SHRI SUKHRAM MUKATI, Indore V. The ITO wd-3(3), Indore

ITA 409/IND/2014

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 2194 (ITAT-INDORE)
• Duration Of Justice: 3 year(s) 2 month(s) 30 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-08-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 26-04-2015
• Assessment Year: 2008-2009
• Appeal Filed On: 23-05-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: R P MOURAYA
• Assessee Lawyers: SHAILENDRA SINGH SOLANKI
• Keywords: Unexplained cash credit; Capital asset; Question of law
• Section: 54B; 54F; 68; 69; 54; 6; 139

Judgement Text

SHRI SUKHRAM MUKATI & SHRI VISHNU MUKATI V. ITO 3(3) I NDORE/ I.T.A. NO. 409&410/IND/2014/A.Y.08-09 P AGE 1 OF 26 , , IN THE INCOME TAX APPELLATE TRIBUNAL, INDORE BENCH, INDORE .. , ..!, #$ # % BEFORE SHRI C.M.GARG, JUDICIAL MEMBER AND SHRI O.P.MEENA, ACCOUNTANT MEMBER .../ I.T.A NO.409&410/IND/2014 ! '(/ ASSESSMENT YEAR : 2008-09 1.SHRI SUKHRAM MUKATI 83/3, KHATIPURA, SUKHILA, INDORE PAN: CGVPS1260D 2. SHRI VISHNU MUKATI 83/3, KHATIPURA, SUKHILA, INDORE PAN: AYPPM 2047Q V. 1. INCOME TAX OFFICER 3(3) INDORE 2. INCOME TAX OFFICER 3(3) INDORE ) /APPELLANT *+) /RESPONDENT ) , # /APPELLANT BY SHRI SHAILENDRA SINGH SOLANKI, CA *+) , # /RESPONDENT BY SHRI R.P. MOURAYA, JCIT - !'. , $/ DATE OF HEARING 09-08-2017 /012( , $ /DATE OF PRONOUNCEMENT 22-08-2017 #3 /O R D E R PER O.P.MEENA, ACCOUTANT MEMBER 1. THESE TWO APPEAL FILED BY TWO SEPARATE ASSESSEE`S A ND ARE DIRECTED AGAINST THE SEPARATE ORDERS OF LEARNE D COMMISSIONER OF INCOME-TAX (APPEALS)-I, INDORE [IN SHORT CIT(A)] DATED 14-02-2014 PERTAINING TO ASSESSMENT Y EAR SHRI SUKHRAM MUKATI & SHRI VISHNU MUKATI V. ITO 3(3) I NDORE/ I.T.A. NO. 409&410/IND/2014/A.Y.08-09 P AGE 2 OF 26 2008-09, WHICH IN TURN HAS ARISEN FROM THE SEPARATE ORDERS DATED 30-12-2010 PASSED BY THE ITO 3(3) INDO RE (IN SHORT THE AO ) UNDER SECTION 143 (3) OF INCOME TA X ACT ,1961 ( IN SHORT THE ACT). SHRI SUKHRAM MUKATI IN I.T.A. NO. 409/IND/2014 FOR THE ASSESSMENT YEAR 2008-09, H AS TAKEN FOLLOWING REVISED GROUNDS OF APPEAL:- 1.THAT THE LEARNED CIT (A) ERRED IN NOT ALLOWING DEDUCTION CLAIMED UNDER SECTION 54B THAT BY HOLDING THAT LANDS ARE NOT REGISTERED IN ASSESSEE`S NAME. THE NON ALLOWANCE SO MADE BEING ILLEGAL AND WRONG, THE REQUIRE TO BE NOW ALLOWED. 2. THAT THE LEARNED CIT (A) ERRED IN MAKING ADDITION OF RS. 58, 72,000 UNDER SECTION 68 READ WITH SECTION 69A WITHOUT VERIFYING THE FACTS OF THE CASE. THE ADDITION SO MADE BEING ILLEGAL AND WRONG, THE SAME REQUIRED TO BE DELETED. 3. THAT THE LEARNED CIT (A) ERRED IN MAKING ADDITION OF RS. 8, 80,000 UNDER SECTION 69 WITHOUT PINPOINTING ANY UNEXPLAINED DEPOSIT. THE ADDITION SO MADE BEING ILLEGAL AND WRONG, THE SAME REQUIRED TO BE DELETED. 2. SHRI VISHNU MUKATI IN I.T.A. NO. 410/IND/2014 FOR THE ASSESSMENT YEAR 2008-09, HAS TAKEN FOLLOWING RE VISED GROUNDS OF APPEAL:- SHRI SUKHRAM MUKATI & SHRI VISHNU MUKATI V. ITO 3(3) I NDORE/ I.T.A. NO. 409&410/IND/2014/A.Y.08-09 P AGE 3 OF 26 1.THAT THE LEARNED CIT (A) ERRED IN NOT ALLOWING DEDUCTION CLAIMED UNDER SECTION 54B THAT BY HOLDING THAT LANDS ARE NOT REGISTERED IN ASSESSEE`S NAME. THE NON ALLOWANCE SO MADE BEING ILLEGAL AND WRONG, THE REQUIRE TO BE NOW ALLOWED. 2. THAT THE LEARNED CIT (A) ERRED IN MAKING ADDITION OF RS. 56,00,000 UNDER SECTION 68 READ WITH SECTION 69A WITHOUT VERIFYING THE FACTS OF THE CASE. THE ADDITION SO MADE BEING ILLEGAL AND WRONG, THE SAME REQUIRED TO BE DELETED. 3. THAT THE LEARNED CIT (A) ERRED IN MAKING ADDITION OF RS. 27, 66,000 UNDER SECTION 69 WITHOUT PINPOINTING ANY UNEXPLAINED DEPOSIT. THE ADDITION SO MADE BEING ILLEGAL AND WRONG, THE SAME REQUIRED TO BE DELETED. 3. SINCE, FACTS IN BOTH APPEALS ARE IDENTICAL BEING FATHER AND SON, BOTH APPEALS WERE HEARD TOGETHER AN D BEING DISPOSED-OF BY COMMON ORDER FOR THE SAKE OF BREVITY AND CONVENIENCE. WE ARE CONSIDERING THE FAC TS IN THE CASE OF SUKHRAM MUKATI AS LEAD CASE, THE FINDINGS AND OUR DECISION OF WHICH WOULD MUTATIS MUTANDIS APPLY TO THE CASE OF VISHNU MUKATI. SHRI SUKHRAM MUKATI & SHRI VISHNU MUKATI V. ITO 3(3) I NDORE/ I.T.A. NO. 409&410/IND/2014/A.Y.08-09 P AGE 4 OF 26 4. GROUND NO. 1 RELATES TO DENYING DEDUCTION U/S. 54B OF THE ACT BY THE CIT (A). 