Satyanarayan Agarwal (HUF), JODHPUR V. ACIT, JODHPUR

ITA 443/JODH/2013

• Counselvise Citation: 44323314 RSA 2013
• Duration Of Justice: 3 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-11-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 27-11-2013
• Assessment Year: 2003-2004
• Appeal Filed On: 29-08-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: DR DEEPAK SEHGAL
• Keywords: Unexplained investment; Unexplained expenditure; Gift; Business income; Document seized; Documents seized
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELALTE TRIBUNAL : JODHPUR BENC H : JODHPUR BEFORE SHRI HARI OM MARATHA, JUDICIAL MEMBER AND SHRI N.K. SAINI, ACCOUNTANT MEMBER. ITA NOS. 443 & 444/JODH/2013 (A.YS. 2003-04 & 2005-06) SATYANARAYAN AGARWAL (HUF) VS. THE ACIT THROUGH ITS KARTA, CENTRAL CIRCLE-2, 29 NEHRU PARK, JODHPUR JODHPUR. PAN NO. AANHS6458M (APPELLANT) (RESPONDENT) ITA NOS. 437,438, 440 & 441/JODH/2013 (A.YS. 2004-05, 2005-06, 2007-08 & 2008-09) RAJESH AGARWAL VS. THE ACIT 29 NEHRU PARK, JODHPUR. CENTRAL CIRCLE-2, JODHPUR. PAN NO. AAAPA8649P (APPELLANT) (RESPONDENT) ITA NO. 439/JODH/2013 (ASSTT.YEAR. 2006-07) RAJESH AGARWAL VS. THE ACIT 29 NEHRU PARK, JODHPUR. CENTRAL CIRCLE-2, JODHPUR. PAN NO. AAAPA8649P (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI AMIT KOTHARI DEPARTMENT BY : DR. DEEPAK SEHGAL, D.R. DATE OF HEARING : 27/11/2013. DATE OF PRONOUNCEMENT : 29/11/2013. 2 O R D E R PER N.K.SAINI, A.M THESE APPEALS BY THE ASSESSEES ARE DIRECTED AGAINS T THE SEPARATE ORDER EACH DATED 16/07/2013 OF LD. CIT (A), CENTRAL , JAIPUR. 2. FIRST WE WILL DEAL WITH I.T.A. NO. 443/JODH/2013 . THE ONLY ISSUE INVOLVED IN THIS APPEAL RELATES TO SUSTENANCE OF ADDITION OF RS. 3,00,000/- MADE BY THE ASSESSING OFFICER ON ACCOUNT OF GIFTS. 3. FACTS OF THE CASE IN BRIEF ARE THAT THE ASSESSIN G OFFICER DURING THE COURSE OF ASSESSMENT PROCEEDINGS, NOTICED THAT THE ASSESSEE HAD SHOWN RECEIPT OF GIFTS DURING THE YEAR AS UNDER:- I) VIPUL H. MEHTA RS. 1,00,000/- II) HITESH H. JOSHI RS. 1,00,000/- III) HITESH A MEHTA RS. 1,00,000/-. THE ASSESSING OFFICER REQUIRED THE ASSESSEE TO PRO VE THE IDENTITY, CREDITWORTHINESS AND GENUINENESS OF THE TRANSACTION S AND RELATIONSHIP WITH THE DONORS. COPIES OF RETURN OF THEIR INCOME, CAPITAL A CCOUNT, BALANCE SHEET, BANK PASSBOOK ETC.. THE ASSESSING OFFICER ALSO POINTED O UT THAT THE GIFT DECLARATIONS FORMER PART OF THE SEIZED DOCUMENTS AS PER ANNEXURE A-22 PAGES 14,20 AND 26 ACCORDING TO WHICH ALL THREE CHE QUES/DDS WERE PREPARED ON THE SAME DATE I.E. 27/2/2003. THE ASSESSING OFFI CER MADE THE ADDITION OF RS. 3,00,000/- U/S 68 OF THE I.T. ACT, 1961 (HEREIN AFTER TO BE REFERRED AS THE 3 ACT) BY OBSERVING THAT THE GENUINENESS OF THE GIFT AS WELL AS RELATIONSHIP WAS NOT ESTABLISHED. 