RAJASTHAN LAND DEVELOPERS PVT. LTD., Jaipur V. ITO, Jaipur

ITA 418/JPR/2016

• Counselvise Citation: [2018] 126 COUNSELVISE.COM (IT) 2124 (ITAT-JAIPUR)
• Duration Of Justice: 1 year(s) 9 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-02-2018
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: Not Allotted
• Assessment Year: 2006-2007
• Appeal Filed On: 22-04-2016
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: R A VERMA CIT DR DHK
• Assessee Lawyers: A K KANODIA
• Keywords: Unexplained cash credit; Principle of natural justice; Additional evidence
• Section: 133(6); 147; 131; 68; 148

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES, JAIPUR JH FOT; IKY JKO] U;KF;D LNL; ,O JH HKKXPUN] YS[KK LNL; LNL; DS LE{K BEFORE: SHRI VIJAY PAL RAO, JM & SHRI BHAGCHAND, AM VK;DJ VIHY LA-@ ITA NO. 418/JP/2016 FU/KZKJ.K O'K Z@ ASSESSMENT YEAR: 2006-07 M/S. RAJASTHAN LAND DEVELOPERS PVT LTD. 69/4, NEW SANGANER ROAD JAIPUR CUKE VS. THE ITO WARD- 2(2) JAIPUR LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO .: AACCR 5397 N VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT VK;DJ VIHY LA-@ ITA NO. 109/JP/2017 FU/KZKJ.K O'K Z@ ASSESSMENT YEAR: 2007-08 M/S. RAJASTHAN LAND DEVELOPERS PVT LTD. 69/4, NEW SANGANER ROAD JAIPUR CUKE VS. THE DCIT CIRCLE - 2 JAIPUR LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO .: AACCR 5397 N VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY: SHRI A.K. KANODIA, CA JKTLO DH VKSJ LS@ REVENUE BY:SHRI R.A. VERMA, ADDL. CIT - DR LQUOKBZ DH RKJH[K@ DATE OF HEARING : 18/12/2017 ?KKS'K .KK DH RKJH[K@ DATE OF PRONOUNCEMENT : 7/02/2018 VKNS'K@ ORDER PER BHAGCHAND, AM BOTH THESE APPEALS HAVE BEEN FILED BY THE ASSESSEE AGAINST SEPARATE ORDERS OF THE LD. CIT(A)-1, JAIPUR DATED 06-11-201 5 AND 30-12-2016 FOR ITA NO.496/JP/2016 M/S. RAJA STHAN LAND DEVELOPERS PVT LTD. VS ITO, WARD- 2(2), JAIPUR 2 THE ASSESSMENT YEARS 2006-07 & 2007-08 RAISING THER EIN FOLLOWING GROUNDS OF APPEAL. ITA NO.418/JP/2016 A.Y. 2006-07 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, LD . CIT(A) WAS NOT JUSTIFIED WHILE CONFIRMING THE ADDITION OF RS. 67.5 0 LACS MADE BY AO UNDER INCOME BY HIM WITHOUT SPECIFY8NG THE SECTION AND WITHOUT VERIFYING BANK STATEMENT. 2. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) ERRED IN CONFIRMING THE FINDING OF AO BASED ON THE STATEM ENT OF SHRI NIKHIL TRIPATHI RECORDED U/S 131 WHICH WAS NOT ALLOWED TO CROSS EXAMINATION DURING THE COURSE OF PROCEEDINGS. 3. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) WAS NOT JUSTIFIED IN CONFIRMING THE ADDITION OF RS. 67. 50 LACS WITHOUT ENSUING THAT PAYMENT THROUGH CASH AND BEARER CHEQUE HAS BEEN MADE TO M/S. RAJASTHAN LAND DEVELOPRS PVT. LTD. 4. THAT THE APPELLANT CRAVES LEAVE TO ADD TO ALTER, AMEND, MODIFY, SUBSTITUTE, DELETE AND / OR RESCIND ALL OR ANY OF T HE GROUNDS OF APPEAL ON OR BEFORE THE FINAL HEARING, IF NECESSARY SO ARISE. ITA NO.109/JP/2017 A.Y. 2007-08 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, TH E LD. CIT(A) WAS NOT JUSTIFIED WHILE REJECTING ADDITIONAL EVIDENCES U/S 46A WHICH WAS CONSIDERED WITHOUT ALLOWING OPPORTUNITY O F BEING HEARD BY AO. 2. ON THE FACTS AND CIRCUMSTANCES OF THE CASE THE L D. CIT(A) WAS NOT JUSTIFIED WHILE CONFIRMING THE ORDER PASSED U/S 147/143(3) OF THE I.T. ACT, 1961. (3) ON THE FACTS AND CIRCUMSTANCES OF THE CASE THE LD. CIT(A) WAS NOT JUSTIFIED WHILE CONFIRMING ADDITION OF RS. 3.26 CRORES U/S 68 AS UNEXPLAINED CASH CREDIT OF I.T. ACT, 1961 . (4) ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) WAS NOT JUSTIFIED WHILE NOT ALLOWING THE OPP ORTUNITY OF CROSS ITA NO.496/JP/2016 M/S. RAJA STHAN LAND DEVELOPERS PVT LTD. VS ITO, WARD- 2(2), JAIPUR 3 EXAMINATION OF STATEMENT OF DIRECTOR OF PURCHASE CO MPANY RECORDED U/S 131. 