SHRI RAJYAVARDHAN SINGH, Indore V. The ITO wd- 2(3), Indore

ITA 379/IND/2014

• Counselvise Citation: [2018] 126 COUNSELVISE.COM (IT) 2282 (ITAT-INDORE)
• Duration Of Justice: 3 year(s) 10 month(s) 10 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-03-2018
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: DB
• Next Hearing Date: 10-08-2017
• Assessment Year: 2009-2010
• Appeal Filed On: 13-05-2014
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: V J VORICHA
• Assessee Lawyers: T N UNNI
• Keywords: Sale consideration of property below Jantri Value; Capital asset; Gift; Additional evidence
• Section: 143(3); 50C; 54F; 68; 54

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL INDORE BENCH, INDORE BEFORE SHRI KUL BHARAT, JUDICIAL MEMBER AND SHRI MANISH BORAD, ACCOUNTANT MEMBER ITA NO.379/IND/2014 ASSESSMENT YEAR: 2009-10 SHRI RAJYAWARDHAN SINGH, 23, PRAGATI VIHAR, NARSINGARH HOUSE, BICHOLI MARDANA, INDORE, / VS. ITO, WARD 2(3) INDORE ( APPELLANT ) ( REVENUE ) P.A. NO. ALWPS3256M APPELLANT BY SHRI T.N. UNNI , CA REVENUE BY SHRI V. J. VORICHA SR. DR DATE OF HEARING: 08.02.2018 DATE OF PRONOUNCEMENT: 23.03.2018 / O R D E R PER KUL BHARAT, J.M: THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF LD. COMMISSIONER OF INCOME TAX (APPEALS)-I, INDORE, (IN SHORT CIT(A)), DATED 28.02.2014 PERTAINING TO A.Y. 2009-10. THE AS SESSEE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL: 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LEARNED CIT, ERRED IN HOLDING THAT THE SALE CONSIDERATION O F THE RAJYAWARDHAN SINGH 2 PROPERTY WAS NOT UTILIZED TOWARDS CONSTRUCTION OF N EW HOUSE. 2. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LEARNED CIT, ERRED IN DISALLOWING THE ENTIRE CLAIM OF DEDUC TION U/S 54F OF I.T. ACT, OF RS.1,17,16,400/-. 3. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LEARNED CIT, ERRED IN ASSESSING LONG TERM CAPITAL GAIN IN T HE ASSESSMENT. YEAR 2009-10 INSTEAD OF ASSESSMENT YEAR 2012-13. 4. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LEARNED CIT, ERRED IN ENHANCING THE INCOME U/S. 251(1) R/W WITH SECTION 251(2) OF THE I.T. ACT. 5. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LEARNED CIT, ERRED IN HOLDING THAT PROVISION OF 50C ARE APP LICABLE TO THE LEASE HOLD LAND SOLD BY THE APPELLANT AND MA KING AN ADDITION OF RS.11.11 LACS TO THE TOTAL INCOME. 6. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LEARNED CIT ERRED IN MAKING AN ADDITION OF RS.28.73 LACS U/ S 68 OF THE I.T. ACT. 2. DURING THE COURSE OF HEARING THE ASSESSEE HAD AL SO TAKEN ADDITIONAL GROUNDS VIDE APPLICATION DATED 12.10.201 5. HOWEVER, THE SAME WERE WITHDRAWN ON 18 TH MAY 2017. HENCE, THE ONLY GROUNDS REQUIRED TO BE ADJUDICATED HAVE BEEN REPRODUCED HE REINABOVE. RAJYAWARDHAN SINGH 3 3. BRIEFLY STATED THE FACTS ARE THAT THE CASE OF TH E ASSESSEE WAS PICKED UP FOR SCRUTINY ASSESSMENT AND THE ASSESSMEN T U/S 143(3) OF THE INCOME TAX ACT, 1961(HEREINAFTER CALLED AS THE ACT) WAS MADE VIDE ORDER DATED 05.12.2011. DURING THE COURSE OF ASSESSMENT PROCEEDINGS THE AO NOTICED THAT THE ASSE SSEE HAD SOLD A LAND AFTER DEMOLISHING THE OLD HOUSE, AT KAJRANA ROAD AND CLAIMED EXEMPTION U/S 54F OF THE ACT. THUS, THE AO AFTER CONSIDERING THE FACTS COMPUTED CAPITAL GAIN AT RS.8 8,38,392/- AND RESTRICTED THE EXEMPTION U/S 54 F TO THE EXTENT OF RS.78,56,384/- AGAINST CLAIM OF RS.1,93,18,390/-. 4. AGGRIEVED BY THIS THE ASSESSEE PREFERRED AN APPE AL BEFORE THE LD. CIT(A) WHO AFTER CONSIDERING THE FACTS ENHANCED THE INCOME BY DISALLOWING THE ENTIRE CLAIM OF DEDUCTION U/S 54F O F THE ACT. THE LD. CIT(A) FURTHER MADE ADDITION OF RS.11.11 LACS U/S 5 0C AND RS.28.73 LACS U/S 68 OF THE ACT. AGAINST THIS THE A SSESSEE IS IN PRESENT APPEAL. 5. GROUND NOS. 1 & 2 ARE RELATED TO DISALLOWANCE OF DEDUCTION U/S 54F OF THE ACT. LD. COUNSEL FOR THE ASSESSEE SUBMIT TED THAT THE LD. CIT(A) WAS NOT JUSTIFIED IN REJECTING THE CLAIM OF DEDUCTION U/S 54F OF THE ACT. LD. COUNSEL FOR THE ASSESSEE REITERATED THE SUBMISSION AS RAJYAWARDHAN SINGH 4 MADE IN THE SYNOPSIS. THE SUBMISSIONS OF THE ASSESS EE IN THE SYNOPSIS AS UNDER: 1. DATE OF ACQUISITION OF ORIGINAL ASSET: 99 YRS. LEASE-HOLD RIGHTS OVER 14,000 SFT. RES. PLOT DT. 06-10-1997. .. .. .. PB P. 01-13. SITUATED AT: .. 