4. THE ASSESSEE CARRIED THE MATTER TO THE LD. CIT(A ) AND SUBMITTED THAT THE DOCUMENTS FURNISHED BEFORE THE ASSESSING OFFICE R CONCLUSIVELY EXPLAINED THE GENUINENESS OF GIFT RECEIVED BY THE ASSESSEE DU RING THE YEAR UNDER CONSIDERATION. THE ASSESSEE ALSO FURNISHED COPY OF ACKNOWLEDGEMENT OF RETURNS FILED BY THE DONORS, THEIR COMPUTATION OF I NCOME, BALANCE SHEET AS ON 31/3/2002, COPIES OF PAN CARD, COPIES OF GIFT DEED AND THE COPIES OF DRAFT RECEIVED TOWARDS GIFT. RELIANCE WAS PLACED ON THE F OLLOWING CASE LAWS:- A. CIT V/S PADAM SINGH CHOUHAN (2008) 215 CTR (RAJ .) 303- B. NEM KUMAR V/S ACIT (2005) 274 ITR 575. C. MS. MAYAWATI V/S DCIT (2008) 113 TTJ (DEL.) 178 . D. CIT V/S MRS. SUNITA VACHANI (1990) 184 ITR 121 (DEL.) E. ANAND PRAKASH AGARWAL V/S ACIT (2008) 6 DTR (AL L)(TRIB) 191. AT PAGE NO. 194. F. CIT V/S R.S. SIBAL (2004) 187 CTR 291= (2004) 2 69 ITR 429 (DEL.)= (2004) 135 TAXMAN 492. (GIFT FROM NON-REL ATIVE ACCEPTED). G. MURLIDHAR LAHORIMAL V/S CIT (2006) 200 CTR (GUJ ) 109= (2006) ITR 512 (GUJ.)= 153 TAXMAN 451. H. SMT. BHAGWATI DEVI V/S ITO (1993) 47 ITD 58 (CA L.) I. DCIT (ASSESSMENT) V/S ANIL KUMAR (1997) 58 TTJ (DEL.) 340. J. ACIT V/S MANOJ KUMAR SEKHRI (2005) 142 TAXMAN I TAT. 5. THE LD. CIT(A) AFTER CONSIDERING THE SUBMISSIONS OF THE ASSESSEE, CONFIRMED THE ADDITION MADE BY THE ASSESSING OFFICE R BY OBSERVING THAT THE BALANCE SHEET, INCOME TAX RETURN FILED BY THE ALLEG ED DONORS WERE OF THE PREVIOUS YEAR, SO DID NOT CONSTITUTE RELEVANT EVIDE NCE FOR TRANSACTION AND THAT 4 THE ASSESSEE DID NOT FURNISH COPIES OF THE BANK STA TEMENT OF THOSE DONORS. NOW THE ASSESSEE IS IN APPEAL. 6. LEARNED COUNSEL FOR THE ASSESSEE REITERATED THE SUBMISSIONS MADE BEFORE THE AUTHORITIES BELOW AND FURTHER SUBMITTED THAT THE ASSESSEE FURNISHED ALL THE DETAILS BEFORE THE LD. CIT(A) AS WELL AS TH E ASSESSING OFFICER, WHICH CLEARLY ESTABLISHED THAT THE DONORS WERE HAVING CAP ACITY TO MAKE THE GIFT OF RS. 1,00,000/- EACH, ALL THE DONORS WERE ASSESSED T O TAX, COPIES OF THEIR INCOME TAX RETURN WERE FURNISHED, WHICH CLEARLY PRO VED THE IDENTITY AS WELL AS CREDITWORTHINESS AND THE GIFTS WERE RECEIVED THROUG H DEMAND DRAFT, WHICH PROVED THE GENUINENESS OF THE TRANSACTION. THEREFOR E, ADDITION MADE BY THE ASSESSING OFFICER AND SUSTAINED BY THE LD. CIT(A) W AS NOT JUSTIFIED. 