KALURAM BUNKAR, Jaipur V. ITO, Jaipur

ITA 341/JPR/2017

• Counselvise Citation: [2018] 119 COUNSELVISE.COM (IT) 0117 (ITAT-JAIPUR)
• Duration Of Justice: 1 year(s) 7 month(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-12-2018
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: A
• Assessment Year: 2008-2009
• Appeal Filed On: 02-05-2017
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: J C KULHARI JCIT DHK
• Keywords: Sale consideration of property below Jantri Value; Capital asset; Business income; Income from undisclosed sources; Corroborative evidences; Reassessment proceedings
• Section: 45(2); 50C; 133(6); 147; 131; 69; 148; 139

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 JKWO] U;KF;D LNL; ,OA JH FOE FLAG ;K NO ] YS[KK LNL; DS LE{K BEFORE: SHRI VIJAY PAL RAO, JM AND SHRI VIKRAM SING H YADAV, AM VK;DJ VIHY LA-@ ITA NO. 341/JP/2017 FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2008-09. SHRI KALURAM BUNKAR, 17, SHIV RAM COLONY, DURGAPURA, JAIPUR. CUKE VS. THE INCOME TAX OFFICER, WRD 6(4), JAIPUR. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN NO. AJCPB 2493 F VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY : SHRI RAJEEV SOGANI (CA) JKTLO DH VKSJ LS@ REVENUE BY : SHRI J.C. KULHARI (JCIT) LQUOKBZ DH RKJH[K@ DATE OF HEARING : 10.10.2018. ?KKS'K .KK DH RKJH[K@ DATE OF PRONOUNCEMENT : 06/12/2018. VKNS'K@ ORDER PER VIJAY PAL RAO, JM : THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER DATED 7 TH MARCH, 2017 OF LD. CIT (A), AJMER FOR THE ASSESSMENT YEAR 2008-09. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS :- 1. IN THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW THE LD. CIT (A) HAS ERRED IN CONFIRMING THE ACTION OF THE LD. A O IN REOPENING THE ASSESSMENT UNDER SECTION 147 OF INCOME TAX ACT, 1961. THE ACTION OF THE LD. CIT (A) IS ILLEGAL, UNJUSTIFIED, ARBITRARY AND AGAINST THE FACTS OF THE CASE. RELIEF MAY PLEASE B E GRANTED BY QUASHING THE REASSESSMENT PROCEEDINGS BEING ILLEGAL AND WITHOUT ANY BASIS. 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. A O IN MAKING AN ADDITION OF RS. 29,89,159/- AS LONG TERM CAPITAL GA IN UNDER SECTION 45 READ WITH SECTION 50C OF INCOME TAX ACT, 1961, ON ACCOUNT OF SALE OF LAND, WHEREAS ASSESSEE HAD CLAIM ED PROFIT OF 2 ITA NO. 341/JP/2017 SHRI KALURAM BUNKAR, JAIPUR. RS. 24,048/- ON SALE OF SAID LAND UNDER TRADING ACT IVITY PERTAINING TO BUSINESS. THE ACTION OF THE LD. CIT (A) IS ILLEGAL, UNJUSTIFIED, ARBITRARY AND AGAINST THE FACTS OF THE CASE. RELIEF MAY PLEASE BE GRANTED BY DELETING THE SAID ADDITION OF RS. 29,89,159/- AND ACCEPTING THE BUSINESS INCOME AS DE CLARED BY ASSESSEE. 3. 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. A O IN MAKING AN ADDITION OF RS. 68,02,400/- TOWARDS ALLEGED INCOME FROM UNDISCLOSED SOURCES. THE ACTION OF LD. CIT (A) IS I LLEGAL, UNJUSTIFIED, ARBITRARY AND AGAINST THE FACTS OF THE CASE. RELIEF MAY PLEASE BE GRANTED BY DELETING THE SAID ADDITION OF RS. 68,02,400/-. 4. THE ASSESSEE CRAVES HIS RIGHT TO ADD, AMEND OR A LTER ANY OF THE GROUNDS ON OR BEFORE THE HEARING. GROUND NO. 1 RELATES TO REOPENING OF THE ASSESSMENT UNDER SECTION 147 OF THE IT ACT. 2. AT THE TIME OF HEARING, THE LD. COUNSEL FOR THE ASSESSEE HAS STATED AT BAR THAT THE ASSESSEE DOES NOT WANT TO PRESS GROUND NO. 1 OF THE ASSESSEES APPEAL AND THE SAME MAY BE DISMISSED AS NOT PRESSED. THE LD. D/R H AS RAISED NO OBJECTION IF THE GROUND NO. 1 OF THE ASSESSEES APPEAL IS DISMISSED AS NOT PRESSED. ACCORDINGLY, THE GROUND NO. 1 IS DISMISSED BEING NOT PRESSED. GROUND NO. 2 IS REGARDING ADDITION MADE BY THE AO B Y TREATING THE TRANSACTION OF PURCHASE AND SALE OF LAND AS LONG TE RM CAPITAL GAIN AND APPLYING THE PROVISIONS OF SECTION 50C OF THE IT AC T. 3. THE ASSESSEE IS AN INDIVIDUAL AND DID NOT FILE A NY RETURN OF INCOME UNDER SECTION 139(1) OF THE IT ACT. SUBSEQUENTLY, THE AO RECEIVED AIR INFORMATION THAT THE ASSESSEE HAS SOLD AN IMMOVABLE PROPERTY FOR RS. 65,64,772/- AND ACCORDINGLY REOPENED THE ASSESSMENT BY ISSUING THE NOTICE UNDER SECTION 148 ON 20 TH MARCH, 3 ITA NO. 341/JP/2017 SHRI KALURAM BUNKAR, JAIPUR. 