5. SUCCINCTLY, FACTS AS CULLED OUT FROM THE ORDERS OF LOWER AUTHORITIES ARE THAT THE ASSESSEE IS AN OLD UNEDUCATED FARMER ENGAGED IN AGRICULTURAL ACTIVITIE S FOR YEARS ALONG WITH HIS FAMILY MEMBERS. THE ASSESSEE H AS FILED HIS RETURN OF INCOME ON MARCH 6, 2009 DECLARI NG TOTAL INCOME OF RS.46,845 WITH AGRICULTURAL INCOME OF RS. 1,16,500. THERE WAS AN AIR INFORMATION RECEIVED BY THE AO SHOWING THAT THE ASSESSEE HAD MADE CASH DEPOSITS OF RS.68,30,000 IN HIS BANK ACCOUNT WITH SBI INDORE. H ENCE, CASE WAS SELECTED UNDER SCRUTINY. DURING THE ASSESS MENT YEAR UNDER CONSIDERATION, THE ASSESSEE HAS SOLD HIS ANCESTRAL AGRICULTURAL LAND (HELD FOR MORE THAN 30 YEARS) ADMEASURING 0.506 HECTARES SITUATED AT KHASRA NO. 30/5, 32/1 & 33/1 SITUATED AT VILLAGE KUMEDI, TEHSIL SANW ER AND DISTRICT INDORE TO M/S. MEHDID DEVELOPERS PVT. LTD ., RING ROAD INDORE, THROUGH ITS DIRECTOR SHRI SAIFI RAJA, FOR A TOTAL CONSIDERATION OF RS. 56,71,000 OUT OF WHICH RS. 8, 21, 000 RECEIVED BY CHEQUES, DEPOSITED IN BANK ACCOUNT ON SEPTEMBER 8, 2007, AND CLEARED ON SEPTEMBER 11, 200 7, SHRI SUKHRAM MUKATI & SHRI VISHNU MUKATI V. ITO 3(3) I NDORE/ I.T.A. NO. 409&410/IND/2014/A.Y.08-09 P AGE 5 OF 26 AND RS. 48,50,000 RECEIVED BY CASH AND DEPOSITED IN BANK ACCOUNT ON SEPTEMBER 6, 2007. HOWEVER, THE SALE DEE D REGISTERED ON SEPTEMBER 6, 2007, (PB-22 TO 33) SHOW ED SALE CONSIDERATION OF RS. 8,21,000 ONLY AND THERE W AS NO MENTION OF ANY CASH PAYMENTS, THEREFORE, THE AO TRE ATED THE SAID CASH DEPOSIT AS UNEXPLAINED AND MADE ADDIT ION ACCORDINGLY. 6. BEING, AGGRIEVED, THE ASSESSEE FILED AN APPEAL BEFO RE THE LD. CIT (A), WHEREIN IT WAS CLAIMED THAT THE AM OUNT OF CASH OF RS. 48,50,000 WAS RECEIVED ON ACCOUNT OF S ALE OF AGRICULTURAL LAND AND CLAIMED THE SAME AS DEDUCTION UNDER SECTION 54B OF THE ACT ON THE GROUND THAT LONG-TERM CAPITAL GAIN SO EARNED AT RS. 47, 28,001 (PB-50) HAS BEEN INVESTED IN PURCHASE OF AGRICULTURAL LAND IN THE NA ME OF HIS WIFE SMT. SHYAMU BAI (RS.33,32,026), SON SHRI JITEN DRA (RS.3,14,250) AND SON`S WIFE SMT. KOMAL (DAUGHTER I N LAW) COPY OF PURCHASE DEEDS (PB-51 TO 123) FILED. HOWEVE R, CIT (A), RELYING ON THE DECISIONS IN THE CASE OF KALYA [2012] 251 CTR 174 (RAJ), JAI NARAIN [2008] 306 ITR 335 (P&H) AND GNATA VIJAY LAXMI [2013] 37 TAXMANN.COM 263 (VISHAKHAPATNAM-TRIB) HAS DENIED THE DEDUCTION UNDE R SHRI SUKHRAM MUKATI & SHRI VISHNU MUKATI V. ITO 3(3) I NDORE/ I.T.A. NO. 409&410/IND/2014/A.Y.08-09 P AGE 6 OF 26 SECTION 54B ON THE GROUND THAT NAME OF THE APPELLAN T DOES NOT APPEAR IN PURCHASE DEEDS OF NEW AGRICULTURAL LA NDS. ACCORDINGLY, THE AO WAS DIRECTED TO WORK OUT CAPITA L GAIN ON ENTIRE AMOUNT OF SALE CONSIDERATION OF RS. 56,71 ,000 AND NO DEDUCTION UNDER SECTION 54B WOULD BE AVAILAB LE. 7. BEING, AGGRIEVED THE ASSESSEE FILED THIS APPEAL BEF ORE THE TRIBUNAL. THE LD. COUNSEL FOR THE ASSESSEE SUBM ITTED THAT THE LEARNED CIT (A) HAS ACCEPTED THAT CASH REC EIPT OF RS. 48,50,000 AND CHEQUE RECEIPTS OF RS. 8,21,000 A RE PART OF SALE CONSIDERATION IN RESPECT OF SALE OF AGRICUL TURAL LAND AND TREATED THE SAME AS LONG-TERM CAPITAL GAIN EARN ED FROM SALE OF AGRICULTURAL LAND, AND DELETED THE ADDITION OF RS. 48,50,000 MADE BY THE AO AS UNEXPLAINED CASH CREDIT THOUGH HE HAS NOT MENTIONED IT IN HIS ORDER IN CLEA R TERMS. THE LD. CIT (A) HAS DENIED THE DEDUCTION UNDER SECT ION 54B ON THE GROUND THAT NEW AGRICULTURAL LAND PURCHA SED IS NOT IN THE NAME OF THE ASSESSEE. THE LEARNED COUNSE L FOR THE ASSESSEE RELYING ON THE DECISIONS IN THE CASE OF CIT V. KAMAL WAHAL [2013] 351 ITR 4(DEL); [2013] 214 TAXMA N 287(DEL); [2013] 30 TAXMANN.COM 34(DEL), ACIT V. DE EPAK KUMAR DHAWAN [I.T.A. NO. 150/IND/2013 A.Y. 08-09- SHRI SUKHRAM MUKATI & SHRI VISHNU MUKATI V. ITO 3(3) I NDORE/ I.T.A. NO. 409&410/IND/2014/A.Y.08-09 P AGE 7 OF 26 INDORE-TRIB] (PB54), GHANSHYAM MALI V. ITO [I.T.A. NO. 547/IND/2013 A.Y. 08-09 DATED 10.08.2015-INDORE TRIBUNAL] (PB60) AND PR. CIT V. BALMUKUND MEENA [ITA118OF 2016 DTD. 16.02.2017] (MP-HIGH COURT) CON TEND THAT THE ISSUE IS COVERED IN FAVOUR OF THE ASSESSEE HENCE, DEDUCTION UNDER SECTION 54B IS ALLOWABLE EVEN IF TH E INVESTMENT IN NEW ASSETS IS MADE IN THE NAME OF WIF E, SON AND CLOSE RELATIVE, SO LONG THE NATURE OF LAND SOLD AND PURCHASE MADE IS SAME. 8. WE HAVE HEARD THE RIVAL SUBMISSIONS OF BOTH THE PARTIES AND PERUSED THE MATERIAL AVAILABLE ON RECOR D. WE FIND THAT THE ASSESSEE HAD SOLD AN ANCESTRAL AGRICU LTURAL LAND FROM TOTAL CONSIDERATION OF RS. 56,71,000, AGA INST WHICH RS. 48,50,000 WERE RECEIVED IN CASH. THE AO T REATED THE SAME AS UNEXPLAINED, HOWEVER, THE LD. CIT (A) T REATED IT PART OF SALE CONSIDERATION