ACIT, Jaipur V. SMT MANJU KAUSHIK, Jaipur

ITA 35/JPR/2011

• Counselvise Citation: [2011] 119 COUNSELVISE.COM (IT) 7201 (ITAT-JAIPUR)
• Duration Of Justice: 6 month(s) 30 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-08-2011
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2005-2006
• Appeal Filed On: 13-01-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: D K MEENA
• Assessee Lawyers: G G MUNDRA

Judgement Text

1 ITA 35(2)-11 IN THE INCOME TAX APPELLATE TRIBUNAL JAIPUR BENCH A JAIPUR BEFORE SHRI R.K. GUPTA AND SHRI N.L. KALRA ITA NO. 35/JP/2011 ASSTT. YEAR : 2005-06. THE ACIT, CIRCLE-7, VS. SMT. MANJU KAUSHIK JAIPUR. RAJDHANI DIAGNOSTIC CENTRE, C-30, BHAGWAN DAS ROAD, C-SCHEME, JAIPUR. (APPELLANT) (RESPONDENT) C.O. NO. 8/JP/2011 ( ARISING OUT OF ITA NO. 35/JP/2011 ) ASSTT. YEAR : 2005-06. SMT. MANJU KAUSHIK, VS. THE ACIT, CIRCLE-7, JAIPUR. JAIPUR. (CROSS OBJECTOR) (RESPONDENT) APPELLANT BY : SHRI D.K. MEENA RESPONDENT BY : SHRI G.G. MUNDRA DATE OF HEARING : 09.08.2011 DATE OF PRONOUNCEMENT : 12.08.2011. ORDER DATE OF ORDER : 12/08/2011. PER R.K. GUPTA, J.M. THIS IS AN APPEAL BY DEPARTMENT AND A CROSS OBJECT ION BY ASSESSEE AGAINST THE ORDER OF LD. CIT(A) RELATING TO ASSESSMENT YEAR 20 05-06. 2. CROSS OBJECTION BY THE ASSESSEE WAS NOT PRESSED, THEREFORE, THE SAME IS DISMISSED AS NOT PRESSED. 2 3. IN APPEAL OF THE DEPARTMENT, THE DEPARTMENT IS O BJECTING IN RESTRICTING THE ADDITION TO RS. 9,46,000/- AS AGAINST THE ADDITION OF RS. 58 ,40,000/- MADE BY AO UNDER SECTION 69B OF THE IT ACT ON ACCOUNT OF ALLEGED UNDISCLOSED INVESTMENT IN PURCHASE OF LAND. 4. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE, SMT. MANJU KAUSHIK, PURCHASED 16 BIGHAS OF AGRICULTURE LAND FROM SHRI G HASILAL CHOUDHARY, SH CHITTARMAL JAT AND SH.RAMNARAYAN CHOUDHARY ON 21.5. 2004 AND DECLARED THE PURCHASE PRICE AT RS.36 LACS. HOWEVER, ON THE BASIS OF THE INFORMATION RECEIVED FROM ITO WARD 2(2), JAIPUR THAT ACTUALLY THE ASSESS EE PASSED ON THE PURCHASE CONSIDERATION AT RS.94,40,000/-, AGAINST THE AFORES AID DECLARED PURCHASE PRICE OF RS.36 LACS, THE AO REOPENED THE ASSESSMENT IN THE A SSESSEES CASE. DURING THE ASSESSMENT PROCEEDINGS, THE AO NOTED THAT SHRI GHAS ILAL CHOUDHARY, SHRI CHITTARMAL JAT, SHRI RAMNARAYAN CHOUDHARY AND OTHER S HAD SOLD THEIR AGRICULTURAL LAND SITUATED IN VILLAGE MAHAPURA, IN TWO PIECES OF 16 BIGHAS AND 28 BIGHAS, TOTALING TO 44 BIGHAS. IT WAS OBSERVED THAT ONE PIE CE OF LAND MEASURING 16 BIGHAS HAD BEEN SOLD TO SMT.MANJU KAUSHIK, VIDE SALE DEED DATED 21.5.2004 AND