SHR. MOHAMMAD SHARIF KHAN, Jaipur V. ACIT, Jaipur

ITA 34/JPR/2012

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 5295 (ITAT-JAIPUR)
• Duration Of Justice: 4 year(s) 4 month(s) 10 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-05-2016
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: A
• Assessment Year: 2008-2009
• Appeal Filed On: 12-01-2012
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: RAJ MEHRA JCIT DHK
• Keywords: Unexplained investment; Gift; Income from undisclosed sources; Search and seizure; Retraction
• Section: 143(3); 131; 69; 132

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 YFYR DQEKJ]] U;KF;D LNL; ,OA JH FOE FLAG ;KNO] YS[KK LNL; DS LE{K BEFORE: R.P. TOLANI, JM & SHRI VIKRAM SINGH YADAV, AM VK;DJ VIHY LA-@ ITA NO.34/JP/12 FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2008-09 SHRI MOHD. SHARIF KHAN 30-31 RAGHUNATH PURI, KALWAR ROAD, SAINIK MARG,, JHOTWARA ROAD, JAIPUR CUKE VS. THE ACIT, CENTRAL CIRCLE-1, JAIPUR LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN NO. ANPPS 4165 E VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY : SHRI RAJEEV SOGANI (C.A.) JKTLO DH VKSJ LS@ REVENUE BY :SHRI RAJ MEHRA (JCIT) LQUOKBZ DH RKJH[K@ DATE OF HEARING : 25.2.2016 ?KKS'K .KK DH RKJH[K @ DATE OF PRONOUNCEMENT : 23/05/2016. VKNS'K@ ORDER PER SHRI VIKRAM SINGH YADAV, A.M. THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER OF CIT(A), CENTRAL, JAIPUR DATED 31.10.2011 WHEREIN THE ASSESS EE HAS TAKEN FOLLOWING GROUNDS OF APPEAL. 1. IN THE FACTS AND CIRCUMSTANCES OF THE CASE AND I N LAW, THE LD. CIT(A) HAS ERRED IN CONFIRMING THE ACTION OF THE LD. AO IN A DDING A SUM OF RS. 56,50,000/- AS UNDISCLOSED INCOME. THE ACTION OF THE LD. CIT( A) IS ILLEGAL, UNJUSTIFIED, ARBITRARY AND AGAINST THE FACTS OF THE CASE. RELI EF MAY PLEASE BE GRANTED BY DELETING THE SAID ADDITION OF RS. 56,50,000/- 2. IN THE FACTS AND CIRCUMSTANCES OF THE CASE AND I N LAW, THE LD. CIT(A) HAS ERRED IN CONFIRMING THE ACTION OF THE LD. AO IN A DDING A SUM OF RS.8,13,010/- AS UNEXPLAINED INVESTMENT U/S 69 OF THE IT ACT, 1961. THE ACTION OF THE LD. CIT(A) ITA NO. 34/JP/12 SHRI MOD. SHARIF KHAN JAIPUR VS. ACIT, CENTRAL CIRC LE-1, JAIPUR 2 IS ILLEGAL, UNJUSTIFIED, ARBITRARY AND AGAINST THE FACTS OF THE CASE. RELIEF MAY PLEASE BE GRANTED BY DELETING THE SAID ADDITION OF RS. 8,13,010/-. (3) IN THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A) HAS ERRED IN CONFIRMING THE ACTION OF THE LD. AO IN T REATING THE AGRICULTURE INCOME OF RS.1,16,400/- AS INCOME FROM OTHER SOURCES & ADD ING THE SAME TO THE TOTAL INCOME OF THE ASSESSEE. THE ACTION OF THE LD. CIT(A ) IS ILLEGAL, UNJUSTIFIED, ARBITRARY AND AGAINST THE FACTS OF THE CASE. RELIE F MAY PLEASE BE GRANTED BY DELETING THE SAID ADDITION OF RS. 1,16,400/- AND TR EATING IT AS AGRICULTURAL INCOME AS CLAIMED BY THE ASSESSEE. 