THOUGH NOT IN CLEAR T ERMS AND DIRECTED THE AO TO COMPUTE LONG-TERM CAPITAL GAIN O N RS. 56,71,000. WE ALSO OBSERVE THAT THE ONLY SOURCE OF INCOME OF THE ASSESSEE IS FROM AGRICULTURAL INCOME AND THE RE IS APPARENTLY NO OTHER SOURCE OF INCOME; FROM WHICH TH E ASSESSEE CAN EARN SO MUCH AMOUNT IN CASH AND THAT T OO IN SHRI SUKHRAM MUKATI & SHRI VISHNU MUKATI V. ITO 3(3) I NDORE/ I.T.A. NO. 409&410/IND/2014/A.Y.08-09 P AGE 8 OF 26 ONE GO. WE ALSO FIND THAT THE SALE OF ANCESTRAL AGR ICULTURAL LAND WAS EFFECTED ON SEPTEMBER06,2007 (PB22) AND CA SH OF RS. 48.50 LAKHS WAS DEPOSITED ON SEPTEMBER 06,2007 ONLY ALONG WITH CHEQUE AMOUNT OF RS. 8.21 DEPOSITED ON SEPTEMBER 07, 2007. THUS, THERE IS CIRCUMSTANTIAL EVIDENCE, WHICH LEAN IN FAVOUR OF THE ASSESSEE THAT ON THE DAY OF SALE OF AGRICULTURAL LAND, THE ASSESSEE HAD RECEIVED CASH AND CHEQUE OF RS. 56.71 LAKHS. HENCE, WE HOLD THE CASH DEPOSIT OF RS. 48.50 LAKH AS EXPLAINED WHICH T HE LD. CIT (A) HAS ALSO HELD LIKE SUCH AND BY DIRECTING TH E AO TO TREAT IT AS LONG-TERM CAPITAL GAIN EARNED ON SALE O F AGRICULTURAL LAND UNDER CONSIDERATION. NO APPEAL ON THIS ISSUE IS FILED BY THE DEPARTMENT, MEANING THEREBY T HAT THE SOURCE OF CASH DEPOSIT OF RS. 48.50 LAKHS; STANDS EXPLAINED/ACCEPTED. WITH REGARD TO CLAIM OF DEDUCTI ON UNDER SECTION 54B, WE FIND THAT THE CIT (A) HAS NOT ALLOWED THIS ON THE GROUND THAT NEW LAND WAS NOT PURCHASED IN THE NAME OF THE ASSESSEE, BUT IN THE NAME OF HIS WIFE, SON AND SONS WIFE. HOWEVER, ADMITTEDLY FACT IS THAT THE NE W LAND WAS PURCHASED DURING THE PERIOD 12.10.2007 TO 30.03.2008, I.E. WITHIN THE STIPULATED TIME PRESCRI BED SHRI SUKHRAM MUKATI & SHRI VISHNU MUKATI V. ITO 3(3) I NDORE/ I.T.A. NO. 409&410/IND/2014/A.Y.08-09 P AGE 9 OF 26 UNDER SECTION 54B OF THE ACT. HOWEVER, THE ISSUE RE VOLVES AROUND THE ALLOWABILITY OF DEDUCTION UNDER SECTION 54B OF THE ACT. THE CIT (A) HAS DENIED THE DEDUCTION AS TH E NEW AGRICULTURAL LAND IN QUESTION WAS PURCHASED IN THE NAME OF WIFE, SON AND DAUGHTER IN LAW. WE FIND THAT THE WIF E OF THE ASSESSEE, SON AND DAUGHTER IN LAW ARE RESIDING WITH THE ASSESSEE AND HAVE AND ALL ARE ENGAGED IN AGRICULTUR AL OPERATIONS. THE LAND SOLD WAS ANCESTRAL AGRICULTURA L LAND. FAMILY IS USING THE NEW AGRICULTURAL LAND PURCHASED . THE ONLY DISPUTE RAISED BY THE REVENUE THAT LAND WAS NO T REGISTERED IN THE NAME OF FAMILY MEMBERS. THIS FACT WAS ALSO NOT DISPUTED THAT THE ASSESSEE WAS AN OLD MAN AND ILLITERATE PERSON. THE ASSESSEE WAS NOT HAVING ANY OTHER SOURCE OF INCOME. IT IS NOT THE CASE OF THE REVENUE THAT SALE PROCEEDS WERE USED FOR ANY OTHER PURPOSES OR BEYOND THE STIPULATED PERIOD. IN VIEW OF THESE FACTS AND CIRCU MSTANCES, IT CANNOT BE SAID THAT THE CAPITAL GAIN/ SALE PROCE EDS WERE IN ANY WAY WERE MISUSED FOR ANY OTHER PURPOSE CONTR ARY TO PROVISIONS OF LAW. THIS VIEW IS ALSO SUPPORTED BY D ECISION IN THE CASE OF CIT V. KAMAL WAHAL [2013] 351 ITR 4(DEL ); SHRI SUKHRAM MUKATI & SHRI VISHNU MUKATI V. ITO 3(3) I NDORE/ I.T.A. NO. 409&410/IND/2014/A.Y.08-09 P AGE 10 OF 26 [2013] 214 TAXMAN 287(DEL); [2013] 30 TAXMANN.COM 34(DEL) WHEREIN IT WAS HELD THAT 4. THE ASSESSING OFFICER WHILE COMPLETING THE ASSESSMENT TOOK THE VIEW THAT UNDER SECTION 54F, TH E INVESTMENT IN THE RESIDENTIAL HOUSE SHOULD BE MADE IN THE ASSESSEE'S NAME AND IN AS MUCH AS THE RESIDENTI AL HOUSE WAS PURCHASED BY THE ASSESSEE IN THE NAME OF HIS WIFE, THE DEDUCTION WAS NOT ALLOWABLE. HE REDUC ED THE DEDUCTION AND COMPUTED THE CAPITAL GAINS ACCORDINGLY. 5. ON APPEAL, THE CIT (APPEAL) ACCEPTED THE ASSESSEE' S CONTENTION BASED ON THE JUDGMENT OF THE MADRAS HIGH COURT IN CIT V. V. NATARAJAN [2006] 287 ITR 271/154 TAXMAN 399 AND THAT OF THE ANDHRA PRADESH HIGH COURT IN MIR GULAM ALI KHAN V. CIT [1987] 165 ITR 228/[1986] 28 TAXMAN 572 . 6. THE REVENUE PREFERRED AN APPEAL BEFORE THE TRIBUNA L QUESTIONING THE DECISION OF THE CIT(APPEALS). THE TRIBUNAL, HOWEVER, BY THE IMPUGNED ORDER, AGREED WI TH THE DECISION OF THE CIT (APPEALS) AND IN DOING SO FOLLOWED THE JUDGMENT OF THE MADRAS AND ANDHRA PRADESH HIGH COURTS CITED SUPRA AND ALSO ANOTHER JUDGMENT OF THE KARNATAKA HIGH COURT IN DIT, INTERNATIONAL TAXATION V. MRS. JENNIFER BHIDE [2011] 203 TAXMAN 208/15 TAXMANN.COM 82 . IT ALSO NOTED THE JUDGMENT OF THE BOMBAY HIGH COURT IN PRAKASH V. ITO [2008] 173 TAXMAN 311 IN WHICH A SHRI SUKHRAM MUKATI & SHRI VISHNU MUKATI V. ITO 3(3) I NDORE/ I.T.A. NO. 409&410/IND/2014/A.Y.08-09 P AGE 11 OF 26 CONTRARY VIEW WAS TAKEN BUT PREFERRED THE VIEW TAKE N BY THE MADRAS AND KARNATAKA HIGH COURTS ADOPTING THE RULE LAID DOWN BY THE SUPREME COURT IN CIT V.VEGETABLE PRODUCTS LTD [1973] 88 ITR 192 WHICH SAYS THAT IF A STATUTORY PROVISION IS CAPABL E OF MORE THAN ONE VIEW, THEN THE VIEW WHICH FAVOURS THE TAX PAYER SHOULD BE PREFERRED. THE TRIBUNAL ALSO OBSERVED THAT SECTION 54F BEING A BENEFICIAL PROVIS ION ENACTED FOR ENCOURAGING INVESTMENT IN RESIDENTIAL HOUSES SHOULD BE LIBERALLY INTERPRETED. 