2015. IN RESPONSE TO THE NOTICE UNDER SECTION 148, THE ASSESSEE FILED HIS RETURN OF INCOME DECLARING TOTAL INCOME OF RS. 24,158/- AS IN COME FROM BUSINESS AND PROFESSION. THE AO PROPOSED TO TREAT THE INCOME AR ISING FROM SALE OF LAND AS CAPITAL GAIN AND CONSEQUENTLY ADOPTED THE FULL VALUE CONSID ERATION IN TERMS OF SECTION 50C OF THE IT ACT. THE ASSESSEE OPPOSED TO THE ACTION OF THE AO AND CONTENDED THAT THE ASSESSEE HAS STARTED THE BUSINESS OF REAL ESTATE TR ADING. HE CONVERTED THE SAID LAND INTO STOCK-IN-TRADE AND ALSO APPLIED FOR CHANGE OF LAND USE AFTER ITS CONVERSION INTO RESIDENTIAL LAND BY JDA. THE ASSESSEE SOLD THE LAN D TO M/S. SHEETAL BUILDCON PVT. LTD. THUS THE ASSESSEE HAS EXPLAINED BEFORE THE AO THAT ONCE THE ASSESSEE HAS CONVERTED THE LAND AS STOCK-IN-TRADE, THEN THE INCO ME FROM SALE OF THE LAND WOULD BE INCOME FROM BUSINESS AND PROFESSION AND PROVISIONS OF SECTION 50C WOULD NOT ARISE. THE AO DID NOT ACCEPT THE CONTENTION OF THE ASSESSE E AND HELD THAT THE ASSESSEE HAS FAILED TO SUBSTANTIATE HIS SUBMISSION REGARDING BUSINESS ACTIVITY WITH ANY SUPPORTING EVIDENCE. THE AO ACCORDINGLY ADOPTED TH E FULL VALUE CONSIDERATION AS PER THE PROVISIONS OF SECTION 50C AND MADE THE ADDITION OF RS. 29,89,159/- AS SHORT TERM CAPITAL GAIN. THE ASSESSEE CHALLENGED THE ACTION O F THE AO BEFORE THE LD. CIT (A) BUT COULD NOT SUCCEED. 4. BEFORE US, THE LD. A/R OF THE ASSESSEE HAS SUBMI TTED THAT THE ASSESSEE PURCHASED AGRICULTURAL LAND BEARING KHASRA NO. 697/ 3, 695/2 AND 699 MEASURING 1.08 HECTARES ON 26 TH MAY, 2005 AT GRAM JAISINGHPURA BAAS, BHANKROTA, TE HSIL SANGANER, JAIPUR. THE ASSESSEE THEN APPLIED FOR CO NVERSION OF LAND USE FROM AGRICULTURE TO RESIDENTIAL AND CONSEQUENTLY THE JDA ISSUED NO OBJECTION CERTIFICATE FOR DEVELOPMENT OF RESIDENTIAL PROJECT ON 16.12.200 6. CONSEQUENTLY, THE ASSESSEE SURRENDERED THE SAID LAND TO THE JDA ON 31 ST JANUARY, 2007 AND PAID THE 4 ITA NO. 341/JP/2017 SHRI KALURAM BUNKAR, JAIPUR. REGULARIZATION FEE OF RS. 3,42,914/-. THE ASSESSEE HAS ALSO PAID LEASE MONEY OF RS. 5,97,079/- ON 20 TH JUNE, 2007. THE JDA THEN ISSUED THE SINGLE PATTA/ SALE DEED DATED 2 ND JULY, 2007. THE SAID SINGLE PATTA/SALE DEED NO. 2 2 WAS REGISTERED WITH THE REGISTRAR ON 13.08.2007. SUBSEQUENTLY THE ASSE SSEE SOLD THE LAND TO M/S. SHEETAL BUILDCON PVT. LTD. FOR GROUP HOUSING SOCIET Y FOR A SALE CONSIDERATION OF RS. 36,00,000/-. THE LD. A/R HAS FURTHER POINTED OUT T HAT THE ASSESSEE HAS CONVERTED THE LAND INTO STOCK-IN-TRADE IN THE RECORD AND ALS O CARRIED OUT ALL THESE ACTIVITIES WHICH ITSELF SHOWS THAT THE ASSESSEE HAS CONVERTED THE AGRICULTURAL LAND AS STOCK-IN- TRADE AND SOLD THE SAME. THE TRANSACTION IS A BUSI NESS TRANSACTION AND ADVENTURE IN NATURE OF TRADE. IN SUPPORT OF HIS CONTENTION, HE HAS RELIED UPON THE DECISION OF HONBLE SUPREME COURT IN THE CASE OF SMT. INDRAMANI BAI VS. ADDITIONAL CIT, 70 TAXMAN 67 (SC) AS WELL AS THE DECISION OF THE COORD INATE BENCH OF THIS TRIBUNAL DATED 22 ND FEBRUARY, 2018 IN CASE OF RAMSWAROOP SAUDAGAR VS. ITO IN ITA NO. 329/JP/2017. THE LD. A/R OF THE ASSESSEE FURTHER P OINTED OUT THAT THE AO HAS RAISED AN OBJECTION THAT ON CONVERSION OF THE LAND INTO ST OCK-IN-TRADE, THE ASSESSEE DID NOT OFFER THE SAME FOR CAPITAL GAINS TAX, HOWEVER, AS P ER PROVISIONS OF SECTION 45(2) THE CAPITAL GAIN ON SUCH CONVERSION WILL BE CHARGEABLE TO TAX IN THE YEAR IN WHICH STOCK- IN-TRADE IS SOLD. THEREFORE, EVEN IF THE CAPITAL G AIN IS COMPUTED ON CONVERSION OF THE LAND INTO STOCK-IN-TRADE, THE NET RESULT WOULD BE S AME AS THE BUSINESS LOSS OF THE ASSESSEE WOULD BE INCREASED BY THE SAID AMOUNT DUE TO THE REASON THAT THE FAIR MARKET PRICE AS ADOPTED BY THE AO AS PER THE PROVIS IONS OF SECTION 50C OF THE ACT WOULD BE CONSIDERED AS THE PRICE AT WHICH THE INVES TMENT WAS CONVERTED INTO STOCK- IN-TRADE. THEREFORE, WHATEVER WAY THE INCOME IS TO BE ASSESSED THE RESULT WOULD BE SAME. HOWEVER, THE