GAURAV KUMAR SHARMA, Jaipur V. ACIT, Jaipur

ITA 366/JPR/2013

• Counselvise Citation: 36623114 RSA 2013
• Duration Of Justice: 9 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-01-2014
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: A
• Assessment Year: 2007-2008
• Appeal Filed On: 08-04-2013
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: SUBHASH CHANDRA
• Assessee Lawyers: S L PODDAR
• Keywords: Unexplained investment; Business income; Search and seizure; Corroborative evidences; Documents seized
• Section: 131; 69; 132; 28; 40A(3); 143(3); 133A; 153A

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL JAIPUR BENCH, JAIPUR (BEFORE SHRI HARI OM MARATHA AND SHRI N.K. SAI NI) ITA NO. 366/JP/2013 ASSESSMENT YEAR : 2007-08 PAN: ADGPS 6170 E SHRI GAURAV KUMAR SHARMA VS. THE ACIT D-131A, GAUTAM MARG CENTRAL CIRCLE- 1 KINGS ROAD, NIRMAN NAGAR, JAIPUR JAIPUR (APPELLANT) (RESPONDENT) ITA NO.553 /JP/2013 ASSESSMENT YEAR : 2007-08 PAN: ADGPS 6170 E THE DCIT VS. SHRI GAURAV KUMAR SHARMA CENTRAL CIRCLE- 1 D-131A, GAUTAM MARG JAIPUR KINGS ROAD, NIRMAN NAGAR, JAIPUR (APPELLANT) (RESPONDENT) ITA NO. 367/JP/2013 ASSESSMENT YEAR : 2008-09 PAN: ADGPS 6170 E SHRI GAURAV KUMAR SHARMA VS. THE ACIT D-131A, GAUTAM MARG CENTRAL CIRCLE- 1 KINGS ROAD, NIRMAN NAGAR, JAIPUR JAIPUR (APPELLANT) (RESPONDENT) ITA NO. 368/JP/2013 ASSESSMENT YEAR : 2009-10 PAN: ADGPS 6170 E SHRI GAURAV KUMAR SHARMA VS. THE ACIT D-131A, GAUTAM MARG CENTRAL CIRCLE- 1 KINGS ROAD, NIRMAN NAGAR, JAIPUR JAIPUR (APPELLANT) (RESPONDENT) 2 ASSESSEE BY : SHRI S.L. PODDAR DEPARTMENT BY: SHRI SUBHASH CHANDRA DATE OF HEARING: 24-01-2014 DATE OF PRONOUNCEMENT: 31-01-2014 ORDER PER HARI OM MARATHA, JM THE FOUR APPEALS, IN WHICH ALMOST IDENTICAL ISSUE IS INVOLVED, ARE BEING ARE DISPOSED OFF BY A COMMON ORDER FOR THE SA KE OF CONGRUENCE, CONVENIENCE AND BREVITY. ITA NO.336/JP/2013-ASSESSEE & 553/JP/2013 (REVENUE ) AY 2007-08 2.1 THESE ARE THE CROSS APPEALS FOR THE ASSESSMENT YEAR FILED AGAINST THE ORDER OF THE LD. CIT(A), CENTRAL, JAIPUR DATED 26-0 3-2013. 3.1 BRIEFLY STATED, THE FACTS OF THE CASE ARE THAT THE ASSESSEE, AS AN INDIVIDUAL, DERIVES INCOME FROM DEALING IN REAL EST ATE BUSINESS. A SEARCH AND SEIZURE OPERATION UNDER THE PROVISIONS OF SECTI ON 132(1) OF THE I.T. ACT, 1961 (THE ACT FOR SHORT) WAS CARRIED OUT ON 29-03 -2010 AT THE BUSINESS AND RESIDENTIAL PREMISES OF THE ASSESSEE GROUP. CONSEQU ENT UPON THIS SEARCH, A NOTICE U/S 153A OF THE ACT WAS ISSUED TO THE ASSES SEE ON 4-07-2011. THE ASSESSEE RESPONDED BY FURNISHING HIS RETURN OF INCO ME ON 18-08-2011 DECLARING TOTAL INCOME OF RS. 5,71,710/-. DURING TH E YEAR UNDER CONSIDERATION, THE ASSESSEE HAS DECLARED TOTAL INCO ME OF RS. 2,00,210/- ON ACCOUNT OF COMMISSION, INCOME FROM HOUSE PROPERTY, INTEREST AND CAPITAL 3 GAIN ON SALE OF SHARES OF PRIVATE COMPANIES. ADMITT EDLY, NO INCRIMINATING EVIDENCES WERE FOUND DURING THE SEARCH EITHER FROM THE ASSESSEE'S RESIDENCE OR BUSINESS PREMISES. HOWEVER, DURING SEARCH, THE STATEMENT OF THE ASSE SSEE U/S 132 (4) OF THE ACT WAS RECORDED. IT WAS FOUND T HAT THE ASSESSEE HAD PURCHASED TOTAL44 BIGHA 12 BISWA LAND AT VILLAGE SA RSANI ON 23-04-2007 FOR A CONSIDERATION OF RS. 36.00 LACS IN HIS OWN NAME. HE HAS PURCHASED 107 BIGHA 15 BISWA LAND ON 29-01-2007 AND 30-03-2007 FO R A CONSIDERATION OF RS. 9.75 LACS IN THE NAME OF HIS WIFE SMT. VEENA SH ARMA AND 22 BIGHA LAND IN THE NAME OF HIS BENAMI SHRI PRAKASH CHAND VASHIS THA. AS PER THE AO, THIS BENAMI PURCHASE, IN FACT, PERTAINS TO THIS VER Y ASSESSEE AND THE RESULTANT PROFIT HAS BEEN EARNED BY HIM ONLY. IN THIS REGARD, THE AO HAS RELIED ON THE QUESTION AND ANSWER GIVEN IN REPLY TO QUESTION NO. 12 OF HIS STATEMENT RECORDED DURING THE COURSE OF SEARCH. THIS PART OF THE STATEMENT IS MENTIONED IN HINDI AT 4 PAGE TWO OF THE ASSESSMENT ORDER 3.2 AGAIN, ON FURTHER ENQUIRIES, THE FACT OF BENAM I PUCHAASE WAS CONFIRMED FROM ASSESSEE'S REPLY DATED 21-11-2011 WH ICH READS AS UNDER:- SUBJECT: ASSESSMENT PROCEEDINGS U/S 153A/143(3) F OR ASSESSMENT YEAR 2004-05 TO 2010-11 OF GAURAV KUMAR SHARMA AND PRAKASH VASHISTHA. WITH REGARD TO ABOVE, I HAVE TO SUBMIT THAT ALL THE TRANSACTIONS INCLUDING PURCHSE AND SALE OF LAND AT VILLAGE SARSANI AND VILLAGE HANUMANPURA DONE IN THE NAME OF PRAKASH VASHITHA BELONG TO ME AND HAVE BEEN CARRIED OUT BY