7. IN HIS RIVAL SUBMISSIONS, THE LEARNED D.R. SUPPO RTED THE ORDERS OF THE AUTHORITIES BELOW. 8. WE HAVE CONSIDERED THE SUBMISSIONS OF BOTH THE P ARTIES AND CAREFULLY GONE THROUGH THE MATERIAL AVAILABLE ON RECORD. IN T HE PRESENT CASE, IT IS NOTICED THAT THE ASSESSEE DURING THE COURSE OF ASSE SSMENT PROCEEDINGS AS WELL AS THE 1 ST APPELLATE PROCEEDINGS BEFORE THE LD. CIT(A), FURNI SHED THE COPIES OF ACKNOWLEDGEMENT OF RETURN, COMPUTATION OF INCOME, BALANCE SHEET SHOWING THE CAPITAL, GIFT DEED, COPY OF PAN CARD, C OPY OF DRAFT RECEIVED TOWARDS GIFT, IN RESPECT OF ALL THE DONORS. THOSE D OCUMENTS WERE NOT DOUBTED. COPIES OF ACKNOWLEDGEMENT OF RETURN, ESTABLISHED TH E IDENTITY OF THE DONORS, THEIR BALANCE SHEET WAS SHOWING THE SUFFICIENT CAPI TAL TO PROVE THE 5 CREDITWORTHINESS, THE GIFTS WERE GIVEN VIDE DRAFTS AND GIFT DEED WAS ALSO EXECUTED, SO, THERE WAS NO OCCASION TO SUSTAIN THE ADDITION. WE, THEREFORE, CONSIDERING THE TOTALITY OF THE FACTS AS DISCUSSED HEREINABOVE, SET ASIDE THE IMPUGNED ORDER PASSED BY THE LD. CIT(A) AND THE AD DITION SUSTAINED IS DELETED. 9. IN I.T.A. NO. 437/JODH/2013 RELATING TO THE CASE OF SHRI RAJESH AGARWAL VS. THE ACIT, FOR THE A.Y. 2004-05, THE ONLY ISSUE AGITATED BY THE ASSESSEE RELATES TO THE CONFIRMATION OF ADDITION OF RS. 4,00 ,000/- BEING THE AGGREGATE AMOUNT OF GIFT RECEIVED FROM VARIOUS PERSONS, WHO A RE EXISTING INCOME TAX ASSESSEES. 10. IT WAS A COMMON CONTENTION OF BOTH THE PARTIES THAT THE FACTS RELATED TO THIS ISSUE ARE IDENTICAL TO THE FACTS INVOLVED IN T HE CASE OF SHRI SATYANARAYAN AGARWAL (HUF) IN I.T.A. NO. 443/JODH/2013 (SUPRA), THEREFORE OUR FINDINGS GIVEN THEREIN SHALL APPLY MUTATIS MUTANDIS FOR THIS APPEAL. 11. NOW WE WILL DEAL WITH THE APPEAL IN I.T.A NO. 4 44/JODH./2013, FOLLOWING GROUNDS HAVE BEEN RAISED IN THIS APPEAL. 1. THE LD. CIT(A) HAS ERRED IN NOT ACCEPTING THE PRINCIPLES OF LAW EMERGING FROM THE JUDGMENT OF HON'BLE RAJASTHAN HIG H COURT IN THE CASE OF JAI STEEL (INDIA) V/S ACIT (2013) 259 CTR (RAJ.) 281 IN WHICH IT WAS HELD THAT POINTS WHICH HAVE ATTAINE D FINALITY IN THE ORIGINAL ASSESSMENT PROCEEDINGS U/S 143(3)/143(1) C ANNOT BE REVIEWED, REEXAMINED OR REASSESSED PARTICULARLY IN A CASE WHERE NO INCRIMINATING DOCUMENTS WERE FOUND DURING SEARCH IN RELATION TO THE POINT IN ISSUE. 