSESSING OFFICER NOTED THAT THE TOTAL CONSIDERATION FOR THE SAID PLOT OF LAND WAS RS. 35,26,000/ - WHICH WAS PURCHASED ON 14.01.2010 ON WHICH, STAMP DUTY AND OTHER EXPENSES WERE PAID RS.2,11,760/ - AND RS.30,320/ - RESPECTIVELY. THUS, THE TOTAL COST OF THE PROPERTY WORKED OUT TO RS. 37,68,080/ - , IN WHICH THE ASSESSEE HAD 1/4 TH SHA RE I.E. RS. 9,42,020/ - . THE SAID LAND WAS PURCHASED FROM ONE SHRI SHIVAJI NAGNATH NARKE, RESIDENT OF SRI NAGAR, LATUR, WHO HAD EXPIRED ON 27.01.2011 . AS AGAINST THE INVESTMENT OF RS.9,42,020/ - , THE ASSESSEE HAD SHOWN THE VALUE OF PIECE OF LAND IN HIS BALA NCE SHEET AT RS. 3,48,270/ - . THE ASSESSING OFFICER THUS, SHOW CAUSED THE ASSESSEE TO EXPLAIN THE INVESTMENT EXCEEDING THE AMOUNT RECORDED IN THE BOOKS OF ACCOUNT BY RS. 5,93,750/ - . IN REPLY, THE ASSESSEE POINTED OUT THAT IT HAD MADE AN AGREEMENT TO PURCHAS E (THARAV PATRA) ON 19.06.2009 , BY WHICH THE LAND WAS PURCHASED FOR TOTAL CONSIDERATION OF RS.11,51,000/ - ONLY AND HE HAD NOT PAID SUM OF RS.35,26,000/ - AS MENTIONED IN THE FINAL SALE DEED. THE ASSESSEE FURNISHED THE COPY OF SAID AGREEMENT ON RECORD AND H E STRESSED THAT HE HAD PAID THE AMOUNT WHICH WAS TOTALING RS.11,51,000/ - . THE ASSESSING OFFICER NOTED THAT THE AGREEMENT DATED 19.06.2009 WAS AN AGREEMENT TO SELL AND NOT THE FINAL SALE DEED IN WHICH BOTH THE PURCHASER AND THE SELLER AGREED TO CONSIDERATI ON OF RS.11,51,000/ - . HOWEVER, THE POSSESSION OF THE PROPERTY WAS NOT GIVEN ON THE DATE OF AGREEMENT BUT WAS GIVEN ON THE DATE OF FINAL REGISTRATION I.E. ON 14.01.2010 . ANOTHER THARAV PATRA WAS EXECUTED ON 14.08.2009 , UNDER WHICH THE SELLER HAD RECEIVED RS.50,000/ - AND GIVEN THE RECEIPT OF IT . THE ASSESSING OFFICER REFERRED TO CLAUSE TO THE LAST PARA IN SECOND PAGE OF SALE DEED, UNDER WHICH IT WAS MENTIONED THAT FOR FAMILY NEEDS, THE SELLER MR. SHIVAJI NAGNATH NARKET HAS ALREADY RECEIVED THE ENTIRE CONSI DERATION OF RS.35,26,000/ - IN CASH FROM THE PURCHASERS AND HE HAS NO DISPUTE REGARDING THE RECEIPT OF THE SAID AMOUNT. ITA NO S . 293 TO 296 /PN/20 1 6 SHAIK NAWID JABBAR KHAN & ORS 5 THE ASSESSING OFFICER WAS OF THE VIEW THAT WHERE THE SALE DEED WAS A REGISTERED DOCUMENT AND THARAV PATRA WAS NOT A REGISTERED DOCUMENT, THEN IN VIEW OF PROVISIONS OF SECTION 54 OF THE TRANSFER OF PROPERTY ACT, THE THARAV PATRA WAS NOT A LEGAL DOCUMENT TO SELL / TRANSFER THE IMMOVABLE PROPERTY. HOWEVER, ANOTHER OPPORTUNITY WAS GIVEN TO THE ASSESSEE TO SUBMIT PROOF REGARDING HIS CONTENTION IN THE THARAV PATRA. IN REPLY, THE ASSESSEE FURNISHED AN AFFIDAVIT WHICH IS ANNEXED AS ANNEXURE - II TO THE ASSESSMENT ORDER. THE CONTENTS OF THE AFFIDAVIT ARE REPRODUCED AT PAGE 5 OF THE ASSESSMENT ORDER . IN THE AFFIDAVIT, THE ASSESSEE POINTED OUT THAT H E HAD AGREED TO PURCHASE THE SAID PROPERTY FOR TOTAL CONSIDERATION OF RS.11,51,000/ - ONLY , A S PER AGREEMENT ITSELF, BUT AT THE TIME OF REGISTRATION OF DOCUMENT, THE VALUATION OF LAND WAS MORE THAN SALE CONSIDERATION, AS PER THE STAMP DUTY VALUATION AUTHORI TY. HENCE, THE REGISTERED PURCHASE DEED WAS DONE AS PER THE VALUE DECLARED BY STAMP VALUATION AUTHORITIES OF RS.35,26,000/ - , O NLY FOR THE PURPOSE OF MAKING THE PAYMENT OF STAMP DUTY AND ASSESSEE ALSO PAID STAMP DUTY OF RS.2,11,760/ - ON THE SAID VALUE, BUT BY AN ERROR, THE ACTUAL SALE CONSIDERATION AMOUNT WAS NOT MENTIONED IN THE PURCHASE DEED. HOWEVER, THE SAID MISTAKE COULD NOT BE RECTIFIED AS THE SELLER HAD DIED ON 27.01.2011 . AS PER THE ASSESSING OFFICER, THE SAID AFFIDAVIT FILED BY THE ASSESSEE WAS A SELF SERVING STATEMENT OF THE ASSESSEE AND NOT SUPPORTED BY ANY OTHER EVIDENCE. THE CONTENTION OF THE ASSESSEE THAT THE DOCUMENT WAS EXECUTED ON HIGHER VALUE AS PER STAMP VALUATION AUTHORITY, WAS NOT ACCEPTED AS THE ASSESSEE HAD NOT PREFERRED AN APPEAL A GAINST THE VALUATION TO BE ADOPTED BY THE STAMP VALUATION AUTHORITY. THE CONTENTION OF THE ASSESSEE WAS NOT ACCEPTED BY THE ASSESSING OFFICER. ON 13.01.2015 , THE ASSESSEE FURNISHED ANOTHER LETTER IN WHICH A REQUEST WAS MADE FOR ISSUE OF NOTICE / CALL FOR RECORDING STATEMENT OF SELLER OF THE PROPERTY OR THE LEGAL HEIR OF THE CONCERNED PARTY AS HE DIED ON 27.01.2011 . IT WAS ALSO POINTED OUT THAT THE LEGAL HEIR HAD ALREADY GIVEN CONSENT AT THE TIME OF REGISTRATION OF ITA NO S . 293 TO 296 /PN/20 1 6 SHAIK NAWID JABBAR KHAN & ORS 6 DOCUMENT. THE ASSESSEE THUS, REQUESTED THE ASSESSING OFFICER TO SUMMON NARKE MANOJ SHIVAJIRAO, SON OF THE SELLER AND NARKE AYODHYA SHIVAJIRAO, WIFE OF SELLER FOR RECORDING THEIR STATEMENTS AND FOR ALLOWING CROSS - EXAMINATION TO THE ASSESSEE. THE ASSESSING OFFICER REJECTED THE SAID CONTENTION OF THE ASSESSEE AS THE SELLER HAD ALREADY EXPIRED AND HE HAD IN THE SALE DEED ACCEPTED THE CONSIDERATION OF RS. 35,26,000/ - IN CASH BEING RECEIVED FROM THE PURCHASER. THE ASSESSING OFFICER THUS, HELD THAT THERE WAS NO NEED TO CROSS VERIFY THE PERSON WHO WERE NOT KNOWING THE DETAILS OF TRANSACTION AND THEIR SIGNATURES ON THE SALE DEED WERE MERELY AN ACT OF CONSENT TO SELL THE LAND. ACCORDINGLY , AN ADDITION OF RS.5, 93,750/ - WAS MADE IN THE HANDS OF ASSESSEE. 