2.1 FIRST OF ALL WE TAKE UP THE APPEAL OF THE ASSES SEE IN ITA NO. 418/JP/2016 FOR THE ASSESSMENT YEAR 2006-07 FOR ADJ UDICATION. APROPOS GROUND NO. 1 TO 4 OF THE ASSESSEE, THE FACT S AS EMERGES FROM THE ORDER OF THE LD. CIT(A) ARE AS UNDER:- 3.1.2 DETERMINATION (GROUND NO. 1 ) (1) I HAVE CAREFULLY PERUSED THE SUBMISSION OF THE APPELLANT AND THE MATERIAL PLACED ON RECORD. THE BR IEF FATS OF THE CASE ARE THAT AN MOU WAS EXECUTED BETWEEN THE APPELLANT AND M/S. U TURN HOUSING P LTD (UTHPL) ON 22- 03-2006. AS PER THE SAID MOU, THE APPELLANT AGREED TO SELL 1,25,000 SQUARE YARDS OF LAND TO UTHPL WHICH WAS BE ING DEVELOPED BY THE APPELLANT AT SANGANER, JAIPUR AT T HE RATE OF 1270/- PER SQUARE YARD. UTHPL HAS ALREADY PAID A SU M OF RS. 2.20 CRORES THROUGH CHEQUE AND RS. 57,50,000/- IN CASH TILL THE DATE OF THE SAID MOU I.E. TILL 22-03-2006. THE BALANCE AMOUNT WAS TO BE PAID BY UTHPL AS PER THE FOLLOWING SCHEDULE. (A) RS. 5 CRORE TILL 10-04-2006. (B) RS. 4 CRORE TILL 10-05-2006. RS. BALANCE RS. 4.10 CRORE TILL 04-06-2006 I.E. 1,25,000 SQUARE YARD OF LAND WAS AGREED TO BE SOLD AND PURCHASED FOR A TOTAL CONSIDERATION OF RS. 15,8 7,50,000/-. IT WOULD BE RELEVANT TO MENTION HERE THAT THE APPEL LANT HAD NEITHER TAKEN ANY POST DATED CHEQUES FOR THE BALANC E AMOUNT FROM UTHPL NOR MENTIONED ANYTHING ABOUT THE MODE OF ITS PAYMENT IN THE MOU. AS PER THE SAID MOU, IF UTHPL D O ITA NO.496/JP/2016 M/S. RAJA STHAN LAND DEVELOPERS PVT LTD. VS ITO, WARD- 2(2), JAIPUR 4 NOT MAKE THE PAYMENT IN TIME, IT HAD TO PAY ADDITIO NAL AMOUNT AT THE RATE OF RS. 200/- PER SQUARE YARD. (II) DURING ASSESSMENT PROCEEDING, IT WAS CLAIMED BY THE APPELLANT THAT THE ABOVE MOU DATED 22-03-200 6 WAS CANCELLED BETWEEN THE PARTIES ON 14-07-2007 AS UTHP L COULD NOT MAKE THE ENTIRE PAYMENT BY 04-06-2006 AS SPECIFIED IN MOU DATED 22-03-2006 AND COULD PAY ONL Y RS. 4.16 CRORE THROUGH CHEQUES. IN THE EXTENDED PERIOD, OUT OF THE TOTAL SALE CONSIDERATION OF RS. 15,87,50,000/-, UTHPL COULD PAY ONLY RS. 5.69 CRORE TILL 14-07-2007. IT M AY BE MENTIONED THAT ANOTHER MOU WAS CLAIMED TO BE EXECUT ED ON 14-07-2007 BETWEEN THEM WHEREIN ONLY MARKETING RIGH TS FOR 72000 SQUARE YARD OF RESIDENTIAL LAND WERE ASSIGNED TO UTHPL AT THE RATE OF RS. 1270/- PER SQUARE YARD I.E . NOW THE TOTAL CONSIDERATION WAS RS. 9,14,40,000/-. AS MENTI ONED EARLIER THAT IN THE MOU DATED 22-03-2006, IF UTHPL WAS UNABLE TO PAY THE AGREED AMOUNT WITHIN THE STIPULAT ED TIME, THEN IT HAD TO PAY THE ADDITIONAL AMOUNT OF RS. 20 0/- PER SQUARE YARD BUT THIS CLAUSE WAS NOT INVOKED BY THE APPELLANT AS IS APPARENT FROM THE CANCELLATION AGREEMENT. IN THE CANCELLATION AGREEMENT DATED 14-07-2007, IT WAS ALS O STATED THAT THE UTHPL WAS TO PAY RS. 57,50,000/-IN CASH WI THIN 15 DAYS OF MOU DATED 22-03-2006 WHICH WAS NOT PAID BY UTHPL AND THE APPELLANT STATED TO RECEIVE CASH OF R S. 57,50,000/- IN THE MOU DATED 22-03-2006 ONLY ON THE PROMISE MADE BY UTHPL. (III) DURING ASSESSMENT PROCEEDING, THE AO MADE ENQUIRIES THROUGH THE INVESTIGATION WING AT NEW DEL HI WHERE STATEMENT OF SHRI NIKHIL TRIPATHI, DIRECTOR OF UTHP L WAS RECORDED ON OATH U/S 131 OF THE ACT IN WHICH HE CON FIRMED THE PAYMENT OF CASH OF RS. 57,50,000/- AND RS. 10 L ACS THROUGH BEARER CHEQUE DURING THE YEAR UNDER CONSID ERATION AND STATE THAT THE MOU DATED 14-07-2007 WAS NOT SIG NED BY HIM AND A FORGED DOCUMENT. ON THE BASIS OF THE DETA ILED DISCUSSION IN THE ASSESSMENT ORDER, THE AO MADE AN ADDITION OF RS. 67,50,000/- ON ACCOUNT OF UNRECORDED SALES. ITA NO.496/JP/2016 M/S. RAJA STHAN LAND DEVELOPERS PVT LTD. VS ITO, WARD- 2(2), JAIPUR 5 (IV) DURING APPELLATE PROCEEDINGS, THE APPELLANT REPEATED THE SUBMISSIONS MADE BEFORE THE AO AND PLA CED RELIANCE ON THE CHARGE SHEET FILED BY THE POLICE AG AINST UTHPL AND ITS DIRECTORS EMPHASIZING THAT THE CANCEL LATION AGREEMENT DATED 14-07-2007 WAS RECOVERED IN ORIGINA L BY THE POLICE FROM THE POSSESSION OF SHRI TRIPATHI. A COPY OF THE CHARGE SHEET WAS ALSO FILED. I HAVE GONE THROUG H THE SAID CHARGE SHEET AND NOTED THAT THE FACTS AS DISCUSSED ABOVE IN THIS ORDER HAS BEEN MENTIONED IN THIS REGARD AND TH E AO DID NOT MENTION ANYTHING ABOUT THE GENUINENESS OR OTHER WISE OF THE CANCELLATION AGREEMENT DATED 14-07-2007. THEREF ORE, THE SAID CHARGE SHEET IS OF NO HELP TO THE APPELLANT. 4.1 IT IS PERTINENT TO MENTION HERE THAT APPARENTL Y, THE SIGNATURES OF SHRI NIKHIL TRIPATHI AND THE MOU DATED 22- 03-2006 AND THE SO CALLED CANCELLATION AGREEMENT AN D MOU DATED 14-07-2007 DO NOT TALLY. THIS SUPPORTS THE CL AIM OF SHRI TRIPATHI AND THE CANCELLATION AGREEMENT DATED 14-07- 2007 IS FORGED ONE AS IT DO NOT BEAR HIS SIGNATURES . 