THE OTHER PIECE OF LAND MEASURING 28 BIGHAS HAD BEEN SOLD TO M/S NAV CHITRA DISTRIBUTORS (MULTIPLEX) P. LTD., JAIPUR, THROUGH POWER OF ATTOR NEY DATED 8 10.2004 TO ITS DIRECTOR, SH.NARAINDAS MAKHIJA. FURTHER, THE SAID 2 8 BIGHAS OF AGRICULTURAL LAND WAS SOLD BY SH. NARAINDAS MAKHIJA TO M/S OKAY PLUS LAND DEVELOPERS PVT. .LTD., JAIPUR VIDE SALE DEED DATED 24.3.2005 FOR A SALE CO NSIDERATION OF RS.1,25,00,000/-. THE AO FURTHER NOTED THAT DURING THE ASSESSMENT PRO CEEDINGS IN THE CASE OF M/S OKAY PLUS LAND DEVELOPERS PVT. LTD., JAIPUR FOR A.Y .2005-06, VERIFICATION OF THE 3 AFORESAID PURCHASE / SALE TRANSACTIONS WAS MADE BY OBTAINING COPIES OF BANK STATEMENTS OF HDFC BANK, C-SCHEME, JAIPUR AND JAIPU R NAGAUR ANCHLIK GRMIN BANK, MAHAPURA, JAIPUR AND THE STATEMENTS OF THE SELLERS AND THE MIDDLEMAN WERE RECORDED. THE AO HAS NOTED THE RELEV ANT PARTS OF THE STATEMENTS OF SH. SHISHRAM RANWA (MIDDLEMAN) AND OF SH. GHASIR AM CHOUDHARY, SHRI RAMNARAIN JAT AND SH CHITTARMAL JAT (SELLERS OF THE AGRICULTURAL LAND) RECORDED ON 10.12.2007 AND 5.9.2007 RESPECTIVELY, ON PAGES 2 TO 10 OF THE ASSESSMENT ORDER ON EXAMINATION OF THE ABOVE MENTIONED COPIES OF BANK A CCOUNTS OF THE SELLERS AND THEIR STATEMENTS, THE AO OBSERVED THAT: I) THE ORIGINAL OWNERS OF THE LAND, SHRI CHASILAL C HOUDHARY, SHRI CHITTARMAL JAT AND SHRI RAMNARAIN CHOUDHARY SOLD TH EIR AGRICULTURAL LAND MEASURING 44 BIGHAS, THROUGH SHRI SHISHRAM RANWA, A KNOWN PERSON OF THE SELLERS AND THE BUYERS. II) ALL THE THREE SELLERS HAVE STATED THAT 16 BIGH AS OF LAND WAS SOLD TO SMT.MANJU KAUSHIK C RS.5,90,000/- PER BIGHA AND THA T 28 BIGHAS OF LAND WAS SOLD TO M/S NAV CHITRA DISTRIBUTORS (MULTIPLEX) PVT. LTD @ RS.5,90,000/- PER BIGHA. III) THE SELLERS WERE HAVING NO SOURCE OF CASH REC EIPTS, WHICH WERE DEPOSITED IN THE BANK ACCOUNT AND THE ONLY SOURCE W AS CASH RECEIPT AGAINST SALE OF LAND. FURTHER, THE AO OBSERVED THAT DURING THE ASSESSMENT PROCEEDINGS IN THE ASSESSEES CASE, THE STATEMENT OF THE ASSESSEE, SMT MANJU KAUS HIK, WAS RECORDED ON 4 24.12.2009, WHEREIN SHE CLAIMED THAT SHE HAD PURCHA SED THE LAND FOR A SUM OF RS.36 LAC ONLY, AS ADMITTED BY THE SELLERS BEFORE T HE REGISTRAR, AND THAT THERE WAS NO EVIDENCE OF PURCHASE OF LAND FOR RS.94,40,000/-- BY HER. HOWEVER, THE AO WAS OF THE VIEW THAT THE SAID STATEMENT OF SMT. MANJU K AUSHIK WAS NOT TENABLE, IN VIEW OF THE AFOREMENTIONED STATEMENTS OF THE SELLER S OF THE LAND, THEIR BANK ACCOUNTS AND FURTHER INVESTMENTS MADE BY THEM. IN T HIS REGARD, THE AO WAS OF THE OPINION THAT THE ASSESSEE