2. FIRSTLY REGARDING GROUND NO. 1, BRIEFLY THE FACT S OF THE CASE ARE THAT SEARCH AND SEIZURE OPERATIONS WERE CARRIED OUT UNDE R SECTION 132 OF THE ACT AGAINST SHRI SHANKAR LAL KHANDELWAL. DURING THE CO URSE OF SEARCH PROCEEDINGS SHRI SHANKAR LAL KHANDELWAL WAS FOUND INVOLVED IN D EVELOPING A REAL ESTATE PROJECT IN THE NAME OF GOBAL CITY. STATEMENT OF SHR I SHANKAR LAL KHANDELWAL WERE RECORDED U/S 132(4) ON 16.11.2007 WHEREIN HE S TATED THAT SHRI MOHD. SHARIF KHAN, THE APPELLANT, WAS A PARTNER IN THE GL OBAL CITY PROJECT AND HAD INVESTED A SUM OF RS. 56,50,000/- IN CASH IN THE PA RTNERSHIP FIRM CONSTITUTED FOR THE PURPOSE OF DEVELOPING THE GLOBAL CITY PROJE CT. DURING THE COURSE OF SEARCH PROCEEDINGS IN THE BUSINESS PREMISES OF SHRI SHANKAR LAL KHANDELWAL, ONE ALLEGED PARTNERSHIP DEED WAS FOUND WHEREIN SHRI MOD. SHARIF KHAN WAS MENTIONED AS A PARTNER. A STATEMENT OF SHRI MOHD. S HARIF KHAN WAS ALSO RECORDED U/S 131 OF THE ACT ON THE SAME DATE IE, 16 .11.2007, WHEREIN HE HAD ACCEPTED TO HAVE INVESTED A SUM OF RS.56,50,000/- I N THE PARTNERSHIP FIRM AND STATED THAT THE MONEY WAS HIS UNDISCLOSED INCOME AN D HE SURRENDERED THIS FOR TAXATION. LATER ON DURING THE ASSESSMENT PROCEEDINGS, THE APP ELLANT FILED A LETTER ALONG WITH AN AFFIDAVIT OF SHRI SHANKARLAL KHANDELW AL STATING THAT SHRI MOHD. SHARIF KHAN HAS NO FINANCIAL DEALING WITH HIM. THE REAFTER, SHRI SHANKARLAL KHANDELWAL WAS CONFRONTED BY ISSUE OF SUMMON U/S 13 1 AND IN REPLY TO WHICH HE SUBMITTED A COPY OF LEDGER ACCOUNT OF SHRI MOHD . SHARIF KHAN AND ACCEPTED THAT HE HAS RECEIVED A SUM OR RS. 56,50,000/- ON 20 .10.2007 IN CASH AND SAME WAS REFUNDED AS PER CANCELLATION AGREEMENT. ITA NO. 34/JP/12 SHRI MOD. SHARIF KHAN JAIPUR VS. ACIT, CENTRAL CIRC LE-1, JAIPUR 3 BASED ON ALL THE ABOVE FACTS AND TAKING INTO CONSID ERATION STATEMENT RECORDED OF SHRI MOHD. SHARIF KHAN AND SHRI SHANKAR LAL KHANDELWAL, THE AO MADE AN ADDITION OF RS 56,50,000 TREATING THE SAME AS UNDISCLOSED INCOME OF THE APPELLANT. BEING AGGRIEVED, THE APPELLANT CARR IED THE MATTER IN APPEAL BEFORE LD CIT(A) AND BEEN UNSUCCESSFUL, HENCE THE S UBJECT APPEAL BEFORE US. 2.2 THE LD. AR HAS SUBMITTED THAT THE LD. CIT(A) HA S SOLELY BASED HIS DECISION ON THE ORAL EVIDENCES IN THE FORM OF STATEMENTS RE CORDED OF SHRI MOHD. SHARIF KHAN AND SHRI SHANKARLAL KHANDELWAL. THE LD. CIT( A) HAS ERRED IN NOT GIVING ANY CREDENCE TO THE DOCUMENTARY EVIDENCE AVAILABLE ON R ECORD. IN FACT HE HAS CONFIRMED THE ADDITION WITHOUT GIVING ANY REASON TO THE FOLLOWING ISSUES RAISED BEFORE HIM DURING APPELLATE PROCEEDINGS. WHY NO DE ED WAS EXECUTED AND SIGNED WHEN THE SAME WAS READY TO SIGNING BY PARTI ES? WHY THE MONEY WAS RETURNED TO THE SAME DAY? WHY WILL ANYONE INVEST SU CH A HUGE SUM OF RS. 56,50,000/- IN CASH WITHOUT SIGNING ANY DEED WHEN T HE SAME WAS READY FOR SIGNING? WHY THE FIRM WILL ALLOW WITHDRAWAL OF MONE Y WITHOUT EXECUTING A RETIREMENT DEED ESPECIALLY WHEN THE PROJECT WAS REL ATED TO REAL ESTATE HAVING LARGE STAKES? IT WAS FURTHER SUBMITTED