ME. THE FUNDS FOR PURCHASE OF LANDS WERE PROVIDE D TO 4 ME AND SALE PROCEEDS OF LANDS WERE ALSO RECEIVED BY ME AND I ALONE SHALL BE ACCOUNTABLE FOR THESE TRANSACT IONS AND RESPONSIBLE FOR REPLYING TO ANY ENQUIRES MADE B Y ANY AUTHORITY INCLUDING INCOME TAX DEPARTMENT IN THIS R EGARD. I ALSO CONFIRM THAT I ALONE SHALL BE RESPONSIBLE FO R PAYMENT OF TAX LIABILITY, IF ANY, ARISING FROM SAID PURCHASE/ SALE TRANSACTIONS. I FULLY OWN THE TRANSA CTIONS CARRIED OUT IN THE NAME OF PRAKASH CHAND VASHITHA. IT IS ALSO SUBMITTED THAT I PAID HIM A SUM OF RS. 2.00 LA CS IN THE YEAR 207-08 FOR USING HIS NAME FOR THE ABOVE TRANSACTIONS. APART FROM ABOVE, A PORTION OF INVESTMENT IN THE PU RCHASE OF LAND BY HER WIFE WAS ALSO CONCEDED TO HAVE BEEN MADE BY THIS VE RY ASSESSEE . IN THIS REGARD, THE AO EXTRACTED THE REPLY OF THE ASSESSEE DATED 21-11-2011 WHICH READS AS UNDER:- IT IS FURTHER SUBMITTED THAT MY WIFE SMT. VEENA SH ARMA INVESTED A SUM OF RS. 65.00 LAS FOR PURCHASE OF AGR ICULTURAL LAND AT VILLAGE SARSANI, DISTT. NAGAUR IN HER NAME IN TH E YEAR 2006- 07. THE SOURCE OF THIS MONEY IS PARTLY OUT OF SALE PROCEEDS OF AGRICULTURAL LAND AT PIPLA BHARAT SINGH AMOUNTING T O RS. 4.00 LACS SOLD ON 1.02.2005 OUT OF BANK WITHDRAWALS MADE ON 16-07- 2005 RS.60,000/-, 8-02-2007 RS. 60,000/- AND 30-03- 2007 RS. 50,000/- AND PARTLY SAVINGS FROM SALARY AND PETTY G IFTS. THE BALANCE AMOUNT WAS PROVIDED BY ME AND I WILL REPLY AND ACCOUNTABLE/RESPONSIBLE FOR ENQUIRIES AND INCOME TA X AND OTHER EXPLANATION ETC. REGARDING THE SAID LAND PURCHASED BY ME WIFE. THE LAND PURCHASED IN HIS NAME BY THE ASSESSEE PERT AINS TO ASSESSMENT YEAR 2008-09.THE TOTAL COST OF THE LAND PURCHASED IN THE NAME OF SMT. VEENA SHARMA HAS BEEN CLAIMED AT RS. 9.50 LACS AS PER SAL E DEED BUT ACCORDING TO THE AO THE DLC VALUE OF THIS LAND IS AT RS. 19,08,1 75/-. IT WAS NOTICED BY 5 THE AO THAT AT PAGES 68 TO 71 OF ANNEXURE AS-2,, WH ICH IS ORIGINAL SALE AGREEMENT DATED 6-07-2006 SIGNED BY THE SELLER SHRI KHIV SINGH S/O SHRI GOPAL SINGH AND SMT. SAJJAN KANWAR W/O LATE SHRI GA NGA SINGH OF VILLAGE SARSANI TO THE EFFECT THAT THE LAND AT KHASRA NO. 2 5 MEASURING 31 BIHA 06 BISWA HAD BEEN AGREED TO BE SOLD / PURCHASED @ RS. 16000/- PER BIGHA AND RS. 50100/- WAS RECEIVED IN CASH AS AN ADVANCE IN T HE PRESENCE OF TWO WITNESSS. THIS DOCUMENT IS FOUND NOTORIZED ON 6-07- 2006. HOWEVER, IN THIS DOCUMENT, APART FROM SELLER, NO NAME OF THE PURCHAS ER HAS BEEN MENTIONED. THIS HAS BEEN TREATED BY THE AO AS A DELIBERATE ACT OF THE PARTIES. IT WAS FURTHER NOTICED THAT VERY SAME LAND WAS PURCHASED S UBSEQUENTLY BY THEAA VIDE REGISTERED DEED DATED 23-04-2007. IN THE SALE DEED, TOTAL SALE CONSIDERATION HAS BEEN DISCLOSED AT RS. 2.00 LACS O NLY AS AGAINST DLC RATE OF RS. 5,32,100/-. ON THE BASIS OF COPY OF SALE AGREE MENT, ALTHOUGH IT DOES NOT CONTAIN THE NAME OF THE PURCHASER, THE AO HAS QUER IED THE ASSESSEE AND HAS PROPOSED TO TAKE AND ADOPT DLC RATE OF THIS INVESTM ENT. HOWEVER, THE ASSESSEE REFUTED OF THE ABOVE ALLEGATION VIA IS REP LY DATED 9-1-2011 WHICH READS AS UNDER:- THAT I PURCHASED UNIRRIGATED AGRICULTURAL (DOUAM L AND SITUATED AT VILLAGE SRASANI THE & DISTRICT NAGOUR ( RAJ) BY REGISTERED SALE DEEDS. THE PURCHASE CONSIDERATION P AID TO THE RESPECTIVE BUYERS HAS BEEN ACCEPTED BY THEM BEFORE THE SUB- REGISTRAR. THUS THE PURCHASE CONSIDERATION PAID TO THE RESPECTIVE BUYERS HAS BEEN ACCEPTED BY THEM BEFORE THE SUB- REGISTRAR. THUS THE PURCHASE CONSIDERATION AS PER R EGISTERED 6 SALE DEEDS HAS BEEN ACCEPTED BY THE BUYER AND SELLE R BEFORE GOVERNMENT AGENCY AND AS SUCH THE SAID CONSIDERATIO N IS THE CORRECT AND ACTUAL AMOUNT PAID BY THE ASSESSEE TO T HE SELLERS FOR THE SAID LAND PURCHASED BY HIM. WITH REGARD TO THE RELIANCE ON THE SEIZED ALLEGED AGREEMENT IN WHICH THERE IS N O NAME OF BUYER, I SUBMIT THAT THE SAID AGREEMENT IS NOT A LE GAL DOCUMENT. BECAUSE FOR A LEGAL SALE/PURCHASE AGREEMENT THERE M UST BE MORE THAN ONE PERSON I.E. AT LEAST TWO PARTIES I.E. ONE BUYER AND ANOTHER SELLER. FROM THE SAID AGREEMENT, IT IS VERI FIABLE FROM THE SAID ALLEGED AGREEMENT/DOCUMENT THAT THERE IS N O NAME OF BUYER I.E. NO SECOND PART. THUS THE SAID DOCUMENT I S NOT A VALID DOCUMENT IN THE EYES OF LAW. THE SAID DOCUMENT WAS FOUND IN POSSESSION OF THE ASSESSEE DURING THE COURSE OF SEA RCH FOR THE REASONS THAT THE