2. THE LD. CIT(A) HAS ERRED IN CONFIRMING THE VIEW TAKEN BY THE ASSESSING OFFICER OF TREATING THE SHORT TERM CAPITA L GAINS OF RS. 1,99,535/- AS ALLEGED INCOME FROM BUSINESS. THE FIN DINGS GIVEN BY 6 THE ASSESSING OFFICER AND THE LD. CIT(A) ARE CONTRA RY TO FACTS, MATERIAL AND EVIDENCE EXISTING ON RECORDS AND ARE A LSO IN VIOLATION OF THE AFORESAID JUDGMENT OF HON'BLE RAJASTHAN HIGH COURT. 3. THE APPELLANT CRAVES LIBERTY TO ADD, AMEND, ALTE R AND MODIFY ANY OF THE GROUNDS OF APPEAL ON OR BEFORE ITS HEARING B EFORE YOUR HONOUR. 12. THE ONLY GRIEVANCE OF THE ASSESSEE IN THIS APPE AL RELATES TO THE SHORT TERM CAPITAL GAIN OF RS. 1,99,535/-, WHICH WAS CONS IDERED AS BUSINESS INCOME. 13. DURING THE COURSE OF HEARING, THE LEARNED COUN SEL FOR THE ASSESSEE AT THE VERY OUTSET STATED THAT IN THE ORIGINAL RETURN OF INCOME WHILE PASSING THE ASSESSMENT ORDER U/S 143(3) OF THE ACT, THE IMPUGNE D AMOUNT WAS CONSIDERED AS SHORT TERM CAPITAL GAIN, THEREFORE, T HE ASSESSING OFFICER WAS NOT JUSTIFIED IN TREATING THE SAME AMOUNT AS BUSINE SS INCOME WHILE PASSING THE ORDER U/S 153C READ WITH SECTION 153A/143(3) OF THE ACT PARTICULARLY WHEN NO INCRIMINATING DOCUMENTS WERE FOUND DURING THE SE ARCH IN RELATION TO THE POINTS IN ISSUE. RELIANCE WAS PLACED ON THE JUDGMEN T OF THE HON'BLE RAJASTHAN HIGH COURT IN THE CASE OF JAI STEEL (INDI A) V/S ACIT (2013) 259 CTR (RAJ.) 281. 14. LEARNED D.R. ALTHOUGH SUPPORTED THE ORDERS OF T HE AUTHORITIES BELOW BUT COULD NOT CONTROVERT THE AFORESAID FACTUAL POSITION NARRATED BY THE LEARNED COUNSEL FOR THE ASSESSEE. 15. AFTER CONSIDERING THE SUBMISSIONS OF BOTH THE PARTIES AND THE MATERIAL ON RECORD, IT APPEARS THAT THE IMPUGNED AMOUNT WAS CONSIDERED AS SHORT 7 TERM CAPITAL GAIN BY THE ASSESSING OFFICER WHILE FR AMING THE ASSESSMENT U/S 143(3) OF THE ACT, WHICH CLEARLY ESTABLISHED THAT T HE LD. CIT(A) VERIFIED FROM THE RECORD AND ACCEPTED THE SHORT TERM CAPITAL GAIN AND SINCE NO INCRIMINATING DOCUMENT WAS FOUND DURING THE COURSE OF SEARCH. THEREFORE, A DIVERGENT VIEW TAKEN BY THE ASSESSING OFFICER WHILE PASSING THE ASSESSMENT ORDER U/S 153C READ WITH SECTION 153A/143(3) OF THE ACT WAS NOT JUSTIFIED PARTICULARLY WHEN ALL THE DETAILS WERE FURNISHED BY THE ASSESSEE WITH THE RETURN OF INCOME ORIGINALLY FILED ON 31/8/2005 AND THE COP Y OF ACKNOWLEDGEMENT IS PLACED AT PAGE NO. 13 OF THE ASSESSEES COMPILATION . WE, THEREFORE, CONSIDERING THE TOTALITY OF THE FACTS AS DISCUSSED HEREINABOVE, SET ASIDE THE IMPUGNED ORDER PASSED BY THE LD. CIT(A) AND THE IMP UGNED ADDITION SUSTAINED IS DELETED. 