Kadir Usman Shaikh, Lonavala V. ITO Cen.II, Pune, Pune

ITA 478/PUN/2012

• Counselvise Citation: [2019] 115 COUNSELVISE.COM (IT) 4628 (ITAT-PUNE)
• Duration Of Justice: 7 year(s) 10 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-03-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 05-03-2018
• Assessment Year: 2008-2009
• Appeal Filed On: 09-03-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SHRI
• Assessee Lawyers: ARUN SHINGHVI
• Keywords: Business income; Search and seizure; Document seized; Documents seized
• Section: 40A(3); 132

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, PUNE BEFORE SHRI D. KARUNAKARA RAO, AM AND SHRI PARTHA SARATHI CHAUDHURY, JM . / ITA NO.478/PUN/2012 / ASSESSMENT YEAR : 2008-09 SMT. BALKIS KADIR SHAIKH L/H OF LATE KADIR USMAN SHAIKH, BUNGLOW NO.1, VIJAY NAGAR, VARDHAMAN SOCIETY, LONAVALA, PUNE. PAN : ABXPS8262Q ....... / APPELLANT / V/S. ITO, CENTRAL-II, PUNE. / RESPONDENT ASSESSEE BY : SHRI NIKHIL PATHAK & SHRI ARUN SHINGHVI REVENUE BY : SHRI PANKAJ GARG / DATE OF HEARING : 01.01.2019 / DATE OF PRONOUNCEMENT : 19.03.2019 / ORDER PER D. KARUNAKARA RAO, AM: THIS APPEAL IS FILED BY THE ASSESSEE AGAINST THE ORDER OF CIT(A)-CENTRAL, PUNE DATED 24.11.2011 FOR THE ASSESSMENT YEAR 2008-09. 2. BRINGING OUR ATTENTION TO THE GROUNDS OF APPEAL, LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE GROUNDS NO.1, 2 AND 2.1 CONNECTING TO THE LIMITATION ISSUES -CUM- THE VALIDITY OF THE ASSESSMENT, ARE NOT PRESSED. ACCORDINGLY, THE SAID GROUNDS NO.1, 2 AND 2.1 ARE DISMISSED AS NOT PRESSED. 2 ITA NO.478/PUN/2012 3. REFERRING TO THE GROUNDS NO.4, 4.1, 4.2 AND 4.3, LD. COUNSEL SUBMITTED THAT THE SAID GROUNDS DEAL WITH THE TREATMENT OF THE GAINS EARNED ON SALE OF AGRICULTURAL LANDS. THE ASSESSEE TREATED THE SAME AS AGRICULTURAL INCOME WHEREAS THE REVENUE AUTHORITIES DEAL WITH THIS ISSUE AND HELD THE SAME TAXABLE INCOME UNDER THE HEAD PROFITS AND GAINS FROM BUSINESS OR PROFESSION. REFERRING TO THE SAID GROUNDS, LD. COUNSEL SUBMITTED THAT HE DOES NOT WANT TO PRESS THESE GROUNDS TOO IN VIEW OF THE ADVERSE DECISION IN THE MATTER. ACCORDINGLY, WE PROCEED TO DISMISS THE SAID GROUNDS AS NOT PRESSED WITHOUT GOING INTO THE MERITS OF THE CASE. 4. FURTHER, REFERRING TO GROUNDS NO.5 AND 5.1 RELATING TO DISALLOWANCE OF RS.8,87,819/- U/S 40A(3) OF THE ACT, LD. COUNSEL DID NOT PRESS THE SAID GROUNDS TOO. THUS, THE SAID GROUNDS ARE DISMISSED AS NOT PRESSED. 5. FURTHER, REFERRING TO GROUNDS NO.6, 6.1, 7 AND 7.1, LD. COUNSEL DID NOT PRESS THESE GROUNDS IN VIEW OF THE SMALLNESS OF THE ADDITIONS I.E. RS.42,000/- ON ACCOUNT OF HOUSE PROPERTY AND RS.34,650/- ON ACCOUNT OF AGRICULTURAL INCOME. ACCORDINGLY, THE SAME ARE DISMISSED AS NOT PRESSED. 