1, KANADIA ROAD, INDORE. SOLD JOINTLY WITH ADJOINING LAND BELONGING TO SMT. LAKSHMI KUMARI (MOTHER). TOTAL AREA: 84,000 SFT. 2. SOLD TO: .. M/S. D.S. ENTERPRISES (FIRM), 169, R.N.T. MARG, IND ORE. (DSE) 3. AGREEMENT FOR SALE: .. DT. 14-12-2007. .. . . PBP. 14-21. 4. CL. RE: UNDERTAKING CONSTRUCTION OF BLDG. PARA 13 .. PBP. 21 . & CONDITION OF DEPOSITING RS.80.00 LAKHS . CONDITION: THAT SELLER SHALL DEPOSIT REQUI SITE AMOUNT. 5. SALE CONSIDERATION: .. RS. 1,70,25,000/- .. .. PBP.17 6. DATE OF SALE .. 28-01-2009 .. .. PBP. 27 @ CIT(A)S ORDER PAGE 18, PARA (A). 7. MODE OF RECEIPTS OF CONSIDERATION: A/C PAYEE CHS. DETAILS AT. .. PBP. 29 8. DATE OF DEPOSIT WITH DSEB .. 29-12-2008 (COP Y OF A/C ALREADY RECORD OF CIT(A) SEE PBP.132 SUBMITTED WITH SYNOPSIS FILED ON 04-10-2016 BEFORE ITAT. A/C CONFIRMATION .. ..PBP.187 9. PROOF OF RECEIPTS: ENTRY IN BANK A/C STATEM ENT (30-12-2008) .. PBP. 216 10. ASSESSMENT BY AO: ASSESSEE CONCEDED CLAIM OF LA ND COST RS.92,97,000 AS INELIGIBLE & AO GAVE FINDING THAT ASSESSEE HAS CONSTRUCTED RES.HOUSE WIT HIN 3 YEARS OF SALE & ALLOWED SAID RS.80.00 LAKHS PROPORTIONATELY @ RS.78,56,348/ -. 11. POINTS RAISED BY CIT(A) IN ORDER-SHEET : CIT(A)S ORDER: ..@PAGE 9-10 (I) REASON FOR ADVANCING HUGE SUM OF RS.80.00 DETAILS REF. TO WRITTEN SUBMISSIONS ( WS) DT. 28-12- 2013 LACS TO M/S. D.S.ENTERPRISES IN DEC. 2008 , PBP.182-183 * WHEN NO ACTIVITY WAS DONE UPTO MARCH 2009: [ *INCOR RECT FINDING SEE (D) ON P.2 BELOW.] SEE CL. 13 IN AGREEMENT DT. 14-12-2007 .. PBP. 21 ACTIVITIES: A) D.S. ENTERPRISES IDENTIFIED & ENGAGED 11 CONT RACTORS, PREPARED WORKS CONTRACTS BETWEEN APPELLANT & CONTRACTORS ON AND EX ECUTED ON : (1) 08-08-08 (2) 15-11-08 (3) 20-10-08 (4) 20- 10-08} PBP. (5) 16-02-08 (6) 16-02-08 (7) 13-10-08 (8) 04- 07-08} (9) 30-06-08 (10)28-02-08 (11) 03-03-08 (COPIE S) PBP. 80-123 B) LOCATION OUTSIDE MUNICIPAL AREA, HENCE NO MUNICIPAL PERMISSION . C) BUT, APPELLANT OBTAINED PANCHAYATS PERMISSIO N .. .. .. PBP. 41-43 RAJYAWARDHAN SINGH 5 D) * WORK COMMENCED & COMPLETED. FEB. 2008 & FEB. 2010 RESP. . .. PBP. 54 SEE APP. VALUERS REPORT ON COST OF CONSTRUCT ION : PBP. 48-57 WORKS CARRIED OUT BY DS ENTERPRISES : PREPARATION OF CONTRACTS; PREPARATION OF PLANS BY T HEIR ARCHITECTS, GETTING PLANS APPROVED; ARRANGING SUP PLIES OF MATERIALS & INSTRUCTIONS TO CONTRACTORS, SUPERVIS ION BY THEIR OVERSEERS; INSPECTION OF WORKS & CORRECTIONS BY THEIR ARCHITECTS; APPROVING CONTRACTORS WORKS, SETTLING DISPUTES RAISED BY APPELLANTS AFTER THE CONSTRUCTION, ETC. AND SE TTLEMENT OF ACCOUNTS BETWEEN APPELLANT & CONTRACTORS AND BETWE EN APPELLANT & D.S. E. D) WHY DSE THEMSELVES DID NOT CONSTRUCT? (I) SIN GLE VILLAS ARE NOT VIABLE TO THEM IT WILL ALSO COS T APPELLANT (II) 12% SERVICE TA X(RS. 11.00 LAKHS)MORE, (III) HENCE THEY ENGAGED SMALL DIFFERENT CONTR ACTORS FOR DIFF. WORKS NOT LIABLE TO SER.TAX UNDER THEIR SUPER VISION & CONTROL. (II) PL. SUBMIT LEDGER A/C OF DSE FOR AY ) A) SEE SYNOPSIS DT. 06-10-2016. 2010-11 & 2011-12 ) B) PBP. 182, 187. (III) COMMENCEMENT & COMPLETION : FEB. 2008 & FEB. 2010. (APP.VALUERS REPORT) .. PBP. 54. (IV) UTILISATION OF FUNDS : SEE LETTER & DETAILS IN WS. DT. 09-10-2 013 .. PBP. 179-180 COST OF PLOT PURCHASED ON 18-12-2007 .. RS. 92 ,97,000/- ASST.ORDER P.47 PBP.225-236 COST OF CONSTRUCTION (TOTAL) .. .. RS.1,17 ,86,837/- PBP. 179-180 TOTAL AMT. UTILISED: .. RS.2,10,83,837/- RESOURCES: ============== SALE PRICE: .. .. 1,70,25,000/- MALBA SALE .. .. 20,00,000/- .. @ PBP 239-241, 246 GIFT (COST OF LIFT) .. .. 3,50,000/- .. @ PBP.179 CAR SALE (1) .. .. 5,90,000/- .. 186 -DO- (2) .. .. 8,15,000/- .. 186 SALE OF OLD HOUSE-HOLD FURNITURE & C. .. 5,18, 000/- RS. 2,12,73,000/-. 186 ============= DATE ON WHICH DEPOSIT UNDER CAP. GAINS SCHEME IS DU E: .. 31-07-2009. CONSTRUCTION COST INCURRED AFTER 31-07-2009 .. .. NIL DATE OF FILING RETURN (Y/SEC. 139(4) .. .. .. 