6. THE CIT(A) UPHELD THE ORDER OF ASSESSING OFFICER , SINCE THE AMOUNT WAS CATEGORICALLY MENTIONED IN THE SALE DEED TO HAVE BEEN RECEIVED BY THE SELLER PRIOR TO EXECUTION OF SALE DEED IN CASH DUE TO PERSONAL REASONS. WHERE THE SALE DEED WAS SIGNED BY THE SELLER AND CONSENTING PARTIES I.E. SON AND WIFE OF SALE DEED WAS SIGNED BY THE SELLER AND CONSENTING PARTIES I.E. SON AND WIFE OF S ELLER , THE SALE DEED WAS ALSO SIGNED BY TWO WITNESSES AS AGAINST WHICH, THE ASSESSEE WAS PLACING RELIANCE ON AN UNREGISTERED AGREEMENT TO SELL, THE CIT(A) WAS OF THE VIEW OF THAT THE REGISTERED SALE DEED HAD MO RE VALUE IN THE EYES OF LAW THAN SOME UNREGIST ERED DOCUMENTS PRESENTED ON STAMP PAPER OF RS.100/ - . THE SECOND GROUND OF APPEAL RAISED BY THE ASSESSEE THAT THE ASSESSING OFFICER HAD NOT RECORDED THE STATEMENT S OF SON AND WIFE OF THE DECEASED SELLER TO FIND OUT ABOUT THE EXACT AMOUNT OF PURCHASE CONSID ERATION, WAS ALSO REJECTED ON THE SURMISE THAT THE REAL PURCHASE PRICE WOULD BE KNOWN ONLY TO THE SELLER AND NOT TO RELATIVES OF THE SELLERS EVEN THOUGH THEY ARE CLOSE RELATIVES LIKE SON AND WIFE. THUS, UPHOLDING THE ORDER OF ASSESSING OFFICER, THE CIT(A) REJECTED THE GROUNDS OF APPEAL RAISED BY THE ASSESSEE. 7. THE ASSESSEE IS IN APPEAL AGAINST THE ORDER OF CIT(A). ITA NO S . 293 TO 296 /PN/20 1 6 SHAIK NAWID JABBAR KHAN & ORS 7 8. THE LEARNED AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE POINTED OUT THAT THE PERUSAL OF AGREEMENT TO SELL WOULD REFLECT THAT THE AGREED VAL UE WAS RS.11,51,000/ - ONLY. OUR ATTENTION WAS DRAWN TO THE ENGLISH TRANSLATION OF THARAV PATRA PLACED AT PAGE 16 OF THE PAPER BOOK ALONG WITH ORIGINAL IN MARATHI. THE PERUSAL OF THE SAID THARAV PATRA EXECUTED ON 19.06.2009 REVEALS THAT THE AGREED SALE VA LUE WAS RS.11,51,000/ - AND ON THE EXECUTION OF SAID THARAV PATRA, SUM OF RS.5 LAKHS WAS PAID IN ADVANCE, WHICH WAS RECEIVED BY THE SELLER IN VIEW OF DOMESTIC DIFFICULTIES. THE BALANCE SUM OF RS.6,51,000/ - WAS TO BE PAID AT THE TIME OF SALE DEED REGISTRATI ON. THEREAFTER, THE ASSESSEE ENTERED INTO SALE DEED, COPY OF WHICH IS PLACED AT PAGES 1 TO 15 OF THE PAPER BOOK ALONG WITH ENGLISH TRANSLATION. THE PERUSAL OF THE TERMS OF SALE DEED REFLECTS THAT THE AGREEMENT WAS BETWEEN FOUR PURCHASERS ON THE ONE HAND AND ONE SELLER I.E. SHRI SHIVAJI NAGNATH NARKE WITH CONSENTING PARTIES I.E. NARKE MANOJ SHIVAJIRAO, SON OF THE SELLER AND NARKE AYODHYA SHIVAJIRAO, WHO WAS WIFE OF SELLER, ON THE OTHER HAND. THE LEARNED AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE STRESSED THAT BOTH THE SALE DEED S TALKS OF SALE CONSIDERATION OF RS.35,26,000/ - RECEIVED BY THE SELLER BUT THIS AMOUNT WAS AS PER THE STAMP DUTY VALUATION AUTHORITY AND EVEN THE STAMP PAPER WAS PURCHASED FOR THE SAID CONSIDERATION. THE LEARNED AUTHORIZED REPRESENT ATIVE FOR THE ASSESSEE FURTHER POINTED OUT THAT THE MARKET VALUE OF THE SAID PROPERTY AS ON DATE OF SALE WAS RS.10,83,000/ - , COPY OF VALUERS REPORT IS PLACED AT PAGES 21 