The ITO, Ward-6(2), Ahmedabad V. Shri Upendra Ganpatram Patel, HUF, Ahmedabad

ITA 3680/AHD/2015

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 3374 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 1 month(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-02-2019
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: Not Allotted
• Assessment Year: 2006-2007
• Appeal Filed On: 31-12-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S K DEV
• Assessee Lawyers: S N SOPARKAR
• Keywords: Sale consideration of property below Jantri Value; Capital asset; Loose papers; Document seized; Principle of natural justice; Cost of acquisition; Corroborative evidences; Procedural lapse; Documents seized
• Section: 143(3); 50C; 153A; 148; 132

Judgement Text

, - IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH A BEFORE SHRI RAJPAL YADAV, JUDICIAL MEMBER AND SHRI AMARJIT SINGH, ACCOUNTANT MEMBER ./ ITA NO.3472/AHD/2014 / ASSTT. YEAR: 2006-07 SHRI SHANTILAL RANCHHODDAS PATEL 19, SUVARNA VILLA BUNGALOW 100 FT. ROAD, HEBATPUR ROAD THALTEJ, AHMEDABAD 380 001. PAN : AFUPP 8597 E VS. ITO, WARD-6(5) AHMEDABAD. ./ ITA NO.3679/AHD/2015 / ASSTT. YEAR: 2006-07 ITO, WARD-3(3)(2) AMBAWADI, AHMEDABAD. VS. SHRI HARIBHAI MEGHJIBHIA PATEL 2, DEV VIHAR BUNGALOWS OPP: SHYAM VIHAR BUNGALOWS THALTEJ, AHMEDABAD PAN : AETPP 8959 A ./ ITA NO.3681/AHD/2015 / ASSTT. YEAR: 2006-07 DCIT, CIR.3(3) AHMEDABAD. VS. SHRI RAJNIKANT KANUBHAI PATEL 1, HERITAGE LOTUS OPP:MERCURY FARM THALTEJ,AHMEDABAD 380 054. PAN : ABJPP 8680 P ./ ITA NO.3680/AHD/2015 / ASSTT. YEAR: 2006-07 ITO, WARD-3(3)(5) AMBAWADI AHMEDABAD. VS. SHRI UPENDRA GANPATRAM PATEL-HUF 19, JAYSHRI AMBIKA PARK SOCIETY MEMNAGAR AHMEDABAD 380 052. PAN : AAAHU 3480 Q ITA NO.3472 /AHD/2014 AND 3 OTHERS 2 / (APPELLANT) / (RESPONDENT) ASSESSEE BY : SHRI S.N. SOPARKAR, AR REVENUE BY : SHRI S.K. DEV, SR.DR ! / DATE OF HEARING : 20/02/2019 '#$ ! / DATE OF PRONOUNCEMENT: 21/02/2019 %& / O R D E R PER RAJPAL YADAV, JUDICIAL MEMBER: IN THESE GROUP OF FOUR APPEALS, THREE APPEALS ARE D IRECTED AT THE INSTANCE OF THE REVENUE AGAINST SEPARATE ORDERS OF THE LD.CIT(A) DATED 16.10.2015 PASSED ON THE RESPECTIVE APPELLANTS, VIS. SHRI RAJNIKANT K. PATEL, SHRI UPENDRA G. PATEL AND SHRI HARIBHAI M. PATEL, WHEREAS THE ASSESSEE (SHRI SHANT ILAL R. PATEL) IS IN APPEAL AGAINST THE ORDER OF THE LD.CIT()A) DATED 8.10.2014 PASSED FOR THE ASSTT.YEAR 2006-07. 2. REVENUE HAS TAKEN FIVE GROUNDS OF APPEAL IN EACH CASE OF THE ASSESSEE, WHEREAS THE ASSESSEE HAS TAKEN SEVEN GROU NDS OF APPEAL IN THE CASE OF SHRI SHANTILAL R. PATEL. OUT OF THESE SEVEN GROUNDS, IN GROUND NO.1 AND 2 , ASSESSEE CHALLENGED REOPENING OF THE ASSESSMENT, BUT NO ARGUMENTS WERE ADVANCED ON T HIS ISSUE, HENCE THESE GROUNDS ARE REJECTED. IN THE REMAINING FIVE GROUNDS IN THE CASE OF SHANTILAL R. PATEL AND OTHER THREE A PPEALS, THERE IS ONLY ONE ISSUE INVOLVED, WHICH IS COMMON IN ALL THE SE CASES. BEFORE CURVING OUT OF ISSUE, LET US TAKE NOTE OF BRI EF FACTS. 3. THESE ASSESSEES WERE OWNERS AND IN POSSESSION OF AGRICULTURE LAND COMPRISING IN BLOCK NO.482 AND 472 LOCATED SHILAJ, KNOWN AS TAPOVAN LAND. THIS LAND WAS SOLD TO SHRI ROHIT MODI AND PRAHALDBHAI MODI ON 17.1.2006. AS PER THE SALE DEED, ITA NO.3472 /AHD/2014 AND 3 OTHERS 3 SALE CONSIDERATION WAS DISCLOSED AT RS.1 CRORE. A SEARCH UNDER SECTION 132 OF THE ACT WAS CARRIED OUT IN THE CASE OF HIMALYA GROUP OF CASES AND PLACES OF MODI. DURING THE COUR SE OF SEARCH ANNEXURE A/1/14 PAGES NO.48 TO 55 AND ANNEXURE A/1/ 16 PAGES 82 TO 85 WERE FOUND AT THE PREMISES OF SHRI DASHRAT HBHAI PATNI, ONE OF THE VENDEES OF THE LAND. IN THESE PAPERS, J OTTINGS HAVE BEEN MADE AND ULTIMATELY, IT WAS WORKED OUT THAT TH IS LAND WAS PURCHASED AT RS.11,35,46,000/-, WHICH WAS SOLD FOR RS.12,25,51,000/-. THUS, THE AO HARBOURED A BELIEF THAT VENDEES HAVE MADE PAYMENT IN CASH OF RS.10,35,46,000/-. HE RECORDED REASONS FOR REOPENING OF THE ASSESSMENT. WE WILL T AKE NOTE OF THE FACTS IN DETAIL A LITTLE MORE, BUT NOW WE CONFORM T O THE QUESTION, WHICH ARE REQUIRED TO BE ADJUDICATED IN THESE APPEA LS, VIZ. WHETHER CAPITAL GAIN ON ACCOUNT