AO HAS NOT COMPUTED THE CAPITAL GAIN ON THE TRANSACTION OF 5 ITA NO. 341/JP/2017 SHRI KALURAM BUNKAR, JAIPUR. CONVERSION OF LAND INTO STOCK-IN-TRADE. THUS THE LD . A/R HAS SUBMITTED THAT ONCE THE LAND WAS CONVERTED INTO STOCK-IN-TRADE AND ASSESSEE HAS CARRIED OUT DEVELOPMENT WORK OVER THE LAND CONVERSION AND SURRENDERING THE SAME TO THE JDA FOR DEVELOPMENT AND THEREAFTER IT WAS SOLD FOR RESIDENT IAL PURPOSE, IT IS NOTHING BUT AN ACTIVITY OF BUSINESS AS AN ADVENTURE IN NATURE OF T RADE. 5. ON THE OTHER HAND, THE LD. D/R HAS SUBMITTED THA T THE ASSESSEE HAS NOT PRODUCED ANY RECORD IN SUPPORT OF THE CONTENTION TH AT THE LAND IN QUESTION WAS CONVERTED INTO STOCK-IN-TRADE. SINCE THE ASSESSEE DID NOT FILE ANY RETURN OF INCOME, THEREFORE, THERE IS NO RECORD WHEREBY THE ASSESSEE CAN PROVE THAT THE ASSESSEE HAS CONVERTED THE LAND AS STOCK-IN-TRADE. THE ASSESSEE HAS NOT DEVELOPED THE LAND. THE ONLY CHANGE CARRIED OUT BY THE ASSESSEE IS TO C ONVERT THE LAND FROM AGRICULTURE TO NON-AGRICULTURAL USE WHICH IS NOT ITSELF CHANGE THE CHARACTER OF TRANSACTION FROM INVESTMENT TO STOCK-IN-TRADE. THIS IS AN AFTER-THO UGHT CLAIM OF THE ASSESSEE WHEN THE AO PROPOSED TO INVOKE THE PROVISIONS OF SECTION 50C ON THE TRANSACTION OF SALE OF LAND IN QUESTION. THE ASSESSEE HAS NEVER FILED ANY RETURN OF INCOME DECLARING ANY BUSINESS INCOME, THEREFORE, THE RETURN OF INCOME FI LED IN RESPONSE TO THE NOTICE UNDER SECTION 148 CANNOT BE ACCEPTED WHEN IT IS A S INGLE TRANSACTION OF PURCHASE AND SALE BY THE ASSESSEE WHICH LACKS THE SYSTEMATIC ACTIVITY ON THE PART OF THE ASSESSEE WHICH CAN BE DESCRIBED AS BUSINESS ACTIVIT Y. HE HAS RELIED UPON THE ORDERS OF THE AUTHORITIES BELOW. 6. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AS WELL AS THE RELEVANT MATERIAL ON RECORD. THERE IS NO DISPUTE THAT THE ASSESSEE PURC HASED THE LAND IN QUESTION ON 26 TH MAY, 2005 AS AN AGRICULTURAL LAND FOR A CONSIDERATI ON OF RS. 24,15,000/-. IN THE YEAR 2006, THE ASSESSEE APPLIED FOR THE CONVERSION OF TH E LAND FOR DEVELOPING RESIDENTIAL 6 ITA NO. 341/JP/2017 SHRI KALURAM BUNKAR, JAIPUR. PROJECT BY JDA AND ACCORDINGLY A NO OBJECTION CERTI FICATE WAS ISSUED BY THE JDA ON 16.12.2006. PURSUANT TO THE SAID CERTIFICATE, THE ASSESSEE SURRENDERED THE LAND TO THE JDA ON 31.01.2007 AND ALSO PAID THE REGULARIZAT ION FEE OF RS. 3,42,914/- AND LEASE MONEY OF RS. 5,97,079/- VIDE CHALLAN DATED 20 TH JUNE, 2007. THEREAFTER, THE JDA ISSUED A SINGLE PATTA/SALE DEED NO. 22 ON 2 ND JULY, 2007, THE SAID SALE DEED WAS REGISTERED WITH REGISTRAR ON 13.08.2007. THESE SER IES OF ACTIVITIES FROM PURCHASE OF AGRICULTURAL LAND TILL THE OBTAINING THE NO OBJECTI ON CERTIFICATE FOR DEVELOPING A RESIDENTIAL PROJECT BY THE JDA SURRENDERING THE LAN D AND CONSEQUENTLY ISSUING THE PATTA/SALE DEED CLEARLY SHOWS THAT THE ASSESSEE WAS REGULARLY ACTING ON THE DEVELOPMENT ACTIVITY OF THE LAND IN QUESTION AND FI NALLY THE LAND WAS SOLD FOR GROUP HOUSING PURPOSES ON 16.10.2007. THE ASSESSEE CLAIM ED THAT WHEN THE ASSESSEE HAS CONVERTED THE LAND INTO STOCK-IN-TRADE AND ALSO CAR RIED OUT THE DEVELOPMENT ACTIVITIES THEN THE INCOME ARISING FROM SALE OF LAND IS INCOME FROM BUSINESS AND PROFESSION AND NOT CAPITAL GAIN AND, THEREFORE, THE PROVISIONS OF SECTION 50C ARE NOT APPLICABLE. WE FIND THAT WHEN THE ASSESSEE SURRENDERED THE LAND TO THE JDA FOR DEVELOPMENT, A PART OF THE LAND WAS RETAINED FOR THE PURPOSE OF RO ADS AND OTHER COMMON FACILITIES AND ONLY REMAINING LAND MEASURING 9,548 SQ. METERS WAS CONVERTED FOR GROUP HOUSING PURPOSES. THUS THE ENTIRE LAND WHICH WAS P URCHASED BY THE ASSESSEE WAS NOT FINALLY RECEIVED BY THE ASSESSEE ON CONVERSION INTO RESIDENTIAL LAND BY JDA. THESE ARE THE ACTUAL ACTIVITIES WHICH SHOWS THE INT ENTION OF THE ASSESSEE THAT ASSESSEE WAS ACTIVELY INVOLVED IN DEVELOPMENT OF TH E LAND AND FINALLY GOT IT CONVERTED FROM AGRICULTURAL TO RESIDENTIAL DEVELOPM ENT FROM JDA AND PART OF THE LAND WAS RETAINED BY THE JDA FOR THE PURPOSES OF SECTOR ROADS AND OTHER COMMON USE AND THE