BHAWANI SINGH RATHORE, Jaipur V. ITO, Jaipur

ITA 521/JPR/2014

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 1979 (ITAT-JAIPUR)
• Duration Of Justice: 3 year(s) 2 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-10-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2007-2008
• Appeal Filed On: 18-07-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: POONAM RAI DCIT DR DHK
• Keywords: Unexplained investment; Income from undisclosed sources; Salary income; Corroborative evidences

Judgement Text

ITA NO.521/JP/2014 SHRI BHAWANI SINGH RATHORE VS ITO, WARD 1(4), JAIPUR 1 VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES (SMC), JAIPUR JH HKKXPUN] YS[KK LNL; DS LE{K BEFORE: SHRI BHAGCHAND, ACCOUNTANT MEMBER VK;DJ VIHY LA-@ ITA NO. 521/JP/2014 FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2007-08 SHRI BHAWANI SINGH RATHORE PLOT NO. 1, NEW COLONY, MARWAR HOUSE NEAR LIBERTY SHOWROOM, KHATIPURA JHOTWARA ROAD, JAIPUR CUKE VS. THE ITO WARD 1(4) JAIPUR LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO .: AFBPR 7432 M VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY: SHRI MANISH AGARWAL, CA JKTLO DH VKSJ LS@ REVENUE BY :SMT. POONAM RAI, DCIT- DR LQUOKBZ DH RKJH[K@ DATE OF HEARING : 01/09/2017 ?KKS'K .KK DH RKJH[K@ DATE OF PRONOUNCEMENT : 9 /10/2017 VKNS'K@ ORDER PER BHAGCHAND, AM THE ASSESSEE HAS FILED AN APPEAL AGAINST THE ORDER OF THE LD. CIT(A)-I, JAIPUR DATED 01-05-2014 FOR THE ASSESSMENT YEAR 2007-08 RA ISING THEREIN FOLLOWING GROUNDS:- 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE C ASE, THE LD. CIT(A) HAS GROSSLY ERRED IN CONFIRMING THE ADDITION OF RS. 12,84,330/- ON ACCOUNT OF UNEXPLAINED INVESTMENT IN LAND ARBITRARILY, WITHOUT APPRECIATING SUBMISSION MADE A ND EVIDENCES ADDUCED MERELY ON ASSUMPTIONS AND PRESUMP TIONS THUS THE ADDITION SUSTAINED DESERVES TO BE DELETED IN TOTO. ITA NO.521/JP/2014 SHRI BHAWANI SINGH RATHORE VS ITO, WARD 1(4), JAIPUR 2 1.1 THAT THE LD. CIT(A) HAS FURTHER ERRED IN CONF IRMING THE ADDITION WITHOUT APPRECIATING THE FACT THAT THE APP ELLANT HAS SOLD THE AGRICULTURE LAND FOR RS. 25 LACS AND OUT OF THE SALE PROCEEDS INVESTMENT WAS MADE IN PURCHASE OF LAND AND FURTHER THE LD. CIT(A) HAS FAILED TO APPRECIATE THE FACT THAT THE A SSESSEE HAS SUBMITTED ALL THE PLAUSIBLE EVIDENCE TO SUBSTANTIAT E THE FACT THAT THE LAND WAS SOLD FOR RS. 25 LACS AND ASSESSEE HAD SUFFICIENT FUNDS TO MAKE THE INVESTMENT IN THE AGRICULTURE LAN D. THEREFORE, SOURCES OF THE INVESTMENT IN LAND WERE DULY EXPLAIN ED BY THE ASSESSEE THUS THE ADDITION SUSTAINED DESERVES TO BE DELETED IN TOTO. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E, THE LD. CIT(A) HAS GROSSLY ERRED IN CONFIRMING THE ACTION O F THE AO IN TREATING THE SAVINGS OF RS. 3,10,000/- FROM SALARY INCOME AS INCOME FROM UNDISCLOSED SOURCES WITHOUT APPRECIATIN G THE FACTS AND MATERIAL AVAILABLE ON RECORD THUS ADDITION OF R S. 3,10,000/- SUSTAINED DESERVES TO BE DELETED. 2.1 THAT THE CIT HAS FAILED TO APPRECIATE THE FACT THAT OUT OF TOTAL SAVINGS OF RS. 7,50,000/- FROM SALARY INCOME OF RS. 4,50,000/- AND FROM AGRICULTURE INCOME OF RS. 3,00, 000/- ONLY RS. 5,19,030/- WAS INVESTED BY THE ASSESSEE AND OUT OF TOTAL INVESTMENT OF RS. 5,19,030/- AMOUNT OF RS. 4,40,000 /- [3,15,000+1,25,000] IS TREATED AS UNEXPLAINED AS AG AINST RS. 3,10,000/- TAKEN BY THE AO. 2.1 APROPOS GROUND NO. 1 OF THE ASSESSEE, THE FACTS AS EMERGES FROM THE ORDER OF THE LD. CIT(A) IS AS UNDER: 4. I HAVE CONSIDERED SUBMISSIONS OF THE APPELLANT AND HAVE ALSO GONE THROUGH THE ASSESSMENT ORDER AS WELL AS R EPORT OF THE AO. IT IS NOTED THAT THE ADDITION WAS MADE BY THE AO ON TH E GROUND THAT THE APPELLANT HAD PURCHASED AGRICULTURAL LAND AND THE S OURCE OF MONEY WAS NOT EXPLAINED. THE SOURCE OF THE MONEY WAS STAT ED TO BE RS.25,00,000/- FROM SALE OF AGRICULTURAL LAND, RS.5 ,00,000/- ADVANCE FROM ONE SHRI DILIP SINGH AND PERSONAL SAVINGS OF R S.7,50,000/-. THE AO QUESTIONED THE SOURCE OF MONEY AS THE AGRICULTUR AL LAND WAS SOLD FOR RS.12,15,670/- ONLY AS PER THE REGISTERED DOCUM ENT WHILE THE ITA NO.521/JP/2014 SHRI BHAWANI SINGH RATHORE VS ITO, WARD 1(4), JAIPUR 3 APPELLANT HAD CLAIMED THAT IT WAS SOLD FOR RS.25,00 ,000/-. THE APPELLANTS CLAIM WAS THAT THE LAND WAS SOLD FOR RS .25,00,000/- BUT WAS REGISTERED FOR ONLY RS.12,13,000/-. THE AO ASKE D THE APPELLANT TO PRODUCE SHRI MADAN LAL SHARMA, SHRI GYARSARAM, SHRI SHIVORAM AND SHRI RAMAVTAR, THE PURCHASERS OF THE AGRICULTURAL L AND OF THE APPELLANT. THE APPELLANT, HOWEVER, FAILED TO PRODUCE THEM. THE APPELLANT FURNISHED CERTIFICATE FROM SARPANCH OF THE VILLAGE TO CLAIM THAT THE AGRICULTURAL LAND WAS SOLD FOR RS.25,00,000/-. THE AO, HOWEVER, DID NOT ACCEPT THESE EVIDENCES AND HELD THAT THE APPELL ANT HAD INVESTED RS.12,84,330/- OUT OF UNDISCLOSED INCOME. 4.1 IT IS NOTED THAT IN THE COURSE OF ENQUIRIES CON DUCTED BY THE AO FOR SENDING HIS REPORT UNDER RULE 46A, ALL T HE PURCHASERS HAD CLEARLY STATED THAT ONLY RS.12,13,000/- WERE PAID T O THE SELLER NAMELY SHRI BHAWANI SINGH IN THE PRESENCE OF THE REGISTRAR . VIDE LETTER DATED 29-09-2014, THE AO HAS FURTHER INTIMATED SHRI M.L. SHARMA HAD CLEARLY STATED THAT HE HAD GIVEN ONLY RS.6,06,500/- , BEING