7. WE HAVE NO HESITATION IN AGREEING WITH THE VIEW TAKEN BY THE TRIBUNAL. APART FROM THE FACT THAT THE JUDGMENTS OF THE MADRAS AND KARNATAKA HIGH COURTS (SUPRA) ARE IN FAVOUR OF THE ASSESSEE, THE REVENUE FAIRLY BROUGHT TO OUR NOTICE A SIMILAR VIEW OF THIS COURT IN CIT V. RAVINDER KUMAR ARORA [2012] 342 ITR 38/[2011] 203 TAXMAN 289/15 TAXMANN.COM 307 . THAT WAS ALSO A CASE, WHICH AROSE UNDER SECTION 54F OF THE ACT. THE NEW RESIDENTIAL PROPERTY WAS ACQUIR ED IN THE JOINT NAMES OF THE ASSESSEE AND HIS WIFE. TH E INCOME TAX AUTHORITIES RESTRICTED THE DEDUCTION UND ER SECTION 54F TO 50% ON THE FOOTING THAT THE DEDUCTIO N WAS NOT AVAILABLE ON THE PORTION OF THE INVESTMENT, WHICH STANDS IN THE NAME OF THE ASSESSEE'S WIFE. TH IS VIEW WAS DISAPPROVED BY THIS COURT. IT NOTED THAT T HE ENTIRE PURCHASE CONSIDERATION WAS PAID ONLY BY THE ASSESSEE AND NOT A SINGLE PENNY WAS CONTRIBUTED BY THE ASSESSEE'S WIFE. IT ALSO NOTED THAT A PURPOSIVE SHRI SUKHRAM MUKATI & SHRI VISHNU MUKATI V. ITO 3(3) I NDORE/ I.T.A. NO. 409&410/IND/2014/A.Y.08-09 P AGE 12 OF 26 CONSTRUCTION IS TO BE PREFERRED AS AGAINST A LITERA L CONSTRUCTION, MORE SO WHEN EVEN APPLYING THE LITERA L CONSTRUCTION, THERE IS NOTHING IN THE SECTION TO SH OW THAT THE HOUSE SHOULD BE PURCHASED IN THE NAME OF T HE ASSESSEE ONLY. AS A MATTER OF FACT, SECTION 54F IN TERMS DOES NOT REQUIRE THAT THE NEW RESIDENTIAL PROPERTY SHALL BE PURCHASED IN THE NAME OF THE ASSESSEE; IT MERELY SAYS THAT THE ASSESSEE SHOULD HAVE PURCHASED/CONSTRUCTED 'A RESIDENTIAL HOUSE'. 8. THIS COURT IN THE DECISION CITED ALONE ALSO NOTICE D THE JUDGMENT OF THE MADRAS HIGH COURT (SUPRA) AND AGREED WITH THE SAME, OBSERVING THAT THOUGH THE MADRAS CASE WAS DECIDED IN RELATION TO SECTION 54 O F THE ACT, THAT SECTION WAS IN PARI MATERIA WITH SECT ION 54F. THE JUDGMENT OF THE PUNJAB AND HARYANA HIGH COURT IN THE CASE OF CIT V. GURNAM SINGH [2010] 327 ITR 278/[2008] 170 TAXMAN 160 IN WHICH THE SAME VIEW WAS TAKEN WITH REFERENCE TO SECTION 54F WAS ALSO NOTICED BY THIS COURT. 9. IT THUS APPEARS TO US THAT THE PREDOMINANT JUDICIA L VIEW, INCLUDING THAT OF THIS COURT, IS THAT FOR THE PURPOSES OF SECTION 54F, THE NEW RESIDENTIAL HOUSE NEED NOT BE PURCHASED BY THE ASSESSEE IN HIS OWN NAME NOR IS IT NECESSARY THAT IT SHOULD BE PURCHASE D EXCLUSIVELY IN HIS NAME. IT IS MOREOVER TO BE NOTED THAT THE ASSESSEE IN THE PRESENT CASE HAS NOT PURCHASED THE NEW HOUSE IN THE NAME OF A STRANGER OR SOMEBODY SHRI SUKHRAM MUKATI & SHRI VISHNU MUKATI V. ITO 3(3) I NDORE/ I.T.A. NO. 409&410/IND/2014/A.Y.08-09 P AGE 13 OF 26 WHO IS UNCONNECTED WITH HIM. HE HAS PURCHASED IT ONLY IN THE NAME OF HIS WIFE. THERE IS ALSO NO DISP UTE THAT THE ENTIRE INVESTMENT HAS COME OUT OF THE SALE PROCEEDS AND THAT THERE WAS NO CONTRIBUTION FROM TH E ASSESSEE'S WIFE. 10. HAVING REGARD TO THE RULE OF PURPOSIVE CONSTRUCTIO N AND THE OBJECT WHICH SECTION 54F SEEKS TO ACHIEVE A ND RESPECTFULLY AGREEING WITH THE JUDGMENT OF THIS COU RT, WE ANSWER THE SUBSTANTIAL QUESTION OF LAW FRAMED BY US IN THE AFFIRMATIVE, IN FAVOUR OF THE ASSESSEE AN D AGAINST THE REVENUE. 9. IN THE INSTANT CASE ALSO, WE FIND THAT THE ENTIRE INVESTMENT IS MADE BY THE ASSESSEE WHICH HAS BEEN M ADE OUT OF SALE PROCEEDS AND THAT THERE WAS NO CONTRIBU TION FROM OTHER FAMILY MEMBER. IT IS MOREOVER TO BE NOTED THAT THE ASSESSEE IN THE PRESENT CASE HAS NOT PURCHASED THE NEW ASSET IN THE NAME OF A STRANGER OR SOMEBODY WHO IS UNCONNECTED WITH HIM. HE HAS PURCHASED IT ONLY IN T HE NAME OF HIS WIFE, SON AND DAUGHTER IN LAW. THEREFOR E, ITS CASE IS COVERED BY ABOVE DECISION; ACCORDINGLY, WE HOLD THAT DEDUCTION IS 54B IS ALLOWABLE TO THE ASSESSEE. FURTHER RELIANCE IS PLACED ON THE DECISION OF HON`BLE JURI SDICTIONAL HIGH COURT IN THE CASE OF PR. CIT V. BALMUKUND MEEN A [I.T.A.118 OF 2016 DTD. 16.02.2017] (MP-HIGH COURT) WHEREIN THE HON`BLE HIGH COURT HAS HELD AS: 'THE ISSUE BEFORE US REVOLVES AROUND ALLOWABILITY O F DEDUCTION