16. NOW WE WILL DEAL WITH THE APPEAL IN I.T.A. NOS. 438 AND 441/JODH/2013 FOR THE A.YS. 2005-06 AND 2008-09 RESPECTIVELY. 17. IN THESE APPEALS, GRIEVANCES OF THE ASSESSEE R ELATES TO THE CONFIRMATION OF THE VIEW TAKEN BY THE ASSESSING OFF ICER IN TREATING THE SHORT TERM CAPITAL GAIN AS INCOME FROM BUSINESS AMOUNTING TO RS. 2,00,059/- AND RS. 55,338/- FOR THE ASSESSMENT YEARS 2005-06 AND 2 008-09 RESPECTIVELY. IT WAS THE COMMON CONTENTION OF BOTH THE PARTIES THAT THE FACTS RELATED TO THIS ISSUE ARE IDENTICAL TO THE FACTS INVOLVED IN THE CA SE OF SHRI SATYANARAYAN AGARWAL (HUF) IN I.T.A. NO. 444/JODH/2013 FOR THE A SSESSMENT YEAR 2005-06 (SUPRA), THEREFORE, OUR FINDINGS GIVEN IN THE FORME R PART OF THIS ORDER RELATING TO 8 THE SAID APPEAL IN I.T.A. NO. 444/JODH/2013 FOR THE ASSESSMENT YEAR 2005-06 IN THE CASE OF SHRI SATYANARAYAN AGARWAL (HUF)VS AC IT, CENTRAL CIRCLE-2, JAIPUR SHALL APPLY MUTATIS MUTANDIS FOR THESE APPEA LS ALSO. 18. IN I.T.A. NO. 440/JODH/2013, THE GRIEVANCE OF T HE ASSESSEE RELATES TO THE CONFIRMATION OF THE VIEW TAKEN BY THE ASSESSING OFFICER IN TREATING THE SHORT TERM CAPITAL GAIN AMOUNTING TO RS. 1,13,569/- AS INCOME FROM BUSINESS AND THE ADDITION OF RS. 1,04,455/- ON ACCO UNT OF LONG TERM CAPITAL GAIN. IT WAS A COMMON CONTENTION OF BOTH THE PARTIE S THAT THE FACTS RELATED TO THE ISSUE OF SHORT TERM CAPITAL GAIN AMOUNTING TO R S. 1,13,569/- ARE SIMILAR TO THE FACTS INVOLVED IN I.T.A. NO. 444/JODH/2013 ( SUPRA), THEREFORE OUR FINDINGS GIVEN IN THE FORMER PART OF THIS ORDER REL ATING TO THE SAID APPEAL SHALL APPLY WITH THE SAME FORCE. 19. AS REGARDS TO THE LONG TERM CAPITAL GAIN OF RS. 1,04,454/-. THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT T HIS AMOUNT WAS ALREADY INCLUDED IN THE SHORT TERM CAPITAL GAIN OF RS. 1,13 ,569/-, OUR ATTENTION WAS DRAWN TO PAGE NO. 17 AND 23 OF THE ASSESSEES PAPER BOOK. IT WAS STATED THAT AT PAGE NO. 23, SHORT TERM CAPITAL GAIN HAS BEEN WR ITTEN TWICE AND RS. 1,04,454.50 WAS THE TOTAL OF RS. 85,939.14 AND RS. 18,515.36 SHOWN AS THE SHORT TERMS CAPITAL GAIN. A SUM OF RS. 22,355.35 WA S ADDED BEING INTRA DAY LOSS AND RS.13,240.85 WAS DEDUCTED BEING DERIVATIVE S AND INTRA DAY TRADING, WHICH RESULTED IN TOTAL OF RS. 