4.2 IT WOULD BE RELEVANT TO MENTION HERE THAT AS PE R THE ASSESSMENT ORDER, UTHPL HAD SHOWN ADVANCE TO TH E APPELLANT AT RS. 2.35 CRORE AGAINST RS. 1.85 CRORE CLAIMED TO BE RECEIVED BY THE APPELLANT DURING THE YEAR UNDER CONSIDERATION THROUGH CHEQUES ONLY. IT WOULD BE APP ROPRIATE TO REPRODUCE HERE THE RELEVANT EXTRACTS OF THE STAT EMENT OF SHRI NIKHIL TRIPATHI RECORDED ON OATH U/S 131 OF TH E ACT BY THE INVESTIGATION WING AT NEW DELHI, AS STATED IN T HE ASSESSMENT ORDER, AS UNDER:- Q. NO.6: PLEASE GO THROUGH THE COPIES OF BALANCE CONFIRMATION FOR THE PERIOD 01-04-2005 TO 31-03-200 6 AND 01-04-2006 TO 31-03-2007 FILED BY RLDPL BEFORE ITS ASSESSING OFFICER. AS PER THESE DOCUMENTS, THE BALA NCE SHOWN BY RLDPL AS ON 31-03-2006 AGAINST UTHPL IS RS . 1,80,00,000 (CREDIT) AND THAT ON 31-03-2007 THE SAM E IS SHOWN AT RS. 5,69,00,000 (CREDIT). BOTH THESE DOCUM ENTS ITA NO.496/JP/2016 M/S. RAJA STHAN LAND DEVELOPERS PVT LTD. VS ITO, WARD- 2(2), JAIPUR 6 BEAR YOUR SIGNATURE. HOWEVER AS PER YOUR BOOKS OF A CCOUNTS THE BALANCE SHOWN IS RS. 2,45,00,000/- AND 9,83,00, 000/- RESPECTIVELY. PLEASE EXPLAIN THE SAME? ANS. M/S. RLDPL HAVE NOT ACCOUNTED FOR PAYMENT AMOUNTING TO RS. 5,00,000/- PAID VIDE CHEQUE NO.093 202 DATED 20-02-2006, RS. 50,00,000/- VIDE CHEQUE 34440 2 DATED 31-03-2006 AND RS. 10,00,000 VIDE BEARER CHEQUE NO. 344404 DATED 31-03-2006 IN THEIR BOOKS OF ACCOUNTS FOR F.Y. 2005-06. SUBSEQUENTLY, THEY HAVE ACCOUNTED FOR RS. 50,00,000/- PAID VIDE CHEQUE NO. 344402 DATED 31-03 -2006 IN THE NEXT F.Y. HOWEVER, THEY HAVE NOT ACCOUNTED F OR RS. 5,00,000/- PAID VIDE CHEQUE NO. 344404 DATED 31-03- 2006 EVEN TILL DATE IN THEIR BOOKS. WITH RESPECT TO THE BALANCE AS ON 31-03-2007, IT IS STATED THAT THEY HAVE NOT ACCO UNTED THE PAYMENTS ENTERED IN OUR BOOKS WHICH WAS PAID BY WAY BEARER CHEQUES AND CASH AS SATED ABOVE. Q.NO.7: I AM ALSO SHOWING A COPY OF DOCUMENT FILED DETAIL OF PAYMENTS MADE TO RAJASTHAN LAND DEVELOPERS PVT. LTD. JAIPUR DURING THE PERIOD W.E.F . 01-03- 2006 TO 31-03-2007 WHICH HAS BEEN FILED BY YOUR CO MPANY BEFORE THE ITO, WARD 2(2), JAIPUR U/S 133(6) OF THE I.T. ACT, 1961. PLEASE STATE WHETHER YOU ACCEPT THAT THIS DOC UMENT HAS BEEN FILED BY YOUR COMPANY AND IF SO WHY IT DOES NO T MATCH WITH YOUR BOOKS OF ACCOUNTS? ANS: I CONFIRM THAT THE SAID DOCUMENT HAS BEEN FILE D BY UTHPL BEFORE THE ITO,WARD 2(2), JAIPUR U/S 133(6 ) OF THE I.T. ACT, 1961. THE TOTAL PAYMENT OF RS. 9.83 C RORE MADE TO M/S. RLDPL MATCHED WITH YOUR BOOKS OF ACCOUNTS. HOWEVER, THE DATES AS PER BOOKS OF ACCOUNTS AND THE SAID STATEMENT DIFFERS BECAUSE UTHPL HAS ACCOUNTED FOR T HE ENTRE CASH AND PART PAYMENT BY BEARER CHEQUE PAID T O RLDPL IN THE F.Y. 2006-07. WE AGAIN CONFIRM THE PAY MENT BY CASH/ BEARER CHEQUE DURING THE F.Y. 2005-06 TO R LDPL AMOUNTS TO RS. 67,50,000/- AND DURING F.Y. 2006-07 THE SAME AMOUNT TO RS. 3.42 CRORE AGAINST WHICH RS.10,0 0,000/- ITA NO.496/JP/2016 M/S. RAJA STHAN LAND DEVELOPERS PVT LTD. VS ITO, WARD- 2(2), JAIPUR 7 IS ACCOUNTED FOR IN OUR BOOKS IN THE F.Y. 2005-06 A ND THE BALANCE 3.99 CRORES IS ACCOUNTED FOR IN OUR BOOKS I N THE F.Y.2006-07. (V) THUS, IN THE ABOVE REFERRED STATEMENT OF SHRI TRIPATHI CLAIMED TO MAKE CASH PAYMENT OF RS. 67.50 LACS AND RS. 3.42 CRORES DURING THE YEAR F.Y. 2005-06 AND 20 06-07 RESPECTIVELY AND THE TOTAL PAYMENT OF RS. 9.83 CROR ES WAS MADE BY UTHPL TO THE APPELLANT AS IS EVIDENT FROM I TS BOOKS OF ACCOUNTS. IT IS PERTINENT TO MENTION HERE THAT A S PER THE AUDITED FINANCIAL STATEMENT OF UTHPL FOR THE FY 200 6-07 DATED 06-06-2007, IT HAD SHOWN LOANS AND BALANCE TO THE APPELLANT AT RS. 2.45 CRORES AND RS. 9.83 CRORES AS ON 31-03- 2006 AND 31-03-2007 RESPECTIVELY. IT WAS THE CONTEN TION OF THE APPELLANT THAT IN HIS STATEMENT SHRI TRIPATHI W AS TELLING A LIE BUT IT FAILED TO CITE ANY REASON FOR SHRI TRIPA THI TO MAKE A FALSE STATEMENT. FURTHER, IT WAS NOT ABLE TO STATE ANY REASON WHY UTHPL WOULD SOWN SUCH HUGE PAYMENTS IN ITS FINANCIAL STATEMENTS WHICH WERE NOT ACTUALLY PAID B Y IT AS CLAIMED BY THE APPELLANT AND THAT TOO THROUGH CASH PAYMENTS. IT IS MATTER OF COMMON KNOWLEDGE THAT IN REAL ESTAT E TRANSACTIONS, AT LEAST 30 40% PAYMENTS ARE MADE I N CASH. IT IS PERTINENT TO MENTION HERE THAT VIDE EARLIER MOU DATED 22- 03-2006, 1,25,000 SQUARE YARDS OF LAND WAS SOLD BY THE APPELLANT TO UTHPL AT THE RATE OF RS. 