6. GROUNDS NO.8 AND 9 ARE PREMATURE AND GENERAL. THEREFORE, THE SAME ARE DISMISSED AS SUCH. 7. THAT LEAVES GROUNDS NO.3, 3.1, 3.2 AND 3.3 FOR ADJUDICATION AND THE SAID GROUNDS ARE EXTRACTED AS FOLLOWS :- 3] THE LEARNED CIT(A) ERRED IN CONFIRMING THE ADDITION OF RS.43 LAKHS ON THE GROUND THAT THE ASSESSEE HAD RECEIVED UNACCOUNTED CONSIDERATION OF RS.50,000/- PER ACRE ON SALE OF LAND IN MHASE. 3 ITA NO.478/PUN/2012 3.1 THE LEARNED CIT(A) ERRED IN HOLDING THAT THE TOTAL SALE CONSIDERATION RECEIVED BY THE APPELLANT WAS RS.2,30,000/- PER ACRE AS AGAINST RS.1,80,000/- SHOWN BY THE APPELLANT IN THE BOOKS AND THEREFORE, THE ADDITION OF RS.50,000/- PER ACRE MADE BY THE LEARNED A.O. WAS JUSTIFIED. 3.2 THE LEARNED CIT(A) FAILED TO APPRECIATE THAT THE CONSIDERATION OF RS.2,30,000/- PER ACRE WAS NOT FINAL AND ULTIMATELY, THE APPELLANT SOLD THE LAND AT RS.1,80,000/- PER ACRE AND THEREFORE, THE APPELLANT HAD NOT RECEIVED ANY CONSIDERATION OVER AND ABOVE THE CONSIDERATION RECORDED IN THE SALE DEED. 3.3 THE LEARNED CIT(A) ERRED IN NOT APPRECIATING THAT A. THE CONSIDERATION OF RS.2,30,000/- PER ACRE WAS BASED ON THE FACT THAT THE ASSESSEE WOULD CARRY OUT DEVELOPMENT OF THE LAND AND SINCE DUE TO ILL HEALTH OF THE APPELLANT, THE DEVELOPMENT AS AGREED COULD NOT BE CARRIED OUT AND HENCE, THE CONSIDERATION WAS REDUCED TO RS.1,80,000/- PER ACRE. B. IN THE FINAL SALE DEED, IT HAS BEEN CLARIFIED THAT THE SALE CONSIDERATION HAS BEEN REDUCED FROM RS.2.30 LAKHS PER ACRE TO RS.1.80 LAKHS PER ACRE AND HENCE, THERE WAS NO REASON TO TAX THE CONSIDERATION BY CONSIDERING RS.2.30 LAKHS PER ACRE AS THE FINAL SALE CONSIDERATION. C. THE APPELLANT HAD ALSO FILED THE AFFIDAVIT OF THE PURCHASERS WHEREIN THEY HAD CLARIFIED THAT ONLY RS.1.80 LAKHS PER ACRE WAS PAID TO THE APPELLANT AS THE CONSIDERATION FOR PURCHASE OF LAND AND THEREFORE, THERE WAS NO REASON TO MAKE THE ADDITION BY HOLDING THAT THE APPELLANT RECEIVED RS.2.30 LAKHS PER ACRE. 8. THE BACKGROUND FACTS INCLUDE THAT THE ASSESSEE FILED THE RETURN OF INCOME DECLARING TOTAL INCOME OF RS.60,43,870/-. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE ASSESSING OFFICER NOTICED A SALE TRANSACTION OF LAND OF 88 ACRES LOCATED AT MHASE. THE SAID LAND WAS SOLD AT THE RATE OF RS.1,80,000/- PER ACRE. THE ASSESSEE COMPUTED THE PROFITS ON THIS TRANSACTION AT RS.1,14,24,000/-. A SEARCH AND SEIZURE ACTION WAS CONDUCTED ON THE ASSESSEE PREMISES ON 18.09.2007. THERE IS INFORMATION WITH THE REVENUE THAT THE ASSESSEE UNDERREPORTED THE SALE CONSIDERATION BY RS.50,000/- PER ACRE. AGAINST THE