ASSESSEE AND HIS FAMILY MEMBERS WA NT TO PURCHASE LAND IN THAT AREA AND HE WAS NOT HAVING MU CH IDEA ABOUT PREVAILING RATE OF LAND AT THE MATERIAL TIME. WHEN THESE FACTS CAME TO THE NOTICE OF VARIOUS OWNERS OF AGRIC ULTURAL LANDS, SOME OWNER(S) PREPARED A SELF SERVING AGREEMENT QUO TATING THEIR ASKING RATES FOR SELLING THEIR AGRICULTURAL L ANDS AT BETTER PRICE AND DURING THE COURSE OF SAID ENQUIRIES/DISCU SSIONS THE SELLER LEFT THE SAID AGREEMENT WITH THE ASSESSEE. I N THIS CONNECTION I ALSO SUBMITS:- (A) NEITHER MYSELF NOR MY FAMILY MEMBERS EXECUTED THE S O CALLED AGREEMENT. (B) I HAVE NOT GIVEN INSTRUCTION TO ANY ONE TO DRAFT AN D TYPE OR WRITE THE SAID AGREEMENT. (C) I HAVE NEVER AGREED TO PURCHASE THE SAID LAND AT RS . 16000/- PER BIGHA. (D) THE SO CALLED AGREEMENT (PIECE OF PAPER) IS NOT SIG NED, INITIATED OR MARKED BY ME OR BY ANYBODY ON MY BEHAL F. (E) THERE IS NO CONSENT OR DESIRE TO AGREE WITH THE SAI D PAPER DIRECTLY OR INDIRECTLY BY ME IN ANY MANNER WHATSOEV ER, EITHER INDICATIVE OR OTHERWISE. (F) I FINALLY DECLARE AND CONFIRM THAT THE SAID LANDS H AVE BEEN PURCHASED BY MYSELF, MY WIFE AND MY FATHER AT AN AG REED PRICE AS PER THE REGISTERED SALE DEEDS EXECUTED AND THAT IT IS THE ONLY PRICE WHICH WE PAID TO THE SELLER. 7 IN VIEW OF THE ABOVE FACTS, IT WOULD BE WRONG AND B AD IN LAW TO DRAW ANY INFERENCE ON THE BASIS OF SAID SO C ALLED AGREEMENT AT THE TIME OF COMPLETION OF MY ASSESSMEN T. BUT THE AO WAS NOT SATISFIED AND HE INSISTED UPON T HE PRODUCTION OF SHRI KHIV SINGH, SELLER OF THIS LAND, DESPITE THE FACT T HAT THE ASSESSEE HAD REITERATED THAT HE WAS NOT WILLING TO APPEAR BEFORE HIM. ACCORDINGLY BY INVOKING THE PROVISIONS FF SECTION 132(4A) OF THE A CT, THE HAS PRESUMED THAT INCOMPLETE SALE AGREEMNT ACTUALLY BELONGED TO THE A SSESSEE. FINALLY, THE HAS RELIED UPON THE DECISION OF HON'BLE JURISDICTIONAL HIGH COURT IN THE CASE OF AMAR KUMARI SURANA,226 ITR 344. IN THIS CASE, IT HA S BEEN HELD SPECIFICALLY THAT NO ADDITION CAN BE MADE ON THE BASIS OF FAIR M ARKET VALUE OF A PROPERTY U/S 69B OF THE ACT, BUT ON THE BASIS OF SUFFICIENT MATERIAL ON RECORD SOME REASONABLE INFERENCE CAN BE DRAWN. AS A RESULT, T HE AO HAS CALCULATED THE SALE CONSIDERATION OF THIS PROPERTY AS UNDER:- NAME AREA VALUE @ 16000 PER BIGHA REGISTRY EXPENSES DECLARED VALUE DECLARED VALUE EXPLAINED DIFFERENCE CONSIDERED U/S 68B 1 2 3 4 5 6 3+4-6 SHRI GAURAV KUMAR SHARMA 44 BIGHA 12 BISWA 713600 60000 360000 360000 413600 (AY YEAR 2008-09) SHRI PRAKASH VASHITHA 22 BIGHA 352000 30000 260000 260000 122000 SMT. VEENA 107 BIGHA 12 BISWA 1724000 75000 975000 650000 1149000 8 THEREFORE, HE HAS ADDED RS. 12,71,000/- IN THE HAND S OF THE ASSESSEE. 3.4 FURTHER IN RESPECT OF THE LAND PURCHASED IN T HE NAME OF SHRI PRAKASH CHAND VASHISHTA SITUATED AT VILLAGE HANUMANPUR DIST T. JAIPUR. THE FACTS OF THE CASE ARE THAT A SURVEY U/S 133A OF THE ACT WAS CONDUCTED IN THE CASE OF ONE SHRI SURENDER SINGH RAJAWAT. DURING THIS SURVEY , A COPY OF AGREEMENT DATED 7-04-2007 WAS FOUND TO HAVE BEEN EXECUTED BET WEEN M/S. BHARGAVI INFRASTRUCTURE (P) LTD., A COMPANY OF M/S. MARYURA TOWNSHIP PROJECT DEVELOPERS (P) LTD. (IN SHORT HEREINAFTER REFERRED AS MTPDPL) . IT WAS NOTICED THAT SHRI SURENDER SINGH RAJWAT IS CLOSE AS SOCIATES OF THE ASSESSEE AND ARRANGES THE LAND DEALS IN THAT VILLAGE FOR THE ASSESSEE AS WELL AS MTPDPL ON BEHALF OF THE ASSESSEE. SINCE THE ASSESSE E HAS ADMITTED THAT HE WAS ARRANGING THE LAND FOR MTPDPL AND PAID COMMISSI ON @ 2% IN THE FORM OF BROKERAGE TO SHRI SURENDER SINGH RAJWAT FOR ARRANGING LANDS AND PERSUADING THE FARMERS TO SELL THEIR LAND TO SHRI P RAKASH CHAND VASHISHTA AND MTPDPL. IN THE COPY OF THE AGREEMENT, ENTIRE P AYMENT SCHEDULE IS FOUND TO BE NOTED AND THE AO HAS MENTIONED FROM THI S DOCUMENT. IT HAS BEEN NOTICED THAT SUBSTANTIAL PART OF THE AMOUNT HAS BEE N PAID BY MTPDPL, IN CASH, TO SHRI GAURAV KUMAR SHARMA (THIS ASSESSEE). THE ASSESSEE PASSED ON THIS LAND TO SHRI SURENDER SINGH RAJAWAT FOR MAKING FURTHER PAYMENT TO THE RESPECTIVE LAND OWNERS. IN THE STATEMENT, THE ASSES SEE HAD ADMITTED THAT THESE TRANSACTIONS WERE DONE IN HIS INDIVIDUAL CAPACITY O N WHICH HE EARNED AROUND 9 RS. 30.00 LACS DURING FINANCIAL YEAR 2007-08 ON THE SERVICES PROVIDED TO THE COMPANY MTPDPL. AFTER CONSIDERING THE REPLY OF THE ASSESSEE AND DISCUSSING THEM IN DETAIL, THE AO FOUND THAT THE AS SESSEE HAS MADE OVER AND ABOVE PAYMENT IN CASH FOR THE PURCHASE OF LAND THRO UGH SHRI SURENDER SINGH RAJAWAT. ACCORDINGLY, HE ADDED A SUM OF RS. 2,61,57 ,380/-. 