1270/- PER SQ UARE YARD WHEREAS AS PER THE NEW MOU DATED 14-07-2007, AS CLA IMED BY THE APPELLANT, ONLY MARKETING RIGHTS OF 72000 SQ UARE YARDS OF RESIDENTIAL LAND WERE ASSIGNED AT THE RATE OF 1270 PER SQUARE YARD TO UTHPL BY THE APPELLANT. THESE FA CTS COUPLED WITH THE FACTS AVAILABLE ON RECORD CLEARLY ESTABLISH THAT THE APPELLANT RECEIVED A SUM OF RS. 67.50 LACS DURING THE YEAR UNDER CONSIDERATION WHICH WAS NOT RECORDED IN ITS BOOKS OF ACCOUNTS. IN THE GROUND OF APPEAL, IT HAS BEEN S TATED BY THE APPELLANT THAT THE AO HAS NOT MENTIONED THE SECTION UNDER WHICH THE ADDITION WAS MADE AND HE HAS NOT VERIFIED THE BANK STATEMENT. IN THIS REGARD, IT IS STATED THAT N ON- MENTIONING OF SECTION DOES NOT MAKE THE ASSESSMENT BAD. ITA NO.496/JP/2016 M/S. RAJA STHAN LAND DEVELOPERS PVT LTD. VS ITO, WARD- 2(2), JAIPUR 8 FURTHER, FOR CASH TRANSACTION, THERE IS NO NEED FOR VERIFICATION OF THE BANK STATEMENTS. (VI) IN VIEW OF THE ABOVE DISCUSSION, IT IS HELD TH AT THE AO WAS JUSTIFIED IN MAKING AN ADDITION OF RS. 6 7.50 LACS. FURTHER, AS THE POWERS OF CIT(A) ARE CO-TERMINUS W ITH THAT OF THE AO, IT IS HELD THAT THE INCOME IS TO BE ASSE SSED AS INCOME FROM OTHER SOURCES. 3.2.2 DETERMINATION (GROUND NO.2) (I) I HAVE CAREFULLY PERUSED THE SUBMISSIONS OF THE APPELLANT AND THE MATERIAL PLACED ON RECORD. IT COU LD BE SEEN FROM THE ASSESSMENT ORDER THAT IN PARA 3.9 ON PAGE 6, IT WAS STATED BY THE AO THAT :- THE COPY OF STATEMENT OF SHRI NIKHIL TRIPATHI RECORDED ON 13-03-2014 WAS FORWARDED TO ASSESSEE VI DE THIS OFFICE LETTER NO. 2306 DATED 14-03-2014 WITH A REQU EST TO EXPLAIN WHY THE AMOUNT OF RS. 67,50,000/- SHOULD NO T BE TREATED AS INCOME OF THE ASSESSEE COMPANY NOT RECOR DED IN THE BOOKS OF ACCOUNTS. (II) THEREFORE, THE STATEMENT OF SHRI NIKHIL TRIPAT HI RECORDED ON 13-03-2014 WAS BROUGHT TO THE NOTICE OF THE APPELLANT BY THE AO VIDE LETTER DATED 13-03-2014. T HE APPELLANT HAS NOT BROUGHT ON RECORD ANY MATERIAL WH ICH MAY INDICATE THAT IT REQUIRED CROSS EXAMINATION OF SHRI TRIPATHI. IT IS TRITE LAW THAT THE INFORMATION GATHERED BEHIND T HE BACK OF THE APPELLANT CANNOT BE USED UNLESS CONFRONTED. IN THE INSTANT CASE UNDER CONSIDERATION, THE APPELLANT WAS CONFRON TED WIT THE STATEMENT OF SHRI TRIPATHI BUT THE APPELLANT DI D NOT SEEK THE CROSS EXAMINATION OF SHRI TRIPATHI. NOW, AT THE APPELLANT STAGE, THE APPELLANT CANNOT BE ALLOWED TO RAISE THI S GROUND WHICH HE HAD ALREADY WAIVED AT THE ASSESSMENT STAGE . THEREFORE, THIS GROUND OF APPEAL IS REJECTED. 3.3.2 DETERMINATION GROUND NO. 3 ITA NO.496/JP/2016 M/S. RAJA STHAN LAND DEVELOPERS PVT LTD. VS ITO, WARD- 2(2), JAIPUR 9 (I) I HAVE CAREFULLY PERUSED THE SUBMISSIONS OF THE APPELLANT AND MATERIAL PLACED ON RECORD. THIS ISSUE HAS ALREADY BEEN DEALT IN GROUND OF APPEAL NO. 1, HEN CE THIS GROUND OF APPEAL IS REJECTED. 2.2 DURING THE COURSE OF HEARING, THE LD.AR OF THE ASSESSEE FILED THE WRITTEN AS TO THE RESPECTIVE GROUNDS RAISED IN THE APPEAL WHICH HAS BEEN TAKEN INTO CONSIDERATION. THE LD.AR OF THE ASSESSEE CONCISELY ARGUED THAT THE LD. CIT(A) HAS ERRED IN CONFIRMING THE ADDITION OF RS. 67.50 LACS AND THE AO DID NOT ALLOW THE ASSESSEE TO CROSS EXAMINE THE STATEMENT GIVEN BY SHRI NIKHIL TRIPATHI DURING THE COURSE OF PROCEE DINGS. 2.3 ON THE OTHER HAND, THE LD. DR SUPPORTED THE ORD ER OF THE LOWER AUTHORITIES. 2.4 WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIALS AVAILABLE ON RECORD. BRIEF FACTS OF THE CASE ARE TH AT THE ASSESSEE DEALS IN BUSINESS OF SALE, PURCHASE, ACQUIRE, CONVERT, DEVEL OP, CONSTRUCT LAND & BUILDING INCLUDING FARM HOUSES, VILLA RESIDENTIAL F LATS, COMMERCIAL COMPLEX ETC. AS PER THE INFORMATION AVAILABLE WITH THE DEPARTMENT, THE AO OBSERVED THAT THE ASSESSEE COMPANY HAD ENTERED I NTO AN AGREEMENT FOR SALE OF ITS LAND SITUATED AT SANGANER-DIGGI MAL PURA ROAD IN THE REVENUE VILLAGE OF PANWALIA, MANPUR TILLAWALA, JAIS INGHPURA, ROOPWAS FALLING IN SANGANER TEHSIL OF JAIPUR DISTRICT VIDE MEMORANDUM OF ITA NO.496/JP/2016 M/S. RAJA STHAN LAND DEVELOPERS PVT LTD. VS ITO, WARD- 2(2), JAIPUR 10 UNDERTAKING (MOU) DATED 22-03-2006 WITH M/S. U-TURN HOUSING PVT. LTD. AS PER THIS MOU DATED 22-03-2006, AN AMOUNT OF RS. 2,20,00,000/- HAD BEEN RECEIVED THROUGH CHEQUE AND RS. 57,50,000/ - THROUGH CASH UPTO DATE OF AGREEMENT/MOU. HOWEVER, AS PER THE CONFIRMA TION OF ACCOUNTS OF M/S. RAJASTHAN LAND DEVELOPERS PVT LTD. FILED BY SH RI PRABHU LAL CHOPRA BEFORE THE INVESTIGATION WING OF THE DEPARTMENT, GR OSS RECEIPT OF ONLY RS. 1,80,00,000/- HAD BEEN SHOWN AS UNDER:- S.N. DATE AMOUNT (RS.) 1. 