BALANCE WAS RETURNED TO THE ASSESSEE AS CON VERTED LAND. THE INTENTION OF 7 ITA NO. 341/JP/2017 SHRI KALURAM BUNKAR, JAIPUR. THE ASSESSEE IS CLEARLY MANIFEST FROM ALL THESE ACT IVITIES ON THE PART OF THE ASSESSEE TO TREAT THE LAND AS STOCK-IN-TRADE. THE HONBLE S UPREME COURT IN THE CASE OF SMT. INDRAMANI BAI VS. ADDITIONAL CIT (SUPRA) WHILE DEAL ING WITH AN IDENTICAL QUESTION HAS HELD IN PARA 3 AS UNDER :- 3. ON THE FACTS FOUND WE CANNOT SAY THAT THE HIGH COUR T WAS IN ERROR IN COMING TO THE CONCLUSION IT DID. ON THE OTHER HAND, THE TRIBUNAL SEEMS TO HAVE MADE CERTAIN ASSUMPTIONS WHILE COMING TO THE C ONCLUSION IN FAVOUR OF THE ASSESSEES, WHICH WERE NOT REALLY WARRANTED. THE TRIBUNAL REFERS TO THE 'BACKGROUND OF THE LADIES' AS ONE OF THE CIRCUMSTAN CES INDUCING IT TO COME TO THE CONCLUSION IN FAVOUR OF THE ASSESSEES BUT IT HA S NOT TAKEN CARE TO ELUCIDATE WHAT THAT BACKGROUND WAS. THE FACT THAT SOON AFTER THE PURCHASE, THE ASSESSEES CARVED OUT THE LAND INTO PLOTS AND SOLD T HEM WITHIN A FEW MONTHS, COUPLED WITH THE OTHER CIRCUMSTANCES OF THE CASE, I S CONSISTENT MORE WITH THE THEORY OF ADVENTURE IN THE NATURE OF TRADE THAN WIT H THE OTHER THEORY ACCEPTED BY THE TRIBUNAL. THUS THE HONBLE SUPREME COURT HAS HELD THAT THE AS SESSEE CARVED OUT THE LAND INTO PLOTS AND SOLD THEM WITHIN A FEW MONTHS COUPLED WIT H THE OTHER CIRCUMSTANCES OF THE CASE, IS CONSISTENT MORE WITH THE THEORY OF ADV ENTURE IN THE NATURE OF TRADE THAN WITH THE OTHER THEORY ACCEPTED BY THE TRIBUNAL. T HE COORDINATE BENCH OF THIS TRIBUNAL IN THE CASE OF RAMSWAROOP SAUDAGAR VS. ITO (SUPRA) WHILE DEALING WITH AN ISSUE OF NATURE OF ACTIVITY IN RESPECT OF THE PURC HASE AND SALE OF LAND AFTER DEVELOPMENT OF THE SAME AND CARVING OUT THE LAND IN TO PLOTS HELD IN PARA 8 AS UNDER :- 8 ITA NO. 341/JP/2017 SHRI KALURAM BUNKAR, JAIPUR. 8. THE BENCH HAVE HEARD BOTH THE SIDES ON THIS ISSU E. ALTHOUGH THE LAND WAS AGRICULTURAL LAND AND SITUATED IN THE LIMITS OF CIT Y OF DAUSA. IT WAS DEVELOPED INTO 23 PLOTS OF VARIOUS SIZES AND SOLD DURING THE YEAR. TH E NATURE OF LAND HAD GONE IRREVERSIBLE CHANGE FROM AGRICULTURAL TO RESIDENTIA L PLOTS, THEREFORE, WE ARE AGREE WITH THE FINDING OF THE LD. CIT(A) THAT THIS WAS AN ADVENTURE IN THE NATURE OF TRADE AND INCOME HAS TO BE TAXED UNDER THE HEAD PROFIT A ND GAINS OF BUSINESS AND PROFESSION. WE HAVE ALSO CONSIDERED THE VARIOUS CA SE LAWS RELIED UPON BY THE LD AR OF THE ASSESSEE DURING THE HEARING OF APPEAL, IN AL L THESE CASES, THE FACTS WERE AT VARIANCE TO THE FACTS OF ASSESSEES CASE. THEREFORE , NONE OF THE RATIO LAID DOWN BY THE HONBLE COURTS IS APPLICABLE TO THE ASSESSEES CASE , ACCORDINGLY, FINDINGS OF THE LD. CIT(A) ON THIS ISSUE IS SUSTAINED. HOWEVER, THE PRO VISIONS OF SECTION 45(2) OF THE ACT PROVIDES THAT THE PROFITS OR GAINS ARISING FROM THE TRANSFER BY WAY OF CONVERSION BY THE OWNER OF A CAPITAL ASSET INTO, OR ITS TREATMENT BY HIM AS STOCK-INTRADE OF A BUSINESS CARRIED ON BY HIM SHALL BE CHARGEABLE TO I NCOME-TAX AS HIS INCOME OF THE PREVIOUS YEAR IN WHICH SUCH STOCK-IN-TRADE IS SOLD OR OTHERWISE TRANSFERRED BY HIM AND, FOR THE PURPOSES OF SECTION 48, THE FAIR MARKE T VALUE OF THE ASSET ON THE DATE OF SUCH CONVERSION OR TREATMENT SHALL BE DEEMED TO BE THE FULL VALUE OF THE CONSIDERATION RECEIVED OR ACCRUING AS A RESULT OF T HE TRANSFER OF THE CAPITAL ASSET. APPARENTLY THESE PROVISIONS OF ACT HAVE NOT BEEN TA KEN INTO CONSIDERATION BY THE LD. CIT(A), THEREFORE, IN THE INTEREST OF JUSTICE AND E QUITY, THE BENCH FIND DEEM IT FIT TO RESTORE THE ISSUE BACK TO THE FILE OF THE LD. CIT(A ) TO GIVE EFFECT TO THE PROVISIONS OF SECTION 45(2) OF THE ACT. HENCE, THE ISSUE IS RESTO RED BACK TO THE FILE OF THE LD. CIT(A). HAVING CONSIDERED THE PECULIAR FACTS AND CIRCUMSTAN CES OF THE CASE WHERE THE ASSESSEE HAS UNDERTAKEN A SERIES OF STEPS AND DEVEL OPMENT ACTIVITY IN RESPECT OF THE LAND IN QUESTION AND FINALLY GOT THE LAND CONVERTED FROM AGRICULTURAL TO NON AGRICULTURAL AND SURRENDERED THE SAME FOR RESIDENTI AL DEVELOPMENT