HAD TRIED TO ADOPT COLOUR ABLE DEVICE TO AVOID DUE PAYMENT OF TAX BY WAY OF UNDERSTATING THE PURCHASE PRICE, WHICH WAS BENEFICIAL TO THE ASSESSEE, AS WELL AS, TO THE SELLERS AND THAT S UCH DEVICE COULD NOT BE ALLOWED TO BE ENCOURAGED IN SUPPORT, LD AO RELIED ON THE DECIS ION OF THE HONBLE SUPREME COURT IN THE CASE OF MCDOWELL & COMPANY LTD., REPOR TED IN 154 ITR 148 (SC) AND FEW OTHER CASE LAWS. THE AO ALSO RELIED ON THE DECISION OF HONBLE SUPREME COURT IN THE CASE OF SUMATI DAYAL V/S CIT. 214 ITR 801 (SC) AND A FEW OTHER CASES, WHEREIN IT HAS BEEN HELD THAT THE PREPONDERA NCE OF PROBABILITIES HAD A SIGNIFICANT ROLE IN DECIDING THE INCOME-TAX CASES. IN ADDITION, LD. AO OBSERVED THAT THE ITO WARD 2(2), JAIPUR HAD TAKEN THE SALE C ONSIDERATION @ RS.5,90,000/- PER BIGHA, IN RESPECT OF THE SALE OF 28 BIGHAS OF A GRICULTURAL LAND, PURCHASED BY M/S NAV CHITRA DISTRIBUTORS PVT. LTD., JAIPUR AND THAT THE SAME HAD BEEN CONFIRMED BY THE LD. CIT(A), VIDE HIS ORDER DATED 5.3.2008 IN TH E CASE OF M/S OKAY PLUS LAND DEVELOPERS PVT. LTD. FOR A.Y.2005-06. THEREFORE, CO NSIDERING THE ABOVE MENTIONED FACTS AND CIRCUMSTANCES, THE AO HELD THAT , KEEPING IN VIEW THE STATEMENTS OF THE SELLERS (WHEREIN THEY HAD ADMITTE D TO THE SALE CONSIDERATION @ 5 RS.5,90,000/- PER BIGHA AND ACCEPTED THE SALE CONSI DERATION OF RS.94,40,000/-, AS AGAINST THE DISCLOSED SALE CONSIDERATION OF RS.36,0 0,000/-), THE ASSESSEE HAD PAID THE AMOUNT OF RS.58,40,000/- IN CASH, OVER AND ABOV E THE DECLARED PURCHASE CONSIDERATION OF RS.36,00,000/-, WHICH HAD NOT BEEN DISCLOSED. ACCORDINGLY, THE AO MADE THE IMPUGNED ADDITION OF RS.58,40,000/- U/S 69B OF THE I.T. ACT. 5. DETAILED WRITTEN SUBMISSIONS WERE FILED BEFORE L D. CIT (A) ALONG WITH A PAPER BOOK CONTAINING 72 PAGES. THE SUBMISSIONS FILED BE FORE LD. CIT (A) HAS BEEN TABULATED IN THE ORDER OF LD. CIT (A) IN PARA 4.2 AT PAGES 7 TO 11 OF HIS ORDER. THEREAFTER, THE LD. CIT (A) DISCUSSING THE ISSUE IN DETAIL HELD THAT AS SESSEE DESERVES TO SUCCEED IN PART. OUT OF TOTAL ADDITION OF RS. 58.40 LACS, THE ADDITION O F RS. 9.46 LACS WAS SUSTAINED BY LD. CIT (A). WHILE ALLOWING THE ISSUE IN FAVOUR OF THE ASSE SSEE IN PART, THE LD. CIT (A) HAS RECORDED HIS FINDING IN PARA 4.3 AT PAGES 11 TO 15 WHICH ARE AS UNDER :- 4 3. L HAVE CAREFULLY CONSIDERED THE FACTS OF THE CASE AND SUBMISSIONS OF LD. AR IT IS OBSERVED THAT THE MAIN ISSUE INVOLVED IN THIS GROUND OF APPEAL IS AS TO WHETHER THE LD. AO W AS JUSTIFIED IN HOLDING THAT THE APPELLANT HAD PAID AN AMOUNT OF RS .58,40,000/-, OVER AND ABOVE