OF RECEIPT OF RS.10 ,35,46,000/- REQUIRES TO BE COMPUTED IN THE HANDS OF VENDOR IN P ROPORTION TO SHARE OF THEIR RIGHTS IN THE LAND. THE LD.AO HAS FURTHER OBSERVED THAT SEARCH UNDER SECTION 132 OF THE ACT WAS CARRIE D OUT IN THE CASE OF SHRI RAJNIKANT PATEL, ONE OF THE VENDORS ON 23.5.2008. HE HAS FILED RETURN ON 3.4.2009 AND ASSESSMENT ORDER U NDER SECTION 143(3) R.W.S 153A WAS PASSED ON 14.5.2010. NOTICE HAS BEEN ISSUED UNDER SECTION 148 ON 4.3.2013. THE LD.AO HA S OBSERVED THAT SINCE VENDEES HAVE ACCEPTED PAYMENT OF ON-MONE Y IN THIS LAND TRANSACTION IN THEIR RETURN OF INCOME, THEREFO RE, IT IS TO BE CONSTRUED THAT VENDORS MIGHT HAVE RECEIVED ON-MONEY AND CAPITAL GAIN OUGHT TO BE ASSESSED IN THEIR HANDS OF THAT ON -MONEY. HE WORKED OUT SHORT CAPITAL GAIN IN THE CASE OF SHRI R AJNIKANT PATEL AT RS.1,76,87,688/-. THIS WORKING READS AS UNDER: SHORT TERM CAPITAL GAIN TOTAL SALE CONSIDERATION RECEIVED IN SALE OF SHILAJ BLOCK NO.482/742 (TAPOVAN RS.1,89,24,333/ - ITA NO.3472 /AHD/2014 AND 3 OTHERS 4 LAND) (1/6 TH SHARE OF RS.11,35,46,000/ - LESS: COST OF ACQUISITION 3) BLOCK NO.482 5,77,145/ - 4) BLOCK NO.742 6,59,500/ - RS. 12,36,645/ - SHORT TERM CAPITAL GAIN RS. 1,76,87,688/ - THE ASSESSEE HAS OFFERED ONLY RS.4,36,239/- AS SHO RT TERM CAPITAL GAIN ON SALE OF THIS LAND. THE ASSESS EE HAS NOT OFFERED THE CASH RECEIVED ON SALE OF THE ABOVE LAND AND THE INCOME HAS ESCAPED FROM ASSESSMENT. THEREFORE THE SHORT TERM CAPITAL GAIN OF RS.1,72,51,449/- (=17687688 436239) IS ESCAPED FROM ASSESSMENT. 4. ON THE SAME LINE, ASSESSMENTS HAVE BEEN FRAMED I N THE CASES OF OTHER VENDORS. IDENTICAL ADDITIONS WITH L ITTLE VARIATION IN THE QUANTUM HAVE BEEN MADE IN THE CASES OF OTHER VE NDORS. 5. DISSATISFIED WITH THE ADDITION MADE BY THE AO, A SSESSEE CARRIED THE MATTER IN APPEAL. IN THE CASE OF SMT. SAVITABEN SOMABHAI PATEL WHO REPRESENTED HER MINOR SON, ADDIT IONS HAVE BEEN DELETED BY THE LD.CIT(A) VIDE ORDER DATED 11.6 .2013. DISSATISFIED WITH THIS DELETION, REVENUE CAME IN AP PEAL BEFORE THE TRIBUNAL IN ITA NO.2151/AHD/2013 AND 2152/AHD/2013. THE ASSESSEES HAVE ALSO FILED APPEAL AGAINST THE ORDER OF THE LD.CIT(A). ALL THESE APPEALS HAVE BEEN DECIDED BY THE TRIBUNAL VIDE ORDER DATED 18.11.2016. THE TRIBUNAL HAS UPHE LD THE ORDER OF THE LD.CIT(A) AND CONFIRMED THE DELETION OF THES E ADDITIONS MADE BY THE AO. APPEALS OF THREE VENDORS VIZ. SHRI RAJNIKANT PATEL, SHRI UPENDRAKUMAR G. PATEL AND SHRI HARIBHAI PATEL WERE ALLOWED BY THE LD.CIT(A) VIDE ORDER DATED 16.10.201 5. THE LD.CIT(A) HAS DELETED ALL THESE ADDITIONS, AND THE ORDERS OF THE LD.CIT(A) ARE BEING IMPUGNED BY THE REVENUE BEFORE THE TRIBUNAL. ITA NO.3472 /AHD/2014 AND 3 OTHERS 5 IN THE CASE OF SHRI SHANTILAL R. PATEL, THE LD.CIT( A) HAS CONFIRMED THE ADDITION, HENCE THE ASSESSEE IS IN APPEAL BEFOR E THE TRIBUNAL. 6. THE LD.COUNSEL FOR THE ASSESSEE WHILE IMPUGNING THE ORDER OF THE LD.CIT(A) IN THE CASE OF SHRI SHANTILAL R. PATE L SUBMITTED THAT ONLY EVIDENCE POSSESSED BY THE REVENUE IS A STATEME NT OF SHRI ROHIT MODI RECORDED DURING THE SEARCH ACTION UPON H IM. IT WAS NOT RECORDED DURING THE ASSESSMENT PROCEEDINGS OF THE A SSESSEE. THE ALLEGED LOOSE PAPERS WHICH HAVE BEEN MADE BASIS FOR HARBOURING A BELIEF THAT THE ON-MONEY WAS RECEIVED BY THE VENDOR S WERE NEITHER IN THE HAND-WRITING OF SHRI ROHIT MODI NOR THEY WERE FOUND FROM HIS POSSESSION. HE ALSO EMPHASISED THAT THESE DOCUMENTS WERE NOT FOUND FROM THE PREMISES NOR IN THE HAND-WR ITING OF THE ASSESSEES BEFORE THE TRIBUNAL. THE AO HAS NOT ALLO WED ANY CROSS- EXAMINATION OF SHRI ROHIT MODI IN THE CASE OF SHRI SHANTILAL R. PATEL, RATHER HE WAS NOT AWARE ABOUT THE EXACT NATU RE OF THE EVIDENCE. SIMILARLY, THE LD.CIT(A) FAILED TO APPRE CIATE THE EVIDENTIARY VALUE OF STATEMENT OF SHRI ROHIT MODI. IT WAS RECORDED FROM THE BACK OF THE ASSESSEE. HE WAS NOT AUTHOR O F INCRIMINATING DOCUMENTS FOUND. THUS, HOW CAN IT BE CONCLUDED THA T CLINCHING EVIDENCE WAS FOUND AGAINST THE ASSESSEE ? OTHER C ITS(APPEAL) IN THE CASES OF OTHER FOUR CO-OWNERS DID NOT RELY UPON THESE EVIDENCES FOR HOLDING THAT THE ASSESSEES HAVE RECEI VED ON-MONEY. IN THE