SHOW-CAUSE NOTICE ISSUED BY THE ASSESSING OFFICER, THE PROPOSAL TO ADD THE BALANCE OF RS.50,000/- PER ACRE, THE ASSESSEE FURNISHED THE WRITTEN SUBMISSION, WHICH IS EXTRACTED AT PARA 4 OF THE ASSESSMENT ORDER. IN THE SAID WRITTEN SUBMISSIONS, THE ASSESSEE SUBMITTED THAT ORIGINALLY THERE ARE CONDITION 4 ITA NO.478/PUN/2012 OF UNDERTAKING DEVELOPMENT WORK AT HIS END AND ASSESSEE FAILED TO UNDERTAKE THE SAID DEVELOPMENT OF THE LAND. THEREFORE, THE TRANSACTION WAS RE-NEGOTIATED TO DETERMINE THE SALE PRICE OF RS.1,80,000/- PER ACRE INSTEAD OF RS.2.3 LAKHS. THE ASSESSING OFFICER CONSIDERED THE SAME AND INFORMED THE ASSESSEE STATING THAT THE SAID EXPLANATION OF THE ASSESSEE IS UNACCEPTABLE AND VISAR PAVATI DOES NOT CONTAIN ANY SUCH CONDITION. HOWEVER, THERE IS A REFERENCE TO THIS ISSUE DURING THE SEARCH AND SEIZURE ACTION. THE ASSESSING OFFICER TREATED THE EXPLANATION OF THE ASSESSEE AS AN AFTERTHOUGHT AND PROCEEDED TO ADOPT THE SALE PRICE OF RS.2,30,000/- PER ACRE RELYING ON THE SEIZED PAPERS. IN THE ASSESSMENT, THE ASSESSING OFFICER ADOPTED THE SAID SALE PRICE OF RS.2,30,000/- PER ACRE AND PROCEEDED TO COMPUTE RS.43,00,000/- (I.E. 86 ACRES DIFFERENCE IN THE RECEIPT OF RS.50,000/- PER ACRE). THE RELEVANT DISCUSSION GIVEN BY THE ASSESSING OFFICER IN PARA 4 TO 7 OF HIS ASSESSMENT ORDER. THUS, THE ASSESSING OFFICER MADE THE ADDITION OF RS.43 LAKHS AS BUSINESS INCOME OF THE ASSESSEE AND IT IS PART OF THE FIGURE OF RS.2,04,24,000/- APPEARED IN PARA 12 OF THE ASSESSMENT ORDER. 9. DURING THE FIRST APPELLATE PROCEEDINGS, THE ASSESSEE REITERATED THE SUBMISSION THAT REVOLVES AROUND THE REQUIREMENT OF RE-NEGOTIATION OF THE SAID SALE PRICE. THE CIT(A) CONSIDERED THE SAME AND DISCUSSED THIS ISSUE IN PARA 7.4.1 AND HELD THAT THE ASSESSEE COULD NOT BRING ANY CONCLUSIVE EVIDENCE TO PROVE THE LAND PRICE WAS NOT RS.2.30 LAKHS. THE CIT(A) UPHELD THE DECISION OF THE ASSESSING OFFICER ON THIS ISSUE AS PER DISCUSSION GIVEN IN PARA 7.4.1 TO 7.5 OF HIS ORDER AND THE SAME ARE EXTRACTED AS FOLLOWS :- 7.4.1 IN HIS SUBMISSION DURING THE APPELLATE PROCEEDINGS, THE APPELLANT REITERATED THE SAME THINGS WHICH HE SUBMITTED BEFORE THE AO. HOWEVER, HE COULD NOT BEING ON RECORD ANY CONCLUSIVE EVIDENCE TO PROVE THE FACT THAT THE LAND WAS 5 ITA NO.478/PUN/2012 NOT SOLD @ RS.2,30,000/- PER ACRE. THE EVIDENCES IN SUPPORT OF HIS CLAIM OF THE RATE OF RS.1,80,000/- PER ACRE INCLUDED ONE AGREEMENT DT.29/9/2007, SALE DEED DT.16/1/2008, SETTLEMENT DEED DT.2/1/2008 AND AFFIDAVITS OF CERTAIN PARTIES. HOWEVER, ALL THESE DOCUMENTS WERE PREPARED AFTER RECOVERY OF THE ACKNOWLEDGEMENT (VISAR PAVATI) DURING THE COURSE OF SEARCH AND SEIZURE