HALF OF THE CONSIDERATION PAID FOR THE LAND. THE REPORTS OF THE AO SHOW THAT THE APPELLANT HAD NO CONCRETE EVIDENCE TO SHOW THAT HIS LAND WAS ACTUALLY SOLD FOR RS.25,00,000/-. THE APPELLANT HAS FAILED T O ESTABLISH THAT THE LAND WAS SOLD AT A PRICE HIGHER THAN WHAT WAS MENTI ONED IN THE REGISTERED DEED, WHICH IS A LEGAL DOCUMENT. IN SUCH A SITUATION, I DO NOT FIND ANY REASON TO INTERFERE WITH THE ORDER OF THE AO ON THIS ISSUE. THE APPEAL ON THIS GROUND IS, ACCORDINGLY, DISMISSE D. 2.2 DURING THE COURSE OF HEARING, THE LD.AR OF THE ASSESSEE PRAYED FOR DELETION OF ADDITION OF RS. 12,84,330/- CONFIRMED BY THE LD. CIT(A) FOR WHICH THE ASSESSEE OF THE ASSESSEE FILED THE FOLLOWING WRITTEN SUBMISS ION. THE FACTS OF THE MATTER IS THAT THE ASSESSEE HAD PU RCHASED AGRICULTURAL LAND MEASURING 4200.8 SQ. YARDS AT VILLAGE- MADHOSINGHPU RA, TEHSIL- BAROR, IN AN AUCTION FOR A TOTAL CONSIDERATION OF RS. 35,19,030/- (INCLUDIN G REGISTRATION CHARGES). DURING THE ASSESSMENT PROCEEDINGS THE ASSESSEE WAS ASKED TO EX PLAIN THE SOURCE OF INVESTMENT MADE IN THE SAID LAND. IT WAS SUBMITTED BY THE ASSESSEE THAT THE INVESTMENT IN AGRICULTURAL LAND WAS MADE FROM THE FOLLOWING SOURCES:- ITA NO.521/JP/2014 SHRI BHAWANI SINGH RATHORE VS ITO, WARD 1(4), JAIPUR 4 S.NO. PARTICULARS AMOUNT 1. OUT OF SALE PROCEEDINGS OF AGRICULTURE LAND SI TUATED AT VILLAGE KANKARIA, TEHSIL KHETRI, DISTRICT JHUNJHUNU, SOLD ON 11.07.06 25,00,000/- 2. OUT OF ADVANCE TAKEN FROM DILIP SINGH 5,00,0 00/- 3. OUT OF PERSONAL SAVING SALARY : 4,50,000/- AGRICULTURE INCOME: 3,00,000/- 7,50,000/- 5,19,030/- TOTAL 35,19,030/- THE LD. AO WITHOUT PROPERLY APPRECIATING THE SUBMIS SIONS MADE BY THE ASSESSEE, EVIDENCE ADDUCED AND MATERIAL AVAILABLE ON RECORD, HAS CONSIDERED AMOUNT OF RS. 20,30,670/- AS EXPLAINED IN THE HAND OF THE ASSESSE E AND MADE THE ADDITION OF THE BALANCE AMOUNT AT RS. 17,19,330/- (ACTUAL DIFFERENCE WAS O F RS. 14,88,360/-) NECESSARY DETAILS ARE AS UNDER: S. NO. PARTICULARS AMOUNT CLAIMED AMOUNT ALLEGED AS UNEXPLAINED AMOUNT TREATED AS EXPLAINED BY LD. AO 1. OUT OF SALE PROCEEDINGS OF AGRICULTURE LAND SITUATED AT VILLAGE KANKARIA, TEHSIL KHETRI, DISTRICT JHUNJHUNU, SOLD ON 11.07.06 25,00,000/- 12,84,330/- 12,15,670/- 2. 2. OUT OF ADVANCE FROM DILIP SINGH 5,00,000/- - 5,00,000/- 3. 