THE DECLARED PURCHASE CONSIDERATION OF RS.3600000/-, IN RESPECT OF THE PURCHASE OF 16 BIGHAS OF AGRICULT URAL LAND AND IN MAKING THE CONSEQUENTIAL ADDITION OF RS.58,40,000/- U/S 69B OF THE I T. ACT. IN THIS REGARD, ON PERUSAL OF THE RELEVANT DETAILS / MATERIAL I EVIDENCE ON RECORD, IT IS SEEN THAT THE FOLLOWING F ACTS / OBSERVATIONS HAVE BEARING IN DECIDING THE AFORESAID ISSUE : I) THERE IS NO DISPUTE REGARDING THE FACT THAT THE APPELLANT PURCHASED 16 BIGHAS OF AGRICULTURAL LAND, LOCATED I N MAHAPURA 6 VILLAGE, FROM THREE BROTHERS I E. SHRI GHASILAL, SH RI CHHITTAR AND SHRI RAMNARAYAN (JOINT OWNERS OF THE SAID AGRICULTURAL L AND), VIDE SALE DEED DATED 21.5.2004 FOR A CONSIDERATION OF RS 36,0 0,000/-, AS DECLARED IN THE SALE DEED. II) HOWEVER, THE AFORESAID SELLERS STATED, IN THEI R STATEMENTS RECORDED BY THE ITO WARD 2(2), JAIPUR ON 5 9.2007 ( DURING THE ASSESSMENT PROCEEDINGS IN THE CASE OF M/S OKAY PLUS LAND DEVELOPERS PVT LTD, JAIPUR) THAT THEY HAD ACTUALLY SOLD THE AFORESAID LAND @ RS.5.90 LACS PER BIGHA, TOTALING TO RS.94,40 ,000/- AND, THE REGISTRY THEREOF WAS DONE FOR RS.36 LACS AND THAT T HE BALANCE AMOUNT OF RS.58,40,000/- WAS RECEIVED BY THEM IN CA SH. THE SAID STATEMENT OF THE SELLERS WAS ALSO SUPPORTED BY SHRI SHISHRAM RANWA, INVOLVED IN THIS TRANSACTION AS A MIDDLEMAN, IN HIS STATEMENT RECORDED ON 10.12.2007 BY THE ITO WARD 2(2), JAIPUR . III) FROM THE SELLERS BANK ACCOUNTS IN JAIPUR NAGA UR AANCHTIK GRAMIN BANK, MAHAPURA, IT IS SEEN THAT THERE WERE S EVERAL CASH DEPOSITS, ON VARIOUS DATES, DURING THE PERIOD OF FE BRUARY, 2004 TO APRIL, 2004, WHICH TOTALED TO RS.44,00,000/-. THE S ELLERS ARE MAINLY AGRICULTURISTS AND, APPARENTLY, HAD NO SOURCE FOR S UCH HEAVY CASH DEPOSITS, OTHER THAN THE SALE OF AGRICULTURAL LAND. IV) WHILE REGISTERING THE AFOREMENTIONED SALE DEED , DATED 21.5.2004, WHEREBY THE APPELLANT PURCHASED THE AFOR ESAID 16 BIGHAS OF LAND, THE REGISTERING AUTHORITY I.E SUB REGISTRA R, SANGANER, ESTIMATED THE VALUE OF THE PROPERTY AT RS.45,46,000 /-, AGAINST THE DECLARED PURCHASE CONSIDERATION OF RS.36,00,000/- B Y THE APPELLANT. 7 V) THEREFORE, IN VIEW OF THE FACTS / OBSERVATIONS NOTED IN SUB PARAS (I) TO (IV) ABOVE, IT IS EVIDENT THAT THE APP ELLANT HAS NOT DECLARED THE CONSIDERATION FOR PURCHASE OF THE AFOR ESAID 16 BIGHAS OF AGRICULTURAL LAND CORRECTLY (AT RS.36,00,000/-) AND HAD PASSED ON A PART OF THE ACTUAL PURCHASE CONSIDERATION IN CASH T O THE SELLERS, OVER AND ABOVE THE AFORESAID DECLARED CONSIDERATION OF R S.36,00,000/-. VI) HOWEVER, IT IS ALSO NOTICED