THAT THE LD. CIT(A) HAS FO RGOTTEN THAT THE PROJECT INVOLVED WAS OF REAL ESTATE HAVING SIGNIFICANT FINA NCIAL STAKES. A PERSON BEING RETIRED FROM PARTNERSHIP WITHOUT PROPER DOCUMENTATI ON MAY CLAIM TO BE A PARTNER AT ANY LATER STAGE. IT WAS FURTHER SUBMITTED THAT THE LD. CIT(A) HAS IG NORED THE ATTENDANT CIRCUMSTANCES AND ALSO IGNORED THE PREPONDERANCE OF PROBABILITIES. THE LD. CIT(A) HAS SIMPLY BRUSHED ASIDE THE ARGUMENTS BY JUST MENTIONING THAT RETURNING THE MONEY ON THE SAME DAY DOES NOT MATERI ALLY AFFECT THE MOOT ISSUE OF GIVING CASH OF RS. 56,50,000/- BY APPELLAN T. WHEREAS THIS IS THE MOST IMPORTANT QUESTION TO BE ANSWERED AS IN PRACTICAL L IFE ONE NEVER COMES ACROSS A SITUATION WHERE PARTNER INTRODUCES HUGE CASH OF R S. 56,50,000/- AND WITHDRAWS THE ENTIRE AMOUNT ON THE VERY SAME DAY. IT IS IMPORTANT TO NOTE THAT THE SO CALLED LEDGER ACCOUNT SUBMITTED BY SHR I SHANKARLAL KHANDELWAL AND APPEARING AT PAGE 4 OF LD. AO ORDER WAS NOT FOUND D URING SEARCH BUT WAS SUBMITTED LATER ON DURING ASSESSMENT PROCEEDINGS BY SHANKARLAL KHANDELWAL. THE LD. CIT(A) HAS NOT CONSIDERED THE TIME WHICH W OULD REQUIRE TO COUNT RS.1,13,00,000/-. IF ONE GIVES CAREFUL THOUGHT TO THIS SITUATION THE ANSWER ITA NO. 34/JP/12 SHRI MOD. SHARIF KHAN JAIPUR VS. ACIT, CENTRAL CIRC LE-1, JAIPUR 4 WOULD BE THAT THE EVENT OF GIVING CASH AND WITHDRAW ING THE SAME HAS NOT TAKEN PLACE. LD AR FURTHER PLACED RELIANCE ON THE JUDGEMENT OF H ONBLE SUPREME COURT IN THE CASE OF SUMATI DAYAL 214 ITR 801 WHEREIN IT WAS HELD THAT FOR CONSIDERING WHETHER THE APPARENT IS REAL, MATTER HAS TO BE CONS IDERED BY APPLYING THE TEST OF HUMAN PROBABILITIES. IT WAS FURTHER SUBMITTED THAT IT IS EQUALLY IMPORTA NT FACT THAT DURING THE COURSE OF SEARCH AGAINST SHRI SHANKARLAL KHANDELWAL, NO DO CUMENTARY EVIDENCE WAS RECOVERED WHICH COULD SUGGEST INVESTMENTS OF RS. 56 .50 LACS BY SHRI MOHD. SHARIF KHAN. EVEN IN THE STATEMENTS RECORDED U/S 132(4) OF SHRI SHANKARLAL KHANDELWAL THERE IS NO MENTION OF RS 56.50 LACS IN VESTED BY SHRI MOHD. SHARIF KHAN. THIS FIGURE IS IMAGINATION OF THE DEPARTMEN T FOR WHICH STATEMENT WAS EXTRACTED FROM SHRI MOHD. SHARIF KHAN. IN VIEW OF ABOVE THE ACTION OF LD. CIT(A) IN CONFIRMING THE SAID ADDITION MAY PLEASE B E QUASHED. 2.3. LD DR IS HEARD WHO HAS RELIED UPON THE ORDER O F THE LOWER AUTHORITIES. 2.4. WE HAVE HEARD THE RIVAL CONTENTIONS AND PURSUE D THE MATERIAL AVAILABLE ON RECORD. IN THE INSTANT CASE, THE ASSESSMENT HAS BEEN MADE U/S 143(3) OF THE ACT WHEREBY AN ADDITION OF RS 56,50,000 HAS BEE N MADE TOWARDS UNDISCLOSED INCOME OF THE APPELLANT. THE BASIS OF SUCH ADDITION IS THE STATEMENT OF THE APPELLANT RECORDED U/S 131 OF THE ACT AND THE STATEMENT OF SHRI SHANKARLAL KHANDELWAL RECORDED U/S 132(4) OF T HE ACT. IN THIS REGARD, WE HAVE GONE THROUGH BOTH THE STATEMENTS AND OTHER MAT ERIAL AVAILABLE ON RECORD AND NOTE WITH APPROVAL THE FOLLOWING FINDINGS OF LD CIT(A) AS UNDER: (2.3) I HAVE CONSIDERED