TO 25 OF THE PAPER BOOK. THE LEARNED AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE STRE SSED BEFORE US THAT THOUGH THE SELLER HAD EXPIRED, BUT A REQUEST WAS MADE TO THE ASSESSING OFFICER TO ALLOW CROSS - EXAMINATION OF CONSENTING PARTIES. IN THIS REGARD, AN AFFIDAVIT WAS ALSO FILED AND BOTH THE AUTHORITIES BELOW HAVE DENIED THE CROSS - EXAMINATI ON TO THE ASSESSEE. HE STRESSED FOR THE FAIR DECISION OF THE ISSUE , T HE CROSS - EXAMINATION IS NECESSARY AS THE ASSESSEE HAD NOT PAID ANY AMOUNT OTHER THAN RECORDED IN AGREEMENT TO SELL. ITA NO S . 293 TO 296 /PN/20 1 6 SHAIK NAWID JABBAR KHAN & ORS 8 9. THE LEARNED DEPARTMENTAL REPRESENTATIVE FOR THE REVENUE OPPOSED T HE REQUEST OF LEARNED AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE ON THE GROUND THAT IN THE SALE DEED, THE SELLER VERY CATEGORICALLY ADMITS TO HAVE RECEIVED RS.35,26,000/ - ON VARIOUS DATES BECAUSE OF FINANCIAL DIFFICULTIES. ONCE THE AMOUNT HAS BEEN ACCEPTE D BY THE SELLER TO HAVE BEEN RECEIVED, THERE IS NO MERIT IN THE CROSS - EXAMINATION OF THE THIRD PARTIES WHO WERE NOT PART OF THE CONTRACT, HAD ONLY SIGNED THE AGREEMENT AS CONSENTING PARTIES. 10. THE LEARNED AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE IN REPLY, SUBMITTED THAT THE ASSESSEE BEING SMALL TIME FARMER, HAD NO KNOWLEDGE AND UNDER MIS - GUIDANCE, HAD SIGNED THE SALE DEED, WHERE THE AMOUNT WAS MENTIONED ON ACCOUNT OF STAMP VALUATION. 11. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE RECORD. T HE ISSUE ARISING IN THE PRESENT APPEAL IS IN RELATION TO THE PURCHASE PRICE PAID BY THE ARISING IN THE PRESENT APPEAL IS IN RELATION TO THE PURCHASE PRICE PAID BY THE ASSESSEE FOR ACQUIRING A PIECE OF LAND IN LATUR. THE ASSESSEE CLAIMS TO HAVE PURCHASED THE SAID PIECE OF LA ND ALONG WITH OTHER CO - OWNERS, FOR WHICH AN AGREEMENT TO SEL L I.E. THARAV PATRA WAS EXECUTED ON 19.06.2009 . AS PER AGREEMENT TO SELL, THE PARTIES HAD AGREED TO SALE CONSIDERATION OF RS.11,51,000/ - , AGAINST WHICH RS.5 LAKHS WAS PAID THEREON AND BALANCE OF RS. 6,51,000/ - WAS TO BE PAID AT THE TIME OF REGISTRATION OF SALE DEED. HOWEVER, ON A LATER DATE, ANOTHER SUM OF RS.5 0 ,000/ - WAS PAID WHICH WAS ALSO ACKNOWLEDGED AND THE ASSESSEE CLAIMS THAT THE BALANCE CONSIDERATION OF RS. 6,01,000/ - WAS PAID TO THE SELLER AT THE TIME OF REGISTRATION OF SALE DEED. THE SALE DEED WA S EXECUTED ON 14.01.2010, UNDER WHICH THE ASSESSEE RECEIVED THE POSSESSION OF SAID PROPERTY. THE OWNER OF SAID LAND SHRI SHIVAJI NAGNATH NARKE HAD EXECUTED THE SALE DEED WITH THE PURCHASERS I.E. THE ASSESSEE BEFORE US AND BOTH HIS WIFE AND SON WERE CONSEN TING PARTIES TO THE SAID SALE DEED. ITA NO S . 