28- 03-2010 UTILISED ENTIRE SALE PROCEEDS, HENCE NO AMOUNT REQU IREMENT UNDER THE CAP. GAINS DEPOSIT SCHEME. (V) PROPERTY SOLD FOR RS. 13.39 CRS. WHILE STAMP ) BY MISTAKE, THE FIGURE OF STAMP DUTY RS.1,32,00,700/- ON DUTY PAID ON RS. 13.20 CRS. ?) RESERVE SIDE (PAGE 2) OF THE FIRST STAMP PAP ER, WRITTEN BY THE REGISTRAR, WAS WRONGLY READ AS SAL E PRICE RS.13,20,67,000/- APPELLANTS EXPLANATION (PBP. 140 ) HAS BEEN IGNORED . (VI) IF YOUR ARGUMENT IS THAT SEC. 50C DOES NOT (I) SEE LETTER WS DT. 28-10-2013 ( PBP. 184-185, PARA 10(4) APPLY TO LEASED PROPERTY, CONSEQUENTLY, SEC.54F .) CASE LAW: ATUL PURANIK V. ITO (SEE PBP. 338-350).3 RAJYAWARDHAN SINGH 6 WILL NOT APPLY TO LEASED PROPERTY.) (II) 50C APPL IES ONLY TO LAND AND BUILDINGS OR BOTH AND LEASE-HOLD RIGHTS BEING DIFFERENT FRO M LAND AND BUILDINGS OR BOTH, 50C DOES NOT A PPLY . (III) SINCE LEASE HOLD RIGHT S ARE CAPITAL ASSETS AS PER SEC. 2(14), CAPITAL GAINS TAX IS ATTRACTED; BUT NOT SEC.50C. 12. DISALLOWANCES BY INVOKING S. 251(2): CIT(A)S FINDINGS & APPELLANTS EXPLANATIONS:- FINDINGS EXPLANATIONS (A) CLAIM FOR DEDUCTION OF THE COST OF PLOT OF) CIT9(A)S ORDER @ PAGE 17-19 LAND PURCHASED ON 14-12-2007: ) DEA LT BY A.O. REFER ASST. ORDER @ PAGE 4PBP. 47 (B) (I) RS.80.00 LAKHS ADVANCE DEPSITED WITH DSE.) UTILISATION ALREADY EXPLAINED IN PARA 11 ABOVE. (II) DATE OF DEPOSIT NOT FURNISHED: COPY OF A/C AL READY WITH CIT(A) IN WS DT. 10-12-2012- PBP 132 (III)MONEY LYING WITH D.S. IN THEIR BANK A/C (A) B UILDER ENTITLED TO USE IT IN HIS OWN DEVELOPMENT BUSINESS - NOT NECESSARY THAT EVERY RUPEE IS USED ONLY FOR THE WORK OF THE CONTRACTEE. ( M.A.C. KHALEELI VS. DY.CIT (48 ITD 191. (ENCLOSED). (B) BUILDER & CONTRACTORS ARE NOT RELATED PARTIES OF AP PELLANT. (IV) CASE LAWS REFERRED DO NO APPLY: O N FACTS & CIRCUMSTANCES, THEY DO APPLY . (V) LEDGER A/C OF M/S. D.S.E. NOT SUPPLIED:SEE PBP. 132 (ENCLOSED WITH SYNOSPSIS ON 04-10-2016. ) CIT(A) MISTOOK OPENING BAL. AS LYING IN DSES BANK A/C). SEE AOS ORDER: P. 3. LAST LINE. SEE BANK A/C: DR. ENTRY ON 30-12-2008 @PBP . 216 FURNISHED WITH WS DT. 19-02-03, @ PBP. 140 (VI) APPELLANT FAILED TO PRODUCE BILLS FOR)(1)ALL C ONTRACTS WITH 11 CONTRACTORS ARE WITH MATERIAL PURCHASE OF MATERIALS: )SEE PARAS 2(1) & (2) ON PAGES 82, 86, PARA 4(1)&(2) ON P. 94, 98, 102, 106, 114, 118,122 PAPER BOOK. (2) BILLS FOR OWN PURCHASES FURNISHED @ PAGES 124-131 PB. (VI) ELECTRIC CONNECTION: SEE APPLICATION FOR ELE C. CONNECTION DT. 17-06-08 @PB 42 (VII) COMPLETION CERTIFICATE: PLOT SITUATED OUTSID E MUNICIPAL CORPN.IN BICHHOLI MARDANA VILLAGENO REQUIREMENT OF COMPLETION CERTIFICA TE. HOW-EVER, PANCHAYAT CERTIFICATE FOR PLAN AP PROVAL ALREADY TAKEN, FURNISHED TO CIT(A) .. .. @PBP. 41 (VIII) NOT ONLY DEPOSIT WAS NOT USED, BUT IT WAS) SEE SUBMISSIONS ABOVE IN PARA 11(I)(D) UTILISATION NO PUT IN CAP.GAINS DEP. SCHEME A/C. ) SHOWING COMPLETE SALE PROCEEDS USED BEFORE DATE DUE FOR FILING RETURN 31-07-2009. RE: RS.92,97, 000/- IT WAS ACTUALLY USED FOR PURCHASE OF PLOT ON WHICH BUILDING IS CONSTRUCTED, HENCE SHOULD NOT & CANNOT BE IGNOR ED. (IX) IN VIEW OF THE ABOVE, THE AMOUNT WILL LNOT) IN VIEW OF THE ABOVE SUBMISSIONS, CLAIM FOR TAXABIL ITY BECOME TAXABLE AFTER 3 YEARS, BUT IS TAXABLE ) I N AY 2012-13 ALLOWABLE. ALSO SEE GR. OF APPEAL NO. 3. RAJYAWARDHAN SINGH 7 IN THIS YEAR ITSELF: ) 13. FINDING OF CIT(A)S ORDER ON S.54F: HELD THE APPELLANT AS WHOLLY INELIGIBLE FOR S.54F CLAIM; ALSO REVERSED AOS FINDING AS FOR RS.78.56 LACS BY INVO KING S.251(2). (SEE GR. NO.4) ADDL. SUBMISSION: SINCE THE CONSTRUCTION WORK WAS CARRIED OUT DURING FEB. FEB.. 2010 AND COMPLETED AFTER 31-03-2009, PROVISO TO SUB-SEC.(4) OF SEC. 54 APPLIES AND, ACC ORDINGLY, THE CAPITAL GAIN IS ASSESSABLE IN AY 2012 -13 AND ACCORDINGLY, THE APPELLANT HAS REPORTED THE LON G TERM CAPITAL GAINS ARISING OUT OF THE AFORESAID TRANSACTION IN THE RETURN FOR AY 2012-13 AT RS. 51,68,553/- AND PAID CAPITAL GA INS TAX RS. 10,33,711/- . (COPY OF A/C. OF RETURN & COMPUTATION STATEMENT ENCLOSED . (SEE GR. NO. 3) *CASE LAWS: ON DATE DUE FOR FILING RETURN U/S,139 (4), ADVANCE TO CONTRACT-UTILISATION OF FUNDS; INTERPRETATION OF BENEVOLENT PROVISIONS, (COPIES) , YEAR OF TAXABILITY, 50C, 251(2) AND SUBMISSIONS IN WSS - .. PBP. 132-138. *S. NOS. 1 TO 10 IN INDEX TO CITATIONS (FILED ON 04 -10-1016) PAGES 256 TO 294 *S. NO. 2 -DO- (17-02-2017) PAGE 331 TO 337 *S. NO. 24, 26 TO 30 - DO- (02-02-2018 ) PAGE 330 TO 397 & 405 TO 447. 