THE SUBMISSION OF LD. AR A ND HAVE PERUSED THE MATERIAL ON RECORD. ON PERUSAL OF THE STATEMENT O F APPELLANT WHICH ARE RECORDED U/S 131 ON 16.11.2007, WHICH HAS BEEN REPR ODUCED EARLIER, THE APPELLANT HAS CATEGORICALLY STATED IN ANSWER TO QUE STION NO.4 THAT HE HAS GIVEN RS. 56,50,000/-THAT TOO IN CASH FOR THE PROJECT (GL OBAL CITY). IN SUBSEQUENT ANSWER TO QUESTION NO.4 TO QUESTION NO.3 HE HAS FUR THER AVERRED THAT THIS MONEY WAS INVESTED IN PROJECT ONLY FOR WEEK TO 10 DAYS AND HE DID NOT CONTINUE WITH THE PROJECT AND MONEY WAS RECEIVED BA CK. THE ARGUMENT OF THE AR IS THAT THE DOCUMENTARY EVIDENCE IS THE PARTNERS HIP DEED WHICH IS UNSIGNED AND UNDATED AND HAVING NAME AS PVT. LTD. W HICH WAS THE NAME ITA NO. 34/JP/12 SHRI MOD. SHARIF KHAN JAIPUR VS. ACIT, CENTRAL CIRC LE-1, JAIPUR 5 MENTIONED IN THE DEED, OBVIOUSLY THE SO CALLED PAR TNERSHIP DEED WAS RIGHTLY NOT SIGNED BY THE PARTNERS. SINCE IT HAS NOT BEEN SIGNED BY THE PARTNERS, THERE IS NO QUESTION OF SIGNATURE OF WITNESSES AND MOREOV ER THAT IS WHY THE DATE OF EXECUTION IS ALSO BLANK. THE OTHER ISSUE RAISED BY THE AR OF THE APPELLANT REGARDING NO ANY WRITTEN AGREEMENT HAS ALSO BEEN AN SWERED IF WE PERUSE THE ANSWER TO QUESTION NO. 18 OF THE STATEMENT OF THE A PPELLANT (REPRODUCED IN EARLIER PARAS) WHEREIN HE WAS ASKED ABOUT ANY AGREE MENT FOR THIS GLOBAL CITY PROJECT. HE HAS AVERRED THAT NO WRITTEN AGREE MENT WAS EXECUTED FOR THIS PROJECT AND THE AGREEMENT WAS ONLY ORAL. (2.3.1) IT IS PERTINENT TO MENTION THAT NOT ONLY TH E APPELLANT HAS ADMITTED TO HAVE GIVEN RS. 56.50 LAKHS FOR GLOBAL CITY PROJE CT TO SHRI S.L. KHANDELWAL BUT SHRI KHANDELWAL HAS ALSO ADMITTED IN HIS STATEMENT RECORDED DURING THE COURSE OF SEARCH THAT HE HAS RECEIVED RS. 56.50 LAKHS FROM SHRI MOHD. SHARIF KHAN I.E. THE APPELLANT. THE SUBSEQUENT FILING OF AFFIDAVIT OF SHRI S.L. KHANDELWAL BY THE APPELLANT DURING ASSESSMENT PROCEEDING ON 17.06.20 10 BEFORE THE AO IS OF NO VALUE AND HAS BEEN RIGHTLY REJECTED BY THE AO. BECA USE WHEN SHRI S.L. KHANDELWAL WAS CONFRONTED BY THE ISSUE OF SUMMON U/ S 131, HE HAS ACCEPTED THAT HE HAS RECEIVED A SUM OF RS. 56.50 LAKHS ON 20 .10.2007 FROM MOHD. SHARIF KHAN AND SAME WERE REFUNDED. IN SUPPORT OF THE SAM E, HE ALSO SUBMITTED THE COPY OF LEDGER ACCOUNT OF SHRI MOHD. SHARIF KHAN A PPEARING IN HIS BOOKS. THUS THE CONTENTS OF AFFIDAVIT OF SHRI KHANDELWAL FILED BY THE APPELLANT HAS BEEN REBUTTED BY SHRI KHANDELWAL HIMSELF AND ARE THUS FOUND TO BE INCORRECT BY THE AO. THE ARGUMENT OF THE AR OF CROSS EXAMINATIO N NOT GIVEN IS HAVING NO MERIT IN VIEW OF THE FACT THAT THE AFFIDAVIT WAS PR ODUCED BY THE APPELLANT AND ACCORDINGLY, CROSS EXAMINATION OF SHRI KHANDELWAL, IS TO BE DONE BY AO AND NOT BY THE APPELLANT. AS REGARDS INCONSISTENCY OF RETU RNING BACK OF THE MONEY IN WEAK TO TEN DAYS AS TOLD BY THE APPELLANT AND ON SA ME DAY AS FINALLY TOLD BY SHRI KHANDELWAL SUPPORTED BY THE COPY OF LEDGER AC COUNT, IT IS EVIDENT