3. OUT OF PERSONAL SAVING SALARY : 4,50,000/- AGRICULTURE INCOME : 3,00,000/- 7,50,000/- 5,19,030/- 4,35,000/- (3,10,000/- +1,25,000)(OUT OF 7,50,000/-) 3,15,000/- (1,40,000+1 , 75,000) TOTAL 35,19,030/- 17,19,330/- 20,30,670/- THUS, ACCORDING TO THE LD. AO SOURCES OF RS. 14,88, 360/- (RS. 35,19,030 - RS. 20,30,670) HAS REMAINED UNEXPLAINED HOWEVER HE MADE THE ADDITION OF RS. 17,19,330/-. IT IS PERTINENT TO NOTE HERE THAT OUT OF PERSONAL SAVI NG FROM SALARY AND AGRICULTURE INCOME OF RS. 7,50,000/- THE ASSESSEE INVESTED A SUM OF RS. 5 ,19,030/- FOR ACQUISITION OF LAND OUT OF WHICH THE LD. AO HAS TREATED RS. 3,15,000/- (INVEST MENT FROM PERSONAL SAVING) AS EXPLAINED THUS ONLY SOURCE OF RS. 2,04,030/- (5,19 ,030 3,15,000) WAS NOT FOUND ACCEPTABLE TO LD. AO WHICH COULD BE ADDED BUT THE L D. AO HAS MADE THE ADDITION OF ENTIRE SUM OF RS. 4,35,000/- BY HOLDING THE WHOLE A MOUNT OF SAVING OF RS. 7,50,000/- AS BEING INVESTED BY THE ASSESSEE IN ACQUISITION OF LA ND. LD. CIT(A) WHILE ADJUDICATING THE ISSUE HELD A FURTHER SUM OF RS. 1,25,000/- (SAVINGS MADE FROM AGRICULTURAL INCOME) AS EXPLAINED AND SUSTAINED THE REMAINING ADDITION. REGARDING THE SOURCES OF INVESTMENT, AS STATE ABOVE , IT WAS SUBMITTED TO THE LD. AO THAT, THE ASSESSEE HAD SOLD A PIECE OF LAND, SIT UATED AT VILAGE- KANKARIA, TEHSIL- ITA NO.521/JP/2014 SHRI BHAWANI SINGH RATHORE VS ITO, WARD 1(4), JAIPUR 5 JHUNJHUNU, MEASURING 4.82 HCTRS, FOR RS. 25,00,000/ - ON 11.07.2006 AND THE PROCEEDS WERE UTILISED FOR MAKING INVESTMENT IN THE LAND, SO URCE OF WHICH IS THE MATTER UNDER CONSIDERATION. THIS LAND WAS SOLD TO SHRI. MADAN LA L SHARMA AS THE FIRST CO-OWNER FOR 50% SHARE AND GYARSA RAM, SHYO RAM, AND RAMAVTAR GU JJAR AS THE SECOND CO-OWNERS FOR THE BALANCE 50% SHARE. THE ACTUAL CONSIDERATION RECEIVED FROM THE SALE OF LAND WAS OF RS. 25,00,000/- THOUGH IN THE REGISTERED SALE DEED, THE SALE CONSIDERATION WAS MENTIONED AT RS. 12,13,000/-. HOWEVER, SINCE THE ASSESSEE HAS RECEIVED THE ACTUAL CONSIDERATION OF RS. 25.00 LACS, THE SAME WAS DISCLOSED AS SALE VALU E BEFORE THE AO. IN SUPPORT OF HIS CLAIM THE ASSESSEE HAD FILED THE FOLLOWING DOCUMENTS: RECEIPT CUM AFFIDAVIT OF THE ASSESSEE DT. 10.07.200 6AND THE BUYERS OF THE LAND WHEREIN THE SALE CONSIDERATION WAS STATED AS RS.25.00 LACS; UNDERTAKING BY THE SARPANCH OF KANKARIA VILLAGE, CE RTIFYING CLEARLY THAT THE LAND WAS SOLD FOR RS. 25.00 LACS, FOR WHICH HE WAS A WITNESS; AFFIDAVITS OF SHRI MOOLARAM AND SHRI BANWARI LAL, W HO WERE THE WITNESS TO THE SALE MADE BY ASSESSEE, MENTIONING CLEARLY THAT THE LAND WAS SOLD FOR RS. 25.00 LACS. THESE EVIDENCES WERE NOT ACCEPTED BY THE LD. AO ONL Y FOR THE REASON THAT, THE ASSESSEE COULD NOT PRODUCE THE BUYERS BEFORE HIM. T HE UNDERTAKING BY THE SARPANCH OF THE VILLAGE WAS NOT ACCEPTED BY ALLEGING THAT, WHEN THE VALUE OF LAND WAS DETERMINED BY THE TEHSILDAR, THE SARPANCH WAS NO AUTHORITY TO CER TIFY THE