6. ON THE CONTRARY LD. DR OPPOSED THE SUBMISSION AN D SUPPORTED THE ORDER OF LD. CIT(A). THE LD. DR SUBMITTED THAT THE ASSESSEE IS NOT ELIGIBLE FOR DEDUCTION U/S 54F OF THE ACT. AS T HE LD. CIT(A) HAD RIGHTLY EXAMINED THE ELIGIBILITY OF THE ASSESSEE. 7. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED MATERIAL AVAILABLE ON RECORD. THE ORIGINAL ASSET WAS SOLD BY WAY OF AGREEMENT TO SALE DATED 14.12.2007 FOR A SALE CONSIDERATION O F RS.1,70,25,000/-. THE SALE DEED WAS EXECUTED ON 28. 01.2009, AS PER THE SALE DEED THE ASSESSEE RECEIVED A SUM OF RS .25,000/- ON 14.12.2007 AND RS.70,00,000/- ON 27.08.2008 AND RAJYAWARDHAN SINGH 8 RS.1,00,00,000/- ON 15.10.2008. THUS, SUBSTANTIAL S ALE CONSIDERATIONS WAS RECEIVED, POST AGREEMENT TO SALE BY THE ASSESSEE AND VIDE SALE DEED ON 28.01.2009. THE POSSESSION OF THE PROPERTY WAS HANDED OVER BY THE ASSESSEE TO THE SELLER. THIS FACT IS NOT DISPUTED BY THE LD. COUNSEL FOR THE ASSESSEE. FOR C LAIMING DEDUCTION U/S 54F OF THE ACT, THE FOLLOWING CONDITI ONS ARE REQUIRED TO BE FULFILLED. THE ASSESSEE IS REQUIRED TO FULFIL L ONE OF THE FOLLOWING CONDITIONS. A) WITHIN A PERIOD OF ONE YEAR BEFORE THE DATE ON W HICH THE TRANSFER TOOK PLACE HAS PURCHASED A RESIDENTIAL HOUSE. B) OR TWO YEARS AFTER THE DATE OF TRANSFER PURCHASE D A RESIDENTIAL HOUSE. C) OR HAS WITHIN A PERIOD OF THREE YEARS AFTER THE DATE OF TRANSFER CONSTRUCTED ONE RESIDENTIAL HOUSE IN INDIA. 8. THE ASSESSEE IN THE PRESENT CASE IS CLAIMING DED UCTION ON THE BASIS THAT HE HAS CONSTRUCTED A RESIDENTIAL HOUSE. THE LD. CIT(A) DECLINED THE CLAIM ON THE GROUND THAT THE ASSESSEE DO NOT PROVIDE ANY PROOF OF UTILIZATION OF AMOUNT OF SALE CONSIDER ATION IN CONSTRUCTION OF NEW HOUSE. THE LD. CIT(A) FURTHER O BSERVED THAT THE ASSESSEE FAILED TO DEPOSIT THE AMOUNT HIS CAPITAL G AIN ACCOUNT AS RAJYAWARDHAN SINGH 9 REQUIRED U/S 54 OF THE ACT. UNDER THE FACTS OF THE PRESENT CASE FOR THE DEDUCTION U/S 54F OF THE ACT, THE ASSESSEE IS R EQUIRED TO DEMONSTRATE THAT BEFORE THE DATE OF TRANSFER I.E. 2 8.01.2009. THE ASSESSEE HAD PURCHASED A RESIDENTIAL HOUSE. THIS IS NOT A CASE. 9. SECONDLY, THE ASSESSEE WAS REQUIRED TO DEMONSTRA TE THAT HE HAS PURCHASED RESIDENTIAL HOUSE WITHIN TWO YEARS AFTER THE DATE OF TRANSFER OF ORIGINAL ASSET I.E. 28.01.2009.THIS IS ALSO NOT A CASE. 10. THIRDLY, THE ASSESSEE HAS CONSTRUCTED A RESIDEN TIAL HOUSE WITHIN THREE YEARS AFTER THE DATE OF TRANSFER OF THE ORIGI NAL ASSET. THE ASSESSEE IS CLAIMING DEDUCTION UNDER THIS CATEGORY. WE FIND THAT ONE OF THE OBJECTION OF THE LD. CIT(A) WAS THAT THE ASSESSEE FAILED TO DEPOSIT THE AMOUNT OF THE NET CONSIDERATION IN AN A CCOUNT IN ANY SUCH BANK OR INSTITUTION AS SPECIFIED BEFORE FURNIS HING THE RETURN OF INCOME UNDER SUB-SECTION (1) OF SECTION 139. 11. THE ASSESSEE HAS NOT DEMONSTRATED THAT HE HAD D EPOSITED THE AMOUNT OF NET CONSIDERATION IN ANY OF THE SPECIFIED ACCOUNT. THE CONTENTION OF THE ASSESSEE THROUGHOUT HAS BEEN THAT IT HAS ADVANCED A SUM OF RS.80 LACS TO M/S. D. S. ENTERPRI SES IN DECEMBER 2008 FOR CONSTRUCTING THE RESIDENTIAL HOUS E. ADMITTEDLY, THIS AMOUNT REMAINED WITH THE BUILDER. THE ASSESSEE HAS NOT RAJYAWARDHAN SINGH 10 DEMONSTRATED THAT THE BUILDER HAS UTILIZED THE SUM FOR CONSTRUCTION OF THE HOUSE. THE LD. COUNSEL ADMITTED THE FACT THA T M/S. D.S. ENTERPRISES REFUNDED THIS AMOUNT TO THE ASSESSEE. T HERE IS NO AMBIGUITY IN THE PROVISIONS OF LAW GOVERNING THE DE DUCTION. THE ASSESSEE HAS TO DEMONSTRATE THAT HE HAS CONSTRUCTED A RESIDENTIAL HOUSE WITHIN THE PRESCRIBED PERIOD. ANOTHER REQUIRE MENT OF LAW IS THAT IN CASE THE ASSESSEE HAS NOT PURCHASED A HOUSE PRIOR TO TRANSFER OF THE ORIGINAL ASSET AND ALSO HAS NOT PUR CHASED A HOUSE SUBSEQUENT TO TRANSFER OF THE ORIGINAL ASSET OR CON STRUCTED A RESIDENTIAL HOUSE, POST TRANSFER OF THE ORIGINAL AS SET BEFORE THE DUE DATE OF FILING OF RETURN. IN THAT EVENT THE ASSESSE IS REQUIRED TO DEPOSIT THE AMOUNT IN A SPECIFIED CAPITAL