OPERATION OF THE PREMISES BELONGING TO THE APPELLANT. UNDER THE CIRCUMSTANCES, THEY LACK CREDENCE. DURING THE COURSE OF SEARCH OPERATION STATEMENT OF THE APPELLANT WAS RECORDED. IN HIS STATEMENT DURING THE COURSE OF SEARCH OPERATION ON 18/9/2007, THE APPELLANT STATED THAT THE LAND WHICH WAS BOUGHT IN JANUARY, 2007 @ RS.1.10 LAKH PER ACRE WAS TO BE SOLD @ 2.30 LAKHS PER ACRE. IN THIS STATEMENT, HE DID NOT MENTION ABOUT THE DEVELOPMENT WORK WHICH WAS TO BE DONE BY HIM IN LIEU OF THIS SALE CONSIDERATION. FURTHER, THE CASH OF RS.60,00,000/- WHICH WAS RECEIVED ON 13/9/2007 WAS NOT RECORDED IN HIS BOOKS OF ACCOUNTS ON THE DATE OF SEARCH I.E. 18/9/2009. IN VIEW OF THESE CIRCUMSTANCES, HE DECLARED THE AMOUNT OF RS.60,00,000/- AS HIS INCOME FOR F.Y. 2007-08. FREE ENGLISH TRANSLATION OF THE RELEVANT PORTION OF HIS STATEMENT IS REPRODUCED BELOW :- AS PER STATEMENT OF KADIR USMAN SHAIKH DATED 18-09-2009 Q.NO.13 NOW I AM SHOWING PAGE NO.2 OF LOSE PAPER BUNDLE NO.1. PLEASE EXPLAIN THE SAME. ANS: THIS IS AN ADVANCE RECEIPT AGAINST PURCHASE OF LAND I.E. GUT NO.343 & 346 OF SHRI GONDA DIST. AHMAD NAGAR. Q.NO.14 AS PER THIS RECEIPT, IT APPEARS THAT YOU HAVE PAID CASH OF RS.25 LAKHS, PLEASE EXPLAIN THE SAME. ANS: OUT OF RS.25 LAKHS, I HAD RECEIVED RS.17 LAKHS IN JAN. 2007 FROM MR. ASHOK BAJAJ, PUNE IN CASH. REMAINING RS.8 LAKHS IS OUT OF SALE/PURCHASE OF LAND & FROM CASH BALANCE WITH ME. Q.NO.15 FOR WHICH TRANSACTION YOU HAVE RECEIVED MONEY FROM MR. BAJAJ? WHETHER IT IS REFLECTED IN BOOKS OF A/C? ANS: MR. BAJAJ HAD PROPOSED ME TO SALE SOME LANDS NEARBY MAVAL AREA. IN 2004, I HAD PAID RS.10 LAKHS AS ADVANCE TO HIM BY CHEQUE. HOWEVER, THE DEAL DID NOT STRIKE. HENCE, HE RETURNED ME RS.17 LAKHS IN JAN 2007. THIS TRANSACTION ARE NOT REFLECTED IN MY BOOKS OF A/C. THIS WAY, I HAVE EARNED ADDITIONAL INCOME OF RS.7 LAKHS FROM THIS TRANSACTION. I HEREBY DECLARED RS.7 LAKHS & THE CASH BALANCE OF RS.8 LAKHS WAS ONE, TOTAL TO RS.15 LAKHS AS AN ADDITIONAL INCOME FOR F.Y. 2006-07. Q.NO.16 NOW, I AM SHOWING YOU LOOSE PAPER BUNDLE NO.1, PG. NO.4. FROM THE NOTINGS IT APPEARS THAT, YOU HAVE RECEIVED CASH OF RS.60 LAKHS ON 13-09-2007 AGAINST SALE OF LAND I.E. GUT NO.343 & 346 AT MHASE, TQ. SRI GONDA. ANS: I HAD DECIDED TO PURCHASE THE (ABOVE) LAND (ABOUT 86 ACRES) AT THE RATE OF RS.1.10 LAKHS PER ACRE. FOR THIS, I HAD GIVEN ADVANCE OF RS.25 LAKHS. BECAUSE OF CERTAIN LEGAL PROBLEMS, THE PURCHASE DEED COULD NOT BE MADE. I HAVE DECIDED TO SALE THE LAND (ABOVE) AT THE RATE OF RS.2.30 PER ACRE. AS AGAINST THIS, ON 13-09-2007, I HAVE RECEIVED CASH OF RS.60 LAKHS 6 ITA NO.478/PUN/2012 FROM THE CUSTOMER AND THIS (DOCUMENT) IS