3.5 IN THE FIRST APPEAL, THE ASSESSEE WAS GIVEN PAR T RELIEF AND THAT IS WHY BOTH THE PARTIES ARE AGGRIEVED.. 3.6 THE ASSESSEE HAS TAKEN THE FOLLOWING GROUNDS. 1. UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) HAS ERRED IN CONFIRMING THE ACTION OF TH E LD. AO FOR FRAMING ASSESSMENT ORDER U/S 143(3)/ 153A OF I.T. A CT , 1961 WHICH IS VOID AB-INITO DESERVES TO BE QUASHED. 2. UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE, T HE LD. CIT(A) HAS ERRED IN CONFIRMING THE ADDITION OF RS. 2,61,57,380/- TO THE INCOME OF THE APPELLANT U/S 69 B OF THE I.T. ACT, 1961 AS ALLEGED UNEXPLAINED INVESTMENT IN CONN ECTION WITH PURCHASE OF LAND AT HANUMANPURA, DISTT. JAIPUR BY W ORKING OUT INVESTMENT AT RS. 2,92,21,000/- BY THE APPELLANT AS AGAINST INVESTMENT OF RS. 24,79,630/- ACTUALLY MADE AND DEC LARED BY THE APPELLANT. 3. UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE, T HE LD. CIT(A) HAS ERRED IN UPHOLDING THAT PROVISIONS O F SECTION 40A(3) OF THE I.T. ACT, 1961 ARE APPLICABLE TO PAY MENTS ALLEGEDLY MADE OVER AND ABOVE DISCLOSED PAYMENTS AN D THEREFORE, NO DEDUCTION IS AVAILABLE FOR THESE PAYM ENTS AT THE TIME OF SALE (NO SEPARATE ADDITION MADE IN VIEW OF ADDITION OF WHOLE INVESTMENT VIDE GROUND NO. (2) ABOVE. 4. THE ASSESSEE CRAVES YOUR INDULGENCE TO ADD AMEND OR ALTER ALL OUR ANY GROUNDS OF APPEAL BEFORE OR AT THE TIME OF HEARING. 10 3.7 THE REVENUE HAS TAKEN FOLLOWING GROUND:- ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE , THE LD. CIT(A), CENTRAL, JAIPUR HAS ERRED IN DELETI NG THE ADDITION OF RS. 12,71,00,000/- MADE BY THE AO U/S 6 9B OF THE I.T. ACT ON ACCOUNT OF UNDISCLOSED/ UNEXPLA INED INVESTMENT IN AGRICULTURAL LAND AT SARASANI (DISTT. NAGAUR). 3.8 WE HAVE HEARD THE RIVAL SUBMISSIONS AND HAVE CA REFULLY PERUSED ENTIRE RECORD. WE HAVE FOUND THAT THE AO HAS ADDED A SUM O F RS. 12,71 LACS U/S 69B OF THE ACT ON ACCOUNT OF UNDISCLOSED INVESTMEN T IN PURCHASE OF LAND IN THE VILLAGE SARASANI IN DISTT. NAGAUR AND A SUM OF RS. 2,61,57,380/- U/S 68B OF THE ACT ON ACCOUNT OF SUCH UNDISCLOSED INVESTME NT IN THE PURCHASE OF LAND SITUATED AT HANUMANPURA, NEAR BASSI IN THE NAM E OF SHRI PRAKASH CHAND VASHITHA. THE LD. CIT(A) HAS CONFIRMED THE ADDITION OF RS. 2,61,57,380/-, AGAINST WHICH THE ASSESSEE HAS COME IN APPEAL BEFOR E US. 4.1 THE LD. AR AT THE TIME OF HEARING DID NOT PRESS THE GROUND NO. 1 OF THE APPEAL. THUS GROUND NO. 1 OF THE ASSESSEE STAND S DISMISSED AS NOT PRESSED. 5.1 THE GROUND NO. 2 OF THE ASSESSEE IN RELATION TO CONFIRMATION OF ADDITION OF RS. 2,61,57,380/-. AS PER THE LD. AR, THE ASSESSEE HAS INVESTED A SUM OF RS. 24,79,630/- IN THE LAND SITUATED AT HA NUMANPURA BUT AS AGAINST THIS THE AO HAS MADE CALCULATION OF HIS INVESTMENT AT RS. 2,92,21,000- AND 11 ADDED THE BALANCE AMOUNT. FROM THE FACTS, WE HAVE F OUND THAT THE ASSESSEE IS ARRANGING LANDS FOR MTPDPL, DELHI. FOR THIS ARRANGE MENT, HE JOINED HANDS WITH ONE SHRI SHRI SURENDER SINGH RAJAWAT WHO IS A LOCAL RESIDENT AND IN FACT THE REAL ESTATE BROKER. HE WAS DEPUTED WITH TH E JOB OF COLLECTING LAND SO THAT THE SAME COULD BE SUITABLY ACQUIRED BY MTPDPL. FOR THIS JOB, THE ASSESSEE AGREED TO PAY 2% COMMISSION TO SHRI SUREND ER SINGH RAJAWAT. IN THIS WAY, THE ASSESSEE WOULD ARRANGE LANDS FOR MTPD PL IN THE NAME OF SHRI PRAKASH CHAND VASITHA. IN FACT, IT IS AN UNDENIABLE FACT THAT THE LAND BELONGED TO AND OWNED BY ANY SC/ST COMMUNITY OWNER CAN BE TRANSFERRED ONLY TO A PERSON BELONGING TO THIS COMMUNITY AS PER PREVAILING RATE IN THE STATE OF RAJASTHAN. IT IS ALSO FOUND TO BE A FACT T HAT SHRI PRAKASH CHAND VASITHA NEVER HIMSELF PURCHASED ANY LAND. HE WAS ON LY INSTRUMENTAL IN GETTING THE LAND REGISTERED IN HIS NAME AND GETTING THE SAME CONVERTED FOR USE SO THAT IT CAN BE UTILIZED FOR A TOWNSHIP PROJE CT. AFTER GETTING IT CONVERTED, HE WOULD TRANSFER THE LAND IN THE NAME O F MTPDPL. FOR THIS JOB, AN AGREEMENT WAS EXECUTED BETWEEN MTPDPL AND M/S. B HARGAVI INFRASTRUCTURE (P) LTD. IN WHICH THE ASSESSEE IS AL SO A DIRECTOR AND THEN THIS FACT STANDS PROVED BY THE COPIES OF THE AGREEMENT P LACED AT ASSESSEE'S PAPER BOOK 56- 64. FROM THE RECORDS, IT IS ESTABLISHED TH