ACCOUNT. THE ASSESSEE IS TRYING TO CLAIM DEDUCTION ON THE GROUND THAT IT HAD HANDED OVER A SUM OF RS.80 LACS IN DECEMBER, 2008. ADMITTEDLY, SU M WAS GIVEN PRIOR TO SALE DEED WAS EXECUTED. IT IS UNDISPUTED T HAT THE SAID SUM WAS NOT UTILIZED FOR THE PURPOSE OF CONSTRUCTION BY M/S. D.S. ENTERPRISES. THE CONTENTION OF THE ASSESSEE IS THAT THE WORK OF CONSTRUCTION WAS CARRIED OUT THROUGH OTHER 80 CONTR ACTORS UNDER THE SUPERVISION OF M/S. D.S. ENTERPRISES. IN THE PR ESENT CASE THE ASSESSEE WAS REQUIRED TO CONSTRUCT A RESIDENTIAL HO USE WITHIN THREE RAJYAWARDHAN SINGH 11 YEARS ON THE DATE OF TRANSFER OF THE ORIGINAL ASSET I.E. 28.01.2009. THE LD. COUNSEL FOR THE ASSESSEE HAS RELIED UPON VA RIOUS CASE LAWS TO SUPPORT OF THE CONTENTION THAT THE ASSESSEE WAS ELIGIBLE FOR DEDUCTION U/S 54F OF THE ACT. 12. WE HAVE PERUSED THE CASE LAWS AS RELIED BY THE LD. COUNSEL FOR THE ASSESSEE. THE LD. COUNSEL HAS PLACED RELIANCE O N THE DECISION RENDERED IN THE CASE OF P.K. DATTA VS. ITO. IN OUR VIEW, THIS IS NOT APPLICABLE OF THE FACT ON THE PRESENT CASE. THIS WA S CASE WHERE EXEMPTION U/S 54 WAS CLAIMED, ON THE GROUND THAT TH E ASSESSEE HAD HANDED OVER SUBSTANTIAL TO CASE LAWS AS RELIED OF THE LD. COUNSEL FOR THE ASSESSEE ARE ON THE ISSUE WHERE THE ASSESSEE HAD DEPOSITED SPECIFIED AMOUNT IN AN EXTENDED PERIOD AN D IN OTHER CASE WHERE THE ASSESSEE HAD HANDED OVER MONEY TO THE BUI LDER AS A SALE CONSIDERATION TO THE FLAT. EVEN, IF A LIBERAL CONST RUCTION IS ADOPTED, IT WAS INCUMBENT UPON THE ASSESSEE THAT THE AMOUNT WAS UTILIZED IN CONSTRUCTION OF HOUSE. MERELY, STATING THAT THE MONEY WAS GIVEN TO A BUILDER FOR THE CONSTRUCTION OF HOUSE WOULD NO T BE SUFFICIENT. THE ASSESSEE HAS TO DEMONSTRATE THAT THE ASSESSEE H ANDED OVER THE POSSESSION OF THE PROPERTY TO THE SAID BUILDER FOR THE PURPOSE OF CONSTRUCTION. IN THE EVENT, IF THE CONTRACTOR FAILS TO CONSTRUCT THE RAJYAWARDHAN SINGH 12 HOUSE WITHIN THE TIME PRESCRIBED DEDUCTION CAN BE A LLOWED. IT IS FURTHER STATED BY THE LD. COUNSEL FOR THE ASSESSEE THAT M/S. D.S. ENTERPRISES HAD APPOINTED VARIOUS PETTY CONTRACTORS AND THE PAYMENT TO THESE PETTY CONTRACTORS WAS MADE SUBSTAN TIALLY IN THE YEAR 2008. IT IS STATED BY THE LD. COUNSEL FOR THE ASSESSEE THAT VARIOUS AGREEMENT WERE EXECUTED BY THE ASSESSEE FRO M 28.02.2008 TO 15.11.2008. VARIOUS AGREEMENTS HAVE BEEN ENCLOSE D AT PAPER BOOK PAGES 80 TO 119. THE ASSESSEE HAS CLAIMED TOTA L CONSTRUCTION COST OF RS.99,01,390/- CERTAIN BILLS ARE ENCLOSED A T PAPER BOOK PAGES 124 TO 131. WE FIND THAT THE ASSESSEE HAD FIL ED AN APPLICATION U/R 46A OF THE INCOME TAX RULES 1962, BEFORE THE LD . CIT(A) THEREBY THE ASSESSEE HAD SUBMITTED THE AFOREMENTION ED AGREEMENT AND VARIOUS SUPPORTING BILLS. HOWEVER, THE LD. CIT( A) IN HIS ORDER AT PARA 14 HAS OBSERVED AS UNDER: 14. HOWEVER THIS OFFICE ISSUED A NOTICE OF ENHANCE MENT TO APPELLANT U/S 251(2) R.W.S. 251(2) OF INCOME TAX AC T ASKING THE APPELLANT TO FURNISH VARIOUS DETAILS, RAISING DOUBT S THAT NO PART OF SUCH CLAIM OF DEDUCTION U/S 54F OF INCOME TAX AC T WAS ELIGIBLE. AFTER RECEIVING VARIOUS DETAILS THROUGH S UBMISSION OF APPELLANT, I COME TO THE CONCLUSION THAT APPELLANT IS NOT ELIGIBLE FOR ANY DEDUCTION U/S 54F OF INCOME TAX ACT, BECAUSE OF FOLLOWING, REASONS :- (A) THE APPELLANT HAS SOLD HIS LAND AT 1, KANADIA ROAD, INDORE TO M/S D. S. ENTERPRISES THROUGH A REGISTERED SALE DEED DATED 28.01.2009. THIS LAND WAS HANDED OVER TO PURCHASER ONLY ON RAJYAWARDHAN SINGH 13 28.01.2009 AS PER PARA 6 OF REGISTERED DEED DATED 2 8.01.2009. AS PER SECTION 2(47)(V) OF INCOME TAX ACT TRANSFER OF PROPERTY IS COMPLETE WHEN POSSESSION IS HANDED OVER AND AMOUNT OF CONSIDERATION IS RECEIVED. HENCE DATE OF AGREEMENT TO SELL SUCH LAND MADE ON 14.12.2007 IS NOT A RELEVANT DATE. THE RELEVANT DATE FOR TRANSFER OF ASSET IS 28.01.2009 BOTH UNDER 'SEC TION 2(47)(V) OF INCOME TAX ACT' AS WELL AS 'SECTION 17 OF THE REGIS TRATION OF PROPERTY ACT. NOW IF WE SEE THE DATE OF PURCHASE OF LAND ON WHICH NEW RESIDENTIAL HOUSE WAS CONSTRUCTED, THAT DATE WA S 18.12.2007. UNDER THE PROVISIONS OF SECTION 54F OF INCOME TAX A CT, APPELLANT CAN PURCHASE OR