27-02-2006 35,00,000 2. 28-02-2006 35,00,000 3. 11-03-2006 50,00,000 4. 20-03-2006 60,00,000 1,80,00,000 THE AO NOTED THAT APART FROM ABOVE, RS. 5,00,000/- HAS BEEN RECEIVED FROM SHRI NIKHIL TRIPATHI, DIRECTOR OF M/S. U-TURN HOUSING PVT. LTD ON 16-02-2006. THEREFORE, OUT OF TOTAL RECEIPTS OF RS. 2,77,50,000/- (RS. 2,20,00,000 PLUS RS. 57,50,000/-), ONLY RS. 1,85,00 ,000/- (RS. 1,80,00,000 PLUS 5,00,000) HAD BEEN STATED TO BE DE CLARED BY THE ASSESSEE AND BALANCE OF RS. 92,50,000 (RS. 2,77,50,000 MINUS RS. 1,85,00,000) HAD NOT BEEN DECLARED BY THE ASSESSEE. THEREFORE, T HE CASE OF THE ASSESSEE WAS REOPENED U/S 147 OF THE I.T. ACT, 1961 AND NOTI CE U/S 148 OF THE ACT ITA NO.496/JP/2016 M/S. RAJA STHAN LAND DEVELOPERS PVT LTD. VS ITO, WARD- 2(2), JAIPUR 11 WAS ISSUED ON 16-03-2013. IT IS NOTED THAT THIS CAS E WAS EXAMINED BY THE INVESTIGATION WING OF THE DEPARTMENT AND STATEMENT OF SHRI RAM PRASAD CHOPRA, ONE OF THE DIRECTOR WAS RECORDED U/S 131 OF THE ACT ON 29-11- 2013. THE INVESTIGATION WING AS PER THE MOU OBSERVE D THAT THE ASSESSEE HAD RECEIVED FOLLOWING PAYMENTS FROM M/S. U-TURN HO USING PVT. LTD UPTO THE DATE (22-03-2006) OF SIGNING OF MOU. RS.2,20,00,000 THROUGH VARIOUS CHAQUES. RS. 57,50,000 IN CASH THE AO NOTED THAT THE CONTENTION OF THE ASSESSEE WA S THAT IN FACT NO CASH OF RS. 57,50,000/ WAS RECEIVED FROM U-TURN HOUSING PVT LTD. AND IT WAS ONLY A PROMISE TO PAY IN FUTURE. AS REGARDS RECEIPT S OF RS. 2,20,00,000/- THROUGH CHEQUES IT WAS STATED THAT RS. 1,80,00,000/ - WERE RECEIVED FROM THE COMPANY AND RS. 5.00 LACS WERE RECEIVED THROUGH DIRECTOR SHRI NIKHIL TRIPATHI. THUS THE ASSESSEE COMPANY HAD RECEIVED IN TOTAL A SUM OF RS. 1.85 CRORES FROM M/S. U-TURN HOUSING PVT. LTD. THE AO FURTHER NOTED THAT THE ASSESSEE COMPANY FILED A COPY OF CANCELLAT ION AGREEMENT OF SALE AGREEMENT DATED 22-03-2006 MADE ON 14-07-2007 IN WH ICH IT WAS STATED THAT THE AMOUNT OF RS. 57,50,000/- WAS NEVER RECEIV ED AND IT WAS WRITTEN ON THE BASIS OF VERBAL ASSURANCE. THE AO AT PARA 3. 4 HAS TAKEN INTO ITA NO.496/JP/2016 M/S. RAJA STHAN LAND DEVELOPERS PVT LTD. VS ITO, WARD- 2(2), JAIPUR 12 CONSIDERATION THE RELEVANT PORTION OF CANCELLATION AGREEMENT. THE AO NOTED THAT IN ORDER TO VERIFY THE CORRECTNESS OF FA CTS MENTIONED IN VARIOUS AGREEMENTS, INFORMATION U/S 133(6) WAS CALLED FROM M/S. U-TURN HOUSING PVT. LTD AND ON EXAMINATION OF THE COPY OF ACCOUNT OF M/S. RAJASTHAN LAND DEVELOPERS PVT LTD. IN THEIR BOOKS, THE FOLLOW ING PAYMENT HAD BEEN SHOWN TO BE MADE DURING THE YEAR UNDER CONSIDERATIO N. DATE CHEQUE DETAILS AMOUNT 22-02-2006 NO. 093202 RS. 5,00,000/- 25-02-2006 NO. 093207 RS. 35,00,000/- 25-02-2006 NO. 093208 RS. 35,00,000/- 25-02-2006 CASH RS. 8,00,000/- 01-03-2006 CASH RS. 25,00,000/- 05-03-2006 CASH RS. 25,00,000/- 10-03-2006 NO. 093211 RS. 50,00,000/- 18-03-2006 NO. 093216 RS. 60,00,000/- 22-03-2006 CASH RS. 25,00,000/- 31-03-2006 DD NO 922731 RS. 50,00,000/- THUS THE AO NOTED THAT M/S. U-TURN HOUSING PVT. LTD MADE TOTAL PAYMENTS OF RS. 3,18,00,000/- AS PER DETAILS MENTIO NED ABOVE. THE COPY OF THE ACCOUNT SUPPLIED BY M/S. U-TURN HOUSING PVT. LTD WAS PROVIDED TO THE ASSESSEE COMPANY TO EXPLAIN THE SAME WHICH WAS REPLIED BY THE LD.AR OF THE ASSESSEE VILDE LETTER DATED 11-02-2014. THE COPY OF REPLY RECEIVED FROM THE ASSESSEE ALONGWITH COPIES OF CONFIRMATION WERE FORWARDED BY ITA NO.496/JP/2016 M/S. RAJA STHAN LAND DEVELOPERS PVT LTD. VS ITO, WARD- 2(2), JAIPUR 13 THE AO VIDE HIS LETTER NO. 2177 DATED 11-02-2014 TO M/S. U-TURN HOUSING PVT. LTD. IT IS ALSO NOTED THAT IN ORDER TO EXAMINE M/S. U-TURN HOUSING PVT.LTD., COMMISSION U/S 131(1)(D) OF THE I.T. ACT, 1961 WAS ISSUED BY ADIT (INV.), SPECIAL CELL, NEW DELHI VIDE OFFICE LETTER NO. 2178 DATED 13-02-2014. THE REPORT OF ADIT (INV.), N EW DELHI WAS RECEIVED ON 14-03-2014. SHRI NIKHIL TRIPATHI, DIREC TOR M/S. U-TURN HOUSING PVT. LTD WAS EXAMINED ON 13-03-2014 BY ADIT (INV.) AND HIS STATEMENTS WERE RECORDED IN WHICH HE CONFIRMED