THE RECEIPT OF THAT. THIS TRANSACTION IS NOT RECORDED IN BOOKS OF A/C. NOW, I DECLARE THIS AMOUNT AS INCOME (RS.60 LAKHS) FOR F.Y. 2007- 08. THIS AMOUNT IS ONE OF THE PART OF THIS SALE TRANSACTION. I WILL PAY THE TAX ON RS.60 LAKHS SOON. (IN SHORT THE ASSESSEE HAS DECLARED RS.15 LAKHS OF A.Y. 2007 AND RS.60 LAKHS FOR A.Y. 2008-09. IN VIEW OF THE ABOVE STATEMENT OF THE APPELLANT AT THE TIME OF SEARCH OPERATION, THE EVIDENCES ON WHICH THE APPELLANT IS RELYING DO NOT APPEAR RELIABLE. 7.4.2 IN HIS SUBMISSION, THE APPELLANT HAS STATED THAT THE ABOVE LAND WAS IN HIS POSSESSION AND HE WAS DEVELOPING IT. HOWEVER, ACCORDING TO THE SALE DEED DT. 16/1/2008, THE APPELLANT WAS ONLY A CONSENTING PARTY, NOT THE SELLER AND THE LAND WAS IN THE POSSESSION AND ENJOYMENT OF SELLERS. UNDER THE CIRCUMSTANCES, THE CONTENTION OF THE APPELLANT THAT THE PRICE WAS REDUCED FROM RS.2,30,000/- PER ACRE TO RS.1,80,000/- PER ACRE AS THE PROMISED DEVELOPMENT WORK COULD NOT BE COMPLETED, DOES NOT APPEAR CORRECT. FREE ENGLISH TRANSLATION OF THE RELEVANT PORTION OF SALE DEED IS REPRODUCED BELOW :- 2) THE SUBJECT-MATTER LAND DESCRIBED IN PARA NO.1 IS THE ANCESTRAL LAND WITH ALL CASEMENT RIGHTS OF THE SELLERS AND GOVT. REVENUE RECORDS AND 7/12 EXTRACTS IS MUTATED IN THEIR NAME AND THE LAND IS NOT THE SUBJECT OF ANY LITIGATION IN COURT, NOT ATTACHED OR SEIZED IN ANY COURT PROCEEDINGS, AND ALSO HAS NOT BEEN ACQUIRED OR REQUISITIONED FOR GOVT. OR SEMI-GOVT. SANSTHAS AND THE SELLERS DECLARE THAT THEY HAVE NOT RECEIVED ANY NOTICE IN SUCH COURT MATTERS. THEREFORE, THE PROPERTY/LAND IS HAVING GOOD MARKETABLE TITLE, WITHOUT ANY CHARGE OVER IT AND IS IN THE POSSESSION AND ENJOYMENT OF THE SELLERS. 7.5 IN VIEW OF THE DISCUSSION IN THE PRECEDING PARAGRAPHS, THE ACTION OF THE AO IN TAKING THE SALE CONSIDERATION AT RS.2,30,000/- PER ACRE IS UPHELD AND, THEREFORE, THIS GROUND OF APPEAL IS DISMISSED. 10. THUS, THE CIT(A) WEIGHED THE EVIDENTIARY VALUE OF THE VISAR PAVATI SEIZED DURING THE SEARCH ACTION WHICH SPEAKS OF THE PRICE TAG OF RS.2.3 LAKHS, AGAINST THE SALE/SETTLEMENT DEED CUM- THE AFFIDAVITS AND DECIDED THE ISSUE AGAINST THE ASSESSEE. THE CIT(A) ALSO ANALYZED THE MARKET VALUE OR COMMERCIAL VALUE OF THE PROPERTY AND HELD THAT THE PRICE TAG OF RS.2.3 LAKHS PER ACRE IS FAIR. ACCORDINGLY, CIT(A) UPHELD THE ADDITION MADE BY THE ASSESSING OFFICER. 