UNDER SECTIONS 54B AND 54F OF THE ACT. THE SHRI SUKHRAM MUKATI & SHRI VISHNU MUKATI V. ITO 3(3) I NDORE/ I.T.A. NO. 409&410/IND/2014/A.Y.08-09 P AGE 14 OF 26 LAND IN QUESTION WAS PURCHASED BY THE ASSESSEE IN T HE NAME OF HIS SON. THE LEARNED ASSESSING OFFICER DISALLOWED THE DEDUCTION ON THE GROUND THAT THE LAN D IS IN THE NAME OF THE SON OF THE ASSESSEE, SO THE DEDUCTION CANNOT BE ALLOWED, SPECIALLY WHEN THE LAN D WAS PURCHASED BY SH. GURNAM SINGH OUT OF THE SALE PROCEEDS OF AGRICULTURAL LAND AND SINCE PALWINDER SINGH WAS BACHELOR AND WAS NOT HAVING ANY INDEPENDENT SOURCE OF INCOME WAS DEPENDENT UPON HIS FATHER EVEN FOR LIVELIHOOD. THE CONCLUSION OF THE L EARNED ASSESSING OFFICER IS AVAILABLE ON PAGE 4 OF THE ASSESSMENT ORDER. BEFORE COMING TO A CONCLUSION, WE ARE SUPPOSED TO ANALYZE SECTION 54B WHICH IS APPLICABLE WHERE THE CAPITAL GAINS ARISE FROM THE TRANSFER OF CAPITAL ASSET AND WAS BEING USED FOR AGRICULTURE PURPOSES WHICH WAS INVESTED IN THE PURCHASE OF ANY OTHER LAND AND AGAIN BEING USED FOR AGRICULTURAL PURPOSES. THERE IS NO DISPUTE TO THE F ACT THAT THE ASSESSEE SOLD HIS AGRICULTURAL LAND AND TH EN PURCHASED OTHER AGRICULTURAL LAND OUT OF THE SALE PROCEEDS AND GOT REGISTERED SOME PORTION OF THE LAN D IN THE NAME OF HIS ONLY SON WHO WAS A BACHELOR AT THE RELEVANT TIME. IF THE 'IKRARNAMA'/AGREEMENT IS ANAL YZED WHICH IS AVAILABLE AT PAGE 9 OF THE PAPER BOOK, IT CLEARLY SPEAKS THAT 'THE PURCHASER IS AT LIBERTY TO EXECUTE THE SALE DEED IN THE NAME OF ANY MEMBER OF HIS FAMILY. HE IS ALSO AT LIBERTY TO EXECUTE AS MAN Y AS SALE DEEDS AS HE DESIRES....' IF THE CONTENTS OF TH E SHRI SUKHRAM MUKATI & SHRI VISHNU MUKATI V. ITO 3(3) I NDORE/ I.T.A. NO. 409&410/IND/2014/A.Y.08-09 P AGE 15 OF 26 'IKRARNAMA'/AGREEMENT TO SALE IS ANALYZED ONE UNDISPUTED FACT IS OOZING OUT THAT THE SALE PROCEED S OF THE AGRICULTURAL LAND WERE IN FACT USED TO PURCHASE ANOTHER AGRICULTURAL LAND. SECTION 54B SPEAKS ABOUT TRANSFER OF CAPITAL ASSET BEING LAND WITHIN A SPECI FIED PERIOD AND ANOTHER LAND IS PURCHASED FOR AGRICULTUR AL PURPOSES, THEN IT SHALL BE DEALT WITH IN ACCORDANCE WITH THE PROVISION OF THIS SECTION. IT IS NOT THE CASE O F THE REVENUE THAT THE CAPITAL GAIN WAS NOT UTILIZED BY T HE ASSESSEE FOR THE PURCHASE OF NEW ASSET BEFORE THE D ATE OF FURNISHING THE RETURN OF INCOME UNDER SECTION 139 . IN FACT, IF THE FACTS AS DETAILED IN THE 'IKRARNAMA' A RE ANALYZED, THE CAPITAL GAINS WAS UTILIZED BY THE ASSESSEE FOR PURCHASING THE NEW ASSET. SECTION 54B IS APPLICABLE AS PER THE PROVISION OF CLAUSE 2 OF THE SECTION. THE ONLY DISPUTE RAISED BY THE REVENUE IS THAT THE LAND WAS GOT REGISTERED IN THE NAME OF HIS SON. THIS FACT IS NOT DISPUTED THAT THE ASSESSEE WAS AN OLD AND ILLITERATE PERSON AND NEVER FILED ANY RETURN. A T THE SAME TIME, HE WAS NOT HAVING ANY OTHER SOURCE OF INCOME ALSO. IT IS NOT THE CASE THAT THE SALE PROCE EDS WERE USED FOR ANY OTHER PURPOSES OR BEYOND THE STIPULATED PERIOD. THIS FACT WAS ALSO NOT DISPUTED THAT THE SON OF THE ASSESSEE WAS BACHELOR AND WAS NOT HAVING ANY OTHER SOURCE OF INCOME AND WAS TOTALLY DEPENDENT UPON HIS FATHER. UNDISPUTEDLY, THE EARLIER LAND WHICH WAS SOLD, ALSO BELONGED TO THE ASSESSEE AND THE SALE PROCEEDS WERE SHRI SUKHRAM MUKATI & SHRI VISHNU MUKATI V. ITO 3(3) I NDORE/ I.T.A. NO. 409&410/IND/2014/A.Y.08-09 P AGE 16 OF 26 ALSO USED FOR PURCHASING AGRICULTURAL LAND. THE POSSESSION OF THE SAID LAND WAS ALSO TAKEN BY THE ASSESSEE. THE ONLY OBJECTION RAISED BY THE REVENUE WAS THAT THE SAID LAND WAS REGISTERED IN THE NAME O F HIS SON. IN VIEW OF THESE FACTS, IT CANNOT BE SAID THAT THE CAPITAL GAINS! SALE PROCEED WERE IN ANY WAY MISUSED FOR ANY OTHER PURPOSES CONTRARY TO THE PROVISIONS OF LAW.' WE HAVE HEARD THE COUNSEL FOR THE REVENUE AND GONE THROUGH THE AFORESAID IMPUGNED ORDER. IN OUR OPINIO N, FROM THE IMPUGNED ORDER, NO SUBSTANTIAL QUESTION OF LAW IS ARISING FOR CONSIDERATION OF THIS COURT AS T HE ITAT WHILE RECORDING A PURE FINDING OF FACT HAS DISMISSED THE APPEAL OF THE REVENUE. UNDISPUTEDLY, IN THIS CASE THE ASSESSEE HAD SOLD THE AGRICULTURAL LA ND WHICH WAS BEING USED BY HIM FOR AGRICULTURAL PURPOSES. OUT OF SALE PROCEEDS OF THE SAID SALE, TH E ASSESSEE HAS PURCHASED OTHER PIECE OF LAND (LAND IN QUESTION) IN HIS NAME AND IN THE NAME OF HIS ONLY S ON, WHO WAS BACHELOR AND DEPENDENT UPON HIM, FOR BEING USED FOR AGRICULTURAL PURPOSES WITHIN THE STIPULATE D TIME. FURTHER, IT IS NOT THE CASE OF THE