293 TO 296 /PN/20 1 6 SHAIK NAWID JABBAR KHAN & ORS 9 THE LAND AREA MENTIONED AS AGRICULTURAL LAND IN THE JURISDICTION OF LATUR WAS THE SAME. HOWEVER, THE SALE CONSIDERATION WHICH WA S CLAIMED TO HAVE ACCEPTED BY THE SELLER IS STATED TO BE RS.35,26,000/ - IN THE SAID SALE D EED. THE CLAIM OF THE ASSESSEE BEFORE US IS THAT THE SAID SUM OF RS.35,26,000/ - WAS THE STAMP DUTY VALUATION OF THE PROPERTY MADE BY REGISTERING AUTHORITIES. THE ASSESSEE HAD NOT PAID ANY SUM OVER AND ABOVE RS.11,51,000/ - . HOWEVER, BY AN ERROR, THE STAM P DUTY VALUATION OF RS.35,26,000/ - WAS MENTIONED AS CONSIDERATION IN THE SALE DEED ITSELF AS HAVING BEEN ACCEPTED BY THE SELLER. THE SELLER HAS EXPIRED ON 27.01.2011 AND THE ASSESSEE CLAIMS THAT BECAUSE OF HIS SAD DEMISE, THE MISTAKE IN THE DEED COULD NOT BE RECTIFIED. THE AUTHORITIES BELOW ON THE OTHER HAND, WERE OF THE VIEW THAT THE CONSIDERATION MENTIONED IN THE REGISTERED DOCUMENT WA S TO BE ACCEPTED AS THE CONSIDERATION FOR SAID TRANSACTION. THE CLAIM OF THE ASSESSEE THAT IT HAD FIRST ENTERED INTO AG REEMENT TO SELL, UNDER WHICH HE WAS OBLIGED TO PAY ONLY RS.11,51,000/ - , WAS NOT ACCEPTED BY EITHER ASSESSING OFFICER OR CIT(A) SINCE THE SAID DOCUMENT WAS AN UNREGISTERED DOCUMENT. UNDOUBTEDLY, THE SALE DEED EXECUTED BETWEEN THE PARTIES MENTIONED THE HIGH ER FIGURE THAN THE ONE MENTIONED IN THE AGREEME NT TO SELL. IN COMMON PRACTICE OF REGISTRATION OF SALE AND PURCHASE TRANSACTIONS OF LAND , IT IS SEEN THAT IN MO ST OF THE TRANSACTIONS , THE VALUE IN THE AGREEMENT TO SELL IS HIGHER ON ACCOUNT OF CASH COMPONENT THAN THE ONE WHICH IS FINALLY REGISTERED IN THE HANDS OF SELLER AND PURCHASER. HOWEVER, IN THE PRESENT CASE, THE AGREEMENT TO SELL TALKS OF MUCH LESSER VALUE OF RS.11,51,000/ - AS AGAINST THE SALE DEED TALKING OF RS.35,26,000/ - . 12. THE LEARNED AUTHORI ZED REPRESENTATIVE FOR THE ASSESSEE VEHEMENTLY ARGUED BEFORE US THAT THE ASSESSEE HAD PAID ONLY RS. 11,51,000/ - , WHICH ONLY WAS ACCEPTED BY THE SELLER AND THE AMOUNT MENTIONED IN THE SALE DEED IS ON ACCOUNT OF ENHANCED VALUE OF SAID PROPERTY I.E. THE STAMP DUTY VALUATION BY THE ITA NO S . 293 TO 296 /PN/20 1 6 SHAIK NAWID JABBAR KHAN & ORS 10 REGISTERING AUTHORITY AND T HE STAMP DUTY WAS PAID ON THE SAID ENHANCED VALUE. THE LEARNED AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE FURTHER DREW OUR ATTENTION TO THE VALUATION REPORT OF THE SAID PROPERTY AS ON DATE OF SALE, WHICH TA LKS OF THE VALUATION OF PROPERTY TO BE ABOUT RS. 10,83,000/ - , WHICH IS COMPARABLE TO THE PURCHASE CONSIDERATION PAID BY THE ASSESSEE ALONG WITH OTHER CO - OWNERS AT RS.11,51,000/ - . THE ASSESSEE IN THIS REGARD, HAD FURNISHED AN AFFIDAVIT BEFORE THE ASSESSING OFFICER AND COPY OF WHICH