UNDERSTANDING OF THE LD.CIT(A) IN THE CASE O F OTHER CO- OWNERS, THERE WERE NO EVIDENCES POSSESSED BY THE RE VENUE TO SAY THAT THE ASSESSEE HAS RECEIVED CASH COMPONENTS. HE FURTHER CONTENDED THAT IN ONE OF THE CASES OF CO-OWNERS, TH IS FINDING OF THE LD.CIT(A) HAS EVEN BEEN UPHELD BY THE ITAT. TH EREFORE, ACCORDING TO THE LD.COUNSEL FOR THE ASSESSEE THE IS SUE IN DISPUTE IS SQUARELY COVERED BY THE ORDER OF THE ITAT AND IN OR DER TO MAINTAIN ITA NO.3472 /AHD/2014 AND 3 OTHERS 6 JUDICIAL DISCIPLINE AND CONSISTENCY NO OTHER VIEW O UGHT TO BE TAKEN BY THE TRIBUNAL. HE HAS PLACED ON RECORD COPIES OF THE TRIBUNALS ORDER PASSED IN THE CASE OF SHRI SAVITABEN S. PATEL AND SHRI PAURAV SOMABHAI PATEL. 7. ON THE OTHER HAND, THE LD.DR CONTENDED THAT VEND EES HAVE ACCEPTED PAYMENT OF ON-MONEY. THEY HAVE ACCOUNTED IT IN THEIR RETURNS OF INCOME AND HAVE PAID TAXES. THE FACT HA S BEEN UNEARTHED AGAINST THE ASSESSEES. THEY HAVE ACCEPTE D ON-MONEY. IN SUCH SITUATION, THEY CANNOT BE ABSOLVED FROM THE PAYMENT OF TAXES MERELY UNDER THE GARB OF PROCEDURAL LAPSES TH AT NO CROSS- EXAMINATION WAS GIVEN OR OTHERWISE. THE LD.CIT(A) H AS OBSERVED THAT STATEMENT OF ROHIT MODI WAS SUPPLIED TO THEM A ND IT IS AN UNDISPUTED FACT. WITH REGARD TO THE CASES OF SHRI HARIBHAI PATEL, SHRI RAJNIKANT PATEL AND SHRI UPENDRAKUMAR G. PATEL, HE RELIED UPON THE ASSESSMENT ORDERS AS WELL AS ORDERS OF THE LD.CIT(A) IN THE CASE OF SHRI SHANTILAL R. PATEL. 8. THE LD.COUNSEL FOR THE ASSESSEE WHILE DEFENDING THE ORDERS OF THE LD.CIT(A) IN THE CASE OF SHRI RAJNIKANT PATEL, SHRI HARIBHAI PATEL AND SHRI UPENDRAKUMAR G. PATEL CONTENDED THAT SEARCH IN THE CASE OF SHRI RAJNIKANT PATEL WAS ALSO CARRIED O UT ON 23.5.2008. NEITHER ANY ASSET NOR ANY DOCUMENTS OF UNEXPLAINED NATURE WAS FOUND. THE SEARCH AT THE PREMISES OF THE VENDEE WA S TAKEN PLACE ONE MONTH BACK THAN THE SEARCH IN THE CASE OF SHRI RAJNIKANT PATEL. HE FURTHER CONTENDED THAT NO CROSS-EXAMINAT ION HAS BEEN OFFERED IN THE CASES OF SHRI RAJNIKANT PATEL. HOWE VER, IN THE CASE OF SHRI UPENDRAKUMAR G. PATEL AND SHRI HARIBHAI PATE L CROSS- EXAMINATION OF ROHIT MODI WAS PROVIDED. IN THE CRO SS- EXAMINATION, HE DISCLOSED THAT HE HAS NOT MATERIALI ZED THE DEAL. ITA NO.3472 /AHD/2014 AND 3 OTHERS 7 IT WAS MATERIALIZED BY HIS UNCLE SHRI DASHRATH PATN I. HE WAS NOT ACTUALLY AWARE THAT ON-MONEY WAS PAID, AND IF PAID, TO WHOM IT WAS PAID. HE HAS ACCEPTED PAYMENT OF ON-MONEY IN H IS RETURN, BECAUSE OF THE WORKING DONE BY HIS UNCLE SHRI DASHR ATH PATNI. THE LD.COUNSEL SUBMITTED THAT THIS DISCLOSURE HELPE D HIM IN HIS ASSESSMENT THAT WOULD ABSOLVE HIM FROM PENALTY AS W ELL AS RECONCILE THE FUND-FLOW STATEMENT, WHEN COMPARED WI TH SALES. THIS LAND HAS BEEN IMMEDIATELY SOLD BY THESE VENDEE S. THE LD.COUNSEL FOR THE ASSESSEE FURTHER RELIED UPON THE ORDER OF THE LD.CIT(A) AND POINTED OUT THAT WRITTEN SUBMISSIONS WERE FILED BEFORE THE LD.CIT(A) RUNNING INTO MORE THAN 13 PAGE S. THESE HAVE BEEN REPRODUCED BY THE LD.CIT(A) IN THE CASE O F SHRI RAJNIKANT PATEL. 9. WE HAVE DULY CONSIDERED RIVAL CONTENTIONS AND GO NE THROUGH THE RECORD CAREFULLY. SOLITARY QUESTION FOR OUR AD JUDICATION IS, WHETHER DEPARTMENT IS POSSESSING SUFFICIENT EVIDENC ES TO DEMONSTRATE THAT ASSESSEES HAVE RECEIVED ON-MONEY I N CASH OVER AND ABOVE THE ONE STATED IN THE SALE DEED, AND THEY DESERVE TO BE ASSESSED FOR CAPITAL GAIN ON THAT CASH COMPONENT? A PERUSAL OF THE RECORD WOULD SHOW THAT ONLY EVIDENCE POSSESSED BY THE REVENUE IS RECOVERY OF SOME LOOSE PAPERS INVENTORIS ED AS ANNEXURE A/1/14, PAGE NOS.48 TO 55 AND ANNEXURE A-1 /16 PAGE 82 TO 85, COUPLED WITH THE STATEMENT OF SHRI ROHIT MODI. THESE DOCUMENTS WERE FOUND AT THE PREMISES OF SHRI DASHRA TH PATNI AND STATEMENT OF SHRI ROHIT MODI WAS RECORDED DURING TH E COURSE OF SEARCH CONDUCTED AT HIS PREMISES. THE QUESTION IS, WHAT IS EVIDENTIARY VALUE OF THESE EVIDENCES IN THE ASSESSM ENT PROCEEDINGS OF THE VENDORS. AFTER AN ANALYSIS OF V ARIOUS DEVELOPMENTS, THE ASSESSEES HAVE SUMMARIZED IMPORTA NT FACTS, ITA NO.3472 /AHD/2014 AND 3 OTHERS 8 WHICH EMERGED OUT FROM THE STATEMENT OF SHRI ROHIT MODI AS WELL AS THE EVIDENCES COLLECTED