1,13,516/-, (RS. 85, 939.14 + RS. 18,515.36 + RS. 22,355.35 (-) RS. 13,240.85) THEREFORE, THE AMOUNT OF RS. 1,04,454/- WAS 9 WRONGLY ADDED CONSIDERING THE SAME AS LONG TERM CAP ITAL GAIN. IT WAS ALSO POINTED OUT THAT THIS CONFUSION AROSE DUE TO SIMILA RITY IN THE FIGURES OF LONG TERM CAPITAL GAIN AMOUNTING TO RS. 1,04,455/-, WHIC H WAS EXEMPT U/S 10(38) OF THE ACT. 20. THE LEARNED D.R. IN HIS RIVAL SUBMISSIONS, ALTH OUGH SUPPORTED THE ORDER OF THE AUTHORITIES BELOW BUT COULD NOT CONTROVERT T HE AFORESAID FACTUAL POSITION NARRATED BY THE LEARNED COUNSEL FOR THE ASSESSEE. 21. WE HAVE CONSIDERED THE SUBMISSIONS OF BOTH THE PARTIES AND CAREFULLY GONE THROUGH THE MATERIAL AVAILABLE ON RECORD, IT I S NOTICED THAT AT PAGE NO. 17, WHICH IS A COPY OF COMPUTATION OF INCOME, THE A SSESSEE HAD SHOWN LONG TERM CAPITAL GAIN OF RS. 1,04,455/-, WHICH WAS CLAI MED EXEMPT U/S 10(38) OF THE ACT AND SHORT TERM CAPITAL GAIN SUBJECT TO RATE OF TAX OF 10% U/S 111A OF THE ACT HAS BEEN SHOWN AT RS. 1,13,569/-. IT IS ALS O NOTICED THAT AT PAGE NO. 23, COMPUTATION OF SHORT TERM CAPITAL GAIN HAS BEEN SHOWN AS UNDER:- ADD:- TOTAL STT 85939.14 AS PER BOOK SHORT TERM GAIN 18515.36 104454.50 ADD: INTRA DAY LOSS (AS PER SHEET ENCLOSED) 2235 5.35 SEPARATELY SHOWN IN COMPUTATION OF TOTAL INCOME. LESS: S.T.T. ON DERIVATIVES AND INTRA DAY TRADING 13240.85 (12455+785.85) 113569.00 10 FROM THE ABOVE FIGURES, THE EXPLANATION GIVEN BY TH E LEARNED COUNSEL FOR THE ASSESSEE APPEARS TO BE CORRECT. WE, THEREFO RE, ARE OF THE VIEW THAT THE ADDITION OF RS. 1,04,455/- MADE BY THE ASSESSING OF FICER AND CONFIRMED BY THE LD. CIT(A) WAS NOT JUSTIFIED BECAUSE THE SAID AMOUN T WAS INCLUDED IN THE SHORT TERM CAPITAL GAIN OFFERED FOR TAXATION BY THE ASSESSEE. 22. IN I.T.A. NO. 439/JODH/2013, FOLLOWING GROUNDS HAVE BEEN RAISED:- 1. THE LD. CIT(A) HAS ERRED IN NOT ACCEPTING THE PRINCIPLES OF LAW EMERGING FROM THE JUDGMENT OF HON'BLE RAJASTHAN HIG H COURT IN THE CASE OF JAI STEEL (INDIA) V/S ACIT (2013) 259 CTR (RAJ.) 281 IN WHICH IT WAS HELD THAT POINTS WHICH HAVE ATTAINE D FINALITY IN THE ORIGINAL ASSESSMENT PROCEEDINGS U/S 143(3)/143(1) C ANNOT BE REVIEWED, REEXAMINED OR REASSESSED PARTICULARLY IN A CASE WHERE NO INCRIMINATING DOCUMENTS WERE FOUND DURING SEARCH IN RELATION TO THE POINT IN ISSUE. 2. THE LD. CIT(A) HAS ERRED IN CONFIRMING THE ADDIT ION OF RS. 2,00,000/- AS ALLEGED UNEXPLAINED INVESTMENT IN PRO PERTY PURCHASED FROM SHRI KAMLESH MOTWANI. THE AFORESAID ADDITION IS BAD IN LAW AND IS CONTRARY TO FACTS, MATERIAL AND E VIDENCE EXISTING ON RECORDS. 