AT FOR ACQUIRING THE LAND IN QUESTION, THE MONEY WAS ARRANGED BY MTPDPL AND THE ASSESSEE GOT ONLY BROKERAGE/ COMMISSION AS SOME PART OF THE PROFIT. F ROM THE RECORD, IT IS VERY 12 WELL ESTABLISHED THAT NO INVESTMENT WHATSOEVER HAS BEEN MADE BY THE ASSESSEE FOR PURCHASING THE LANDS IN THE NAME OF S HRI PRAKASH CHAND VASITHA. THE ACTION OF THE AO IN ESTIMATING THE INV ESTMENT BY THE ASSESSEE IS UNCALLED FOR AND BASE NO EVIDENCE. DURING THE YE AR, THE ASSESSEE MADE PURCHASES OF LAND 54 BIGHA AN 16 BISWA IN THE NAME OF SHRI PRAKASH CHAND VASITHA FROM VARIOUS AGRICULTURIST. IT IS WRONG TO CONCLUDE THAT ENTIRE INVESTMENT HAS BEEN MADE BY THIS ASSESSEE AND THE RESULTANT PROFIT HAS BEEN EARNED BY HIM. THEREFORE, THE ESTIMATION MADE BY TH E AO FOR THE PURCHASE PRICE OF THE LAND @ RS. 5,45,000/- PER BIGHA WHICH COMES TO RS. 2,92,21,000/- AS AGAINST RS. 24,79,620/- DISCLOSED BY THE ASSESSEE IN THE SALE DEEDS. AS AGAINST THIS FACTS OF THIS CASE, WE DO N OT APPROVE THE ACTION OF THE AO IN MAKING IMPUGNED ADDITION BASED ON CERTAIN COP IES AND AGREEMENTS AND DIARY FOUND DURING THE COURSE OF SURVEY CONDUCT ED U/S 133A OF THE ACT IN THE CASE OF SHRI SURENDER SINGH RAJAWAT . IN FAC T, THE PROVISIONS OFSEC 69B ITSELF ARE NOT APPLICABLE TO THE FACT OF THIS C ASE BECAUSE THE ASSESSEE HAS NOT MAINTAINED ANY REGULAR BOOKS OF ACCOUNT. THE BA RE READING OF THIS PROVISION ITSELF MAKES IT CLEAR THAT THIS SECTION A PPLIES IN THE CASES OF THOSE ASSESSEE'S WHERE BOOKS OF ACCOUNT ARE MAINTAINED BY THE ASSESSEE FOR ANY SOURCE OF INCOME. THE AO HAS HIMSELF OBSERVED IN PA RA 6.3 OF HIS ORDER THAT THE ASSESSEE DOES NOT MAINTAIN REGULAR BOOKS OF ACC OUNT. WE MAY MENTION THAT THE COPY OF THE BANK ACCOUNT AND BALANCE SHEET ETC. PRODUCED BY THE 13 ASSESSEE WOULD NOT TANTAMOUNT TO REGULAR BOOKS OF ACCOUNT. IN THIS REGARD, THE DECISION OF THE HON'BLE MADRAS HIGH COURT IN TH E CASE OF CIT VS. TAJ BOREWELLS 291 ITR 232 (MAD) IS RELEVANT, INTER ALI A. THE COPIES OF THE AGREEMENT OR THE AGREEMENTS FOUND DURING THE COURSE OF SURVEY IN THE CASE SHRI SURENDER SINGH RAJAWAT WHICH ARE BETWEEN M/S. BHARGAVI INFRASTRUCTURE (P) LTD. AND MTPDPL CANNOT BE THE B ASIS FOR MAKING ANY ADDITION IN THE HANDS OF THE INDIVIDUAL WHO HAPPENS TO BE A DIRECTOR OF THE COMPANY. RATHER COMPANY OF THE ASSESSEE HAS NOT DON E ANY BUSINESS AS NO LAND HAS BEEN PURCHASED BY THIS COMPANY. THEREFORE, THE COPY OF THE AGREEMENT WHERE THE COMPANY IS A PARTY IS OF NO AVA IL. THE COPIES OF THE AGREEMENTS ARE AVAILABLE AT ASSESSEE'S PAPER BOOK 5 8-64. MOREOVER, IN TWO AGREEMENTS ONE DATED 7-04-2007, THE COMPANY HAD AGR EED TO ARRANGE LAND @ RS. 7,45,000/- PER BIGHA AND IN THE REVISED AGREEME NT THE RATE HAS INCREASED TO RS. 9,00,000/- . THEREFORE, THIS AGREEMENT CANNO T BE MADE A BASIS OF THE ADDITION IN ASSESSEE HANDS. 5.2 AFTER CONSIDERING THE RIVAL SUBMISSIONS AND PER USING THE ENTIRE MATERIAL AVAILABLE ON RECORD, WE HAVE COME TO A CLE AR CUT FINDING THAT THE ASSESSEE IS ONLY A BROKER AND NOT THE PURCHASER OF THE LAND IN QUESTION. THE AGREEMENT FOUND BETWEEN MTPDPL TO WHOM THE LAND WAS TO BE SUPPLIED BY THE COMPANY OF THE ASSESSEE AND THEREFORE, THIS EVI DENCE STRONGLY HELPS THE CASE OF THE ASSESSEE. FROM THESE AGREEMENTS, IT IS CLEARLY ESTABLISHED THAT THE 14 ASSESSEE WAS ACTING AS A BROKER FOR THE COMPANY OF ONE SHRI R.K. TRIPURARI. ULTIMATELY THE PART OF THE LAND PURCHASED BY THE CO MPANY IN THE NAME OF SHRI PRAKASH CHAND VASITHA HAS BEEN SOLD TO SHRI PA PPU LAL (FOR THE ASSESSMENT YEAR 2008-09 AND 2009-10.SHRI PAPPU LAL IS A PERSON OF SHRI R.K. TRIPURARI WHOSE COMPANY IS MTPDPL. AS A BROKER THE ASSESSEE CAN BE CHARGED ONLY ON BROKERAGE EARNED ON THE SUPPLY OF L AND. THE MONEY GOT FROM SHRI R.K.TRIPURARI HAVE TO BE TRANSFERRED TO S HRI SURENDER SINGH RAJAWAT IN CONNECTION WITH PURCHASE OF LAND. THEREF ORE, THE SOURCE OF INVESTMENT IS ALSO FROM SHRI R.K.TRIPURARI. AT BEST , THE ASSESSEE CAN BE HELD AS A MEDIATOR HOLDING THE LAND TEMPORARILY IN THE N AME OF SHRI PRAKASH CHAND VASITHA AND THEREAFTER TRANSFER IN THE NAME O F SHRI PAPPU LAL, A NOMINEE OF SHRI R.K.TRIPURARI. HOWEVER, THE ADOPTI ON OF THE VALUE OF CONSIDERATION AT A FLAT RATE OF RS. 5.45 LACS PER B IGHA ON THE ENTIRE PURCHASE OF 53 BIGHA 16 BISWA LAND IS NOT JUSTIFIED. WHEN SU CH LANDS ARE LOCATED AT DIFFERENT PLACES AND HAS BEEN PURCHASED FROM DIFFER ENT PERSONS ON DIFFERENT DATES THEN THE LAND WILL BE OF DIFFERENT NOMENCLATU RE, DIFFERENT NATURE, DIFFERENT TYPE AND DIFFERENT QUALITY. THE LD. CIT(A ) HAS ALSO COMMITTED THE ERROR IN CONFIRMING THE IMPUGNED ADDITION. 