WITH JDA WHO IN TURN ISSUED A PATTA/SALE DEED IN FAVOUR OF THE ASSE SSEE OF CONVERTED LAND AFTER RETAINING THE PORTION OF THE LAND USED FOR SECTOR R OADS AND COMMON USE. THEREFORE, ONCE THE ASSESSEE HAS BROUGHT ON RECORD UNDISPUTED FACTS OF CARRYING OUT VARIOUS 9 ITA NO. 341/JP/2017 SHRI KALURAM BUNKAR, JAIPUR. DEVELOPMENT ACTIVITIES OVER THE LAND THEN THE ACTIV ITIES OF ASSESSEE ARE CLEARLY ADVENTURE IN NATURE OF TRADE AND, THEREFORE, THE CL AIM OF THE ASSESSEE OF BUSINESS INCOME ARISING FROM SALE OF THE LAND CANNOT BE DISP UTED. HOWEVER, THERE IS AN ADMITTED FACT THAT THE ASSESSEE AFTER PURCHASING OF THE LAND IN QUESTION HAS CONVERTED INTO STOCK-IN-TRADE AND, THEREFORE, AS PE R THE PROVISIONS OF SECTION 45(2) THE INCOME ARISING FROM SALE OF LAND WHICH HAS BEEN CONVERTED INTO STOCK-IN-TRADE SHALL BE CHARGEABLE TO INCOME TAX AS INCOME FROM CA PITAL GAINS TO BE COMPUTED BY ADOPTING FAIR MARKET PRICE AS THE CONVERSION PRICE FOR THE PURPOSE OF CAPITAL GAIN AND ANOTHER IS BUSINESS INCOME BY CONSIDERING THE FAIR MARKET PRICE AS COST OF STOCK-IN- TRADE. THEREFORE, EVEN IF THE PROVISIONS OF SECTION 45(2) ARE INVOKED IN THIS CASE, THE NET RESULT WOULD BE THE SAME BEING THE SHORT TERM C APITAL GAIN WILL BE REDUCED BY SETTING OFF OF EQUAL AMOUNT OF BUSINESS LOSS. THE AO IN THE ASSESSMENT ORDER HAS ALSO ACCEPTED THE FACT THAT IN CASE THERE IS A CONV ERSION OF LAND INTO STOCK-IN-TRADE, THE PROVISIONS OF SECTION 45(2) WILL BE APPLICABLE, PARA 3.5 (IV) AT PAGE 8 AS UNDER :- (IV) AS FAR AS THE CONTENTION OF THE ASSESSEE THA T INCOME FOR THE YEAR UNDER CONSIDERATION WAS BELOW THE TAXABLE LIMI TS IS CONCERNED, IT IS ONLY DUE TO HIS BASELESS SUBMISSION THAT THE TRA NSACTION IS TRADING ACTIVITY. HOWEVER, IF HIS INTENTIONS OF THE SAME W OULD HAVE BEEN OF BUSINESS, HE WOULD HAVE OFFERED CAPITAL GAINS AS PE R PROVISIONS OF SEC. 45(2) OF THE I.T. ACT. FURTHER, THE ASSESSEE HAS N OT PRODUCED OR FURNISHED ANY SUCH EVIDENCE WHICH SUGGEST HIS INTEN TIONS CLEARLY. THEREFORE ONLY SUBMISSIONS WITHOUT ANY CREDIBLE EVI DENCE ARE NOT ACCEPTABLE. THE SHOWING OF LAND AS STOCK IN TRADE I N BALANCE SHEET AS ON 31.03.2007 IS ALSO AN AFTERTHOUGHT OF THE ASSESS EE ONLY SUPPORT HIS CONTENTION. HOWEVER, THE SAME IS NOT RELIABLE OR DO ES NOT SEEM TO BE 10 ITA NO. 341/JP/2017 SHRI KALURAM BUNKAR, JAIPUR. REAL DUE TO THE FACT THE NEITHER IT IS THE BALANCE SHEET WHICH IS AUDITED AT THAT TIME NOR IT IS THE BALANCE SHEET SUBMITTED BY THE ASSESSEE WITH RETURN OF INCOME U/S 139 OF THE IT ACT AT EARLIER T IME OR ANYWHERE ELSE. THEREFORE, THE CONTENTION OF THE ASSESSEE IS NOT AC CEPTABLE. ACCORDINGLY, IN THE FACTS AND CIRCUMSTANCES AND FOL LOWING THE DECISION OF HONBLE SUPREME COURT AS WELL AS THE COORDINATE BENCH OF TH IS TRIBUNAL, WE ALLOW THE CLAIM OF THE ASSESSEE AS BUSINESS INCOME AND CONSEQUENTLY THE ADDITION MADE BY THE AO IS DELETED. GROUND NO. 3 IS REGARDING THE ADDITION OF RS. 68,02 ,400/- TOWARDS INCOME FROM UNDISCLOSED SOURCES. 7. THE AO NOTED THAT ON 20 TH JUNE, 2007 THE ASSESSEE PURCHASED A LAND BEARING KHASRA NO.839 MEASURING 0.43 HECARES AND KHASRA NO. 843 MEASURING 0.63 HECTARES AT GRAM JAISINGHPURA BAAS, BHANKROTA, TEHSIL SANGAN ER, JAIPUR FOR A CONSIDERATION OF RS. 63.60 LACS. THE AO FURTHER NOTED THAT THERE WA S A CASH DEPOSIT OF RS. 20.25 LACS ON 18.10.2007 IN THE SAVINGS BANK ACCOUNT OF THE AS SESSEE MAINTAINED WITH ICICI BANK. ACCORDINGLY, THE AO ASKED THE ASSESSEE TO EX PLAIN THE SOURCES OF PURCHASE CONSIDERATION OF LAND AND CASH DEPOSIT IN BANK ACCO UNT. IN REPLY, THE ASSESSEE SUBMITTED THAT AT THE TIME OF REGISTRATION OF PURCH ASE OF AGRICULTURAL LAND, THE ASSESSEE PAID ONLY RS. 3,00,000/- IN CASH AND FOR B ALANCE CONSIDERATION OF RS. 60,60,000/- WAS PAID THROUGH THREE CHEQUES OF RS. 2 0.20 LACS EACH TO THE SELLER. SINCE THE ASSESSEE COULD NOT ARRANGE FUND FOR CLEAR ING OF THE CHEQUES, THEREFORE, THE ASSESSEE SOLD THE SAID LAND TO THIRD PARTY AND MANA GED TO GET RS. 21 LACS AS ADVANCE AGAINST THE SALE CONSIDERATION OF THE SAID