3. THE APPELLANT CRAVES LIBERTY TO ADD, AMEND, ALTE R AND MODIFY ANY OF THE GROUNDS OF APPEAL ON OR BEFORE ITS HEARING B EFORE YOUR HONOUR. 23. GROUND NO. 1 WAS NOT PRESSED AND GROUND NO. 3 I S GENERAL IN NATURE, SO THESE GROUNDS DO NOT REQUIRE ANY COMMENT ON OUR PAR T. 24. VIDE GROUND NO. 2, THE GRIEVANCE OF THE ASSESSE E RELATES TO THE CONFIRMATION OF ADDITION OF RS. 2,00,000/- MADE BY THE ASSESSING OFFICER CONSIDERING THE SAME AS INVESTMENT IN PROPERTY PURC HASED FROM SHRI KAMLESH MOTWANI. 11 25. THE FACTS RELATED TO THIS ISSUE IN BRIEF ARE TH AT THE ASSESSING OFFICER DURING THE COURSE OF ASSESSMENT PROCEEDINGS, NOTICE D THAT A RECEIPT DATED 06/1/2006, ANNEXURISED AT PAGE NO. 5 IN ANNEXURE A- 1 WAS SEIZED, WHICH REFERRED TO PAYMENT OF RS. 2,00,000/- IN CASH BY SH RI RAJESH AGARWAL TO SHRI KAMLESH MOTWANI FOR PURCHASE OF AGRICULTURAL LAND. THE ASSESSING OFFICER ADDED THE SAID AMOUNT U/S 69-C OF THE ACT IN THE HA NDS OF THE ASSESSEE CONSIDERING THE SAME AS UNEXPLAINED EXPENDITURE. TH E ASSESSEE CARRIED THE MATTER TO THE LD. CIT(A) AND SUBMITTED THAT AS PER SEIZED DOCUMENTS, AN ADVANCE WAS GIVEN TO SHRI KAMLESH MOTWANI FOR THE P ROPERTY PURCHASED BY SMT. MAHIMA AGARWAL AND SMT. PUSHPA SANCHETI FOR A CONSIDERATION OF RS. 3,00,000/- AND THE SALE DEED WAS REGISTERED ON 10/2 /2006 BUT THE ASSESSING OFFICER PRESUMED THAT THE ASSESSEE HAD PAID ON MONE Y OF RS. 2,00,000/- OVER AND ABOVE CONSIDERING AT RS. 3,00,000/-. IT WAS STA TED THAT THERE WAS NO MATERIAL BASIS TO ALLEGE THE PAYMENT OF RS. 2,00,00 0/- IN CASH TO SHRI KAMLESH MOTWANI. 26. THE LD. CIT(A) AFTER CONSIDERING THE SUBMISSION S OF THE ASSESSEE, CONFIRMED THE ADDITION MADE BY THE ASSESSING OFFICE R BY OBSERVING THAT THE RECEIPT HAD BEEN SIGNED BY SHRI KAMLESH KUMAR MOTWA NI ALONGWITH HIS BROTHER SOLD 5 BIGHAS OF LAND TO SMT. MAHIMA AGARWA L WIFE OF THE ASSESSEE AND SMT. PUSHPA SANCHETI AND THAT SHRI KAMLESH KUMA R MOTWANI IN THE RECEIPT ISSUED BY HIM, NOTED THAT HE RECEIVED RS. 2,00,000/-AS AN ADVANCE MONEY FROM THE ASSESSEE. NOW THE ASSESSEE IS IN APP EAL. 12 27. LEARNED COUNSEL FOR THE ASSESSEE REITERATED TH E SUBMISSIONS MADE BEFORE THE AUTHORITIES BELOW AND FURTHER SUBMITTED THAT AN AMOUNT OF RS. 2,00,000/- WAS PAID BY THE ASSESSEE ON BEHALF OF HI S WIFE SMT. MAHIMA AGRAWAL AND HER CO-OWNER