5.3 THE DOCUMENTS SEIZED FROM SHRI SURENDER SINGH R AJAWAT CANNOT BE UTILIZED AGINST THIS ASSESSEE AS NO CORROBORATIVE E VIDENCE / PAPERS WERE FOUND OR SEIZED DURING THE SEARCH CONDUCTED IN THIS CASE OF THE ASSESSEE. MOREOVER, 15 THE AO HAS NOT BROUGHT ON RECORD ANY STATEMENT OF S HRI SURENDER SINGH RAJAWAT FOR EXPLAINING THE RELEVANT POSITON ON THE ISSUE. THE INSTANCES CITED IN PARA 6.7 OF THE ORDER ARE NOT RELEVANT. LIKEWISE THE DECISION OF AMAR KUMARI SURANA RELIED UPON BY THE AUTHORITIES BELOW IS NOT RELEVANT FOR THE FOLLOWING REASONS. (A) AS PER THE DECISION THE REVENUE HAS TO PROVE THAT REAL INVESTMENT EXCEEDED THE INVESTMENT SHOWN IN THE ACC OUNTS BOOK. IN THE CASE OF THE ASSESSEE THERE IS NO SUCH ENQUIRES BY THE REVENUE PROVING THAT THE ASSESSEE MADE MORE INV ESTMENT THAN SHOWN IN THE SALE DEED. (B) IN THE CASE OF AMAR KUMARI SURANA THERE WERE EN QUIRIES FROM THE NEIGHBORING PLOTS WHICH WERE QUITE COMPARA BLE. IN THE CASE OF THE ASSESSEE NO SUCH ENQUIRIES WERE MADE. N O COMPARABLE CASE HAS BEEN BROUGHT ON RECORD. IN THE CASE OF AMAR KUMARI SURANA THERE WAS A REP ORT FROM THE VALUER REGARDING VALUATION OF THE PLOT. IN THE CASE OF THE ASSESSEE THE LEARNED ASSESSING OFFICER HAS NOT REFERRED THE MATTER TO THE VALUER ALTHOUGH HE WAS FREE TO PRESS IN TO SERVICE THE PROVISION OF SECTION 142A BY REFERRING THE MATT ER OF VALUATION OF THE PURCHASE OF THE AGRICULTURAL LAND TO THE VALUER. BUT THIS HAS NOT BEEN DONE. IN VIEW OF THE DISTINCT FEATURES THE CASE OF AMAR K UMARI SURANA IS NOT COMPARABLE TO THE CASE OF THE ASSESSEE. THE LEARNED ASSESSING OFFICER WAS NOT JUSTIFIED IN MAKING ADDIT ION ON THE BASE OF THE AFORESAID CASE. THE LEARNED CIT(A) WAS ALSO NOT JUSTIFIED IN GIVING FINDING THAT THE ASSESSING OFFI CER HAS BROUGHT ON RECORD VARIOUS DOCUMENT EVIDENCE AND ALS O CORROBORATIVE EVIDENCES WHICH CLEARLY INDICATE THAT THE LAND WAS PURCHASED BY PAYING PART OF ITS CONSIDERATION IN UN ACCOUNTED MANNER. THE OBSERVATION OF THE LEARNED CIT(A) IS VE RY CASUAL AND SEEMS TO BE HALF-HEARTED FINDINGS AND HE ALSO D ID NOT TOUCH 16 TO THE FACT THAT THE INVESTMENT WAS NOT OF THE ASSE SSEE BUT WAS OF M/S MAYURA TOWNSHIP PROJECTS DEVELOPERS PVT LTD, DELHI. THEREFORE IT IS REQUESTED THAT THE ADDITIONS MADE E RRONEOUSLY MAY KINDLY BE DELETED. A COPY OF DECISION IN THE CA SE OF AMAR KUMARI SURANA IS AVAILABLE ON PAPER BOOK PAGE NO. 8 0 TO 84. 5.4 IN VIEW OF THE SUBMISSIONS AND REASONS, WE ARE SATISFIED THAT ENTIRE ADDITION IN QUESTION DESERVES TO BE DELETED. MOREOV ER, THE PROVISION OF SECTION 40A(3) OF THE ACT ARE NOT APPLICABLE TO PAY MENTS ALLEGEDLY MADE OVER AND ABOVE DISCLOSED PAYMENTS. ACCORDINGLY, GRO UND NO. 2 AND 3 OF THE ASSESSEE APPEAL ARE ALLOWED. 6.1 THE GROUND NO. 1 OF THE REVENUE APPEAL PERTAINS TO DELETION OF ADDITION OF RS. 12.71 LACS MADE BY THE AO U/S 69B O F THE ACT ON ACCOUNT OF UNDISCLOSED/UNEXPLAINED INVESTMENT IN AGRICULTURAL LAND AT SARSANI (DISTT. NAGAUR) 6.2 THE FACTS OF THIS ISSUE CAN FURTHER ELABORATED THAT THE ASSESSEE PURCHASED THE AGRICULTURAL LAND AT VILLAGE SARSANI IN THE NAME OF HIS WIFE SMT. VEENA AND IN THE NAME OF ONE SHRI PRAKASH VASI THA. THE FACTS OF THIS ASPECT HAS BEEN DISCUSSED BY THE AT AO AT PAGES 2 TO 7 OF HIS ASSESSMENT ORDER. IN FACT, THE SALE REGISTRATION DOCUMENTS ARE SELF SPEAKING IN THIS REGARD. THE RATES ADOPTED BY THE AO TO VALUE THIS LAND @ RS . 16,000/- PER BIGHA IS NOT CORRECT BECAUSE THE HAS NOT BROUGHT ON RECORD T HE PROOF OF DLC RATE. THE DOCUMENTS WHICH IS NOT SIGNED BY BOTH THE PARTIES C ANNOT BE TREATED AS PROOF OF AGREEMENT BETWEEN THE PARTIES AS THERE IS NO OTH ER PARTY WHICH IS 17 DISCERNED FROM THE ALLEGED AGREEMENT. THE DECISION OF AMAR KUMARI SURANA VS. CIT, 226 CTR 344 (RAJ.) IS NOT APPLICABLE TO TH E FACTS OF THIS CASE. THE ASSESSEE HAS NOT PURCHASED ANY LAND FROM SHRI KHIV SINGH S/O SHRI GOPAL SINGH AND SMT. SAJJAN KANWAR WIFE OF LATE SHRI GANG A SINGH. THE COPY OF THIS AGREEMENT IS AVAILABLE AT PAGES 43 TO 46 OF TH E ASSESSEE'S PAPER BOOK. THIS AGREEMENT IS SIGNED ONLY ON THE NAME OF THE PU RCHASER IS NOT MENTIONED. IN OUR CONSIDERED OPINION, THIS