THAT IT DOES NOT MATERIALLY AFFECT THE MOOT ISSUE OF GIVING CASH OF RS. 56.50 LAKHS BY APPELLANT. ALL THE FACTS AND CIRCUMSTANCES AND THE EVIDENCES PROVES THAT APPELLANT HAS PAID RS. 56.50 LAKHS IN CASH TO SHRI KHANDELWAL. THE DATE OF RECEIVING BACK OF THE MONEY BY THE APPELLANT IS NO T RELEVANT FOR THE PURPOSE OF CONSIDERING THE ADDITION. AS SOURCE OF INVESTMENT OF RS.56.50 LAKHS GIVEN BY THE APPELLANT IN CASH IS NOT EXPLAINED BY THE APPEL LANT AND MOREOVER DURING THE COURSE OF STATEMENT SO RECORDED U/S 131 ON 16. 11.2007, HE HAS ALREADY ITA NO. 34/JP/12 SHRI MOD. SHARIF KHAN JAIPUR VS. ACIT, CENTRAL CIRC LE-1, JAIPUR 6 ADMITTED THE SAME TO BE HIS UNACCOUNTED INCOME AND SAME BEING SUPPORTED BY THE STATEMENT OF RECIPIENT AS WELL AS THE DOCUME NTARY EVIDENCE BY WAY OF LEDGER ACCOUNT OF THE APPELLANT IN THE BOOKS OF REC IPIENT AND CONSIDERING THE DECISIONS OF CITED BY THE AO REGARDING RETRACTION B EING NOT VALID IN THE PRESENT CASE, THE ADDITION OF RS. 56,50,000/- SO MADE BY TH E AO IS HEREBY CONFIRMED. 2.5 LD AR HAS CONTENDED THAT ONLY ON THE BASIS OF O RAL EVIDENCE IN THE FORM OF STATEMENT RECORDED OF SHRI MOHD SHARIF KHAN AND SHRI SHANKAR LAL KHANDELWAL, THE ADDITION HAS BEEN MADE AND THE REVE NUE HAS NOT CORROBORATED THE SAME BY WAY OF ANY DOCUMENTARY EVI DENCE AND THE STATEMENT COULD ALWAYS BE SUBSEQUENTLY RETRACTED. 2.6 IN THIS REGARD, WE DRAW REFERENCE TO THE DECISI ON OF THE HONBLE SUPREME COURT IN CASE OF PULLANGODE RUBBER PRODUCE CO. LTD. VS. STATE OF KERALA (1973) 91 ITR 18 FOR THE PROPOSITION THAT AN ADMISSION IS AN EXTREM ELY IMPORTANT PIECE OF EVIDENCE BUT IT CANNOT BE SAID T HAT IT IS CONCLUSIVE AND IT IS OPEN TO THE PERSON WHO MADE THE ADMISSION TO SHOW T HAT IT IS INCORRECT AND THAT THE ASSESSEE SHOULD BE GIVEN A PROPER OPPORTUN ITY TO SHOW THAT THE BOOKS OF ACCOUNT DO NOT CORRECTLY DISCLOSE THE CORRECT ST ATE OF FACTS. THE ADMISSION ONCE MADE CAN CERTAINLY BE RETRACTED IF IT CAN BE S HOWN TO HAVE BEEN MADE UNDER SOME MISTAKE OR TO BE OTHERWISE INCORRECT. T HE ONUS IS ON THE MAKER OF THE SAID STATEMENT AND NOT ON THE REVENUE. IN THE PRESENT CASE, THE APPELLANT HAS NOT PRODUCED ANY MATERIAL TO SHOW THAT THE ADMI SSION MADE BY HIM AND CORROBORATED BY THE STATEMENT OF SHANKAR LAL KHANDE LWAL WERE INCORRECT. ONCE THERE IS A CLEAR ADMISSION, VOLUNTARILY MADE, ON THE PART OF THE APPELLANT, THAT WOULD CONSTITUTE A GOOD PIECE OF EVIDENCE AT T HE HANDS OF THE REVENUE AUTHORITIES. FURTHER, ONCE THE APPELLANT HAS ADMITT ED TO THE UNDISCLOSED INCOME AND SURRENDERED THE SAME, REVENUE HAS REFRAI NED FROM ENQUIRING ANY FURTHER INTO ATTENDANT CIRCUMSTANCES. THE THEORY O F PREPONDERANCE OF PROBABILITIES AS CANVASSED BY THE LD AR DOESNT ADV ANCE THE CASE OF THE APPELLANT IN THE FACTS OF THE PRESENT CASE. THE ST ATEMENTS RECORDED U/S 131 OF THE APPELLANT AND CORROBORATED BY THE STATEMENT OF SHRI SHANKAR LAL KHANDELWAL RECORDED U/S 132(4) OF THE ACT ARE THUS CLEARLY RELEVANT AND ADMISSIBLE AS EVIDENCE AGAINST THE APPELLANT. IN LI GHT OF THAT, WE ARE OF THE CONSIDERED VIEW THAT THE ADDITION OF UNDISCLOSED IN COME OF RS 56,50,000 HAS ITA NO. 34/JP/12 SHRI MOD. SHARIF KHAN JAIPUR VS. ACIT, CENTRAL CIRC LE-1, JAIPUR 7 BEEN RIGHTLY MADE AND CONFIRMED BY LD CIT(A). THE GROUND TAKEN BY THE APPELLANT IS ACCORDINGLY DISMISSED. 