7 ITA NO.478/PUN/2012 11. AGGRIEVED WITH THE ABOVE CONCLUSION DRAWN BY THE ASSESSING OFFICER AND THE CIT(A), THE ASSESSEE RAISED THE ABOVE EXTRACTED GROUND OF APPEAL NO.3 AND ITS SUBPARAGRAPHS IN THE PRESENT APPEAL. ARGUMENTS 12. BEFORE THE TRIBUNAL, THE LD. COUNSEL FOR THE ASSESSEE BROUGHT OUR ATTENTION TO PAGE 36 AND 37 OF THE PAPER BOOK (VISAR PAVATI) AND SUBMITTED THAT THE SAME CONSTITUTES THE SEIZED PAPER DATED 13.09.2007 THAT REFLECTS THE PRE-NEGOTIATED SALE PRICE OF RS.2.30 LAKHS PER ACRE AND THE LOCATION OF LAND I.E. GAT NO.346 (AREA 27 HECTRE 48 R) AND GAT NO.343 (6 HECTRE APPROXIMATELY). BRINGING OUR ATTENTION TO PAGE 113 OF THE PAPER BOOK, LD. COUNSEL SUBMITTED THAT THE ASSESSEE IS A CONSENTING PARTY AND THE CONSENTING DEED IS DRAWN ON 16.01.2007 CONTAINING THE DETAILS OF NEGOTIATED SALE PRICE REDUCING FROM RS.2.30 LAKHS TO 1.80 LAKHS. REDUCTION OF PRICE WAS NEEDED CONSEQUENT TO THE ASSESSEES FAILURE TO UNDERTAKE THE DEVELOPMENT WORK OF THE SAID LAND AS ORIGINALLY AGREED IN VISAR PAVATI. THE SAME IS REQUIRED TO BE READ IN CONNECTION WITH THE ORIGINAL SALE DEED DATED 29.09.2007. BRINGING OUR ATTENTION TO PAGE 138 OF THE PAPER BOOK, ASSERTING THE FACTS ON DEVELOPMENT OF SAID LANDS, LD. COUNSEL SUBMITTED THAT A SUM OF RS.14 LAKHS WAS ALREADY SPENT BY THE ASSESSEE ON THE DEVELOPMENT WORK FOR GROWTH OF CROPS LIKE SUGARCANE SOWING, GROUNDNUT, ETC AND ALSO CONSTRUCTING A COMPOUND WALL, ROOMS FOR THE SERVANT ETC. LD. COUNSEL SUBMITTED THAT THE LAND DEVELOPMENT IS PART AND PARCEL OF THE AGREEMENT FOR SALE OF THE LAND AT THE RATE OF RS.2.30 LAKHS PER ACRE. MENTIONING THAT THE REQUIREMENT/NEED FOR RE-NEGOTIATED SALE PRICE, LD. COUNSEL SUBMITTED THAT THE SAME SHOULD BE CONSIDERED AS SACROSANCT AND PRAYED FOR IGNORING THE 8 ITA NO.478/PUN/2012 SEIZED PAPER CONTAINING THE DETAILS OF RE-NEGOTIATED SALE PRICE OF RS.2.30 LAKHS PER ACRE OF LAND. FURTHER, LD. COUNSEL SUBMITTED THAT THE REFERENCES TO THE REQUIREMENT OF LAND DEVELOPMENT BY THE ASSESSEE OF RS.1.80 LAKHS PER ACRE OF SALE PRICE SHOULD BE ACCEPTED AND DELETED THE ADDITION OF RS.43 LAKHS MADE BY THE ASSESSING OFFICER AND CONFIRMED BY THE CIT(A). 13. PER CONTRA , LD. DR FOR THE REVENUE RELIED HEAVILY ON THE ORDERS OF THE ASSESSING OFFICER AND THE CIT(A). FURTHER, HE RELIED ON THE SEIZED PAPER WHICH SPEAKS OF THE SALE PRICE OF THE LAND AT RS.2.30 LAKHS PER ACRE AND FOR ALL 86 ACRES OF LAND SOLD. THE LD. DR ALSO SUBMITTED THAT THIS IS BEING THE CASE U/S 132 OF THE ACT AND REFERRING TO RE-NEGOTIATED SALE PRICE AND RELATED DOCUMENTS, LD. DR MENTIONED THAT THE SAME CONSTITUTES AN AFTERTHOUGHT. REFERRING TO THE SAID SEIZED PAPER DATED 13.09.2007, LD. DR MENTIONED THAT NO ONE BROUGHT TO THE NOTICE OF THE DEPARTMENT TO PROVE THAT THE RE-NEGOTIATED SALE PRICE CONSTITUTES A GENUINE PRICE. HE ALSO SUBMITTED THE FACT OF RECEIPT OF RS.60 LAKHS IN CONNECTION WITH THE SAID TRANSACTION OF THE LAND AND ALSO THE FACT OF SEIZED CASH OF RS.45 LAKHS WHICH WAS EVIDENCE OF THE SAID SEIZED PAPERS. 