REVENUE TH AT FROM THE SALE PROCEEDS OF THE AGRICULTURAL LAND EARLIER OWNED BY THE ASSESSEE, THE LAND IN QUESTION WAS PURCHASED FOR ANY OTHER PURPOSE THAN THE AGRICULTURAL PURPOSE . UNDISPUTEDLY, THE PURCHASED LAND IS BEING USED BY T HE ASSESSEE ONLY FOR AGRICULTURAL PURPOSE AND MERELY BECAUSE IN THE SALE DEED HIS ONLY SON WAS ALSO SHOW N AS CO-OWNER, THE ITAT HAS RIGHTLY COME TO THE CONCLUSION THAT IT DOES NOT MAKE ANY DIFFERENCE BECAUSE THE PURCHASED LAND IS BEING USED BY THE ASSESSEE FOR AGRICULTURAL PURPOSES. IT IS NOT THE C ASE OF THE REVENUE THAT THE SAID LAND IS BEING USED EXCLUSIVELY BY HIS SON. IN OUR VIEW, A PURE FINDING OF FACT HAS BEEN RECORDED BY THE ITAT WHICH DOES NOT REQUIRE ANY INTERFERENCE IN THIS APPEAL. 4. NO SUBSTANTIAL QUESTION OF LAW IS INVOLVED IN TH IS APPEAL. A SIMILAR VIEW HAS BEEN TAKEN BY THE HIGH COURT OF DELHI IN THE CASE OF COMMISSIONER OF INCOME- TAX-XII VS. KAMAL WAHAL , REPORTED IN 2013 (30) SHRI SUKHRAM MUKATI & SHRI VISHNU MUKATI V. ITO 3(3) I NDORE/ I.T.A. NO. 409&410/IND/2014/A.Y.08-09 P AGE 17 OF 26 TAXMANN.COM 34 (DELHI). PARAGRAPH NOS. 8, 9 AND 10 OF THE AFORESAID JUDGMENT READ AS UNDER:- 8. THIS COURT IN THE DECISION CITED ALONE ALSO NOTICED THE JUDGMENT OF THE MADRAS HIGH COURT (SUPRA) AND AGREE D WITH THE SAME, OBSERVING THAT THOUGH THE MADRAS CAS E WAS DECIDED IN RELATION TO SECTION 54 OF THE ACT, THAT SECTION WAS IN PARI MATERIA WITH SECTION 54F . THE JUDGMENT OF THE PUNJAB AND HARYANA HIGH COURT IN TH E CASE OF CIT VS. GURNAM SINGH : (2010) 327 ITR 278/[2008] 170 TAXMAN 160 IN WHICH THE SAME VIEW WAS TAKEN WITH REFERENCE TO SECTION 54F WAS ALSO NOTICED BY THIS COURT. 9. IT THUS APPEARS TO US THAT THE PREDOMINANT JUDIC IAL VIEW, INCLUDING THAT OF THIS COURT, IS THAT FOR THE PURPOSES OF SECTION 54F , THE NEW RESIDENTIAL HOUSE NEED NOT BE PURCHASED BY THE ASSESSEE IN HIS OWN NAME NOR IS IT NECESSARY THAT IT SHOULD BE PURCHASE D EXCLUSIVELY IN HIS NAME. IT IS MOREOVER TO BE NOTED THAT THE ASSESSEE IN THE PRESENT CASE HAS NOT PURCHASED THE NEW HOUSE IN THE NAME OF A STRANGER OR SOMEBODY WHO IS UNCONNECTED WITH HIM. HE HAS PURCHASED IT ONLY IN THE NAME OF HIS WIFE. THERE IS ALSO NO DISP UTE THAT THE ENTIRE INVESTMENT HAS COME OUT OF THE SALE PROCEEDS AND THAT THERE WAS NO CONTRIBUTION FROM TH E ASSESSEE'S WIFE. 10. HAVING REGARD TO THE RULE OF PURPOSIVE CONSTRUC TION AND THE OBJECT WHICH SECTION 54F SEEKS TO ACHIEVE AND RESPECTFULLY AGREEING WITH THE JUDGMENT OF THIS COU RT, WE ANSWER THE SUBSTANTIAL QUESTION OF LAW FRAMED BY US IN THE AFFIRMATIVE, IN FAVOUR OF THE ASSESSEE AN D AGAINST THE REVENUE. THE APPEAL IS ACCORDINGLY DISMISSED WITH NO ORDER AS TO COSTS. THE TRIBUNAL WHILE DISMISSING THE APPEAL OF THE REVENUE HAS HELD THAT THE ASSESSEE HAS PURCHASED THE AGRICULTURAL LA ND AND, THEREFORE, THE ORDER PASSED BY THE INCOME TAX APPELLATE TRIBUNAL IS JUST AND PROPER. 10. THUS, IN THE LIGHT OF ABOVE DISCUSSION, AND RESPECTFULLY FOLLOWING THE DECISION OF JURISDICTION AL HIGH SHRI SUKHRAM MUKATI & SHRI VISHNU MUKATI V. ITO 3(3) I NDORE/ I.T.A. NO. 409&410/IND/2014/A.Y.08-09 P AGE 18 OF 26 COURT AND OTHER JUDICIAL PRONOUNCEMENT AS DISCUSSED ABOVE, WE ARE OF THE CONSIDERED OPINION THAT THE AS SESSEE IS ENTITLED TO DEDUCTION UNDER SECTION 54B OF THE ACT. THEREFORE, THE AO IS DIRECTED TO ALLOW THE DEDUCTIO N UNDER SECTION 54B OF THE ACT, OUT OF SALE PROCEEDS OF SAL E OF AGRICULTURAL LAND SOLD BY THE ASSESSEE AS DISCUSSED ABOVE. HOWEVER, THE ISSUE OF COMPUTATION OF INDEXATION COS T OF ORIGINAL ASSETS IS RESTORED TO THE FILE OF THE AO F OR LIMITED PURPOSE AND AFTER COMPUTATION OF INDEXATION COST, T HE AO WILL ALLOW THE DEDUCTION UNDER SECTION 54B IN ACCOR DANCE WITH LAW. WE MAY NOTE THAT THE CASE LAWS RELIED BY THE LD. CIT (A) ARE DISTINGUISHABLE ON FACTS AND LAW, AND M OREOVER, WE ARE FOLLOWING LATEST JUDGEMENT AND MORE PARTICUL ARLY THE JUDGEMENT OF HON`BLE JURISDICTIONAL HIGH COURT IN T HE CASE OF PR. CIT V. BALMUKUND MEENA (SUPRA) WHICH WOULD H AVE PRECEDENCE OVER THE JUDGEMENT OF OTHER HIGH COURT A ND NO OTHER CONTRARY DECISION OF HON`BLE JURISDICTIONAL H IGH COURT HAS BEEN BROUGHT TO OUR NOTICE. MOREOVER, WHE RE WE FURTHER FIND SUPPORT FROM THE JUDGEMENT IN THE CASE OF CIT V. VEGETABLES PRODUCTS LTD. [1973] 88 ITR 192 (SC) HELD THAT IF TWO REASONABLE CONSTRUCTIONS OF TAXING PROV ISION ARE SHRI SUKHRAM MUKATI & SHRI VISHNU MUKATI V. ITO 3(3) I NDORE/ I.T.A. NO. 409&410/IND/2014/A.Y.08-09 