DURING THE COURSE OF SEA RCH. WE DEEM IT PERTINENT TO TAKE NOTE OF THESE FACTS. THEY REA D AS UNDER: (I) ROHIT MODI HAS NO KNOWLEDGE OF THE ABOVE LAND TRANSACTION AS THE SAME WAS HANDLED BY HIS UNCLE SH RI DASHRATHBHAI PATNI WHO HAD EXPIRED ON 03.11.2011, (II) . THE AGRICULTURAL LAND PURCHASED BY ROHIT MOD I FROM THE APPELLANT AND OTHER CO-OWNERS WAS SOLD TO ARYAMAN C O-OP. HOU. SOCIETY AFTER CONVERTING THE SAID LAND IT INTO NON- AGRICULTURAL LAND. (III) THE AGRICULTURAL LAND WAS PURCHASED FROM US O N 09.01.2006 AND AFTER CONVERTING IT INTO NON-AGRICUL TURAL LAND THE SAME WAS SOLD TO ARYAMAN CO~0P. HOUSING SOCIETY ON 01/06/2006 THAT IS AFTER NEARLY SIX MONTHS. (IV) THE JANTRI RATE FOR AGRICULTURAL LAND OF SHILA J VILLAGE FOR JANUARY 2006 IS MUCH LESS THAN THAT FOR NON-AGRICUL TURAL LAND. THEN HOW IT IS POSSIBLE THAT THERE IS MARGINA L DIFFERENCE IN PURCHASE PRICE AND SALE PRICE AS MENTIONED IN TH E LOOSE PAPER. (V) THE PURCHASER OF LAND IS ROHIT PRAHLADBH AI MODI (20%) AND SMT PARESHABEN KAMLESH MODI (80%), THE LO OSE PAPERS SEIZED FROM DASHRATHBHAI PATNI AS PER ANNEXU RE-A-14 PAGE NOS. 51 AND 55 SHOW DISTRIBUTION BETWEEN 'RP' (30%) AND 'KM' (70%). IT MAY NOT BE OUT OF PLACE TO MENTI ON HERE THAT 'KM' IS K. MEHTA WHO IS NOT CONNECTED WITH MOD I FAMILY. THIS MEANS 30% SHARE IN 'RP' INCLUDES ROHIT MODI, K AMLESH MODI AND FAMILY OF DASHRATHBHAI PATNI. (VI) SINCE THE ACCOUNTS ARE BETWEEN TWO GROUP S I.E. MODI GROUP AND K.MEHTA GROUP IT IS QUITE LIKELY THAT DAS HRATHBHAI MAY HAVE INCREASED THE PURCHASE COST SO THAT THEY H AVE TO PAY RELATIVELY FESS AMOUNT TO K.MEHTA GROUP AS THE SHARE OF KM IS 70%. (VII) SHRI ROHIT MODI COULD NOT FILE ANY EVIDENCE F OR ALLEGED ON-MONEY PAYMENTS MADE TO THE APPELLANT AND OTHER C O- OWNERS. ACCORDING TO HIM THE ONLY EVIDENCE IS THAT HE HAS ITA NO.3472 /AHD/2014 AND 3 OTHERS 9 DISCLOSED RS.10,35,46,000 UNDER EXPLANATION 5A OFSEC.271(1)(C) OF THE ACT. (VIII) WITHOUT PREJUDICE TO THE ABOVE IF THE PURCHA SE PRICE OF RS. 11,35,46,000 IS CONSIDERED FOR TOPAVAN FARM ADMEASURING 43,302 SQ. MTS THEN THE PRICE OF AGRICU LTURAL LAND WOULD BE RS 2,622 PER SQ. ML OR RS. 2192 PER S Q. YD. (IX) WITHOUT PREJUDICE TO THE ABOVE IT SEEMS THAT P AGE NO 51 AND 55 COULD BE THE PRICES OF NON-AGRICULTURAL LAND AND NOT AGRICULTURAL LAND BECAUSE IF RS, 11,35,46,000 IS CO NSIDERED AS PRICE OF AGRICULTURAL LAND AS CONSIDERED BY THE ASSESSING OFFICER IN THE ASSESSMENT ORDER AND RS. 12,25,51,00 0 AS SALE PRICE OF SAID LAND AFTER CONVERTING IT IN TO NON-AG RICULTURAL USE THEN WHERE ARE THE EXPENSES FOR CONVERTING IT I NTO NON- AGRICULTURAL DEBITED AND WHY THEY ARE NOT APPEARING IN THE SAID JOTTINGS WHEN THERE ARE JOTTINGS OF OTHER EXPE NSES LIKE DALALI IT. EXPENSES ETC. THIS CLEARLY SHOWS THAT T HE INTERNAL ACCOUNTS HAVE BEEN ADJUSTED BY THE MODI GROUP TO PA Y LESS TO THE K. MEHTA GROUP. CONSIDERING THE ABOVE SUBMISSION AND THE ARGUMENTS THAT SHALL BE ADVANCED DURING THE COURSE OF HEARING OF T HIS APPEAL, THE APPELLANT REQUESTS THAT THE APPEAL BE A LLOWED IN FULL FOR WHICH ACT OF KINDNESS THE APPELLANT AS IS DUTY BOUND SHALL REMAIN GRATEFUL. 10. WE ALSO DEEM IT APPROPRIATE TO TAKE COGNIZANCE OF THE FOLLOWING POINTS SUMMARIZED BY THE ASSESSEE BEFORE THE LD.CIT(A). THE FOLLOWING FACTS EMERGE FROM THE ABOVE PAPERS: (I) ON 09.012006 AGRICULTURAL LAND ADMEASURING 24 686 SQ. MTS (BLOCK NO. 482) AND 18616 SQ.MTS (BOCK NO. 742) W AS SOLD BY APPELLANT ALONG WITH OTHER CO-OWNERS TO ROH ITBHAI PRAHLADBHAI MODI AND PARESHABEN KAMLESH MODI FOR RS . 