THAT THE AFORESAID THREE SELLERS HAD SOLD A TOTAL OF 44 BIGHAS OF THEIR AGRICULTURAL LAN D, IN TWO PARTS. ONE PART OF WHICH (16 BIGHAS) WAS SOLD TO THE APPELLANT E. SMT.MANJU KAUSHIK, AND THE SECOND PART OF WHICH (28 BIGHAS) W AS SOLD TO M/S NAY CHITRA DISTRIBUTORS (MULTIPLEX) PVT. LTD. FURTH ER, IT IS SEEN THAT IN THE STATEMENT OF SHRI GHASILAL (ONE OF THE THREE SELLERS), RECORDED ON 5.9.2007 BY THE ITO WARD 2(2), JAIPUR (WHICH IS REFERRED BY THE AO IN THE ASSESSMENT ORDER PASSED IN THE APPELLANT S CASE) HAS GIVEN CONTRADICTORY STATEMENT REGARDING THE RATE OF THE S ALE OF LAND. IN HIS REPLY TO QUESTION NO.4, HE MENTIONED THAT THE THREE BROTHERS HAD SOLD THE AGRICULTURAL LAND @ RS.4.60 LACS PER BIGHA, WHE REAS IN THE VERY SAME STATEMENT, IN REPLY TO QUESTION NO.12, HE STAT ED THAT THEY HAD SOLD THE LAND @ RS.5.90 LACS PER BIGHA. THEREFORE, THERE IS A CLEAR CONTRADICTION IN HIS STATEMENT REGARDING THE RATE A T WHICH THE AGRICULTURAL LAND WAS SOLD, WHICH WAS JOINTLY HELD BY HIM WITH HIS TWO BROTHERS. FURTHER, IT IS NOTED THAT THE OTHER T WO BROTHERS HAVE MERELY SUPPORTED THE AFORESAID CONTRADICTORY STATEM ENT OF SHRI GHASILAL. IN ADDITION, IT IS OBSERVED THAT THERE AR E SOME OTHER CONTRADICTIONS / INCONSISTENCIES ALSO IN THE AFOREM ENTIONED STATEMENTS OF THE SELLERS, AND THE MIDDLEMAN, AS PO INTED OUT BY THE LD. AR, WHICH HAVE BEEN NOTED IN PARA 4.2 ABOVE. 8 VII) IT IS ALSO NOTICED THAT THERE ARE CASH DEPOSI TS IN THE BANK ACCOUNTS OF THE THREE SELLERS, MADE OF VARIOUS AMOU NTS ON VARIOUS DATES, BETWEEN FEBRUARY, 2004 TO APRIL, 2004, TOTAL ING TO RS 44,00000/- (PRIOR TO / NEAR ABOUT THE DATE OF AGREE MENT WITH THE APPELLANT, DATED 21.5.2004). HOWEVER, THIS FIGURE O F RS.44,00,000/- DOES NOT TALLY WITH THE FIGURE OF RS.58,40,000/- CL AIMED AS RECEIVED IN CASH BY THE SELLERS FROM THE APPELLANT. VIII) IT IS NOTED THAT THE APPELLANT HAS SOLD THE AID 16 BIGHAS OF AGRICULTURAL LAND ON 24.12.2004 FOR A SALE CONSIDER ATION OF RS 67,00,000/-, AS PER THE REGISTERED SALE DEED DATED 24.12.2004. IT IS SEEN THAT THE VALUE OF THE SAID PROPERTY ON THAT DA TE HAS BEEN ACCEPTED AT RS 67,00,000/- BY THE REGISTERING AUTHO RITY ALSO. IN THIS REGARD, IT IS ALSO NOTED THAT THE LD. AO HAS MENTIO NED IN THE ASSESSMENT ORDER THAT THERE WAS A CONSIDERABLE HIKE IN THE PRICES OF AGRICULTURAL LAND LOCATED IN THE SUB-URBAN / SURROU NDING AREAS OF JAIPUR CITY IN THE YEAR 2004 THEREFORE, THESE FACTS INDICATE THAT THE PROPERTY, IN QUESTION, SOLD AT RS.67,00,000/- ON 24 .12 2004, CANNOT BE MORE THAN RS.67,00,000/- ON 