SMT. PUSHPA SANCHETI FOR T HE PURCHASE OF AGRICULTURAL LAND AND THIS FACT WAS ALSO ADMITTED B Y THE SELLER OF THE LAND, WHO STATED IN HIS STATEMENT DATED 16/3/2009 THAT HE HAD NOT RECEIVED ANY MONEY OVER AND ABOVE THE AMOUNT MENTIONED IN THE REGISTER ED SALE DEED, THEREFORE, THE ADDITION MADE BY THE ASSESSING OFFICER AND SUST AINED BY THE LD. CIT(A) WAS NOT JUSTIFIED. 28. IN HIS RIVAL SUBMISSIONS, THE LEARNED D.R. SUPP ORTED THE ORDERS OF THE AUTHORITIES BELOW. 29. WE HAVE CONSIDERED THE SUBMISSIONS OF BOTH THE PARTIES AND CAREFULLY GONE THROUGH THE MATERIAL AVAILABLE ON THE RECORD. IN THE PRESENT CASE, IT IS AN ADMITTED FACT THAT WIFE OF THE ASSESSEE SMT. MAHIMA AGARWAL ALONGIWTH CO-OWNER SMT. PUSHPA SANCHETI PURCHASED THE LAND FR OM SHRI KAMLESH KUMAR MOTWANI FOR A SUM OF RS. 3,00,000/-. SHRI KAM LESH MOTWANI RECEIVED RS. 2,00,000/- FROM THE ASSESSEE AS AN ADVANCE FOR THE SAID LAND. THE STATEMENT OF SHRI KAMLESH MOTWANI IS PLACED AT PAGE NO. 9 TO 11 OF THE ASSESSEES PAPER BOOK. IN THE SAID STATEMENT, HE ST ATED THAT THE LAND WAS SOLD FOR A SUM OF RS. 3,00,000/- AND THE AMOUNT WAS RECEIVED THROUGH TWO CHEQUES OF RS. 1,80,000/- AND RS. 1,20,000/-. HE HA D ALSO STATED WHILE ANSWERING THE QUESTION NO. 5 THAT THE RECEIPT WAS G IVEN TO THE ASSESSEE AFTER 13 RECEIVING TWO POST DATED CHEQUES OF FEBRUARY, 2006 BUT NO AMOUNT WAS RECEIVED IN CASH, HOWEVER, THE RECEIPT WAS GIVEN FO R A SUM OF RS. 2,00,000/- BUT IN FACT, NO ADVANCE WAS GIVEN. IN THE PRESENT C ASE, THE ASSESSEE WAS NOT INVOLVED IN THE PURCHASE OF LAND FROM SHRI KAMLESH MOTWANI AND EVEN IF, ANY AMOUNT WAS GIVEN AS AN ADVANCE FOR THE SAID LAND TH AT WAS BELONGING TO THE PURCHASERS OF THE LAND AND NOT TO THE ASSESSEE. IT IS ALSO AN ADMITTED FACT THAT NOTHING WAS BROUGHT ON RECORD TO SUBSTANTIATE THAT ANY ON MONEY WAS PAID OVER AND ABOVE RS. 3,00,000/- I.E. THE COST OF THE LAND PURCHASED FROM SHRI KAMLESH KUMAR MOTWANI. WE, THEREFORE, CONSIDERING T HE TOTALITY OF THE FACTS ARE OF THE VIEW THAT THE ADDITION MADE BY THE ASSES SING OFFICER AND SUSTAINED BY THE LD. CIT(A) WAS NOT JUSTIFIED. 30. IN THE RESULT, APPEALS OF THE ASSESSEES ARE ALL OWED. (ORDER PRONOUNCED IN THE COURT ON 29.11.2013). SD/- SD/- (HARI OM MARATHA) (N.K.SAINI) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED : 29.11.2013 RANJAN* COPY TO: 1. THE APPELLANTS 2. THE RESPONDENT 3. THE LD.CIT 4. THE CIT(A) 5. THE D.R ASSISTANT REGISTRAR, ITAT, JODHPUR.