CONSTRUCT NEW HOUSE/NEW LAND WITHIN A PERIOD OF 'ONE YEAR BEFORE 'SALE OF LAND. BUT AS DESCRIBED AB OVE DATE OF SALE OF LAND WAS 28.01.2009, WHILE DATE OF PURCHASE OF L AND FOR NEW, HOUSE WAS 18.12.2007, I.E., PRIOR TO 28.01.2008. HE NCE BENEFIT OF SECTION 54F WILL NOT BE AVAILABLE ON THIS NEW ASSET AS IT WAS PURCHASED BEYOND ONE YEAR PRIOR TO DATE OF SALE. (B) THE CLAIM U/S 54F OF INCOME TAX ACT IS ALSO NO T ADMISSIBLE TO APPELLANT AS APPELLANT COULD NOT PROVIDE ANY PRO OF OF UTILIZATION OF AMOUNT OF SALE CONSIDERATION, IN CONSTRUCTION OF NEW HOUSE. TIME AND AGAIN APPELLANT REPEATED ONLY ONE SUBMISSI ON THAT ADVANCE OF RS. 80 LAKHS WAS GIVEN TO M/S D.S. ENTER PRISES, THE SAME PERSON TO WHOM APPELLANT SOLD HIS LAND. BUT DE SPITE ASKING SPECIFIC QUESTIONS THROUGH ORDER SHEET DATED 09.10. 2013 U/S 251(2) OF THE INCOME TAX ACT, AS TO WHEN WAS THIS AMOUNT G IVEN AND TO WHAT USE/UTILIZATION THIS AMOUNT WAS PUT BY M/S D. S. ENTERPRISES, APPELLANT FAILED TO PROVIDE BOTH THE DETAILS. IF TH E AMOUNT OF RS. 80 LAKH WAS MERELY TRANSFERRED IN THE BANK ACCOUNT OF M/S D. S. ENTERPRISES AND IT WAS MERELY LYING THERE IN THEIR BANK ACCOUNT, THAT COULD NOT BE CONSIDERED AS UTILIZATION OF AMOU NT, TOWARDS CONSTRUCTION OF NEW HOUSE. AS APPELLANT FAILED TO A DDUCE ANY PROOF THAT SUCH AMOUNT WAS UTILIZED FOR CONSTRUCTION OF N EW HOUSE EVEN UPTO DUE DATE FOR FILING OF RETURN FOR AY 2009-10, THEREFORE CASE LAWS REFERRED BY APPELLANT NAMELY MR. NIPUN MEHROGR A (2008) 113 TTJ 223 (BANG.) AND RAJESH KUMAR JALAN (2006) 2 86 ITR 274 (GAU.) WILL APPLY AGAINST APPELLANT. SINCE SECTION 54F IS A RELIEF PROVISION, IT IS FOR THE ASSESSEE TO ESTABLISH HIS RIGHT TO SUCH RELIEF BY ADDUCING EVIDENCE FOR THE SAME AS HELD IN CASE O F PAWAN KUMAR GARG (2009) 311 ITR 397 (P&H). (C) DESPITE ASKING LEDGER ACCOUNT OF APPELLANT IN BOOKS OF M/S D.S. RAJYAWARDHAN SINGH 14 ENTERPRISES FOR AY 2009-10 APPELLANT FAILED TO FURN ISH THE SAME. THEY HAVE FURNISHED SUCH LEDGER ACCOUNT ONLY FOR AY 2012-13, WHERE OPENING BALANCE IS SHOWN AT RS. 90 LAKH. CLEA RLY THE AMOUNT GIVEN TO THEM WAS NOT USED TILL AY 2012-13. (D) THE FIRST ELECTRIC BILL SUBMITTED WAS OF NOV 2 009. APPELLANT ALSO FAILED TO FURNISH ANY BILLS OF PURCHASE OF CON STRUCTION MATERIAL LIKE CEMENT/GITTI/BAJARI/IRON RODS ETC. OR BILLS FOR LABOUR EXPENSE. APPELLANT ALSO FAILED TO FURNISH COMPLETIO N CERTIFICATE OF LOCAL AUTHORITY AND PROOF OF MUNICIPAL TAX BEING CH ARGED AS REQUIRED BY BOARD CIRCULAR NO.471, DATED 15 TH OCTOBER 1986 162 ITR(ST.) 41. 13. THE LD. CIT(A) HAS NOT CONSIDERED THE APPLICATI ON FILED UNDER RULE 46A OF THE INCOME TAX RULES, 1962. WE, THEREFO RE, CONSIDERING THE FACT THAT UTILIZATION OF THE FUND GOES TO THE R OOT OF THE ISSUE FOR THE ELIGIBILITY FOR EXEMPTION U/S 54F OF THE ACT. W E DEEM IT APPROPRIATE TO RESTORE THIS ISSUE TO THE FILE OF TH E LD. CIT(A) TO CONSIDER THE APPLICATION FILED BY THE ASSESSEE FOR FURNISHING ADDITIONAL EVIDENCE. IN CASE THE LD. CIT(A) ALLOWS THE APPEAL FOR ADMISSION OF ADDITIONAL EVIDENCE. HE WOULD DECIDE T HE ISSUE AFTER CALLING REMAND REPORT FROM THE CONCERNED AO IN RESP ECT OF THE AGREEMENT AND THE OTHER SUPPORTING BILLS FURNISHED BY THE ASSESSEE. THUS, GROUND NOS. 1 & 2 OF THE ASSESSES APPEAL ARE ALLOWED FOR STATISTICAL PURPOSES. 14. GROUND NO. 3 OF THE ASSESSEES APPEAL READS AS UNDER: RAJYAWARDHAN SINGH 15 3. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LEARNED CIT, ERRED IN ASSESSING LONG TERM CAPITAL GAIN IN T HE ASSESSMENT. YEAR 2009-10 INSTEAD OF ASSESSMENT YEAR 2012-13. 15. WE FIND THAT THIS GROUND WAS ALSO RAISED BY THE ASSESSEE BEFORE THE LD. CIT(A). HOWEVER, THE LD. CIT(A) HAS NOT ADJ UDICATED THIS GROUND. THEREFORE, WE DEEM IT PROPER IN THE INTERES T OF JUSTICE TO RESTORE THIS ISSUE TO THE FILE OF THE LD. CIT(A) TO DECIDE THE SAME. 16. GROUND NO.4 IS AGAINST ENHANCING THE INCOME U/S . 251(1) R/W WITH SECTION 251(2) OF THE I.T. ACT. 17. THIS GROUND IS RELATED TO GROUND NOS. 1 & 2, TH EREFORE, THE ORDER OF THE LD. CIT(A) IS SET ASIDE ON THIS GROUND AND R ESTORED TO HIM FOR AFRESH DECISION. 