1,00,00,000. (II) ON 09.01.2006 THERE IS A REGISTERED BANAKHAT (WITHOUT POSSESSION) BETWEEN PARESHBEN KAMTESHBHAI MODI AND ROHITBHAI PRAHLADBHAI MODI FOR SATE OF AGRICULTURAL LAND ADMEASURING 24686 SQ. MTS. (BLOCK NO. 482) AND 18616 SQ. ITA NO.3472 /AHD/2014 AND 3 OTHERS 10 MTS. (BLOCK NO. 742) WITH THE SANDESH UMITED. THE BANAKHAT AMOUNT IS NOT MENTIONED IN THE SEARCH REPO RT (II) ON 01.06.2006 THERE IS A REGISTERED SATE DEED FOR RS.4,41,58,352 FOR SAFE OF NON-AGRICULTURAL LAND OF BLOCK NO 482 (ADMEASURING 24686 SQ.MTS.) AND BLOCK NO. 742 (ADMEASURING 18616 SQ. MTS.) ENTERED INTO BY PARESH ABEN KAMIESHBHAI MODI AND ROHITBHAI PRAHLADBHAI MODI AS FIRST PART, THE SANDESH LIMITED AS SECOND PART AND SAUMYA CONSTRUCTION PVT LTD AS THIRD PART THE SAID LAND IS SOLD TO ARYAMAN CO. OP. HOUS. SOCIETY LTD. THIS DEARLY SHOWS THAT PARESHA KAMLESH MODI, ROHITB HAI PRAHLADBHAI MODI AND THE SANDESH UMITED MUST HAVE SO LD PRIOR TO 01.06.2006 THIS LAND TO SAUMYA CONSTRUCTIO N PVT LTD AND THAT IS WHY SAUMYA CONSTRUCTION PVT LTD. APPEAR S AS THIRD PARTY IN THE SAID SALE DEED. MOREOVER IF THESE PAPERS ALONG WITH THE CROSS EXAMI NATION AND RE-EXAMINATION STATEMENT OF SHRI ROHIT MODI BEF ORE THE INCOME-TAX OFFICER, WARD-6(2), AHMEDABAD ARE READ TOGETHER THEN IT CAN BE 'ESTABLISHED THAT ROHIT MOD I HAS RIGHTLY ADMITTED THAT THESE LOOSE PAPER SEIZED FROM THE PREMISES OF DASHRATHBHAI PATNI (UNCLE OF ROHIT MODI ) WAS WRITTEN MUCH LATER THAN 09.012006 AS THEY CONTAIN J OTTINGS FOR SATE OF THE LAND UNDER CONSIDERATION. FOR THE S AKE OF CONVENIENCE THE SAME IS REPRODUCED HEREUNDER. QUES: WHAT DID YOU DO WITH THE ABOVE LAND AT SHILAJ ? ANS: 6 WE HAD SOLD THE SAID LAND TO ANOTHER PERSON NAMELY ARYAMAN CO-OP. HOUSING SOCIETY ON 01/06/2006 AS N.A . LAND. QUES: 7 PLEASE GO THROUGH THE SEIZED DOCUMENTS ANNE . A/14 AND A/15 AND TELL WHETHER THESE WERE PREPARED MUCH AFTER THE DATE OF THE SALE OF THE ABOVE LAND I.E. 01.06.2 006. THESE PAPERS WERE PREPARED AFTER 01.06.2006. QUES: 8 IT IS FACT THAT THESE PAPERS WERE PREPARED FOR YOUR INTERNAL ADJUSTMENT OR WORKING OUT PROFIT FROM FEW TRANSACTIONS? ITA NO.3472 /AHD/2014 AND 3 OTHERS 11 ANS:8 I CANNOT SAY IN THIS CONNECTION, BECAUSE TH ESE WERE NOT IN MY HAND WRITING. THIS CLEARLY ESTABLISHES THAT ROHIT MODI HAS NOT GI VEN ACTUAL FACTS RELATING TO THE SALE OF LAND BEARING BLOCK NO . 482 AND 742 IT IS NOT THAT THE LAND HAS BEEN SOLD DIRECTLY TO ARYSMAN CO-OP. HOU. SEC. LTD BUT IT WAS FIRST SOLD TO THE S ANDESH LFCT (HEREAFTER TO SAUMYA CONSTRUCTION PVT LTD AND ULTIMATELY TO ARYAMAN CO-OP. HOU. SOC. LTD. THUS TH IS LAND WHICH WAS AGRICULTURAL LAND WAS CONVERTED INTO NON- AGRICULTURAL LAND AND THEN IT CHANGED HANDS. THE NU MBER OF TIMES IT CHANGES HANDS (HE PURCHASE PRICE WOULD INC REASE. THIS IS EVIDENT FROM THE FACT THAT SAUMYA CONSTRUCT ION COMPANY PVT LTD ALSO APPEARS AS THIRD PARTY BEFORE THE SALE IS AFFECTED TO ARYAMAN CO-OP. HOUSING SOCIETY LTD. SINCE IT IS ADMITTED BY ROHIT MODI THAT THE LOOSE PAPERS ANN EXURE- A/1 PAGE 51 AND 55 ARE PREPARED MUCH ALTER 01.06.20 06 AND SINCE IT DOES NOT CONTAIN ANY JOTTING OF ANY TYPE O F EXPENDITURE RELATING TO CONVERSION OF AGRICULTURAL LAND INTO NON-AGRICULTURAL CLEARLY ESTABLISHES THAT THE JOTTI NGS ARE PREPARED WHEN THE LAND WAS CONVERTED INTO NON-AGRIC ULTURAL LAND AND THE PURCHASE PRICE MENTIONED IS THAT OF NO N- AGRICULTURAL LAND. 11. THE TRIBUNAL IN THE CASE OF ONE OF THE CO-OWNER S HAS RECORDED A FINDING THAT SINCE NO CROSS-EXAMINATION WAS GRANTED, THEREFORE, THE STATEMENT DESERVED TO BE EXCLUDED FR OM THE EVIDENCE REQUIRED TO BE READ IN THAT CASES. THE SI TUATION IN THE CASE OF SHRI RAJNIKANT PATEL AND SHRI SHRI SHANTILA L R. PATEL IS IDENTICAL. NO CROSS-EXAMINATION HAS BEEN GRANTED. THEREFORE, WE DEEM IT APPROPRIATE TO TAKE NOTE OF TRIBUNALS ORDE R WHICH IS IN IDENTICAL CIRCUMSTANCES. THIS READ AS UNDER: 5. WE NOW COME TO THE LOWER APPELLATE ORDER PASSED IN ASSESSEE'S APPEAL. THE CIT(A) DEALS WITH ALL THE RE LEVANT ASPECTS OF THE CASE. HE FIRST OF ALL COMES TO SEARC H STATEMENT OF SHRI ROHITBHAI MODI TO OBSERVE THAT THE ASSESSING OF FICER NEVER ALLOWED THE ASSESSEE TO CROSS EXAMINE THIS DEPONENT DESPITE SPECIFIC REQUEST. HE FINDS THAT NOT EVEN A COPY OF THE ABOVE SEARCH STATEMENT WAS FURNISHED TO THE ASSESSEE WHIC H VITIATES ITA NO.3472 /AHD/2014 AND 3 OTHERS 12 THE ENTIRE RE-ASSESSMENT BEING VIOLATIVE OF PRINCIP LES OF NATURAL JUSTICE. THE CIT(A) FURTHER OBSERVES THAT NEITHER T HE ASSESSEE HAD SIGNED THE SEIZED MATERIAL IN QUESTION NOR THE SAME WAS RECOVERED FROM HER PREMISES. HE THEREAFTER HIMSELF DEALS WITH SHRI MODI'S SEARCH STATEMENT AND REPRODUCES THE SAM E IN VERBATIM IN THE LOWER APPELLATE ORDER TO OPINE THAT EVEN THIS DEPONENT WAS NOT VERY SURE OF HAVING PAID THE IMPUG NED ON MONEY TO THE ASSESSEE NOR IS THERE ANY SUPPORTIVE E VIDENCE SINCE THE SEIZED MATERIAL ANNEXURE A IS A DUMB PAPER . THE CIT(A) CONCLUDES IN THE END THAT EVEN IN ANY CASE, THE IMPUGNED IMMOVABLE PROPERTY IS IN THE NATURE OF AGR ICULTURAL LAND NOT ATTRACTING APPLICABILITY OF CAPITAL GAINS TAX BEING NOT A CAPITAL ASSET ITA NOS.2151 TO 2153/AHD/2013 ( ITO VS. SHRI PAURAV S. PATEL & 2 ORS.) A.Y. 2006-07 -5 U/S.2(14) OF THE ACT. HIS VIEW IS THAT EVEN IF THE REVENUE'S VERSION IS A CCEPTED, THE ON MONEY IN QUESTION WOULD STILL BE EXEMPT FROM TAX ATION. 