14. WE HAVE HEARD BOTH THE PARTIES ON THE ISSUE OF ADDITION OF RS.43 LAKHS. WE FIND THE UNDISPUTED FACTS INCLUDE THAT THERE WAS A SEARCH ACTION ON THE ASSESSEE ON 18.09.2007 AND THE SEARCH RESULTED IN SEIZURE OF AGREEMENT TO SELL (VISAR PAVATI) DATED 13.09.2007 DRAWN BETWEEN THE ASSESSEE AND SHRI VAMANRAO YADAV. IT IS CLEARLY MENTIONED IN THE SAID PAPER THAT THE RATE PER ACRE IS RS.2.3 LAKHS. THEREFORE, THERE IS NO REFERENCE TO THE REQUIREMENT OF ASSESSEE DEVELOPING THE LAND ON THIS DOCUMENT. THE SAID LANDS WERE SOLD AND SALE DEEDS WERE EXECUTED ON 18.01.2008 SHOWING THE CONSIDERATION OF RS.1.8 9 ITA NO.478/PUN/2012 LAKHS PER ACRE ONLY. HOWEVER, IT IS UNDISPUTED FACT THAT DURING SEARCH/SURVEY ACTION, THERE WAS A REFERENCE TO DEVELOPMENT ACTIVITIES UNDERTAKEN BY THE ASSESSEE TO THE EXTENT OF RS.14 LAKHS AND THERE IS NO EVIDENCE FURNISHED BY THE ASSESSEE IN SUPPORT OF THE SAME. THE SEARCH ACTION DID NOT YIELD IN SEIZING OF ANY SUCH PAPER TOO. THE ASSESSEES EXPLANATION FOR REDUCTION OF SALE PRICE FROM RS.2.3 LAKHS TO 1.8 LAKHS, REVOLVES AROUND THE RE-NEGOTIATED PER ACRE PRICE DUE TO NON-FULFILMENT OF THE CONDITIONS RELATING TO LAND DEVELOPMENT ACTIVITIES. CONSIDERING THE DETAILS OF SEIZED DOCUMENTS, THE ASSESSEE HAS NOT DISCHARGED THE ONUS RELATING TO THE REDUCTION OF SALE PRICE BY RS. 50,000/- PER ACRE. NOTWITHSTANDING THE SAME, THE ASSESSEE FILED CERTAIN AFFIDAVITS DATED 28.12.2009 SIGNED BY THE BUYERS AND ALSO THE CERTAIN PAPERS DURING THE ASSESSMENT PROCEEDINGS WHICH WERE NOT CONSIDERED AS AFTERTHOUGHT BY THE ASSESSING OFFICER AND THE CIT(A). THUS, THE ONUS IS NOW SHIFTED TO THE ASSESSING OFFICER. FURTHER, THE ASSESSEE CLAIMS THAT HE DID NOT UNDERTAKE THIS LAND DEVELOPMENT ACTIVITY DUE TO HIS ILL HEALTH AND THE DISTANCE OF THE LOCATION OF LAND FROM HIS RESIDENCE. LEVELLING OF THE LAND, REMOVAL OF MUD GATHERED DUE TO DAM ACTIVITIES ETC. ARE THE AGREED ACTIVITIES, WHICH COULD NOT BE DONE BY THE ASSESSEE. THE BUYER HAS SERVED A LETTER FROM THE ADVOCATE DATED 06.11.2007 AND THE TRANSACTION IS LIKELY TO GENERATE LITIGATION ON THIS TRANSACTION BUT FOR THE REDUCTION OF SALE PRICE FROM RS.2.3 LAKHS TO RS.1.8 LAKHS. UNDER THESE CONDITIONS, AS PER LD. AR, THE ASSESSEE HAS TO REDUCE THE PRICE FROM RS.50,000/- AT THE TIME OF REGISTRATION OF LAND ON 18.01.2008. THE DISPUTED FACTS INCLUDE THAT THE GENUINENESS OF THE DOCUMENTS/AFFIDAVITS FILED BY THE ASSESSEE BEFORE THE ASSESSING OFFICER AND THE CIT(A). 