LAND, OUT OF WHICH THE ASSESSEE DEPOSITED RS. 20.25 LACS IN THE BANK ACCOUNT AND MA NAGED TO GET CLEARED ONE OF THE 11 ITA NO. 341/JP/2017 SHRI KALURAM BUNKAR, JAIPUR. CHEQUES ISSUED BY HIM. THE ASSESSEE THEN EXPLAINED THAT THE BALANCE OUTSTANDING PAYMENT WAS ALSO MADE FROM THE SALE CONSIDERATION R ECEIVED AGAINST THE SAME LAND AND, THEREFORE, IT WAS CONTENDED THAT THERE WAS NO UNEXPLAINED INCOME ON ACCOUNT OF DEPOSIT AS WELL AS PAYMENT OF PURCHASE CONSIDERA TION. THE AO DID NOT ACCEPT THE CONTENTION OF THE ASSESSEE AND ACCORDINGLY MADE AN ADDITION OF RS. 68,02,400/- ON ACCOUNT OF PURCHASE CONSIDERATION OF RS. 47,77,400/ - AND RS. 20,25,000/- AS DEPOSIT MADE IN BANK. THE ASSESSEE CHALLENGED THE ACTION O F THE AO BEFORE THE LD. CIT (A) BUT COULD NOT SUCCEED. 8. BEFORE US, THE LD. A/R OF THE ASSESSEE HAS SUBMI TTED THAT AT THE TIME OF PURCHASE OF THE LAND IN QUESTION, THE ASSESSEE PAID ONLY RS. 3,00,000/- AND FOR BALANCE, THE ASSESSEE ISSUED THREE CHEQUES OF RS. 2 0.20 LACS EACH, ALL THESE CHEQUES WERE POST DATED CHEQUES. THE FIRST CHEQUE WAS EVEN DID NOT CLEAR ON PRESENTATION. THE SECOND CHEQUE WAS CLEARED AS THE ASSESSEE MADE THE DEPOSIT IN THE MEANTIME OF RS. 20.25 LACS IN THE BANK ACCOUNT. THUS OUT OF THREE CHEQUES, ONLY ONE CHEQUE WAS CLEARED AGAINST THE DEPOSITS IN THE BANK ACCOUN T AND THE REMAINING TWO CHEQUES WERE NOT ENCASHED BY THE SELLER. THE CONSI DERATION WAS PAID TO THE SELLER WHEN THE ASSESSEE RECEIVED THE FUNDS AGAINST THE SA LE OF THE SAME LAND. THE LD. A/R HAS REFERRED TO THE SALE DEED DATED 3 RD MAY, 2010 WHEREBY THE LAND IN QUESTION WAS SOLD BY THE ASSESSEE. IN SUPPORT OF HIS EXPLAN ATION, THE ASSESSEE SUBMITTED DECLARATION OF BOTH THE PARTIES FROM WHOM FUNDS WER E RECEIVED BY THE ASSESSEE IN ADVANCE FOR SALE OF THE LAND IN QUESTION AND, THERE FORE, THE ASSESSEE EXPLAINED THE SOURCE OF PURCHASE CONSIDERATION AND DEPOSITS MADE IN THE BANK ACCOUNT. THE AO HAS MADE THE DOUBLE ADDITION TO THE EXTENT OF RS. 2 0.20 LACS AS WELL AS THE DEPOSIT MADE IN THE BANK ACCOUNT OF RS. 20.25 LACS OUT OF W HICH THE CHEQUES ISSUED BY THE 12 ITA NO. 341/JP/2017 SHRI KALURAM BUNKAR, JAIPUR. ASSESSEE OF RS. 20.20 LAC WAS ENCASHED. WHEN THE A SSESSEE RECEIVED THE ADVANCE AGAINST SALE OF THE LAND, THEN THE QUESTION OF ESTA BLISHING THE IDENTITY AND CREDITWORTHINESS OF THE CREDITOR DOES NOT ARISE. T HE PURCHASERS OF THE LAND HAVE GIVEN THE DECLARATIONS WHICH HAVE NOT BEEN CONTROVE RTED BY THE AO. THE SALE CONSIDERATION AS WELL AS THE PURCHASE CONSIDERATION IS NOT IN DISPUTE, THEREFORE, WHEN THE SALE CONSIDERATION IS MORE THAN THE PURCHA SE CONSIDERATION OF THE LAND IN QUESTION THEN MERELY BECAUSE THE SALE DEED WAS EXEC UTED AFTER A CONSIDERABLE PERIOD FROM THE DATE OF INITIAL AGREEMENT AND ADVAN CE RECEIVED BY THE ASSESSEE CANNOT BE A REASON FOR REJECTING THE CLAIM ONCE THE PURCHASERS HAVE ADMITTED THE FACT OF GIVING THE ADVANCE AGAINST THE SAID LAND. THE LD. A/R HAS SUBMITTED THAT ONCE THE ASSESSEE HAS EXPLAINED THE SOURCE OF PURCH ASE CONSIDERATION AND ALSO PRODUCED THE DECLARATION OF THE PURCHASES WHO HAVE ADMITTED PAYMENT OF ADVANCE AGAINST THE PURCHASE OF THE LAND IN QUESTION, THEN IN THE ABSENCE OF ANY CONTRARY FACT OR RECORD BROUGHT BY THE AO, THE EXPLANATION C ANNOT BE REJECTED MERELY ON SURMISES AND CONJECTURES. 9. ON THE OTHER HAND, THE LD. D/R HAS SUBMITTED THA T WHEN THE ASSESSEE HAS NOT FILED ANY RETURN OF INCOME THEN ALL THESE EXPLANATI ONS ARE AFTER-THOUGHT TO COVER UP THE UNEXPLAINED INCOME OF THE ASSESSEE THOUGH THE A SSESSEE CLAIMED THAT THE ASSESSEE HAS RECEIVED THE FUNDS FROM THE PROSPECTIV E BUYERS OF THE LAND, HOWEVER DESPITE SPECIFIC INSTRUCTIONS BY THE AO THE ASSESSE E HAS FAILED TO PRODUCE THESE PERSONS FOR EXAMINATION. THEREFORE, THE ASSESSEE F AILED TO PROVE THE IDENTITY AND CREDITWORTHINESS OF THE PERSONS FROM WHOM THE FUNDS ARE CLAIMED TO HAVE BEEN RECEIVED. HE HAS RELIED UPON THE ORDERS OF THE AUT HORITIES BELOW. 13 ITA NO. 341/JP/2017 SHRI KALURAM BUNKAR, JAIPUR. 10. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AS WEL L AS THE RELEVANT MATERIAL ON RECORD. THE ASSESSEE PURCHASED THE LAND IN QUESTIO N KHASRA NO. 839 AND KHASRA NO. 843 VIDE SALE DEED DATED 20 TH JUNE, 2007 FOR A CONSIDERATION OF RS. 63,60 LACS. THERE IS NO DISPUTE THAT AT THE TIME OF EXECUTION O F SALE DEED, THE ASSESSEE PAID ONLY RS. 3,00,000/- IN CASH AND BALANCE WAS STATED TO HAVE BEEN PAID THROUGH THREE CHEQUES OF RS. 20.20 LAC EACH. WE HAVE CONSIDERE D THE BANK STATEMENT OF THE ASSESSEE WHEREIN ONLY ONE CHEQUE WAS PRESENTED AND ENCASHED ON 18.10.2007 OF RS. 20.20 LACS. HENCE IF ONE HAS TO GO BY THE CON SIDERATION AS STATED TO HAVE BEEN PAID IN THE SALE DEED, THEN THE SAID CONSIDERATION WILL BE CONSIDERED TO BE PAID ONLY WHEN THE CHEQUES GIVEN BY THE ASSESSEE WERE FINALLY ENCASHED. ONLY ONE CHEQUE WAS EACASHED AND REMAINING TWO CHEQUES WERE NOT EVE N PRESENTED DURING THE YEAR UNDER CONSIDERATION. WE FURTHER NOTE THAT ON 18.10 .2007 THE ASSESSEE DEPOSITED RS. 20.25 LACS IN CASH IN THE BANK ACCOUNT TO FACIL ITATE THE ENCASHMENT OF THE CHEQUE PRESENTED IN THE BANK ACCOUNT BY THE SELLER OF RS. 20.20 LACS. THEREFORE, IT IS CLEAR FROM THE BANK ACCOUNT THAT THE AMOUNT OF RS. 20.25 LACS WAS USED FOR ENCASHMENT OF THE CHEQUE. THOUGH THE AUTHORITIES HAVE CONSIDE RED THIS FACT AND MADE THE ADDITION ONLY TO THE EXTENT OF THE PURCHASE CONSIDE RATION OF RS. 63,60,000 + STAMP FEE FOR REGISTRATION CHARGES OF RS. 4,37,400/- TOTA L AMOUNTING TO RS. 68,02,400/-. THE ASSESSEE EXPLAINED THE SOURCE OF THE BALANCE PA YMENT AND DEPOSIT OF RS. 20.25 LACS IN BANK AS ADVANCE RECEIVED FROM THE PROSPECTI VE BUYERS OF THE SAME LAND THOUGH THE SALE DEED WAS EXECUTED ON 3 RD MAY, 2010 FOR A TOTAL CONSIDERATION OF RS. 1,09,18,000/-. THE AO AS WELL AS THE LD. CIT (A) H AS TURNED DOWN THE EXPLANATION OF THE ASSESSEE AS WELL AS THE DECLARATION FILED BY TH E ASSESSEE FROM THE BUYERS OF THE LAND. THE LD. CIT (A) HAS CONSIDERED THIS ISSUE IN PARA 6.3 AS UNDER :- 14 ITA NO. 341/JP/2017 SHRI KALURAM BUNKAR, JAIPUR. 6.3. I HAVE GONE THROUGH THE ASSESSMENT ORDER, ST ATEMENT OF FACTS, GROUNDS OF APPEAL AND WRITTEN SUBMISSION CAREFULLY. IT IS SEEN THAT THE APPELLANT HAD DEPOSITED CASH OF RS. 20,25,000/- IN HIS BANK ACCOUNT ON 18.10.2007. THE APPELLANT HAND ALSO MADE PAYMENT OF PURCHASE CONSIDERATION OF RS. 43,40,000/- AND STAMP DUTY OF RS. 4,37,400/-. THE SOURCE OF ALL THESE FUNDS WAS STATED TO BE SMT. ANI TA DEVI AND SMT. KANTA DEVI. THE APPELLANT HAD FILED CONFIRMATION OF SMT. ANITA DEVI AND SMT. KANTA DEVI. DURING THE COURSE OF ASSESSMENT PR OCEEDINGS, THE AO REQUESTED THE APPELLANT TO PRODUCE THESE PERSONS BE FORE HIM FOR EXAMINATION. THE APPELLANT FAILED TO PRODUCE EITHE R OF THESE PERSONS BEFORE THE AO. THE APPELLANT IN WRITTEN SUBMISSION HAS MENTIONED THAT HE HAD REQUESTED THE AO TO EXAMINE THE SELLERS OF THE LAND. ACCORDING TO APPELLANT THIS FACT IS FOUND MENTIONED AT PAGE 13 OF THE ASSESSMENT ORDER. I HAVE GONE THROUGH THE PAGE NO. 13 OF THE ASSESSMENT ORDER CAREFULLY. NOWHERE THE APPELLANT HAS REQUESTED THE AO THAT HE SHOULD SUMMON SMT. ANITA DEVI AND SMT. K ANTA DEVI AS HIS WITNESS. THEREFORE, THIS CONTENTION OF THE APPELLA NT IS FOUND TO BE INCORRECT AND CONTRARY TO THE FACTS AVAILABLE ON RE CORD. EVEN OTHERWISE, IT IS A WELL SETTLED POSITION OF LAW THA T ONUS IS ON THE ASSESSEE TO PROVE THE IDENTITY AND CREDITWORTHINESS OF THE PERSON FROM WHOM THE FUNDS ARE CLAIMED TO HAVE BEEN RECEIVED BY THE ASSESSEE AND ALSO THE GENUINENESS OF THE TRANSACTIONS. MERE LY BY FILING CONFIRMATORY LETTER FROM SMT. ANITA DEVI AND SMT. K ANTA DEVI, THE APPELLANT CAN NOT CLAIM THAT HE HAD DISCHARGED HIS ONUS. AS FAR AS THE CLAIM OF THE APPELLANT THAT SUM OF RS . 