6. WE HAVE HEARD BOTH THE PARTIES REITERATING THEIR RESPECTIVE STANDS IN SUPPORT AND AGAINST THE IMPUGNED ON MONEY ADDITION. THERE IS NO DISPUTE THAT THE ASSESSING OFF ICER HAD NEITHER ALLOWED THE ASSESSEE TO CROSS EXAMINE SHRI ROHITBHAI MODI (SUPRA) NOR DID HE FURNISH THE SAID SEARCH STA TEMENT TO THE ASSESSEE. HON'BLE APEX COURT IN A RECENT JUDGME NT IN CASE OF ANDAMAN TIMBER INDUSTRIES IN CIVIL APPEAL NO.4228 OF 2006 DEALS WITH AN IDENTICAL VIOLATION OF THE PRINCIPLES OF NATURAL JUSTICE TO QUASH THE SAID ASSESSMENT IN QUESTION FO R THIS SOLE REASON. WE DEEM IT APPROPRIATE TO REPRODUCE THE REL EVANT OBSERVATION THEREIN AS UNDER: 'ACCORDING TO US, NOT ALLOWING THE ASSESSEE TO CROSS - EXAMINE THE WITNESSES BY THE ADJUDICATING AUTHORITY THOUGH THE STATEMENTS OF THOSE WITNESSES WERE MADE THE BASIS OF THE IMPUGNED ORDER IS A SERIOUS FLAW WHICH MAKES THE ORDER NULLITY INASMUCH AS IT AMOUNTED TO VIOLATION OF PRINCIPLES OF NATURAL JUSTICE BECAUSE OF WHICH THE ASSESSEE WAS ADVERSELY AFFECTED. IT IS TO BE BO RNE IN MIND THAT THE ORDER OF THE COMMISSIONER WAS BASED U PON THE STATEMENTS GIVEN BY THE AFORESAID TWO WITNESSES . EVEN WHEN THE ASSESSEE DISPUTED THE CORRECTNESS OF THE STATEMENTS AND WANTED TO CROSS-EXAMINE, THE ADJUDICATING AUTHORITY DID NOT GRANT THIS OPPORTUNIT Y TO THE ASSESSEE. IT WOULD BE PERTINENT TO NOTE THAT IN THE IMPUGNED ORDER PASSED BY THE ADJUDICATING AUTHORITY H E HAS SPECIFICALLY MENTIONED THAT SUCH AN OPPORTUNITY WAS SOUGHT BY THE ASSESSEE. HOWEVER, NO SUCH OPPORTUNIT Y WAS GRANTED AND THE AFORESAID PLEA IS NOT EVEN DEAL T WITH ITA NO.3472 /AHD/2014 AND 3 OTHERS 13 BY THE ADJUDICATING AUTHORITY. AS FAR AS THE TRIBUNAL IS CONCERNED, WE FIND THAT REJECTION OF THIS PLEA IS T OTALLY UNTENABLE. THE TRIBUNAL HAS SIMPLY STATED THAT CROS S- EXAMINATION OF THE SAID DEALERS COULD NOT HAVE BROU GHT OUT ANY MATERIAL WHICH WOULD NOT BE IN POSSESSION O F THE APPELLANT THEMSELVES TO EXPLAIN AS TO WHY THEIR EX- FACTORY PRICES REMAIN STATIC. IT WAS NOT FOR THE TRIBUNAL T O HAVE GUESS WORK AS TO FOR WHAT PURPOSES THE APPELLANT WAN TED TO CROSS-EXAMINE THOSE DEALERS AND WHAT EXTRACTION THE APPELLANT WANTED FROM THEM. AS MENTIONED ABOVE, THE APPELLANT HAD CONTESTED THE TRUTHFULNESS OF THE STATEMENTS OF THESE TWO WITNESS ES AND WANTED TO DISCREDIT THEIR TESTIMONY FOR WHICH PURPO SE IT WANTED TO AVAIL THE OPPORTUNITY OF CROSS-EXAMINATIO N. THAT APART, THE ADJUDICATING AUTHORITY SIMPLY RELIED UPON THE PRICE LIST AS MAINTAINED AT THE DEPOT TO DETERM INE THE PRICE FOR THE PURPOSE OF LEVY OF EXCISE DUTY. WHETH ER THE GOODS WERE, IN FACT, SOLD TO THE SAID DEALERS/WITNE SSES AT THE PRICE WHICH IS MENTIONED IN THE PRICE LIST ITSE LF COULD BE THE SUBJECT MATTER OF CROSS-EXAMINATION. THEREFO RE, IT WAS NOT FOR THE ADJUDICATING AUTHORITY TO PRESUPPOSE AS TO WHAT COULD BE THE SUBJECT MATTER OF THE CROSS- EXAMINATION AND MAKE THE REMARKS AS MENTIONED ABOVE. WE MAY ALSO POINT OUT THAT ON AN EARLIER OCCASION W HEN THEMATTER CAME BEFORE THIS COURT IN CIVIL APPEAL NO . 2216 OF 2000, ORDER DATED 17.03.2005 WAS PASSED REMITTIN G THE CASE BACK TO THE TRIBUNAL WITH THE DIRECTIONS TO DECIDE THE APPEAL ON MERITS GIVING ITS REASONS FOR ACCEPTI NG OR REJECTING THE SUBMISSIONS. IN VIEW THE ABOVE, WE ARE OF THE OPINION THAT IF TH E TESTIMONY OF THESE TWO WITNESSES IS DISCREDITED, TH ERE WAS NO MATERIAL WITH THE DEPARTMENT ON THE BASIS OF WHICH IT COULD JUSTIFY ITS ACTION, AS THE STATEMENT OF THE AFORESAID TWO WITNESSES WAS THE ONLY BASIS OF ISSUI NG THE SHOW CAUSE WE, THUS, SET ASIDE THE IMPUGNED ORDER A S PASSED BY THE TRIBUNAL AND ALLOW THIS APPEAL.' 