IS ALSO FILED BEFORE US. FURTHER, A REQUEST WAS MADE BY THE ASSESSEE BEFORE THE ASSESSING OFFICER AND ALSO BEFORE THE CIT(A) AND EVEN BEFORE US NOW , THAT AN OPPORTUNITY TO CROSS - EXAMINE THE CONSENTING PARTIES SHOULD BE GIVEN. TH E PLEA OF THE ASSESSEE IS THAT CONSENTING PARTIES ARE AWARE OF THE SALE CONSIDERATION, WHICH WAS RECEIVED BY THE SELLER I.E. HUSBAND / FATHER OF THE CONSENTING PARTIES, WHO ARE WIFE AND SON OF THE SELLER RESPECTIVELY. THE ASSESSING OFFICER AND CIT(A) HAVE BOTH DECLINED TO GIVE THE CROSS - EXAMINATION TO THE ASSESSEE HOLDING THAT IT WOULD NOT SERVE ANY PURPOSE AS IT IS THE S ELLER WHO HAD SOLD THE LAND AND HAD RECEIVED THE CONSIDERATION AND NOT THE CONSENTING PARTIES . THERE IS NO MERIT IN THE SAID STAND OF TH E AUTHORITIES BELOW , WHERE THE TWO PERSONS WHO ARE TO BE CALLED FOR CROSS - EXAMINA TION ARE THE CONSENTING PARTIES . T HEY ARE NOT WITNESSES OF THE SAID DOCUMENT, WHO MAY MANY TIMES BE NOT AWARE OF THE CONTENTS OF DOCUMENT . B UT A CONSENTING PARTY, WHO CONSEN TS TO THE TRANSACTIONS IN PRINCIPLE I.E. THE PERSON WHO WAS CONSENTING PARTY TO A SALE DEED NOT ONLY AGREES TO THE SALE TRANSACTION BUT ALSO AGREES TO THE SALE CONSIDERATION. IN VIEW THEREOF, I FIND MERIT IN THE PLEA OF THE ASSESSEE AND THE ASSESSING OFFICER IS DIRECTED TO ALLOW CROSS - EXAMINATION OF THE CONSENTING PARTIES I.E. WIFE AND SON OF THE SELLER TO THE ASSESSEE. THE ASSESSEE IS DIRECTED TO PRODUCE THE SAID PERSONS AND THE ASSESSING OFF ICER IS DIRECTED TO ALLOW CROSS - EXAMINATION TO THE ASSESSEE AND DECIDE THE ISSUE ACCORDINGLY. IN CASE, THE ASSESSEE IS UNABLE TO PRODUCE THE TWO PARTIES, THE ASSESSING OFFICER IS ITA NO S . 293 TO 296 /PN/20 1 6 SHAIK NAWID JABBAR KHAN & ORS 11 DIRECTED TO TAKE THE VIEW AS PER LAW. REASONABLE OPPORTUNITY OF BEING HEARD SHALL BE AFFORDED TO THE ASSESSEE WHILE DECIDING THE ISSUE. THE GROUNDS OF APPEAL RAISED BY THE ASSESSEE ARE THUS, ALLOWED FOR STATISTICAL PURPOSES. 1 3 . THE FACTS AND ISSUE IN ITA NOS.294/PN/2016 TO 296/PN/2016 ARE IDENTICAL TO THE FACTS AND ISSUE IN IT A NO.293/PN/2016 AND OUR DECISION IN ITA NO.293/PN/2016 SHALL APPLY MUTATIS MUTANDIS TO ITA NOS.294/PN/2016 TO 296/PN/2016. 1 4 . IN THE RESULT, ALL THE APPEALS OF ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED ON THIS 27 TH DAY OF MA Y , 201 6 . SD/ - (SUSHMA CHOWLA) (SUSHMA CHOWLA) / JUDICIAL MEMBER / PUNE ; DATED : 27 TH MA Y , 201 6 . GCVSR / COPY OF THE ORDER IS FORWARDED TO : 1. / THE APPELLANT ; 2. / THE RESPONDENT; 3. ( ) / THE CIT (A) - 2, AURANGABAD ; 4. / THE PR. CIT - 2, AURANGABAD ; 5. , , , - / DR SMC , ITAT, PUNE; 6. / GUA RD FILE . / BY ORDER , // TRUE COPY // / SR. PRIVATE SECRETARY , / ITAT, PUNE