40,40,000/- WAS PAID AFTER 31.03.2008, THEREFORE THE SAME CAN NOT B E SUBJECT MATTER FOR THE A.Y. 2008-09 IS CONCERNED, THIS IS ALSO NO T FOUND TO BE SUBSTANTIATED BY ANY DOCUMENTARY EVIDENCES. THE APP ELLANT HAD PUT THIS ARGUMENT ONLY ON THE BASIS OF THE FACT THAT TH E SALE DEED WAS EXECUTED ON 03.05.2010. THE APPELLANT HAD NOT FURNI SHED ANY EVIDENCE 15 ITA NO. 341/JP/2017 SHRI KALURAM BUNKAR, JAIPUR. TO SHOW THAT THE PAYMENT OF RS. 40,40,000/- WAS MAD E AFTER 31.03.2008. THEREFORE, THIS ARGUMENT OF THE APPELL ANT IS ALSO REJECTED. AS THE APPELLANT HAD FAILED TO EXPLAIN SATISFACTORI LY THE SOURCE OF THE FUNDS OF RS. 68,02,400/-, THEREFORE, THE ADDITION O F RS. 68,02,400/- MADE BY THE AO IS HEREBY CONFIRMED. AN OBJECTION WAS RAISED BY THE LD. CIT (A) THAT THE ASSESSEE HAS FAILED TO PRODUCE THESE BUYERS, NAMELY, SMT. ANITA DEVI AND SMT. KANT A DEVI FOR EXAMINATION OF THE AO. IT IS PERTINENT TO NOTE THAT THE ASSESSEE HAS FILED THE DECLARATION FROM THESE TWO LADIES WHO HAVE PURCHASED THE LAND IN QUESTION AND ALSO DECLARED THAT AN ADVANCE OF RS. 10,50,000/- EACH WAS GIVEN TO THE ASSESSEE O N 16.10.2007 AND BALANCE WAS ALSO PAID PRIOR TO THE EXECUTION OF SALE DEED DATED 3 RD MAY, 2010. THUS ONCE THE ASSESSEE HAS PRODUCED THE RECORD WHICH INCLUDES DEC LARATION UNDER INCOME DECLARATION SCHEME (IDS) 2016 MADE BY THE PURCHASER S OF THE LAND AS WELL AS THEIR CONFIRMATIONS HAVING GIVEN ADVANCE TO THE ASSESSEE AGAINST THE PURCHASE OF THE LAND IN QUESTION, THEN THE AO BEFORE REJECTING THE CLAIM OF THE ASSESSEE COULD HAVE VERIFIED THE RECORD PRODUCED BY THE ASSESSEE FROM T HE PERSONS CONCERNED. THE ASSESSEE CANNOT BE ASKED TO PRODUCE THE PERSONS WHO ARE ONLY THE PURCHASERS OF THE LAND IF IT IS NOT IN THE CONTROL OF THE ASSESSE E AND THE AO IS HAVING ALL THE POWERS TO SUMMON THE PERSONS FOR EXAMINATION UNDER SECTION 131 OR CALL FOR THE INFORMATION UNDER SECTION 133(6) OF THE ACT. WE FIND THAT THE AO HAS NOT TAKEN ANY STEP EITHER TO ASK ANY INFORMATION OR TO SUMMON THESE PERSONS. THEREFORE, SHIFTING THE BURDEN ON THE ASSESSEE THAT THE ASSESSEE OUGHT TO HAVE PRO DUCED THESE PERSONS IS NOT PROPER AND JUSTIFIED ONCE THE ASSESSEE PRODUCED THE DECLARATION OF THESE PERSONS. FURTHER, THE LD. CIT (A) HAS REFERRED THE AOS OBJE CTION REGARDING THE IDENTITY AND 16 ITA NO. 341/JP/2017 SHRI KALURAM BUNKAR, JAIPUR. CREDITWORTHINESS OF THESE PERSONS, WE FIND THAT ONC E THE SALE OF THE LAND IS NOT IN DISPUTE AND EXECUTED IN VIDE REGISTERED SALE DEED D ATED 3 RD MAY, 2010 WHEREIN BOTH THESE PERSONS HAVE PURCHASED THE LAND FROM THE ASSE SSEE, THEREFORE, THE IDENTITY OF THESE PERSONS CANNOT BE DISPUTED. HENCE, WE FIND T HAT THE DISALLOWANCE MADE BY THE AO AND CONFIRMED BY THE LD. CIT (A) IS BASED ON SURMISES AND CONJECTURES AND NOT ON ANY MATERIAL OR SUBSTANCE BROUGHT ON RECORD THROUGH A PROPER ENQUIRY CONDUCTED BY THE AO TO DISPROVE THE CLAIM OF THE AS SESSEE AND DOCUMENTS PRODUCED BY THE ASSESSEE. HENCE IN THE FACTS AND CIRCUMSTAN CES OF THE CASE, WHEN THE CHEQUES WHICH WERE GIVEN FOR THE PURCHASE CONSIDERA TION TO THE EXTENT OF RS. 40.40 LACS WERE NOT PRESENTED FOR ENCASHMENT DURING THE F INANCIAL YEAR RELEVANT TO ASSESSMENT YEAR UNDER CONSIDERATION, THEN NO ADDITI ON CAN BE MADE TO THE EXTENT OF THAT AMOUNT AS UNEXPLAINED SOURCE OF INVESTMENT UND ER SECTION 69 OF THE IT ACT. FURTHER, ONCE THE ASSESSEE HAS PRODUCED THE RECORD TO EXPLAIN THE SOURCE OF PAYMENT MADE TO THE SELLER, THEN IN THE ABSENCE OF ANY CONTRARY MATERIAL OR FINDING, THE REJECTION OF THE DOCUMENTS FILED BY THE ASSESSE E IS NOT JUSTIFIED. ACCORDINGLY THE ADDITION MADE BY THE AO IS DELETED. 11. IN THE RESULT, APPEAL OF THE ASSESSEE IS PARTLY ALLOWED. ORDER IS PRONOUNCED IN THE OPEN COURT ON 06/12/20 18. SD/- SD/- ( FOE FLAG ;KNO ) ( FOT; IKY JKWO (VIKRAM SINGH YADAV ) (VIJAY PAL RAO) YS[KK LNL;@ ACCOUNTANT MEMBER U;KF;D LNL;@ JUDICIAL MEMBER JAIPUR DATED:- 06/12/2018. DAS/ 17 ITA NO. 341/JP/2017 SHRI KALURAM BUNKAR, JAIPUR. VKNS'K DH IZFRFYFI VXZSF'KR@ COPY OF THE ORDER FORWARDED TO: 1. THE APPELLANT- SHRI KALURAM BUNKAR, JAIPUR. 2. THE RESPONDENT THE ITO WARD 6(4), JAIPUR. 3. THE CIT(A). 4. THE CIT, 5. THE DR, ITAT, JAIPUR 6. GUARD FILE (ITA NO. 341/JP/2017) VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASSISTANT. REGISTRAR 18 ITA NO. 341/JP/2017 SHRI KALURAM BUNKAR, JAIPUR.