21.5.2004, (WHEN IT WAS PURCHASED BY THE APPELLANT), PARTICULARLY WHEN THE PRICES OF SUCH PROPERTIES WERE RISING IN THE YEAR 2004. IX) IT IS NOTICED THAT THE SELLERS STATED THAT THE Y HAD SOLD THE ENTIRE 44 BIGHAS OF LAND @ RS.5.90 LACS PER BIGHA TO TWO D IFFERENT PARTIES AND RECEIVED A PART OF THE SALE CONSIDERATION IN RE SPECT THEREOF IN CASH, OVER AND ABOVE THE DECLARED CONSIDERATION BY THOSE PARTIES. HOWEVER, AS NOTED EARLIER ALSO, THERE ARE CASH DEPO SITS OF RS.44,00,000/- IN THE BANK ACCOUNTS OF THE SELLERS, WHICH ARE OF VARIOUS AMOUNTS AND MADE ON DIFFERENT DATES DURING THE MONTHS OF 9 FEBRUARY,2004 TO APRIL 2004. THEREFORE, IT CANNOT B E ESTABLISHED, WITH CERTAINTY, AS TO HOW MUCH CASH AMOUNT WAS RECE IVED FROM WHICH PARTY AND ON WHICH DATE. X) THEREFORE, IN VIEW OF THE FACTS I OBSERVATIONS NOTED IN SUB- PARAS (VI) TO (IX) ABOVE, IT CANNOT BE SAID, WITH C ERTAINTY, THAT THE APPELLANT ACTUALLY PURCHASED THE AGRICULTURAL LAND @ RS.5.90 LACS PER BIGHA AND PAID THE CONSIDERATION OF RS.58,40,00 0/- IN CASH TO THE SELLERS (AS CLAIMED BY THE SELLERS), OVER AND ABOVE THE DECLARED CONSIDERATION OF RS.36,00,000/-. THEREFORE, AFTER TAKING INTO ACCOUNT ALL THE AFORES AID FACTS / OBSERVATIONS NOTED IN SUB PARA (I) TO (X) ABOVE, AS WELL AS, TAKING INTO CONSIDERATION THE PREPONDERANCE OF PROBABILITIES IN THE APPELLANTS CASE, I FIND THAT THOUGH IT IS EVIDENT THAT THE APP ELLANT DID NOT DISCLOSE THE ACTUAL CONSIDERATION PASSED ON TO THE SELLERS, IN RESPECT OF THE PURCHASE OF 16 BIGHAS OF AND, AND PAID A PAR T OF THE CONSIDERATION IN CASH, OVER AND ABOVE THE DECLARED PURCHASE CONSIDERATION OF RS.36,00,000/-, YET IT CANNOT BE E STABLISHED, WITH CERTAINTY, AS TO HOW MUCH AMOUNT WAS PAID IN CASH T O THE SELLERS BY THE APPELLANT, OVER AND ABOVE THE SAID DISCLOSED CO NSIDERATION OF RS.36,00,000/-. HENCE, IN THESE CIRCUMSTANCES, THE QUANTUM OF CONSIDERATION PASSED ON IN CASH BY THE APPELLANT TO THE SELLERS IS REQUIRED TO BE ESTIMATED ON SOME REASONABLE BASIS. IN THIS REGARD, I FIND THAT THE LD. REGISTRATION AUTHORITY, I.E., SUB REGISTRAR, SANGANER HAS DETERMINED THE VALUE OF THE AFORESAID 16 BIGHAS OF LAND, PURCHASED BY THE APPELLANT ON 21.5.2004, AT RS.45,4 6,000/-, AS AGAINST THE DISCLOSED PURCHASE CONSIDERATION OF RS. 36,00,000/- BY THE APPELLANT. THEREFORE, IT WILL BE FAIR AND REASONABL E TO PRESUME THAT 10 THE APPELLANT ACTUALLY PAID A CONSIDERATION OF RS.4 5,46,000/- TO THE SELLERS, FOR PURCHASE OF THE AFORESAID 16 BIGHAS OF LAND AND ACCORDINGLY, IT IS HELD THAT THE APPELLANT PAID THE