P AGE 19 OF 26 POSSIBLE, THAT CONSTRUCTION WHICH FAVOURS THE ASSE SSEE MUST BE ADOPTED. THIS IS WELL-ACCEPTED RULE OF CONS TRUCTION RECOGNIZED BY THIS COURT IN SEVERAL OF ITS DECISION S. IN VIEW OF ABOVE, WE FIND THAT IT IS SETTLED LAW THAT WHERE TWO INTERPRETATIONS ARE POSSIBLE, THE ONE, WHICH IS FAV OURABLE TO THE ASSESSEE SHOULD BE ADOPTED. APPLYING THE RATIO OF ABOVE DECISIONS TO THE FACTS OF THE CASE, IT CAN SAFELY S AID THAT THAT WHEN TWO VIEWS ARE POSSIBLE ON THE SAME SUBJEC T, THE VIEW FAVOURING THE ASSESSEE SHOULD BE ADOPTED. THER EFORE, THE APPEAL ON ABOVE GROUND IS ALLOWED, FOR DEDUCTIO N UNDER SECTION 54B OF THE ACT SUBJECT TO COMPUTATION OF LO NG-TERM CAPITAL GAIN AFTER INDEXATION COST IN ACCORDANCE WI TH LAW. 11. GROUND NO. 2 RELATES TO MAKING ADDITION OF RS. 58,72,000 SECTION 68 OF THE ACT WITHOUT VERIFYING THE FACTS OF THE CASE. 12. FACTS APROPOS OF THIS GROUND ARE THAT THE ASSESSEE HAS SOLD ANOTHER AGRICULTURAL LAND FOR RS. 2.34 CRO RES BY AGREEMENT TO SALE ENTERED IN TO M/S. SATELLITE INFR A REAL ESTATE PVT. LTD. THROUGH DIRECTOR SHRI CHIRAG SHAH . ACCORDING TO WHICH ADVANCE OF RS. 58.72 LAKHS WAS RECEIVED WHICH CONSISTED RS. 11 LAKHS BY CASH AND RS. SHRI SUKHRAM MUKATI & SHRI VISHNU MUKATI V. ITO 3(3) I NDORE/ I.T.A. NO. 409&410/IND/2014/A.Y.08-09 P AGE 20 OF 26 47.72 LAKHS BY CHEQUE. IT WAS SUBMITTED THAT THE SA ID AGREEMENT WAS CANCELLED AND THE AMOUNT WAS REFUNDED . THE AO HAS ACCEPTED THIS CLAIM OF THE ASSESSEE AND NOT MADE ANY ADDITION ON THIS SCORE. HOWEVER, LD. CIT ( A) CONSIDERED THE ENTIRE AMOUNT OF RS. 58.72 LAKHS (IN CLUDING CASH AND CHEQUE) AS UNDISCLOSED INVESTMENT UNDER SE CTION 69 OF THE ACT AS THE ASSESSEE HAS FAILED TO PRODUCE COPY OF CANCELLATION DEED AND PROOF OF REPAYMENT OF SAID AM OUNT. 13. BEING, AGGRIEVED THE ASSESSEE FILED THIS APPEAL BEF ORE THE TRIBUNAL. THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE ADVANCE OF RS. 58.72 LAKHS WAS RECEIVED IN CASH AND BY CHEQUE AND SAME WAS DEPOSIT ED IN BANK ACCOUNT OF THE ASSESSEE. AS THE PURCHASER, PAR TY COULD NOT MAKE THE REMAINING PAYMENTS, BOTH PARTIES AGREED FOR CANCELLATION OF AGREEMENT AND THE AMOUNT RECEIVED WAS RETURNED BACK. THIS FACT ALONG WITH CO PIES OF CANCELLATION AGREEMENTS WERE FILED BEFORE THE CIT ( A), BUT HE CHOSE TO IGNORE THEM. IT WAS SUBMITTED THAT MAJO R PAYMENTS WAS RECEIVED BY CHEQUES AND MAJOR PAYMENTS WAS MADE BY CHEQUES AND AGREEMENT CANCELLED WITH SHRI SUKHRAM MUKATI & SHRI VISHNU MUKATI V. ITO 3(3) I NDORE/ I.T.A. NO. 409&410/IND/2014/A.Y.08-09 P AGE 21 OF 26 MUTUAL CONSENT. THE DEPOSIT OF RS. 58.72 LACS IN AS SESSEE`S ACCOUNT STANDS DULY PROVED. 14. THE LD. DR RELIED ON THE ORDERS OF LOWER AUTHORITIE S. 15. WE HAVE HEARD THE RIVAL SUBMISSIONS OF BOTH THE PARTIES AND PERUSED THE MATERIAL AVAILABLE ON RECOR D. WE FIND THAT AS PER CANCELLATION AGREEMENT DEED (PB122 ), THE ASSESSEE HAD ENTERED IN TO AN SALE AGREEMENT ON DEC EMBER 5,2007 FOR SALE OF AGRICULTURAL LAND AT SURVEY NO. 209/2 OF RAKBA 1.187 HECTARES AS AGAINST WHICH AD VANCE AMOUNT OF RS. 41 LACS (PB125, 48 AND 49) WAS RECEI VED BY CHEQUE WAS RETURNED TO BUYER OF THE PROPERTY. THE L D. COUNSEL FOR THE ASSESSEE ALSO RELIED IN THE CASE OF ACIT V. SMT. KUSUM RAMNIKLAL SANGHANI 4 ITR (TRIBUNAL) 582 (MUM) TO CONTEND THAT UNDER SECTION 69, THE BURDEN ON THE DEPARTMENT TO SHOW THAT MONEY BELONGS TO THE ASSESS EE IS ON REVENUE. THE LD. COUNSEL FOR THE ASSESSEE FURTHE R RELIED IN THE CASE OF ITO V. NAGARDAS JASHRAJ [28 ITD 3786 (AHD- TRIBUNAL)] TO SUBMIT THAT SECTION 69A CREATES LEGAL FICTION BY THE DEEMING PHRASE MAY BE DEEMED TO BE INCOME O F THE ASSESSEE BUT SUCH LEGAL FICTION IS RESTRICTED TO T REATING THE MONEY, BULLION ETC. OF WHICH THE ASSESSEE IS FOUND TO BE SHRI SUKHRAM MUKATI & SHRI VISHNU MUKATI V. ITO 3(3) I NDORE/ I.T.A. NO. 409&410/IND/2014/A.Y.08-09 P AGE 22 OF 26 OWNER IN ANY FINANCIAL YEAR. THAT LEGAL FICTION DOE S NOT CREATE ANY PRESUMPTION TO THE EFFECT THAT THE ASSES SEE WOULD ALSO DEEMED TO BE OWNER OF ANY MONEY, BULLIO N ETC. WHICH HE HAS FOUND IN POSSESSION IN A FINANCIAL YEA R. THE LD. COUNSEL FOR THE ASSESSEE ALSO CITED A DECISION OF THIS BENCH IN THE CASE OF ITO V. SMT. SHANAZ BANO I.T.A. NO. 443/IND/2054 DTD. 7.1.2005 IN WHICH IT WAS HELD THA T IF A PERSON HAS ONLY AGRICULTURAL INCOME NO ADDITION CAN BE MADE TO THE TOTAL INCOME. SIMILAR VIEW ALSO EXPRESS ED BY COORDINATED BENCH IN THE CASE OF ITO V. RANJIT SING H SISODIYA, I.T.A. NO. 552/IND/2006. 