7. LD. DEPARTMENTAL REPRESENTATIVE FAILS TO POINT A NY EXCEPTION THEREIN IN FACTS OR LAW. WE THUS HOLD THAT IMPUGNED RE- ASSESSMENTS ARE LIABLE TO BE QUASHED. LD. DEPARTMEN TAL REPRESENTATIVE IS FURTHER UNABLE TO DISPUTE CORRECT NESS OF THE ABOVE LOWER APPELLATE FINDINGS ON MERITS AS WELL. W E THUS SEE NO REASON TO INTERFERE IN THE WELL REASONED LOWER A PPELLATE ITA NO.3472 /AHD/2014 AND 3 OTHERS 14 ORDER UNDER CHALLENGE. REVENUE'S LEAD APPEAL ITA NO.2152/AHD/2013 FAILS. 8. SAME ORDER IN REVENUE'S OTHER TWO APPEALS ITA NOS .2151 & 2153/AHD/2013. 9. THESE THREE REVENUE'S APPEALS ARE ACCORDINGLY DI SMISSED. 12. IN THE LIGHT OF THE ABOVE MATERIAL, IF WE EXAMI NE THE FACTS CAREFULLY, THEN IT WOULD REVEAL THAT SHRI ROHIT MOD I WAS NOT SURE, WHETHER MONEY ACTUALLY PAID OR NOT TO THE VENDORS. IN THE CROSS- EXAMINATION, HE HAS EXPRESSED HIS INABILITY IN A WA Y. HE ADMITTED THAT DEAL WAS FINALIZED BY HIS UNCLE SHRI DASHRATH PATNI WHO HAS ALREADY EXPIRED. THUS, IN THE SHAPE OF STATEMENT, THERE IS NO CONCLUSIVE EVIDENCE POSSESSED BY THE REVENUE. AS F AR AS THE DOCUMENTS FOUND DURING THE COURSE OF SEARCH ARE CON CERNED, THESE DOCUMENTS WERE ROUGH JOTTINGS NOTED BY SHRI DASRATH PATNI AND NOT BY ROHIT MODI. IT HAS ALSO DISCLOSED THAT THES E JOTTINGS HAVE BEEN MADE AFTER THE DEAL. NOW WHAT WAS THE CIRCUMS TANCES FOR MAKING SUCH JOTTINGS, HAVE BEEN POINTED OUT BY THE ASSESSEE IN THE REASONS SUMMARIZED IN THE ORDER OF THE LD.CIT(A ) AND EXTRACTED BY US. WE FIND THAT IN THE CASE OF SHRI RAJNIKANT PATEL, THE LD.CIT(A) MADE AN ANALYSIS OF THIS EVIDENCE, AN D THEREAFTER RECORDED A FINDING THAT SUFFICIENT EVIDENCE WAS NOT AVAILABLE WITH THE REVENUE. WE DEEM IT PERTINENT TO TAKE NOTE OF THIS FINDING, WHICH READS AS UNDER: 5. DECISION: I HAVE GONE THROUGH THE SUBMISSIONS MADE BY THE APP ELLANT AND THE PAPER BOOK FILED BEFORE ME. AS 1 UNDERSTAND THERE ARE TWO DIFFERENT DOCUMENTS WHICH HAVE BEEN RELIED BY THE AO TO FINALISE THE AS SESSMENT U/S. 143(3) R.W.S. 148 OF THE I. T. ACT, 1961, ONE IS SEIZED DO CUMENT I.E. LOOSE PAPER PAGE NO. 51 OF ANNEXURE A-1 WHEREFROM IMPUGNED FIGU RE OF ADDITION IS PERCOLATING. THE RELATED ENTRY BEING REFERRED IN TH IS VERY PAGE CAN BE READ AS UNDER: ITA NO.3472 /AHD/2014 AND 3 OTHERS 15 30% 70 MAKARBA RP KM HAVELI TOPAVAN PURCHASE 1135.46 340.64 794.82 PAID BY 381.50 753.96 (+ ) 40.86 - 40.86 SALE 1225.51 367.65 857.86 430.00 795.51 (-) 62.35 (+) 62.35 THE OTHER SEIZED DOCUMENT WHICH IS RELIED UPON BY T HE AO IS LOOSE PAPER PAGE NO.55 OF ANNEXURE A-1 WHEREFROM IMPUGNED FIGUR E OF ADDITION IS PERCOLATING. THE RELATED ENTRY BEING REFERRED IN TH IS VERY PAGE CAN BE READ AS UNDER: MAKARBA RP PD HAVE// TOPAVAN PURCHASE 1135.46 381.50 127.15 - 254.35 PAID BY 356.50 25.00 (+) 229.35 (-) 229.35 SALE 1225.51 430.00 143.33 2 86.67 RECECD BY 417.00 13.00 (-) 273.67 (+) 27 3.67 NOTHING MUCH WITH CERTAINTY CAN BE INFERRED FROM TH E ABOVE DOCUMENTS AS THE SAME IS NEITHER SIGNED BY THE APPELLANT NOR SEI ZED FROM THEIR PREMISES. THIS DOCUMENT IS RELATED TO SEIZURE DURING THE ACTI ON U/S 132 IN. CASE OF HIMALAYA GROUP. TO DECIPHER AND DECODE ABOVE JOTTIN GS ON PAGE NO. 51 AND 55 A STATEMENT OF ROHIT MODI IS RECORDED ON 16. 01.2014 BY INCOME-TAX OFFICER, WARD-6(2), AHMEDABAD IN THE CASE OF HARIBH AI M. PATEL AND UPENDRA G. PATEL HUF ( CO-OWNER OF THE LAND). AGAIN SHRI ROHIT MODI WAS EXAMINED ON 07.03.2014 BY THE DY. COMMISSIONER OF I NCOME-TAX, CIRCLE-6, AHMEDABAD IN THE CASE OF THE APPELLANT AND ON THE S AME DAY HE WAS CROSS EXAMINED AND RE-EXAMINED BY THE INCOME-TAX OFFICER, WARD-6(2), AHMEDABAD IN THE CASE OF SHRI HARIBHAI M, PATEL AND SHRI UPENDRA G. PATEL HUF. ALL THESE STATEMENTS ARE MADE A PART OF THE PAPER BOOK. AS CAN BE SEEN ABOVE SHRI ROHIT MODI IS NOT SURE TH AT MONEY WAS ACTUALLY PAID OR NOT TO THE APPELLANT AS THE TRANSACTIONS WA S HANDLED BY SHRI DASHRATHBHAI BHAICHANDDAS PATNI (MODI) WHO HAS EXPI RED ON 03/11 /2011. AS ONE CAN SEE IN STATEMENT THAT IT IS NOT SPECIFIC AS TO WHO NEGOTIATED THE DEAL ON OR BEHALF OF APPELLANT. SHRI ROHITBHAI MODI IN HIS STATEMENT