AMOUNT OF RS.9,46,000/- IN CASH TO THE SELLERS, OVER AND ABOV E THE DISCLOSED PURCHASE CONSIDERATION OF RS.36,00,000/- PAID BY CH EQUES TO THE SELLERS. HENCE, THE IMPUGNED ADDITION IS CONFIRMED TO THE EXTENT OF RS.9,46,000/- AND THE BALANCE ADDITION IS DIRECTED TO BE DELETED. CONSEQUENTLY, THIS GROUND OF APPEAL IS TREATED AS P ARTLY ALLOWED. HERE, IT IS ALSO RELEVANT TO MENTION THAT AS THE AP PELLANT HAS DECLARED SHORT TERM CAPITAL GAIN, ON SALE OF THE AFORESAID 1 6 BIGHAS OF AGRICULTURAL LAND, DURING THIS YEAR, THE ABOVE DECI SION WILL HAVE IMPACT ON THE WORKING OF THE SAID SHORT TERM CAPITA L GAIN DECLARED BY THE APPELLANT. THEREFORE, THE AO IS DIRECTED TO ALL OW CONSEQUENTIAL ADJUSTMENT IN RESPECT OF THE COMPUTATION OF THE AFO RESAID SHORT TERM CAPITAL GAIN DECLARED BY THE APPELLANT. 6. NOW THE DEPARTMENT IS IN APPEAL HERE BEFORE THE TRIBUNAL. 7. THE LD. D/R PLACED RELIANCE ON THE ORDER OF AO. 8. ON THE OTHER HAND, THE LD. COUNSEL OF THE ASSESS EE PLACED RELIANCE ON THE ORDER OF LD. CIT (A). A COPY OF BRIEF WRITTEN SUBMISSION WA S ALSO FILED. IT WAS FURTHER SUBMITTED THAT SIMILAR ADDITION WAS MADE IN CASE OF M/S. OKAY PLUS LAND DEVELOPERS P. LTD. AND ISSUE CAME BEFORE THE TRIBUNAL, AND THE TRIBUNAL HA S DELETED THE ADDITION. COPY OF THE ORDER OF TRIBUNAL DECIDED IN ITA NO. 563/JP/2008 AS SESSMENT YEAR 2005-06 DATED 25.7.2008 WAS ALSO FILED. 9. AFTER CONSIDERING THE ORDERS OF THE AO AND LD. C IT (A) AND THE ORDER OF THE TRIBUNAL IN CASE OF M/S. OKAY PLUS LAND DEVELOPERS PVT. LTD. (SUPRA), WE FIND THAT THERE 11 IS NO INFIRMITY IN THE FINDING OF LD. CIT (A). ON SIMILAR FACTS, AN ADDITION OF RS. 1.55 CRORES WAS MADE UNDER SECTION 69B. THE LD. CIT (A) ALLOWED THE APPEAL IN PART BY DELETING THE ADDITION OF RS.1.15 CRORES. ASSESSEE A ND DEPARTMENT FILED APPEAL BEFORE THE TRIBUNAL, AND THE TRIBUNAL CONSIDERING THE ISSUE AT LENGTH FOUND THAT THE ADDITION SUSTAINED AT RS. 40,00,000/- WAS NOT JUSTIFIED. ACC ORDINGLY ENTIRE ADDITION OF RS. 1.55 CRORES MADE BY AO WAS DELETED BY TRIBUNAL. 10. THE LAND IN DISPUTE IN THE PRESENT CASE AS WELL AS IN CASE OF M/S. OKAY PLUS LAND DEVELOPERS PVT. LTD. IS THE SAME. FACTS ARE SIMILA R, THEREFORE, WE FIND THAT LD. CIT (A) WAS JUSTIFIED IN REDUCING THE ADDITION TO RS. 9.46 LACS AGAINST THE ADDITION OF RS. 58.40 LACS. FINDINGS OF LD. CIT (A) HAVE BEEN REPRODUCED SOMEWHERE ABOVE IN THIS ORDER WHICH REMAINED UNCONTROVERTED. THE FINAL FINDING OF THE TRIBUNAL WHILE DELETING THE ENTIRE ADDITION OF RS. 1.55 CRORES HAS BEEN RECORDED IN PA RA 9 AT PAGE 7 OF ITS