18. GROUND NO.5 IS AGAINST IN HOLDING THE PROVISION OF SECTION 50C. 19. THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE LD. CIT(A) WAS NOT JUSTIFIED INVOKING THE PROVISION OF SECTION 50C. THE LD. COUNSEL REITERATED THE SUBMISSION AS MADE BEFORE TH E LD. CIT(A). THE LD. COUNSEL SUBMITTED THAT AS PER THE COLLECTOR GUIDELINES VALUE FOR THE YEAR 2008-09 WAS RS. 13,20,00,000/- @ RS.25 00 PER SQ.MT. WHEREAS THE TRANSACTION VALUE WAS RS.12,39,95,000/- (6.21 TIMES OF GUIDELINES VALUE). HE SUBMITTED, THEREFORE, THE LD. CIT(A) WAS NOT RAJYAWARDHAN SINGH 16 JUSTIFIED TAKING THE VALUE AND THEREBY ENHANCING IN COME OF THE ASSESSEE. ON THE CONTRARY LD. DR OPPOSED THE SUBMIS SIONS OF THE ASSESSEE. 20. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED MATERIAL AVAILABLE ON RECORD. THERE IS NO DISPUTE WITH REGAR D TO THE FACT THAT IN CASE THE PROPERTY IS SOLD AT A HIGHER VALUE, THE N THE VALUE ADOPTED BY THE STAMP VALUATION AUTHORITY. IF THE VA LUE ADOPTED BY THE STAMP VALUATION AUTHORITY IS NOT CHALLENGED BY THE ASSESSEE BEFORE THE AO IN THAT EVENT THE VALUE ADOPTED AS PE R STAMP VALUATION AUTHORITY IS TO BE CONFIRMED. IN THE PRES ENT CASE THE ASSESSEE IS CHALLENGING VALUE ADOPTED BY THE LD. CI T(A). WE, THEREFORE, DEEM IT PROPER TO RESTORE TO THE FILE OF THE LD. CIT(A) TO VERIFY THE CONTENTION OF THE ASSESSEE THAT THE SALE CONSIDERATION WAS HIGHER THAN THE VALUATION ADOPTED BY THE STAMP VALU ATION AUTHORITY. 21. GROUND NO.6 IS AGAINST IN MAKING AN ADDITION OF RS.28.73 LACS U/S 68 OF THE ACT. 22. THE LD. COUNSEL FOR THE ASSESSEE REITERATED THE SUBMISSION AS MADE BEFORE THE LD. CIT(A). ON THE CONTRARY THE LD. DR OPPOSED THE SUBMISSIONS AND SUBMITTED THAT THE LD. CIT(A) HAS C ONSIDERED THE RAJYAWARDHAN SINGH 17 SUBMISSIONS OF THE ASSESSEE AND HAS GIVEN FINDING O N FACT WHICH IS NOT REBUTTED BY THE ASSESSEE. 23. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED MATERIAL AVAILABLE ON RECORD. THE LD. CIT(A) HAS DECIDED THE ISSUE AS UNDER: 17. BESIDES THIS CERTAIN CASH DEPOSITS WERE SEEN I N THE BANK ACCOUNT OF APPELLANT DURING THE YEAR AS DESCRIBED BELOW :- (A) CASH DEPOSITS OF RS. 20 LAKH, OUT OF WHICH RS. 10 LAKH WAS DEPOSITED ON 22.04.2008 AND ANOTHER RS. 10 LAKH WAS DEPOSITED ON 08.05.2008. ACCORDING TO APPELLANT THEY FURNISHED EXPLANATION ON THIS ISSUE BEFORE AO. I HAVE GONE THROUGH SUBMISSION MADE BEFORE AO IN WHICH APPELLANT HAS SUBMITTED CONFIRMATION ON PLAIN PAPER OF SOME PERSONS WHO HAVE STATED THAT THEY PURCHASED OLD MALBA PRODUCED ON BREAKING OF THE NARSINGARH KOTHI AND IN LIEU OF THAT THEY GAVE DIFFERENT AMOUNTS IN CASH TO APPELLANT. APPELLANT WAS ASKED TO PRODUCE THESE PERSONS. WHEN THEY WERE PRODUCED BEFORE UNDERSIGNED, I ASKED ONE SHRI. SANJAY SINGH, AS TO FROM WHERE HE GAVE SUCH CASH OF RS. 4,00,000/- TO APPELLANT. HE EXPLAINED T HAT HE DID NOT GIVE SUCH CASH OF RS. 4 LAKH TO APPELLAN T, BUT ENTIRE CASH OF RS. 20 LAKH WAS GIVEN BY ONE SHR I. SANJAY BADJATYA. THIS DEPOSITION OF SHRI. SANJAY SINGH IN PRESENCE OF SHRI UNNI, CA IS DULY RECORDED IN ORDER SHEET NOTING DATED 11.02.2014 AND DULY SIGNED BY BOTH OF THEM. THIS CLEARLY PROVES THAT APPELLANT FILED WRONG CONFIRMATION BEFORE AO OF VARIOUS PARTI ES INCLUDING THAT OF SHRI. SANJAY SINGH, AS NONE OF TH ESE PARTIES GAVE ANY CASH TO APPELLANT. AT THIS POINT W HEN APPELLANT'S CLAIM PROVED WRONG AND SUCH PERSONS DID NOT GIVE CASH TO APPELLANT, ONUS SHIFTED ON APPELLA NT TO GIVE NAME AND CONFIRMATION OF PERSON WHO GAVE SUCH CASH AND BRING PROOF OF HIS CREDITWORTHINESS O N RECORD, BUT APPELLANT FAILED TO BRING ANY SUCH PROO F ON RAJYAWARDHAN SINGH 18 RECORD AND ONLY CONTENDED THAT SUCH PERSON HAS EXPIRED AND HIS WIFE BEING A HOMEMAKER AND SON BEING MINOR, THEY COULD NOT ATTEND. INSTEAD HE AGAI N FURNISHED AN AFFIDAVIT OF SHRI. SANJAY SINGH, WHICH DOES NOT HELP APPELLANT'S CASE BECAUSE ON THE ONE HAND THERE ARE TWO CONTRADICTORY CERTIFICATES ISSUE D BY SHRI. SANJAY SINGH WHEREBY IN HIS LETTER FURNISH ED BEFORE AO HE IS SAYING THAT HE GAVE SUCH CASH TO APPELLANT AND NOW BEFORE UNDERSIGNED HE IS FILING A N AFFIDAVIT STATING THAT SOMEBODY ELSE GAVE SUCH CASH . BOTH THE EVIDENCES ARE CONTRADICTORY AND CANNOT BE BELIEVED. SECONDLY