3. GROUND NO.2 IS REGARDING ADDITION OF RS. 8,13,01 0/- AS UNDISCLOSED INVESTMENT U/S 69 OF THE ACT. BRIEFLY THE FACTS OF THE CASE ARE THAT THE APPELLANT HAD PURCHASED A PROPERTY AT SANJAY NAGAR, KALWAR ROAD, JHOTWARA FOR AN AMOUNT OF RS. 7,50,000/- AND RS.63,010/- WAS PAID TOWARDS REGISTRY TOTALLING TO RS. 8,13,0210/-. OUT OF THE TOTAL COS T, THE APPELLANT CLAIMS THAT AN AMOUNT OF RS. 6,40,000/- WAS RECEIVED AS GIFT FROM HIS BROTHER SHRI RASOOL BUX KHAN WHICH WAS DEPOSITED IN HIS BANK ACCOUNT ON 18. 10.2005 AND 25.11.2005 AND LATER ON WITHDRAWN ON 08.12.2005. AS PER THE A PPELLANT, THE SAID AMOUNT WAS GIVEN AS AN ADVANCE TO THE SELLER OF THE SAID P ROPERTY BUT THE REGISTRY OF THE PROPERTY WAS LATER ON MADE ON 02.04.2007. AS PE R LD CIT(A), THE AMOUNT OF RS. 6,40,000/- RECEIVED FROM SHRI RASOOL BUX KHAN W AS WITHDRAWN ON 08.12.2005, WHEREAS THE PROPERTY IN CONSIDERATION H AS BEEN PURCHASED ON 02.04.2007. THIS CASH SO WITHDRAWN CANNOT BE SAID TO BE AVAILABLE INTACT FOR AS MUCH AS 16 MONTHS SO AS TO BE USED FOR PURCHASE OF THE IMPUGNED PROPERTY. LD CIT(A) FURTHER HELD THAT IN THE ABSENCE OF ANY CONT RARY EVIDENCE, IT HAS TO BE LOGICALLY AND LEGALLY ACCEPTED THAT THE CASH WAS PA ID AT THE TIME OF EXECUTION OF THE REGISTRY ON 02.04.2007 FALLING DURING THE SU BJECT FINANCIAL YEAR AND THE APPELLANT HAVING FAILED TO OFFER A SATISFACTORY EXP LANATION, HE CONFIRMED THE ADDITION OF RS 8,13,010 AS UNEXPLAINED INVESTMENT U NDER SECTION 69 OF THE ACT. 3.1 THE LD. AR SUBMITTED THAT THERE IS NO DISPUTE A BOUT THE AMOUNT HAVING BEEN RECEIVED THROUGH CHEQUE IN BANK ACCOUNT OF APP ELLANT FROM HIS ELDER BROTHER SHRI RAZOOL BUX KHAN. THERE IS ALSO NO DIS PUTE ABOUT THE CASH HAVING BEEN WITHDRAWN ON 08.12.2005. THE ONLY DOUBT RAISE D BY THE LOWER AUTHORITIES IS THAT AMOUNT CANNOT REMAIN IN CASH WI TH THE APPELLANT FOR ABOUT 16 MONTHS FOR ITS BEING UTILIZED FOR PURCHASE OF TH E PLOT OF LAND. IT IS IMPORTANT TO NOTE THAT THE APPELLANT IS UNEDUCATED AND BELONG TO A COMMUNITY WHICH HAS LESS BANKING HABITS ON ACCOUNT OF THEIR RELIGIOUS F AITH. IN VIEW OF ABOVE, IT IS SUBMITTED THAT ADDITION CONFIRMED BY THE LD. CIT(A) MAY PLEASE BE DELETED. 3.2 LD DR DRAWN OUR REFERENCE TO RELEVANT CLAUSES O F THE CONVEYANCE DEED AND SUBMITTED THAT THE LANGUAGE IN THE CONVEYANCE D EED IS CLEAR THAT THE WHOLE OF THE CONSIDERATION OF RS 7,50,000 WAS PAID BY THE APPELLANT AT THE ITA NO. 34/JP/12 SHRI MOD. SHARIF KHAN JAIPUR VS. ACIT, CENTRAL CIRC LE-1, JAIPUR 8 TIME OF EXECUTION OF THE SALE DEED IE, ON 2.4.2007. FURTHER, HE SUPPORTED THE FINDINGS OF THE LOWER AUTHORITIES. 