VALUE OF LAND AT RS. 25.00 LACS. HOWEVER, DURING THE APPELLATE PROCEEDINGS THE LD. C IT(A) DIRECTED THE AO TO ISSUE SUMMONS TO ALL THE FOUR BUYERS, THE TWO WITNE SSES AND SHRI DILIP SINGH, WHO WAS SAID TO HAVE MADE AN ADVANCE OF RS. 5,00,000 TO THE ASSESSEE. IN RESPONSE TO THE SUMMONS SO ISSUED, STATEMENT OF ALL FOUR BUYERS WER E RECORDED BY THE AO. OUT OF THE TWO WITNESSES ONLY ONE SHOWED UP BEFORE THE AO, WHOSE S TATEMENT WAS RECORDED AND SHRI DILIP SINGH COULD NOT COME, BUT HE GAVE REPLY TO TH E AO THAT BECAUSE OF HIS ILLNESS, HE WAS NOT IN A POSITION TO ATTEND THE OFFICE OF THE A O. THE AO SUBMITTED HIS REMAND REPORT FOR THE ABOVE PROCEEDINGS WHICH IS AVAILABLE AT [APB 10-12] IN RESPONSE TO THE REMAND REPORT FILED BY THE AO, THE ASSESSEE ALSO FILED HIS SUBMISSIONS BEFORE THE LD.CIT(A) [APB 7-9] . BASED ON THE REMAND REPORT OF THE AO, WHEREIN RELYI NG ON THE STATEMENTS OF THE BUYERS AND THE CONTRADICTORY STATEMENT OF ONE OF TH E WITNESS TO THE TRANSACTION, LD. CIT(A) UPHELD THE OBSERVATIONS MADE BY AO. THUS, UP HOLDING THE SALE VALUE OF THE LAND IN KANKARIA VILLAGE AT RS. 12,13,000/- WITH STAMP C HARGES PAID AT RS.2,670/- AS AGAINST RS.25 LACS CLAIMED BY THE ASSESSEE. AS A RESULT, TH E LD.CIT(A) REJECTED THE PLEA OF THE ASSESSEE THAT THE INVESTMENT IN LAND AT MADHOSINGHP URA VILLAGE WAS MADE FROM SALE OF THE ABOVE LAND TO THE EXTENT OF RS. 25 LACS, AND UPHELD THE ADDITION FOR UNEXPLAINED SOURCE AT RS. 12,84,330/- (25,00,00 12,15,670/-) IN THIS CONNECTION IT IS SUBMITTED THAT, ITA NO.521/JP/2014 SHRI BHAWANI SINGH RATHORE VS ITO, WARD 1(4), JAIPUR 6 1. AS REGARDS THE DENIAL OF THE BUYERS TO HAVE PAID ANYTHING MORE THAN, THE AMOUNT MENTIONED IN THE SALE DEED, WHICH IS ALSO THE VALUE DETERMINED FOR THE STAMP DUTY PURPOSE, THE ASSESSEE HUMBLY SUB MITS THAT, HE HAD FILED A RECEIPT (LIKHAWAT) WHICH WAS DULY SIGNED BY THE A SSESSEE AND ALL THE FOUR BUYERS, ACCEPTING A RECEIPT OF RS. 25.00 LACS BY TH E ASSESSEE DATED 10.06.2006 [IT IS EVIDENT TO NOTE HERE THAT, THE DATE OF REGISTRAT ION OF SALE DEED IS 11.06.2006, THAT IS AFTER THE ASSESSEE HAD RECEIVED THE ENTIRE SALE CONSIDERATION, WHICH IS A NORMAL PRACTICE IN SUCH KIND OF TRANSACTIONS INVOLVING CAS H PAYMENTS AGAINST PURCHASE OF LAND]. FURTHER, IN THEIR STATEMENTS, NONE OF THE BUYERS HA VE STATED THAT THE CONTENTS OF THE RECEIPT ISSUED BY THE ASSESSEE WAS WRONG, IN WHICH IT WAS CLEARLY STATED THAT HE HAS SOLD THE LAND FOR A SALES CONSID ERATION OF RS. 25.00 LACS. THIS RECEIPT WAS DULY SIGNED BY ALL THE PURCHASERS AND T HE ASSESSEE IN PRESENCE OF TWO WITNESSES. ONLY ONE OF THE BUYERS, SHRI