IF SOMEBODY ELSE GAVE SUCH CASH TO APPELLANT IN LIEU OF OLD MALBA, THEN APPELLANT SHOULD HAVE STATED HIS NAME IN FIRST PLACE WHICH WA S NOT DONE. SECONDLY AND MORE IMPORTANTLY THE APPELLANT COMPLETELY FAILED TO BRING EITHER CONFIRMATION OF SO CALLED BUYER OF OLD MALBA LATE S HRI. SANJAY BADJATYA OR HIS WIFE OR ANY PROOF OF HIS CREDITWORTHINESS TO GIVE SUCH CASH OF RS. 20 LAKH. IN VIEW OF THE SAME, THE CREDIT OF RS. 20 LAKHS IN BAN K ACCOUNT OF APPELLANT REMAINED UNEXPLAINED AND THE SAME IS ADDED IN HIS HANDS U / S 68 OF THE INCOME TAX ACT. (B) CASH OF RS. 5,80,000/- WAS DEPOSITED ON 11.11.2008 IN BANK ACCOUNT OF APPELLANT. APPELLANT EXPLAINED THAT IT WAS OUT OF SALE OF VEHICLE (TATA SAFARI MP-09CA-6793) SOLD IN CASH FOR RS. 5,50,000/- (AS PER CONFIRMATION DATED NIL) TO ONE S HRI. AMIT KALWANI OF SIWANI WHICH WAS EARLIER SHOWN AS SOLD TO ONE SHRI. SACHIN WADEKAR. APPELLANT FAILED TO FURNISH HIS VALID CONFIRMATION LETTER AS THE CONFIRMATION LETTER FURNISHED IN UNDATED AND IN PLA CE OF SIGNATURE ONLY HIS NAME IS WRITTEN. APPELLANT AL SO FAILED TO ESTABLISH HIS CREDITWORTHINESS INCLUDING HIS SOURCE OF INCOME, COPY OF HIS INCOME TAX RETURN AND COPY OF HIS BANK STATEMENT TO EXPLAIN THE SOURCE OF CASH OF RS. 5,50,000/-. SECONDLY THE AMOUNT OF CASH DIFFER I.E. RS. 5,50,000/- VIS RS.5,80,000/- AND EV EN THE DATES DIFFER I.E. DATE OF DEPOSIT OF CASH IS RAJYAWARDHAN SINGH 19 11.11.2008 WHILE DATE OF SALE OF CAR AS PER ANNEXUR E B OF SUBMISSION DATED 24.02.2014 IS 17.11.2008. HENCE THE TWO DO NOT MATCH. AS A RESULT APPELLANT FAILED TO EXPLAIN CASH DEPOSIT OF RS. 5,80,000/- ON 11.11.2008 IN HIS BANK ACCOUNT AND THE SAME IS ADDED IN HIS HANDS U / S 68 OF THE INCOME TAX ACT. (C) CASH DEPOSIT OF RS. 2,93,000/- IS SEEN IN BANK ACCOUNT OF APPELLANT ON 28.11.2008. APPELLANT EXPLAINED THAT THIS WAS OUT OF SALE PROCEEDS OF OLD FURNITURE. AS A PROOF THEY FURNISHED A BILL FROM AY AN FURNITURE CENTRE DATED 26.11.2002 STATING THAT OLD FURNITURE WAS PURCHASED BY HIM FOR RS. 3,10,000/-. THE DATE OF BILL ESPECIALLY THE YEAR 2002 MAKE THE BILL IRRELEVANT FOR THE YEAR UNDER CONSIDERATION FY 2008 - 09. BESIDES THE AMOUNT DOES NOT TALLY. THE APPELLAN T WAS ASKED TO PRODUCE SUCH PERSON. IN RESPONSE TO THAT THEY PRODUCED A PERSON NAMED SADHIKBHAI ANSARI OF NAYAPURA ON 26.02.2014. WHEN I ASKED HIM REGARDING SOURCE OF SUCH CASH PAYMENT OF RS. 3.10 LAKH, HE ADMITTED BEFORE ME AND BEFORE SHRI. UNNI, CA THAT HE WAS MERELY A BHANGARWALA AND DO NOT HAVE CAPACITY TO PAY SUCH AMOUNT. THAT STATEMENT OF SHRI. SADIKBHAI ANSARI PROVES THE BILL OF 'AYAN FURNITURE CENTRE' SUBMITTED EARLIER BY APPELLANT, TO BE FALSE. THEREAFTER HE WAS ASKED ABO UT SOURCE OF SUCH CASH. HE SAID THAT HE ONLY GAVE RS. 50,000/- OUT OF THIS, BUT EVEN FAILED TO PROVIDE SOURCE OF SUCH CASH, AS HE WAS PERSON OF NO MEANS. HE CLAIMED THAT BALANCE CASH WAS GIVEN BY 5 OTHER PERSONS, BUT FAILED TO GIVE NAMES AND ADDRESSES OF THOSE 5 PERSONS. AS A RESULT, APPELLANT FAILED TO EXPLAIN SOURCE OF CASH DEPOSIT OF RS. 2,93,000/- DEPOSITED ON 28.11.2008 AND THE SAME IS ADDED IN HIS HANDS IS] S 68 OF THE INCOME TAX ACT. FOR ENHANCEMENT OF INCOME BY RS. 28.73 LAKHS U/S 251(1) R.W.S. 251(2) OF INCOME TAX ACT, ON THE ISSU E RAISED BY AO BUT NOT PROPERLY EXAMINED BY HIM EVEN WHEN FALSE ASSERTIONS WERE FILED BEFORE HIM, RELIAN CE IS RAJYAWARDHAN SINGH 20 PLACED ON THE DECISIONS MENTIONED IN PARA 15 OF THI S ORDER. THE ABOVE FINDING ON FACT IS NOT CONTROVERTED BY TH E ASSESSEE WHILE PLACING ANY CONTRARY MATERIAL ON RECORD. WE, THEREFORE DO NOT SEE ANY REASON TO INTERFERE IN THE FINDING OF THE L D. CIT(A) ON THIS ISSUE. GROUND NO.6 OF THE ASSESSEES APPEAL IS DISM ISSED. 24. GROUND NO.7 IS GENERAL IN NATURE NEED NOT SEPAR ATE ADJUDICATION. 25. IN THE RESULT, THE APPEAL OF THE ASSESSEE IN ITA NO.379/IND/2014 IS PARTLY ALLOWED FOR STATISTICAL P URPOSES. ORDER WAS PRONOUNCED IN THE OPEN COURT ON 23.03.2 018. SD/- (MANISH BORAD) SD/- (KUL BHARAT) A CCOUNTANT MEMBER JUDICIALMEMBER INDORE; DATED : 23/ 03/2018 CTX? P.S/. . . COPY TO: ASSESSEE/AO/PR. CIT/ CIT (A)/ITAT (DR)/GUA RD FILE. BY ORDER PRIVATE SECRETARY/DDO, INDORE