3.3 WE HAVE HEARD THE RIVAL CONTENTIONS AND PURSUED THE MATERIAL AVAILABLE ON RECORD. IN THE INSTANT CASE, FIRSTLY, IT IS NOT ED THAT AS AGAINST THE INVESTMENT OF RS. 8,13,010/- IN THE SUBJECT PROPERTY, WHAT IS BEING DISPUTED BY THE REVENUE IS SOURCE OF INVESTMENT TO AN EXTENT OF RS 6,40,000 ONLY. IN THIS REGARD, THE APPELLANT HAS SUBMITTED BEFORE THE LOWE R AUTHORITIES THAT HE HAS RECEIVED THE SAID AMOUNT OF RS. 6,40,000/- AS GIFT FROM HIS BROTHER SHRI RASOOL BUX KHAN THROUGH NORMAL BANKING CHANNELS WHICH WAS DEPOSITED IN HIS BANK ACCOUNT ON 18.10.2005 AND 25.11.2005 AND LATER ON W ITHDRAWN ON 08.12.2005 AND PAID AS ADVANCE TO THE SELLER OF THE SAID PROPE RTY. THE FACTS RELATING TO RECEIPT OF GIFT OF RS 6,40,000 FROM THE APPELLANTS BROTHER SHRI RASOOL BUX KHAN AND SUBSEQUENT WITHDRAWAL HAS NOT BEEN DISPUTED BY THE REVENUE AND THUS STAND ADMITTED. THE NEXT QUESTION THAT ARISES IS WHETHER THE APPELL ANT HAS UTILISED THE SAID GIFT AMOUNT TOWARDS PART PAYMENT OF THE PURCHASE CONSIDE RATION FOR THE PURCHASE OF THE SUBJECT PROPERTY. AS PER LD CIT(A), THE PRO PERTY IN CONSIDERATION HAS BEEN PURCHASED ON 02.04.2007 AND THE CASH SO WITHDR AWN ON 8.12.2005 CANNOT BE SAID TO BE AVAILABLE INTACT FOR AS MUCH A S 16 MONTHS SO AS TO BE USED FOR PURCHASE OF THE IMPUGNED PROPERTY AND IN THE AB SENCE OF ANY CONTRARY EVIDENCE, THE CASH WAS PAID AT THE TIME OF EXECUTI ON OF THE REGISTRY ON 02.04.2007 FALLING DURING THE SUBJECT FINANCIAL YEA R. AFTER GOING THE CONVEYANCE DEED DATED 2.4.2007 WHICH IS AVAILABLE O N RECORD, WE FIND THAT AFFIRMATIONS OF BOTH SELLER AND BUYER REGARDING DIS CHARGE OF PURCHASE CONSIDERATION AND HANDING OVER OF THE PHYSICAL POSS ESSION OVER THE PROPERTY ARE IN THE PRESENT TENSE I,E AT THE TIME OF EXECUTI ON OF THE CONVEYANCE DEED AND NOT PRIOR TO THAT. HAD THE CONSIDERATION BEEN DISCHARGED EARLIER, THE FACT RELATING TO THE SAME WOULD HAVE FOUND MENTION IN TH E CONVEYANCE DEED AND EVEN THE SAME HAS TO BE BROUGHT TO THE NOTICE OF RE GISTRAR WHILE REGISTERING THE CONVEYANCE DEED WHO AFTER VERIFYING THE SAME MA KES A MENTION WHILE REGISTERING THE CONVEYANCE DEED, WHICH IS NOT THE C ASE BEFORE US. FURTHER, IT IS HIGHLY UNLIKELY THAT THE WHOLE OF THE PURCHASE CONS IDERATION AS CLAIMED BY THE APPELLANT HAS BEEN PAID IN ADVANCE AND THERE IS NO DOCUMENT/EVIDENCE TO SUPPORT THE SAME. WE WONDER WHAT WOULD HAVE HAPPEN ED HAD THE ITA NO. 34/JP/12 SHRI MOD. SHARIF KHAN JAIPUR VS. ACIT, CENTRAL CIRC LE-1, JAIPUR 9 CONVEYANCE DEED NOT BEEN REGISTERED FOR SOME REASON S, IN THAT CASE HOW THE APPELLANT WOULD EXERCISE HIS RIGHT TO CLAIM BACK TH E ADVANCE AMOUNT. WE THEREFORE AGREE WITH THE FINDINGS OF THE LD CIT(A) ATLEAST TO THE EXTENT THAT THE CONSIDERATION HAS BEEN DISCHARGED AND CASH HAS BEEN PAID ON THE DATE OF EXECUTION OF THE SALE DEED ON 2.4.2007. AT THE SAM E TIME, THE GIFT OF RS 640,000 STILL STAND ADMITTED AND NOT DISPUTED BY TH E REVENUE. IN THIS CONTEXT, A RELATED