ORDER WHICH ARE AS UNDER :- 9. WE HAVE HEARD THE PARTIES AND PERUSED THE MAT ERIAL ON RECORD. IT IS A MATTER OF FACT THAT THE APPELLANT I S AN ARTIFICIAL JURISDICTIONAL ENTITY AS IT HAS BEEN STATED TO HAVE COME INTO EXISTENCE ON AND W.E.F. 15.02.2005 AND THE ALLEGED UNACCOUNTED PAYMENTS STATED TO HAVE BEEN MADE BY THE ASSESSEE A RE IN THE DATES MUCH EARLIER TO ITS COMING INTO EXISTENCE. IT IS TH US NOT UNDERSTANDABLE AS TO HOW A LIABILITY COULD BE FASTE NED TO A CORPORATE ENTITY FOR A TRANSACTION WHEN IT DID NOT EVEN EXIST. IT IS ALSO A FACT THAT IN THE STATEMENTS DEPOSED BY SHRI NARAIN DAS MUKHIJA, DIRECTOR OF THE SELLER COMPANY M/S NAV CHI TRA DISTRIBUTORS (MULTIPLEX) PVT. LTD. HE HAS ADMITTED HAVING RECEIVED THE ONLY AMOUNTS WHICH THE APPELLANT HAS DISCLOSED. FURTHER THE CONTENTION OF THE ASSESSEE THAT NEITHER AN OPPORTUN ITY TO CROSS EXAMINATION OF THE WITNESSES RELIED UPON HAS BEEN G RANTED NOR 12 THERE IS ANY COGNISABLE MATERIAL ON RECORD TO PROVE THAT THE ASSESSEE OR ITS DIRECTOR AT ANY POINT OF TIME HAVE PASSED ANY CONSIDERATION OVER AND ABOVE THE DECLARED CONSIDERA TION THEN HOW COULD IT BE HELD THAT THE ASSESSEE HAVE PASSED ANY CONSIDERATION OVER AND ABOVE THE DECLARED CONSIDERATION. THUS CON SIDERING THE FACT THAT THE ASSESSEE COMPANY DID NOT EXIST AT THE POINT OF TIME WHEN THE ALLEGED UNACCOUNTED PAYMENTS IF ANY, WERE MADE AND FURTHER CONSIDERING THE FACT THAT THE AO HAD NO MAT ERIAL WITH HIM TO ESTIMATE THE SALES PRICE AT RS. 10 LACS PER BIGH A COUPLED WITH THE FACT THAT THE PROPERTY UNDER TRANSFER WAS UNDER A S ERIOUS THREAT OF ACQUISITION WHICH ULTIMATELY TURNED RIGHT BY THE DE VELOPMENT AUTHORITY HAVING REFUSED TO ALLOW THE CONVERSION OF LAND FOR THE DESIRED PURPOSES, IN OUR OPINION THE ENTIRE ADDITIO NS DESERVES TO BE DELETED. THUS THE ADDITION OF RS. 1,55,00,000/- MAD E BY THE AO {THOUGH REDUCED TO RS. 40 LACS SUSTAINED BY THE LD. CIT(A)} IS DIRECTED TO BE DELETED. SINCE SIMILAR ISSUE HAS ALREADY BEEN DECIDED BY THE TRIBUNAL, THEREFORE, WE SEE NO REASON TO INTERFERE WITH THE FINDING OF LD. CIT (A). ACCO RDINGLY, THE FINDINGS OF LD. CIT (A) ARE CONFIRMED. 11. IN THE RESULT, APPEAL OF THE DEPARTMENT AS WELL AS CROSS OBJECTION OF THE ASSESSEE ARE DISMISSED. 12. THE ORDER IS PRONOUNCED IN THE OPEN COURT ON 12 .8.2011. SD/- SD/- ( N.L. KALRA ) ( R.K. GUPTA ) ACCOUNTANT MEMBER JUDICIAL MEMBER JAIPUR, D/- 13 COPY FORWARDED TO :- THE ACIT, CIRCLE-7, JAIPUR. SMT. MANJU KAUSHIK, JAIPUR. THE CIT (A) THE CIT THE D/R GUARD FILE (ITA NO. 35(2)/JP/2011) BY ORDER, AR ITAT JAIPUR.