10 ITA NO.478/PUN/2012 15. ON THESE FACTS, WE FIND THERE IS NO DISPUTE ABOUT THE SALE TRANSACTION OF 88 ACRES OF LAND. THE DISPUTE IS ONLY WITH REFERENCE TO THE PRICE PER ACRE IN RESPECT OF PRICE OF VISAR PAVATI IS THE ONLY DOCUMENT AVAILABLE WITH THE REVENUE IN SUPPORT OF THE ADDITION OF RS.50,000/- PER ACRE. OTHERWISE, THE SALE DEED EXECUTED BY THE ASSESSEE IN FAVOUR OF THE BUYERS AND THE CONFIRMATIONS GIVEN BY THE BUYERS BY WAY OF AFFIDAVITS DATED 28.12.2009 ARE IN FAVOUR OF THE ASSESSEE. IT IS NOT THE CASE OF THE REVENUE THAT THE CONTENTS MENTIONED IN THE SAID AFFIDAVITS ARE NOT GENUINE. IT IS ALSO NOT ARGUMENT OF THE REVENUE THAT RS.1.8 LAKHS PER ACRE IS UNDERVALUED THE SALE PRICE SO FAR AS THE MARKET VALUE AS PER STAMP VALUATION AUTHORITY IS CONCERNED. FURTHER, WE FIND THE RESPONSIBILITY OF DEVELOPMENT OF THE SAID 88 ACRES OF LAND, APPEARS TO BE ON THE ASSESSEE. THIS STATEMENT IS SUPPORTED BY THE FACT THAT THERE ARE RELEVANT QUESTIONS BETWEEN THE DEPARTMENT AND THE ASSESSEE ON THESE ASPECTS DURING THE SEARCH ACTION ITSELF. IN OUR VIEW, THE ASSESSEE HAS DISCHARGED PRELIMINARY ONUS CAST ON HIM AND THE REVENUE HAS NOT UNDERTAKEN ANY ACTIVITIES INVESTIGATION TO PROVE THAT THE SAID EXPLANATION OF THE ASSESSEE IS WRONG AND UNSUSTAINABLE. THERE IS NO RECORDING OF STATEMENT OF THE BUYERS OF THE LAND. 16. CONSIDERING THE ABOVE DISCUSSION, WE ARE OF THE OPINION, DISMISSING THE EVIDENCES FURNISHED BY THE ASSESSEE BY VIRTUE OF AFFIDAVIT IS NOT APPROPRIATE. THE REVENUE HAS NO OTHER EVIDENCE TO PROVE THAT THE ASSESSEE RECEIVED RS.50,000/- PER ACRE IN CASH AND OUTSIDE THE BOOKS OF ACCOUNT. THEREFORE, FROM THIS POINT OF VIEW, DISCHARGE OF ONUS, IN ABSENCE OF DIRECT EVIDENCES IN SUPPORT OF RECEIPT OF RS.50,000/- PER ACRE BY THE ASSESSEE OUTSIDE THE BOOKS OF ACCOUNT, THE ASSESSING OFFICERS FAILURE TO PROVE THE AFFIDAVITS FURNISHED BY THE 11 ITA NO.478/PUN/2012 ASSESSEE ARE NOT GENUINE ETC, WE ARE OF THE OPINION, THE ADDITION MADE BY THE ASSESSING OFFICER AND CONFIRMED BY THE CIT(A) IS NOT VALID. THEREFORE, THE ADDITION MADE BY THE ASSESSING OFFICER IS UNSUSTAINABLE. HENCE, THE DECISION IN CONFIRMING THE ADDITION MADE BY THE ASSESSING OFFICER IS NOT FAIR AND REASONABLE. ACCORDINGLY, THE GROUNDS RAISED BY THE ASSESSEE ARE ALLOWED. 17. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED ON 19 TH MARCH, 2019. SD/- SD/- (PARTHA SARATHI CHAUDHURY) (D. KARUNAKARA RAO) / JUDICIAL MEMBER / ACCOUNTANT MEMBER / PUNE; / DATED : 19 TH MARCH, 2019 SUJEET / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT. 2. / THE RESPONDENT. 3. THE CIT (APPEALS)- CENTRAL, PUNE. 4. THE CIT (CENTRAL), PUNE. 5. , , , / DR, ITAT, B BENCH, PUNE. 6. / GUARD FILE. / BY ORDER, // TRUE COPY // SENIOR PRIVATE SECRETARY , / ITAT, PUNE.