QUESTION THAT ARISES IS WHERE THE SOURCE HAS BEEN EXPLAINED AND THERE IS TIME GAP BETWEEN THE RECEIPT AND THE ULTIM ATE UTILISATION, WOULD THAT CALL FOR DISALLOWANCE UNDER SECTION 69 OF THE ACT A S HAS BEEN DONE IN THE INSTANT CASE. SECTION 69 OF THE ACT PROVIDES THAT WHERE THE APPELLANT HAS MADE AN INVESTMENT WHICH IS NOT RECORDED IN THE BOOKS OF ACCOUNTS, IF ANY MAINTAINED BY THE APPELLANT AND THE APPELLANT OFFER S NO EXPLANATION ABOUT THE NATURE AND SOURCE OF INVESTMENT OR EXPLANATION SO O FFERED BY THE APPELLANT IS NOT SATISFACTORY IN THE OPINION OF THE AO, THE VALU E OF THE INVESTMENT SO MADE SHALL BE DEEMED TO BE INCOME OF THE APPELLANT FOR T HE SAID FINANCIAL YEAR. ON READING OF THE RELEVANT PROVISIONS, WE FIND THAT TH ERE IS NOTHING WHICH SUGGEST THAT WHERE THE SOURCE HAS BEEN EXPLAINED AND THERE IS SOME TIME GAP BETWEEN THE RECEIPT AND THE ULTIMATE UTILISATION, THAT WOUL D CALL FOR DISALLOWANCE UNDER SECTION 69 OF THE ACT. ALL IT PROVIDES IS THAT THE APPELLANT HAS TO PROVIDE AN APPROPRIATE EXPLANATION REGARDING THE NATURE AND SO URCE OF INVESTMENT WHICH HAS BEEN DULY PROVIDED BY THE APPELLANT IN THE INST ANT CASE. IN LIGHT OF THE SAME, WE DELETE THE ADDITION OF RS. 8,13,010/- AS U NDISCLOSED INVESTMENT U/S 69 OF THE ACT. GROUND NO. 2 IS ACCORDINGLY ALLOWED. 4. GROUND NO.3 IS REGARDING TREATMENT OF AGRICULTUR AL INCOME OF RS. 1,16,400/- TREATED AS INCOME FROM OTHER SOURCES. U NDISPUTEDLY, THE APPELLANT OWNS AGRICULTURAL LAND SITUATED IN FATEHPUR TEHSIL SIKAR DISTRICT AND HE HAS CONSISTENTLY BEEN DECLARING AGRICULTURE INCOME OF P AST COUPLE OF YEARS. FROM THE PERUSAL OF LD CIT(A)S ORDER, IT IS NOTICED THA T THE APPELLANT HAS DECLARED AGRICULTURE INCOME RS. 1,16,400/- DURING THE YEAR U NDER CONSIDERATION AS AGAINST AGRICULTURAL INCOME OF RS 1,10,500 IN AY 20 07-08 AND RS 80,500 IN AY 2006-07. THERE IS THUS NO MAJOR VARIATION OF AGRIC ULTURAL INCOME THAT HAS BEEN NOTICED VIS-A-VIS PREVIOUS YEARS WHICH CAUSES ANY S USPICION IN HIS MIND THAT ANY OTHER INCOME HAS BEEN SHOWN IN THE GARB OF AGRICULT URE INCOME. IN VIEW OF THE SAME FOLLOWING THE PAST YEARS WHERE THE AGRICULTURE INCOME HAS BEEN ACCEPTED BY THE REVENUE, WE DELETE THE SUBJECT ADDITION ON A CCOUNT OF AGRICULTURE ITA NO. 34/JP/12 SHRI MOD. SHARIF KHAN JAIPUR VS. ACIT, CENTRAL CIRC LE-1, JAIPUR 10 INCOME BEING TREATED AS INCOME FROM OTHER SOURCES. ACCORDINGLY, GROUND NO. 3 IS ALLOWED. IN THE RESULT THE APPEAL FILED BY THE ASSESSEE IS P ARTLY ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 23 /05/2 016 SD/- SD/- (R.P. TOLANI) (VIKRAM SINGH YADAV) U;KF;D LNL;@ JUDICIAL MEMBER [KK LNL;@ ACCOUNTANT MEMBER DATED:- 23/ 05 /2016 PILLAI COPY OF ORDER FORWARDED TO: 1. THE APPELLANT : SHRI MOHD. SHARIF KHAN, JAIPUR 2. THE RESPONDENT : THE ACI, CENTRAL CIRCLE-1, JAIPUR 3. THE CIT (A) CENTRAL, JAIPUR 4. THE CIT, CENTRAL JAIPUR 5. THE DR, ITAT, JAIPUR 6. GUARD FILE (ITA NO. 34/JP/12) BY ORDER ASSISTANT REGISTRAR