16. WE HAVE HEARD THE RIVAL SUBMISSIONS OF BOTH THE PARTIES AND PERUSED THE MATERIAL AVAILABLE ON RECOR D. WE FIND THAT, THE AGREEMENT TO SALE DEED FOR TRANSFER OF AGRICULTURAL LAND BY THE TO SATELLITE INFRA & REAL ESTATE PVT. LTD. STANDS CANCELLED AS PER THE COPY OF CANCELLATI ON AGREEMENT (PLACED AT PB124-126). THE AMOUNT OF RS. 41 LACS MENTIONED THEREIN ALSO STANDS RETURNED BACK BY CHEQUE AS DETAILS MENTIONED THEREON. THE AMOUNT WAS RETURNED BACK BY CHEQUE AS WELL AS CASH AND NO SALE WAS EFFECTED. THESE FACTS WERE ALSO VERIFIED BY THE AO AS HE HAS SHRI SUKHRAM MUKATI & SHRI VISHNU MUKATI V. ITO 3(3) I NDORE/ I.T.A. NO. 409&410/IND/2014/A.Y.08-09 P AGE 23 OF 26 DULY DISCUSSED THE ADVANCE RECEIPT AND CANCELLATION OF THIS AGRICULTURAL LAND. THEREFORE, WE ARE OF THE CONSIDE RED OPINION THAT THE LD. CIT (A) WAS NOT JUSTIFIED IN M AKING THIS ADDITION BY ENHANCEMENT WITHOUT BRINGING ANY EVIDEN CE ON RECORD THAT THE ASSESSEE HAD EFFECTED THE SAID SALE OF LAND. THEREFORE, WE DO NOT FIND ANY MERIT IN SUCH ADDITIO N, WHICH THERE IS NO REAL INCOME, AND SUCH INCOME CANNOT BE TAXED ON PRESUMPTION BASIS. HENCE, THE ADDITION MADE BY T HE AO/ THE LD. CIT (A) IS DELETED. THIS GROUND OF APPE AL IS ALLOWED. 17. GROUND NO. 3 RELATES TO ADDITION OF RS. 8,80,000 US 69 OF THE ACT WITHOUT PINPOINTING ANY UNEXPLAINE D DEPOSIT. 18. BRIEF FACTS ARE THAT THE CIT (A) NOTED THAT THE ASS ESSEE HAS SHOWN TOTAL CASH DEPOSIT OF RS. 68.30 LACS OUT OF WHICH AN AMOUNT OF CASH OF RS. 48.50 WAS RECEIVED BY CASH FROM ANCESTRAL AGRICULTURAL LAND SALE, RS. 11 LACS FOR A DVANCE OF SALE OF ANOTHER AGRICULTURAL LAND WHICH LEAVES BALA NCE CASH DEPOSIT OF RS. 8.80 LACS [ 68.30-48.50-11=8.80]. HE NCE, THE CIT (A) DIRECTED THE AO TO TREAT THIS AMOUNT AS UNEXPLAINED UNDER SECTION 69A OF THE ACT. SHRI SUKHRAM MUKATI & SHRI VISHNU MUKATI V. ITO 3(3) I NDORE/ I.T.A. NO. 409&410/IND/2014/A.Y.08-09 P AGE 24 OF 26 19. BEING, AGGRIEVED THE ASSESSEE FILED THIS APPEAL BEF ORE THE TRIBUNAL. THE LD. COUNSEL FOR THE ASSESSEE SUBM ITTED THAT DURING THE YEAR UNDER CONSIDERATION THE ASSESS EE HAS WITHDRAWN CASH OF RS.1,14,09,700 FROM BANK IN CASH DURING THE YEAR AND RS. 8.80 LACS IS OUT OF SAID FI GURE HAS BEEN DEPOSITED BACK. THE LEARNED COUNSEL TOOK US TH ROUGH THE COPY OF BANK STATEMENT SHOWING CASH WITHDRAWALS , WHICH ARE APPEARING AT PAPER BOOK PAGE NO. 34 TO 49 , AND CASH WITHDRAWALS DETAILS OF RS. 1.14 CRORES AND SU BMITTED THAT CASH OF 8.80 LACS WAS DEPOSITED BACK OUT OF SU CH CASH WITHDRAWALS. 20. THE LD. DR RELIED ON LD. CIT (A). 21. WE HAVE HEARD THE RIVAL SUBMISSIONS OF BOTH THE PARTIES AND PERUSED THE MATERIAL AVAILABLE ON RECOR D. WE FIND THAT THERE ARE VARIOUS CASH WITHDRAWAL FROM BA NK ACCOUNT OF THE ASSESSEE AS APPEARING IN BANK STATEM ENT PLACED AT PB34 TO 49 AND CASH WITHDRAWAL STATEMENT OF RS. 1.14 CRORES. THE ASSESSEE HAS MADE CASH WITHDRAWALS OF RS. 114 LACS; THEREFORE, WE ARE OF CONSIDERED OPINI ON THAT THESE CASH DEPOSITS BACK TO BANK ACCOUNT IS OUT OF SAID AMOUNT OF RS. 1.14 CRORE WITHDRAWN IN CASH BY THE SHRI SUKHRAM MUKATI & SHRI VISHNU MUKATI V. ITO 3(3) I NDORE/ I.T.A. NO. 409&410/IND/2014/A.Y.08-09 P AGE 25 OF 26 ASSESSEE. FURTHER, THE LD. CIT (A) HAS NOT PINPOINT ED THAT WHICH CASH WITHDRAWAL IS NOT RECONCILABLE FROM BANK ACCOUNT. THE FILED DETAILS OF SUCH WITHDRAWALS. THE REFORE, WE DO NOT FIND ANY JUSTIFICATION IN MAKING THIS ADD ITION. THIS ADDITION IS THEREFORE, DELETED. WE ORDER ACCOR DINGLY. THIS GROUND IS ALLOWED. 22. I.T.A. NO. 410/IND/2014: SHRI VISHNU MUKATI: AY08-09: SINCE WE HAVE ALLOWED THE APPEAL IN THE CA SE OF SHRI SUKHRAM MUKATI: I.T.A. NO. 409/IND/2014 AY08-09, THE GROUNDS OF APPEAL IN THE CASE OF SHRI VISHNU MUKATI ARE SAME EXCEPT FIGURES AND LAND PURCHASES AND SALES, THEREFORE, ON THE BASIS OF SAI D FINDINGS GIVEN IN THE CASE OF SHRI SUKHRAM MUKATI HENCE, ALL THREE GROUNDS OF APPEALS IN THE CASE OF SHRI VISHNU MUKATI ARE ALLOWED. 23. IN THE RESULT, THE APPEAL OF SHRI SUKHRAM MUKATI A ND SHRI VISHNU MUKATI ARE ALLOWED IN RESPECT OF BOTH A PPEALS. 24. THE ORDER PRONOUNCED IN THE OPEN COURT ON 22 ND AUGUST 2017 SD/- SD/- ( C.M. GARG) (O.P. MEENA) SHRI SUKHRAM MUKATI & SHRI VISHNU MUKATI V. ITO 3(3) I NDORE/ I.T.A. NO. 409&410/IND/2014/A.Y.08-09 P AGE 26 OF 26 JUDICIAL MEMBER ACCOUNTANT MEMBER DATED :22 ND AUGUST 2017 COPY TO: ASSESSEE/AO/PR. CIT/ CIT (A)/ITAT (DR)/GUA RD FILE. BY ORDER ASSISTANT REGISTRAR, INDORE