THE CASH PAYMENTS OF RS. 4.09 CRORES IN F.Y.2005-06 & 2006-07 TO THE ASSESSE E COMPANY, OUT OF WHICH AN AMOUNT OF RS. 67,50,000/- (INCLUDING RS. 1 0,00,000/-PAID THROUGH BEARER CHEQUE) WAS STATED TO BE PAID DURING THE YEAR UNDER CONSIDERATION. AS REGARDS THE CANCELLATION AGREEMEN T DATED 14-07-2007, IT IS NOTED AT PAGE 6 OF THE ASSESSMENT ORDER WHEREIN SHRI NIKHIL TRIPATHI HAD DENIED IN HIS STATEMENTS TO HAVE SIGNED ANY SUC H DOCUMENT. SHRI TRIPATHI IN HIS STATEMENT AT ANSWER TO QUESTION NO. 4 DENIED THAT AN IKRARNAMA DATED 14-07-2007 WAS EXECUTED BY HIM ON B EHALF OF U-TURN HOUSING PVT. LTD (UTHPL) AND HIS SIGNATURES ARE FOR GED AND THIS IKRARNAMA IS COMPLETELY FORGED DOCUMENT. SHRI TRIPA THI CONFIRMED THE ANSWER TO QUESTION NO. 5 THAT RS. 57,50,000/- WAS P AID IN THE YEAR 2005- ITA NO.496/JP/2016 M/S. RAJA STHAN LAND DEVELOPERS PVT LTD. VS ITO, WARD- 2(2), JAIPUR 14 06 UPTO 22-03-206 IN CASH TO M/S. RAJASTHAN LAND DE VELOPERS PVT LTD.. THUS THE COPY OF THE STATEMENT OF SHRI NIKHIL TRIPA THI RECORDED ON 13-03- 2014 WAS FORWARDED TO THE ASSESSEE BY THE AO VIDE L ETTER NO.2306 DATED 14-03-2014 TO WITH A REQUEST TO EXPLAIN WHY THE AM OUNT OF RS. 67,50,000/- SHOULD NOT BE TREATED AS INCOME OF THE ASSESSEE COMPANY WHICH WAS NOT RECORDED IN THE BOOKS OF ACCOUNTS. IN RESPONSE THERETO, THE LD.AR OF THE ASSESSEE ON 19-03-2014 REPLIED, THE C ONTENTS OF THE SAME ARE NARRATED AT PAGE 6 & 7 OF THE ASSESSMENT ORDER. THE SUBMISSIONS OF THE ASSESSEE HAVE BEEN TAKEN INTO CONSIDERATION BY THE AO BUT THE SAME HAS NOT BEEN FOUND CONVINCING BY THE AO WITH FOLLOWING OBSERVATION. 3.11.4 THEREFORE, THE CONTENTION OF THE ASSESSEE THAT NO CASH OF RS. 57,50,000/- WAS RECEIVED AT THE TIME OF AGREEMENT IS NOT FOUND CONVINCING AT ALL BECAUSE WH EN NO SUCH CASH WAS RECEIVED BY THE ASSESSEE COMPANY WHY THIS CLAUSE WAS PUT IN THE MOU DATED 22-03-2006. 3.11.5 IN THE SUBMISSIONS, ASSESSEE HAS RELIED UPON THE FIR FILED AT DELHI AGAINST SHRI NIKHIL TR IPATHI WHICH HAS NO RELEVANCY WITH THE ISSUE IN HAND BECAU SE THE FIR WAS FILED BY THE PERSON WHO BOOKED PLOT WITH M/ S. UTHPL AND NOT THE ASSESSEE COMPANY AND ASSESSEE WAS EXAMINED BY THE DELHI POLICE AS WITNESS. THE DELHI POLICE HAS NOT GIVEN ANY FINDING ON THE RECEIPT/ NON-RECEI PT OF RS. 57,50,000/- BY THE ASSESSEE COMPANY. AS REGARDS THE SIGNING OF COPY OF YEARWISE CONFIRMA TION OF ACCOUNTS BY M/S. TPHL, SHRI NIKHIL TRIPATHI WAS CONFRONTED BY T HE AO WHO HAD ITA NO.496/JP/2016 M/S. RAJA STHAN LAND DEVELOPERS PVT LTD. VS ITO, WARD- 2(2), JAIPUR 15 REPLIED AT PAGE 8 AND 9 OF THE ASSESSMENT ORDER. TH US THE AO LOOKING INTO THE FACTS AND CIRCUMSTANCES OF THE CASE, THE AO MA DE THE ADDITION OF RS. 67.50 LACS IN THE HANDS OF THE ASSESSEE BY OBSERVIN G AS UNDER:- 3.12 THEREFORE, KEEPING IN VIEW THE ABOVE FACTS, IT IS HELD THAT ASSESSEE COMPANY HAS NOT ACC OUNTED FOR RS. 67,50,000 (RS. 57,50,000 PLUS RS. 10,00,000) RE CEIVED FROM M/S. UTHPL IN CASH AND THROUGH BEARER CHEQUE A ND SAME IS TREATED AS INCOME OF THE ASSESSEE COMPANY N OT RECORDED IN THE BOOKS OF ACCOUNT. IN FIRST APPEAL, THE LD. CIT(A) HAS CONFIRMED THE A CTION OF THE AO DETAILING ALL THE FACTS AND CIRCUMSTANCES OF THE CA SE. IT IS ALSO NOTED THAT DURING THE COURSE OF HEARING THE LD.AR OF THE ASSES SEE COULD NOT ADVANCE ANY CONTRARY ARGUMENTS CONFRONTING THE ORDERS OF TH E LOWER AUTHORITIES. IT IS FURTHER NOTED FROM THE AVAILABLE RECORDS THAT T HE ASSESSEE HAD RECEIVED A SUM OF RS. 67.50 LACS DURING THE YEAR UNDER CONSI DERATION WHICH WAS NOT RECORDED IN THE BOOKS OF ACCOUNT OF THE ASSESSE E. IT IS ALSO PERTINENT TO MENTION THAT BEFORE THE INVESTIGATION WING AT NEW D ELHI, SHRI NIKHIL TRIPATHI, DIRECTOR OF UTHPL STATEMENT WAS RECORDED U/S 131 OF THE ACT IN WHICH HE CONFIRMED THE PAYMENT OF CASH OF RS.57.50 LACS AND RS. 10.00 LACS THROUGH BEARER CHEQUE DURING THE YEAR UNDER CO NSIDERATION AND STATED THAT THE MOU DATED 14-07-2007 WAS NOT SIGNED BY HIM BUT IT WAS A ITA NO.496/JP/2016 M/S. RAJA STHAN LAND DEVELOPERS PVT LTD. VS ITO, WARD- 2(2), JAIPUR 16 FORGED DOCUMENT. IN THIS SITUATION, THE AO NOTICED THE UNRECORDED SALES OF RS. 67.50 LACS AND MADE THE ADDITION IN THE HANDS O F THE ASSESSEE . AS REGARDS NON-MENTIONING OF SECTION BY THE AO AS TO T HE ADDITION, THE LD. CIT(A) HAS