MOHAN LAL S HARMA, REFUSED TO ACCEPT THE SIGNATURE ON THE LIKHAWAT TO BE HIS SIGNATURE. IN THIS CONNECTION THE ASSESSEE HUMBLY SUBMITS THAT, THE MOST JUDICIAL WAY TO HANDL E THE ISSUE WOULD HAVE BEEN THAT, THE AO SHOULD HAVE SENT THE SIGNATURES FOR EX PERT READING TO DETERMINE THE ACTUAL FACTS AS TO WHETHER THE SIGNATURE BELONGED T O SHRI MOHAN LAL SHARMA. BUT THE AO CHOSE TO RELY ON THE STATEMENT OF SHRI MOHAN LAL SHARMA, WITHOUT CARRYING OUT ANY FURTHER INVESTIGATIONS. AND AS SUC H, SUCH DENIAL NEEDS TO BE IGNORED IN FACTS OF THE MATTER. 2. SECONDLY, THE REMARK MADE BY THE AO AS REGARDS THE UNDERTAKING GIVEN BY THE SARPANCH OF THE VILLAGE, THAT WHEN THE TEHSILDAR HAD DETERMINED THE VALUE OF LAND AT RS. 12,13,000/-, IT WAS NOT WITHIN THE RIGHTS OF THE SARPANCH TO CERTIFY THE VALUE OF LAND. IN THIS REGARD, IT IS HU MBLY SUBMITTED THAT THIS REMARK IS FACTUALLY INCORRECT, AS THE SARPANCH HAS NOT CERTIF IED THE VALUE OF LAND AT ALL. PERUSAL OF THE UNDERTAKING ISSUED BY THE SARPANCH [APB 29] WOULD REVEAL THAT, IT WAS ISSUED BY HIM AS A WITNESS TO THE SALE TRANSACT ION AND THAT THE ACTUAL SALE CONSIDERATION OF RS. 25.00 LACS AS BEING EXCHANGED BETWEEN THE BUYERS AND THE ASSESSEE, IN HIS PRESENCE. THUS, IT IS AN IMPORTANT PIECE OF EVIDENCE THAT PROVES THE PLEA OF THE ASSESSEE THAT THE SAID LAND WAS ACTUALL Y SOLD FOR RS.25.00 LACS, AND RS. 12.13 LACS WAS THE AMOUNT STATED IN THE REGISTERED SALE DEED. 3. FURTHER, IN THE STATEMENT RECORDED ALL THE PURCH ASERS HAVE DULY EXPLAINED THE SOURCES OF INVESTMENT IN SAID AGRICUL TURE LAND BY WITHDRAWING CASH FROM THEIR SAVING BANK ACCOUNT. FROM PARA (B) AND ( C) OF THE REMAND REPORT IT IS CLEARLY EVIDENT THAT THE PURCHASERS HAD SUFFICIENT FUNDS IN THEIR BANK ACCOUNTS WHICH WERE MORE THAN RS. 25 LACS AS WAS REQUIRED FO R INVESTMENT IN SUBJECT AGRICULTURE LAND. THEY HAD WITHDRAWN CASH FROM THEI R SAVING BANK ACCOUNT FOR PURCHASE OF AGRICULTURE LAND AND FURTHER FROM THE W ITHDRAWALS IN BANK ACCOUNT IT COULD BE REVEALED THAT ACTUAL PURCHASE CONSIDERATIO N WAS RS. 25.00 LACS NOT RS. 12,13,000/- AS WRONGLY STATED BY THEM IN THE STATEM ENT RECORDED BY THE LD. AO ON 06.08.2012. ITA NO.521/JP/2014 SHRI BHAWANI SINGH RATHORE VS ITO, WARD 1(4), JAIPUR 7 4. AS REGARDS THE STATEMENT OF WITNESS SHRI BANWARI LAL GURJAR RECORDED ON 07.08.2012, IT IS SUBMITTED THAT, PERUS AL OF REMAND REPORT REVELS THAT IT WAS HEARD FROM THE VILLAGERS THAT THE REFERRED LAND WAS SOLD FOR RS. 25 LACS AND AFFIDAVIT GIVEN BY HIM WAS ISSUED INADVERTENTLY. HO WEVER, HIS STATEMENT IS QUITE DOUBTFUL AS NO SANE PERSON COULD GIVE A CERTIFICATE