COULD NOT FILE ANY EVIDENCES FOR SUCH 'ON MONEY' PAYMENT EVEN WHEN SPECIFICALLY ASKED BY THE AO. IN VIEW OF SUCH FACTS, I CONCLUDE THAT ANNEXURE A IS A DUMB PAPER SO FAR AS APPELLANT IS CONCERNED. IT WAS NOT FOUND IN POSSESSION OF APPELLANT AND THE ASSESSMENT UNDER QU ESTION IS NOT COMPLETED U/S. 153C OF THE I. T. ACT, 1961. THE ADD ITION SO MADE IS WITHOUT CONCRETE EVIDENCE AND NO SUSTAINABLE ADDITION CAN B E MADE BY THE A.O. WITHOUT BRINGING ON RECORD POSITIVE EVIDENCE SUPPOR TING THE SALE ITA NO.3472 /AHD/2014 AND 3 OTHERS 16 CONSIDERATION RECEIVED BY THE OVER AND ABOVE THE A MOUNT MENTIONED IN THE SALE DEED DATED 09/01/2006. THE AO DID NOT CONDUCT ANY INDEPENDENT ENQUIRY TO P ROVE THAT THE PRICE IN THE SALE DEED EXECUTED BY THE APPELLANT WAS UNDERST ATED AND NO EVIDENCE EXCEPT THE TWO LOOSE PAPERS AND STATEMENT OF SHRI R OHIT MODI HAVE BEEN REIIED UPON TO MAKE THE ADDITION. EVEN THE STATEMEN T OF SHRI ROHIT MODI IS NOT OF MUCH SIGNIFICANCE AS HE HAS ADMITTED THAT TH E SEIZED PAPERS ON THE BASES OF WHICH THE ADDITION IS MADE ARE NOT IN HIS HAND WRITING AND HAS NO KNOWLEDGE OF THE DEAL OF PURCHASE OF TAPOVAN LAND. IN VIEW OF THESE FACTS, IT IS DECIDED THAT ADDITION OF STCG OF RS.1,72,51,449/-BY THE AO IS NOT BASED ON CREDIBLE AND CORROBORATIVE EVIDENCES. THEREFORE, THE ADDITION IS ORDERED TO BE DELETED. 13. AT THIS STAGE, WE WOULD LIKE TO OBSERVE THAT WE HAVE CAREFULLY GONE THROUGH THE ORDERS OF THE LD.CIT(A) PASSED IN THE CASE OF SHRI SHANTILAL R. PATEL. A PERUSAL OF THAT ORDER WOULD INDICATE THAT LD.CIT(A) HAS FAILED TO APPRECIATE TH E BASIC PRINCIPLE OF APPRECIATION OF EVIDENCE. SHE TOOK STATEMENT OF SHRI ROHIT MODI AS A GOSPEL TRUTH AND OBSERVED THAT IT IS AN U NDISPUTED FACT THAT ON-MONEY WAS PAID. IT MAY BE AN UNDISPUTED FA CT FOR SHRI ROHIT MODI IN HIS CASE, BUT IN THE CASE OF VENDOR T HIS IS A DISPUTED FACT. IF SOMEBODY WANTS TO PAY TAX VOLUNTARILY, TH EN THERE COULD NOT BE ANY DISPUTE. THE DISPUTE WOULD ARISE WHEN L IABILITY HAS BEEN FASTENED ON OTHER. DOCUMENTS WERE NOT IN THE HAND-WRITING OF SHRI ROHIT MODI. INSPITE OF THAT SHE OBSERVED T HAT CLINCHING EVIDENCE WAS FOUND AGAINST THE ASSESSEE. ACCORDING TO HER, SHRI ROHIT MODI HAS OWNED UP PAGES. HE MIGHT HAVE OWNED UP IN HIS ASSESSMENT PROCEEDINGS, BUT THEY WERE NOT IN HIS HA ND WRITING NOR IT WAS FOUND IN HIS PREMISES. SIMILARLY, SHE FAILE D TO NOTE THAT LAND SOLD BY THE ASSESSEE WAS AGRICULTURE LAND. IT WAS CONVERTED INTO NON-AGRICULTURE AND THEREAFTER SOLD. THE RATE S FOR NON- AGRICULTURE LAND WOULD BE ALTOGETHER DIFFERENT. TH E OBSERVATION OF THE LD.CIT(A) THAT CURRENT PURCHASE/SALE PRICE PREV ALENT AT THAT ITA NO.3472 /AHD/2014 AND 3 OTHERS 17 TIME CLEARLY MAKES INFERENCE IN THE SHAPE OF PAYMEN T OF ON- MONEY. IT IS PERTINENT TO NOTE THAT HAD THE ASSESS EE SOLD THE LAND BELOW THE CURRENT PRICE NOTIFIED FOR THE PURPOSE OF CHARGING STAMP DUTY, THEN THE ADDITION IN THE REGULAR ASSESSMENT W OULD HAVE BEEN MADE UNDER SECTION 50C OF THE ACT. THE AO HAS NOT INVOKED SECTION 50C. THUS, TO OUR MIND, THE LD.CIT(A) IN T HE CASE OF SHRI SHANTILAL R. PATEL FAILED TO APPRECIATE THE NATURE OF EVIDENCE AVAILABLE AGAINST THE VENDORS. IN VIEW OF THE ABOV E DISCUSSION AND RESPECTFULLY FOLLOWING ORDER OF THE ITAT IN THE CASE OF ONE OF THE CO-OWNERS, WE ARE OF THE VIEW THAT NO CAPITAL G AIN DESERVES TO BE ASSESSED IN THE HANDS OF THE VENDORS ON ACCOUNT OF RECEIPT OF ON-MONEY IN THEIR HANDS. IN OTHER WORDS, CAPITAL G AIN OUGHT NOT TO BE COMPUTED ON THE BASIS OF ALLEGED RECEIPT OF C ASH COMPONENTS AMOUNTING TO RS.10,35,46,000/-. THE LD.CIT(A) HAS RIGHTLY DELETED IT IN THE CASE OF SHRI RAJNIKANT K. PATEL S HRI UPENDRAKUMAR G. PATEL AND SHRI HARIBHAI PATEL. IN THE CASE OF S HANTILAL R. PATEL, WE ALLOW APPEAL AND DELETE THE ADDITION. THUS, ALL THE APPEALS OF THE REVENUE ARE DISMISSED AND THAT THE ASSESSEE IS ALLOWED. 14. IN THE RESULT, ALL THE APPEALS OF THE REVENUE A RE DISMISSED, AND THAT OF THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE COURT ON 21 ST FEBRUARY, 2019. SD/- SD/- (AMARJIT SINGH) ACCOUNTANT MEMBER (RAJPAL YADAV) JUDICIAL MEMBER AHMEDABAD; DATED 21/02/2019