RIGHTLY GAVE OBSERVATION AS UNDER:- (V)..IT WAS THE CONTENTION OF THE APPELLANT THA T IN HIS STATEMENT SHRI TRIPATHI WAS TELLING A LIE BUT IT FA ILED TO CITE ANY REASON FOR SHRI TRIPATHI TO MAKE A FALSE STATEMENT. FURTHER, IT WAS NOT ABLE TO STATE ANY REASON WHY UTHPL WOULD SHOW S UCH HUGE PAYMENTS IN ITS FINANCIAL STATEMENTS WHICH WERE NOT ACTUALLY PAID BY IT AS CLAIMED BY THE APPELLANT AND THAT TOO THRO UGH CASH PAYMENTS. IT IS MATTER OF COMMON KNOWLEDGE THAT IN REAL ESTATE TRANSACTIONS, AT LEAST 30 40% PAYMENTS ARE MADE I N CASH. IT IS PERTINENT TO MENTION HERE THAT VIDE EARLIER MOU DAT ED 22-03-2006, 1,25,000 SQUARE YARDS OF LAND WAS SOLD BY THE APPEL LANT TO UTHPL AT THE RATE OF RS. 1270/- PER SQUARE YARD WHEREAS A S PER THE NEW MOU DATED 14-07-2007, AS CLAIMED BY THE APPELLANT, ONLY MARKETING RIGHTS OF 72000 SQUARE YARDS OF RESIDENTI AL LAND WERE ASSIGNED AT THE RATE OF 1270 PER SQUARE YARD TO UTH PL BY THE APPELLANT. THESE FACTS COUPLED WITH THE FACTS AVAIL ABLE ON RECORD CLEARLY ESTABLISH THAT THE APPELLANT RECEIVED A SUM OF RS. 67.50 LACS DURING THE YEAR UNDER CONSIDERATION WHICH WAS NOT R ECORDED IN ITS BOOKS OF ACCOUNTS.IN GROUND OF APPEAL, IT HAS BEEN STATED BY THE APPELLANT THAT THE AO HAS NOT MENTIONED THE SECTION UNDER WHICH THE ADDITION WAS MADE AND HE HAS NOT VERIFIED THE B ANK STATEMENT. IN THIS REGARD, IT IS STATED THAT NON-MENTIONING OF SECTION DOES NOT MAKE THE ASSESSMENT BAD. FURTHER, FOR CASH TRANSACT ION, THERE IS NO NEED FOR VERIFICATION OF THE BANK STATEMENTS. IN VIEW OF THE ABOVE DELIBERATIONS, FACTS AND CIRCU MSTANCES OF THE CASE, WE CONCUR WITH THE FINDINGS OF THE LD. CIT(A). THUS THE APPEAL OF THE ASSESSEE FOR THE 2006-07 IS DISMISSED. ITA NO.496/JP/2016 M/S. RAJA STHAN LAND DEVELOPERS PVT LTD. VS ITO, WARD- 2(2), JAIPUR 17 3.1 NOW WE TAKE UP THE APPEAL OF THE ASSESSEE IN IT A NO. 109/JP/2017 FOR THE ASSESSMENT YEAR 2007-08 FOR ADJ UDICATION. 3.2 DURING THE COURSE OF HEARING, THE LD.AR OF THE ASSESSEE VIDE APPLICATION DATED 25-01-2017 PRAYED TO ADMIT THE AD DITIONAL EVIDENCE I.E. ADJ COURT ORDER 20-11-2015 ( ROOM NO. 10, JAIPUR MA HANAGAR, JAIPUR), THE CONTENTS OF APPLICATION RAISING THE ADDITIONA L EVIDENCES ARE AS UNDER:- LD. CIT(A) HAS CONFIRMED THE ADDITION MADE BY AO VIDE HIS ORDER DATED 6-11-2015. ACCORDING TO THE OR DER LD. CIT(A) CONFIRMED THE ADDITION AMOUNTING TO RS. 67,5 0,000/- . THE BASIS FOR REJECTION OF APPEAL WAS BASED ON TH E FACT THAT AGREEMENT DATED 22-03-2006 WAS VALID AND IT WAS NOT CANCELLED. IT IS PERTINENT TO NOTE THAT AGREEMENT D ATED 22-03- 2006 AND 14-07-2007 WERE PENDING BEFORE THE COURT O F UPPER DISTRICT MAGISTRATE COURT NO.19. AS SUIT WAS NOT DECIDED, THEREFORE, IT WAS INCUMBENT ON THE PART OF THE LD. CIT(A) TO KEEP THE PROCEEDINGS IN ABEYANCE; THE LD . CIT(A) INSTEAD DETERMINED THE ISSUE. AS SUIT WAS DECIDED O N 20-11- 2015 I.E. 14 DAYS AFTER THE ORDER OF THE LD. CIT(A) IN WHICH HONOURABLE MAGISTRATE HAS AWARDED THE JUDGEMENT IN FAVOUR OF THE APPELLANT. THEREFORE, STATEMENTS DEPOSE BY U TURN HOUSING PVT LTD. BECOMES NULL AND VOID. AS WHOLE ADDITION AMOUNTING TO RS. 67,50,000/- IS BASED ON T HESE AGREEMENT. THE VERY BASIS OF ADDITION BECOMES MEANI NGLESS AND AGAINST THE PRINCIPLE OF NATURAL JUSTICE. IT IS IMPORTANT TO STATE THAT THESE TWO AGREEMENTS ARE INTERRELATED AN D HAVE MATERIAL MEANING ON THE ISSUE OF ADDITION OF RS. 67 ,50,000/-. AS LD. CIT(A) HAS URGED IN HIS ORDER THAT CHANCE OF CROSS EXAMINATION HAS BEEN WAIVED WHICH IS BASELESS AND N OT BASED ON THE PRINCIPLE OF NATURAL JUSTICE. AO NEVER OFFER THE OPPORTUNITY TO CROSS EXAMINE THE STATEMENT IN THE W AKE OF ITA NO.496/JP/2016 M/S. RAJA STHAN LAND DEVELOPERS PVT LTD. VS ITO, WARD- 2(2), JAIPUR 18 CIRCUMSTANCES OF THE CASE. APPELLANT RESPECTFULLY R EQUEST YOUR HONOUR TO ADMIT THESE ADDITIONAL EVIDENCE IN T HE INTEREST OF PRINCIPLE OF NATURAL JUSTICE. THE COPY OF THIS A PPLICATION HAS ALREADY BEEN SERVED ON THE LD. DR. 3.3 ON THE OTHER HAND, THE LD. DR OPPOSED THE ADDIT IONAL EVIDENCE FILED BY THE ASSESSEE PRAYING THAT THE SAME HAD BEEN TAKE N INTO CONSIDERATION BY THE LD. CIT(A) IN ITS JUDGEMENT DATED 30-12-2016 FOR THE ASSESSMENT YEAR 2007-08. 