AGREEMEN T CANNOT BE ACTED UPON AND THIS AGREEMENT CAN BE AT BEST TREATED AS AN OFF ER BY THE SELLER FOR QUOTING THE SALE PRICE. MOREOVER, NO LAND HAS BEEN PURCHASE D FROM THESE PERSONS EVEN IN THE NAMES OF SHRI PRAKASH CHAND VASITHA AND SMT. VEENA. THE LAND PURCHASED IS NOT FOUND COMPARABLE. THE LAND WAS PUR CHASED IN ASSESSMENT YEAR 2008-09 AND A COPY OF SALE DEED OF THE LAND PU RCHASED IS AVAILABLE AT ASSESSEE'S PAPER BOOK AT PAGE 47 TO 54. THE SALE DE ED SQUARELY SHOWS THAT QUALITY OF LAND IS DIFFERENT. THERE IS A DIFFERENCE OF QUALITY IN FERTILITY OF DOYAM AND BARAN LAND. UNDER THESE CIRCUMSTANCES, N ON-PRODUCTION OF SHRI KHIV SINGH FOR EXAMINATION DOES NOT ATTRACT THE PRE SUMPTION OF SECTION 132(4A) OF THE ACT. THE AO HAS POWER TO SUMMON HIM U/S 131 OF THE ACT. THE AO HAS NOT EVEN EXAMINED THE NOTARY PUBLIC SHRI KEDAR NATH GUPTA. FURTHER WHEN WE HAVE ALREADY HELD THAT PROVISION OF SECTION 69B OF THE ACT IS NOT APPLICABLE TO THE FACTS OF THIS CASE. THE LD . AR HAS CORRECTLY RELIED UPON THE DECISION OF HON'BLE KERALA HIGH COURT IN THE CASE OF CASE OF CIT 18 VS. SMT. K.C. AGNES (2003), 262 ITR 354 IN WHICH IT HAS BEEN HELD THAT IN CASE SALE DEED SHOWS LOWER SALE CONSIDERATION THAN THE CONSIDERATION MENTIONED IN THE AGREEMENT TO SELL AND BOTH THE DOC UMENTS WERE FOUND DURING SEARCH, SALE DEED MAY BE ACCEPTED AS ACTUAL PRICE FOR SALE. ACCORDINGLY, WE CONFIRM THE IMPUGNED FINDINGS OF TH E LD. CIT(A) AND WE FIND NO INFIRMITY IN HIS ORDER. THUS THE GROUND NO. 1 OF THE REVENUE IS DISMISSED. 7.0 IN THE RESULT, THE APPEAL OF THE ASSESSEE IS PA RTLY ALLOWED AND THAT OF THE REVENUE IS DISMISSED. ITA NO. 367/JP/2013 FOR THE ASSESSMENT YEAR 2008-0 9 ASSESSEE 8.1 THIS APPEAL OF THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF THE LD. CIT(A) , CENTRAL, JAIPUR DATED 26-03-2013 FOR THE A SSESSMENT YEAR 2008-09 WHEREIN THE ASSESSEE HAS RAISED FOLLOWING GROUNDS . 1. UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) HAS ERRED IN CONFIRMING THE ACTION OF TH E LD. AO FOR FRAMING ASSESSMENT ORDER U/S 143(3)/ 153A OF I.T. A CT , 1961 WHICH IS VOID AB-INITO DESERVES TO BE QUASHED. 2. UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE, T HE LD. CIT(A) HAS ERRED IN CONFIRMING THE ADDITION OF RS. 41.20 LACS EARNED ON THE TRANSACTION IN CONNECTION WITH THE LAND AT HANUMANPURA IS NOT AGRICULTURAL INCOME AS THESE TRA NSACTIONS ARE ADVENTURE IN NATURE OF TRADE AND AS SUCH PROFIT S FROM THESE TRANSACTIONS ARE BUSINESS PROFIT U/S 28 OF THE I.T . ACT, 1961. 19 3. THE ASSESSEE CRAVES YOUR INDULGENCE TO ADD AMEND OR ALTER ALL OUR ANY GROUNDS OF APPEAL BEFORE OR AT THE TIME OF HEARING. 8.2 WE HAVE HEARD THE RIVAL SUBMISSIONS AND HAVE CA REFULLY PERUSED THE ENTIRE RECORD. THE LD. AR HAS RELIED ON HIS WRITTEN SUBMISSION APART FROM MAKING ORAL SUBMISSIONS. ON THE OTHER HAND, THE LD. DR HAS REITERATED THE ARGUMENTS AND REASONS GIVEN BEFORE THE LD. CIT(A). HE HAS ALSO RELIED ON THE FINDINGS OF THE AO AND THE LD. CIT(A). 8.3 AFTER CONSIDERING THE WRITTEN SUBMISSIONS, WE H AVE FOUND THAT THE GROUND NO. 1 OF THE ASSESSEE APPEAL WAS NOT PRESSED DURING HEARING AND THEREFORE, THE GROUND NO. 1 OF THE ASSESSEE STANDS DISMISSED. 9.1 THE GROUND NO. 2 OF THE ASSESSEE PERTAINS TO CO NFIRMATION OF ADDITION OF RS. 41.20 LACS ADDED ON ACCOUNT OF TREATING SAL E OF AGRICULTURAL LAND AS ADVENTURE IN THE NATURE OF TRADE. 9.2 THE FACTS APROPOS TO THIS GROUND ARE THAT AS A CONSEQUENCE OF SEARCH AS DISCUSSED ABOVE, NOTICE U/S 153A OF THE ACT WAS ISS UED TO THE ASSESSEE. THE ASSESSEE FILED THE RETURN OF INCOME IN RESPONSE TO THIS NOTICE DATED 3-11-2011 DECLARING TOTAL INCOME OF RS. 28,99,740/- WHICH INC LUDED RS. 30.00 LACS WHICH WAS SURRENDERED IN THE STATEMENT RECORDED DUR ING THE COURSE OF SEARCH U/S 132(4) OF THE ACT. AS AGAINST WHICH, THE AO COM PLETED THE ASSESSMENT U/S 143(3) OF THE ACT READ WITH SECTION 153A OF THE ACT ON 9-12-2011 20 DETERMINING TOTAL INCOME OF RS. 74,33,340/- BY MAKI NG FOLLOWING ADDITIONS, INTER ALIA. (I) RS. 4,13,600/- ON ACCOUNT OF UNEXPLAINED INVES TMENT IN THE PURCHASE OF AGRICULTURAL LAND AT SARSANI U/S 69 B OF THE I.T. ACT, 1961. (II) RS. 41.20 LACS ON ACCOUNT OF PROFIT ON SALE O F AGRICULTURAL LAND HELD AS BUSINESS INCOME BEING ADVENTURE IN THE NATURE OF TRADE. 