3.4 WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIALS AVAILABLE ON RECORD. WE FIND THAT THE LD. CIT(A) VI DE ITS JUDGEMENT DATED 30-12-2016 FOR THE ASSESSMENT YEAR 2007-08 HAD TAKE N INTO CONSIDERATION THE JUDGEMENT DATED 20-11-2015 OF HON 'BLE UPPER DISTRICT JUDGE, ROOM NO. 19, JAIPUR MAHANAGAR AND REJECTED T HE CONTENTION OF THE ASSESSEE BY OBSERVING AS UNDER (PAGE 20) OF LD. CIT (A)S ORDER):- (V) FURTHER VIDE ABOVE REFERRED ORDER, THE HON'BL E ADJ HAS HELD AS UNDER:- QYR% OKNH DEIUH DK ;G OKN FO:} IZFROKNHX.K ,DI{KH; LO;; FMDZH DH VKNSK FN;K TKRK GS FD OKFN D EIUH O IZFROKNH DEIUH DS E/; FU'IKFNR ,E-VKS-;W FNUKAD 14- 07-2007 DS RGR GH OKNH DEIUH OF.KZR KRKSZ O IZKIR JKFK DS VU QLKJ GH IZFROKNH DEIUH DKS HKWFE MIYC/K DJOKUS DK NKF;RO J[ KRH GSA FTLDS QYLO:I ;G LFKKBZ FU'KS/KKKK IZNKU DH TKRH GSA FD IZFROKNHX.K DEIUH ,E-VKS-;W FNUKAD 14-07-2007 ESA O F.KZR KRKSZ DS FO:} FDLH IZDKJ DH DKSBZ DK;ZOKGH UGH DJSA ITA NO.496/JP/2016 M/S. RAJA STHAN LAND DEVELOPERS PVT LTD. VS ITO, WARD- 2(2), JAIPUR 19 (VI) THUS IT IS EVIDENT FROM THE ABOVE THAT THE I SSUE OF GENUINENESS OR OTHERWISE OF THE MOU DATED 14-07- 2007 WAS NOT BEFORE THE COURT OF HON'BLE ADJ AND THE MOU DATED 22-03-2006 WAS NOT PLACED BEFORE THE HON'BLE COURT, ACCORDING TO WHICH BALANCE PAYMENT OF RS. 13.10 CRO RE WAS REQUIRED TO BE PAID TO BEFORE 04-06-2006, OUT OF TH E SALE CONSIDERATION OF RS. 15,87,50,000/-. MOREOVER, THE ABOVE ORDER WAS PASSED EX-PARTE IN THE ABSENCE OF THE RES PONDENTS U TURN AND SHRI NIKHIL TRIPATHI. THUS THE CONTENTIO N OF THE A.R. IS NOT CORRECT AND THUS HEREBY REJECTED. (VII) IT MAY BE MENTIONED THAT THE APPELLANT HAS FAILED TO CONTROVERT THE FINDINGS OF THE AO AS STAT ED IN THE ASSESSMENT ORDER AND THE REMAND REPORT. THEREFORE, IN VIEW OF THE ABOVE DISCUSSION AND LOOKING TO THE TOTALITY OF FACTS AND CIRCUMSTANCES OF THE CASE, IT IS HELD THAT THE AO WAS JUSTIFIED IN MAKING ADDITION OF RS. 3.26 CRORES U/S 68 OF THE ACT AND HENCE THE SAME IS HEREBY SUSTAINED. IT IS NOTED THAT FILING OF ADDITIONAL EVIDENCE BY T HE LD.AR OF THE ASSESSEE HAS NO RELEVANCE AS THE SAME HAS ALREADY BEEN TAKEN INTO CONSIDERATION IN THE CASE OF THE ASSESSEE FOR THE ASSESSMENT YEAR 20 07-08. IN THIS VIEW OF THE MATTER AND FACTS AND CIRCUMSTANCES OF THE CASE, WE CONCUR WITH THE FINDINGS OF THE LD. CIT(A) FOR THE ASSESSMENT YEAR 2007-08 AND DO NOT FIND MERIT IN ADMITTING THE ADDITIONAL EVIDENCE FIL ED BY THE ASSESSEE. HENCE, THE ADDITIONAL EVIDENCE FILED BY THE ASSESSE E FOR THE ASSESSMENT YEAR 2007-08 IS NOT ADMITTED. THUS GROUND NO. 1 OF THE ASSESSEE IS DISMISSED. ITA NO.496/JP/2016 M/S. RAJA STHAN LAND DEVELOPERS PVT LTD. VS ITO, WARD- 2(2), JAIPUR 20 3.5 AS REGARDS GROUND NO. 2, 3 AND 4, WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIALS AVAILABLE ON RECORD. IT IS NOT IMPERATIVE TO REPEAT THE SAME FACTS AS SIMILAR ISS UE HAS BEEN DECIDED AGAINST THE ASSESSEE IN ASSESSEES OWN CASE FOR TH E ASSESSMENT YEAR 2006-07. WE FURTHER NOTED THAT IN THIS CASE THE LD. CIT(A) HAS RIGHTLY CONFIRMED THE ACTION OF THE AO AS THE ASSESSEE COUL D NOT ADVANCE ANY CONTRARY MATERIAL/ EVIDENCE AS TO THE ADDITION CONF IRMED BY THE LD. CIT(A). IN VIEW OF THE SIMILAR FACTS AND CIRCUMSTAN CES OF THE CASE AS NARRATED IN THE CASE OF THE ASSESSEE FOR THE ASSESS MENT YEAR 2006-07, THE DECISION TAKEN THEREIN SHALL APPLY MUTATIS MUTANDIS IN ASSESSEE'S CASE FOR THE ASSESSMENT YEAR 2007-08. THUS THE APPEAL OF THE ASSESSEE IS DISMISSED. 4.0 IN THE RESULT, THE APPEALS FILED BY THE ASSES SEE ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 7-02-2018. SD/- SD/- FOT; IKY JKO HKKXPUN (VIJAY PAL RAO) ( BHAGCHAND) U;KF;D LNL; / JUDICIAL MEMBER YS[KK LNL;@ ACCOUNTANT MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 7 /02/ 2018 *MISHRA VKNS'K DH IZFRFYFI VXZSF'KR@ COPY OF THE ORDER FORWARDED TO: ITA NO.496/JP/2016 M/S. RAJA STHAN LAND DEVELOPERS PVT LTD. VS ITO, WARD- 2(2), JAIPUR 21 1. VIHYKFKHZ@ THE APPELLANT- M/S. RAJASTHAN LAND DEVELOPERS PVT. LTD. JAIPUR 2. IZR;FKHZ@ THE RESPONDENT-THE ITO, WARD- 2(2), JAIPUR /DCIT, CIRCLE 2, JAIPUR 3. VK;DJ VK;QDRVIHY@ CIT(A). 4. VK;DJ VK;QDR@ CIT, 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ@ DR, ITAT, JAIPUR 6. XKMZ QKBZY@ GUARD FILE (ITA NO. 418/JP/2016) VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASSISTANT. REGISTRAR