9.3 AGGRIEVED, THE ASSESSEE FILED AN APPEAL BEFORE THE LD. CIT(A) WHO HAS CONFIRMED THE ADDITION OF RS. 41.20 LACS ADDED ON A CCOUNT OF PROFIT ON SALE OF AGRICULTURAL LAND BY TREATING IT AS BUSINESS INC OME. 9.4 WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE MATERIALS AVAILABLE ON RECORD THE ASSESSEE IS FURTHER AGGRIEVED AND HAS FI LED HIS SECOND APPEAL. IT WAS ARGUED BY THE LD. AR THAT DURING THE YEAR UNDER CONSIDERATION, THE ASSESSEE SOLD 21 BIGHA 12 BISWA LAND WHICH HAD BEE N PURCHASED IN THE NAME OF SHRI PRAKASH VASITHA AS DISCUSSED IN ASSESSMENT YEAR 2007-08. THIS LAND WAS PURCHASED AT A TOTAL SUM OF RS. 13,32,752/-. TH E AO HAS CHANGED THE CONSIDERATION OF SALE BY ADOPTING THE COST OF LAND @ RS. 5.45 LACS PER BIGHA . AS WE HAVE DISCUSSED IN ASSESSMENT YEAR 2007-08 THA T THIS IMPUGNED ADITON CANNOT BE SURVIVED IN THIS YEAR ALSO. ACCORDINGLY, WITH SIMILAR REASONINGS, WE ORDER TO DELETE THE IMPUGNED ADDITION AND ALLOW THE GROUND NO. 2 OF THIS APPEAL. WE ALSO HOLD THAT THE LAND TRANSACTION IN QUESTION CANNOT BE 21 TREATED AS ADVENTURE IN THE NATURE OF TRADE. ON THE BASIS OF THE STATEMENT OF THE ASSESSEE RECORDED ON 29-01-2010 U/S 132(4) OF T HE ACT, THE AO HAS CONCLUDED BY RELYING ON A PART OF THE STATEMENT. TH E ASSESSEE HAS CATEGORICALLY STATED IN THIS STATEMENT THAT HE EARN ED ONLY RS. 30.00 LACS IN THE ENTIRE TRANSACTION. THE LAW IS SETTLED THAT NO ADDI TION CAN BE MADE BY RELYING ON A STATEMENT ON SELECTIVE BASIS. THE STATEMENT HA S TO BE READ IN ITS ENTIRETY. IN OUR CONSIDERED OPINION, THE AO HAS WRONGLY HELD THAT THIS TRANSACTION IS AN ADVENTURE IN THE NATURE OF TRADE ONLY BECAUSE TH IS PURCHASE AND SALE WAS WITHIN SHORT INTERVAL. THE ASSESSEE HAS NOT BEEN DO ING ANY TRADE OR BUSINESS AS WE HAVE DISCUSSED IN ASSESSMENT YEAR 2007-08 EXC EPT IN THESE SOLITARY TRANSACTION OF PURCHASE AND SALE OF LAND. THERE IS NO HISTORY OF THE ASSESSEE FOR CARRYING OUT TRADING ACTIVITY IN PLOTS, LAND OR AGRICULTURAL LAND. THE ASSESSEE HAS BEEN HELD ONLY AS A BROKER ONLY. ACCOR DINGLY, THIS APPEAL OF THE ASSESSEE IS ALLOWED ON MERITS. 10.0 IN THE RESULT, THE APPEAL OF THE ASSESSEE IS P ARTLY ALLOWED. ITA NO. 368/JP/2013 FOR THE ASSESSMENT YEAR 2009-10 ASSESSEE 11.1 THIS APPEAL OF THE ASSESSEE IS DIRECTED AGAINS T THE ORDER OF THE LD. CIT(A) , CENTRAL JAIPUR DATED 26-03-2013 FOR THE AS SESSMENT YEAR 2009-10 WHEREIN THE ASSESSEE HAS RAISED FOLLOWING GROUNDS . 1. UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) HAS ERRED IN CONFIRMING THE ACTION OF TH E LD. AO FOR 22 FRAMING ASSESSMENT ORDER U/S 143(3)/ 153A OF I.T. A CT , 1961 WHICH IS VOID AB-INITO DESERVES TO BE QUASHED. 2. UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE, T HE LD. CIT(A) HAS ERRED IN CONFIRMING THE ADDITION OF RS. 55,20,250/- ON ACCOUNT OF PROFIT ON SALE OF AGRIC ULTURAL LAND AS THESE TRANSACTIONS ARE ADVENTURE IN THE NATURE OF T RADE AND AS SUCH PROFITS FROM THESE TRANSACTIONS ARE BUSINESS P ROFIT U/S 28 OF THE I.T. ACT,1961.THE ADITON OF RS. 55,20,250/- MAD E TO THE INCOME OF THE APPELLANT THIS COUNT IS WRONG AND BAD IN LAW. 3. THE ASSESSEE CRAVES YOUR INDULGENCE TO ADD AMEND OR ALTER ALL OUR ANY GROUNDS OF APPEAL BEFORE OR AT THE TIME OF HEARING. 12.1 DURING THE COURSE OF HEARING, THE LD. AR OF TH E ASSESSEE HAS NOT PRESSED THE GROUND NO. 1. THEREFORE, THE SAME IS DI SMISSED BEING NOT PRESSED. 13.1 GROUND NO. 2 OF THE ASSESSEE IS REGARDING CONF IRMING THE ADDITION OF RS. 55,20,250/-. 13.2 WE HAVE HEARD THE RIVAL SUBMISSIONS AND HAVE P ERUSED THE ENTIRE RECORD. BOTH THE PARTIES HAVE REITERATED THEIR EARL IER STANDS. WITH THE PARITY OF REASONING GIVEN IN ASSESSMENT YEAR 2008-09, WE ORDE R TO DELETE THE IMPUGNE ADDITION OF RS. 55,20,250/- ADDED BY THE AO TREATIN G THE LAND TRANSACTION AS ADVENTURE IN THE NATURE OF TRADE. ACCORDINGLY, THIS GROUND OF THE ASSESSEE IS ALLOWED. THUS THE APPEAL OF THE ASSESSEE IS PARTLY ALLOWED 23 14.0 IN THE RESULT, THE APPEALS OF THE ASSESSEE ARE PARTLY ALLOWED AND THE APPEAL OF THE REVENUE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 31 -01-2 014. SD/- SD/- (.N.K. SAINI) (HARI OM MARATHA) ACCOUNTANT MEMBER JUDICIAL MEMEBR JAIPUR DATED: 31 ST JAN 2014 *MISHRA COPY FORWARDED TO:- BY ORDER 1. SHRI GAURAV KUMAR SHARMA, JAIPUR 2. THE ACIT, / DCIT CENTRAL CIRCLE- 1, JAIPUR 3. THE LD. CIT(A) 4. THE LD. CIT 5. THE DR 6. THE GUARD FILE (ITA NO.366/JP/13) A.R., ITAT, JAIPUR 24 25