AND AFFIDAVIT DULY SWORN BY HIM INADVERTENTLY WITHOUT KNOWING THE CONTENT AND I MPLICATION OF THE SAME MORE PARTICULARLY WHEN HE IS ONE OF THE WITNESS (APB 25) OF THE RECEIPTS ISSUED BY THE ASSESSEE THUS THE AFFIDAVIT GIVEN BY HIM WAS TRUE B EYOND DOUBTS, AND THE SUBSEQUENT DENIAL SEEMS TO BE AN AFTERTHOUGHT, SO A S TO KEEP HIMSELF AWAY FROM THE HASSLE OF PROCEEDINGS. THUS, IT IS PRAYED THAT THE SAME SHOULD BE ACCEPTED WITHOUT ANY DOUBT. FURTHER SECOND WITNESS SHRI MOOL A RAM. S/O SHRI MANGU RAM DID NOT APPEAR BEFORE THE LD. AO, THUS AFFIDAVIT GI VEN BY HIM DATED 10.12.2009 SHOULD BE ACCEPTED. BASED ON ABOVE, IT IS SUBMITTED THAT THE AGRICULTUR AL LAND WAS SOLD FOR RS. 25 LACS AND THE SALE CONSIDERATION WAS UTILISED FOR THE PURCHASE OF ANOTHER AGRICULTURAL LAND, AND THUS, THE SOURCE OF INVESTME NT TO THE TUNE OF RS. 25.00 LACS STANDS FULLY EXPLAINED. IN THE CIRCUMSTANCES, IT IS HUMBLY PRAYED THAT THE ADDITION OF RS. 12,84,030/- MADE BY REJECTING THE EXPLANATION GIVEN BY THE ASSESSEE DESERVES TO BE DELETED. 2.3 ON THE OTHER HAND, THE LD. DR SUPPORTED THE ORD ER OF THE LD. CIT(A). 2.4 I HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIALS AVAILABLE ON RECORD. THE AO HAS MADE THE ADDITION OF RS. 12,84,330/- BY HOLDING THE SAME AS UNEXPLAINED INVESTMENT IN THE ACQUISITION OF LAND P URCHASED BY ASSESSEE IN AUCTION WHICH WAS CONFIRMED BY LD. CIT(A). BEFORE THE BENCH , THE AR OF THE ASSESSEE CONTENDED THAT DURING THE YEAR UNDER APPEAL ASSESSE E HAS SOLD A PIECE OF AGRICULTURE LAND FOR A TOTAL CONSIDERATION OF RS. 25 LACS, HOW EVER, THE SALE DEED WAS REGISTERED WHEREIN THE SALE CONSIDERATION WAS STATED AT RS. 12 ,15,670/- (PBP-21-22) AND ACCORDINGLY THE AO HAS MADE THE ADDITION OF DIFFERE NTIAL AMOUNT OF RS. 12,84,330/- ITA NO.521/JP/2014 SHRI BHAWANI SINGH RATHORE VS ITO, WARD 1(4), JAIPUR 8 BY HOLDING THE SAME AS UNEXPLAINED. IN CONFIRMATION OF THE FACT, DURING THE COURSE OF HEARING THE AR OF THE ASSESSEE DRAW THE ATTENTIO N OF THE BENCH TO ONE DOCUMENT LIKHAWAT AVAILABLE IN THE PAPER BOOK PAGE NO. 24 & 25 WHEREIN IT HAS BEEN CATEGORICALLY MENTIONED THAT THE SAID PIECE OF LAND WAS SOLD BY THE ASSESSEE FOR A TOTAL CONSIDERATION OF RS. 25 LACS WHICH DOCUMENT I S SIGNED BY THE ASSESSEE AS WELL AS BY ALL THE BUYERS NAMELY S/S MADAN LAL SHARMA, G YARSA RAM, SHYO RAM AND RAMAVTAR. THIS AGREEMENT (LIKHAWAT) WAS ALSO WITNES SED BY TWO PERSONS NAMELY SHRI MOOLA RAM AND SHRI BANWARI LAL (PBP 24-25). TH E ASSESSEE HAD ALSO FILED THE AFFIDAVITS OF BANWARI LAL AND MOOLA RAM (PBP 2 7-28), THE WITNESSES WHEREIN THEY HAVE ACCEPTED THAT IN THEIR PRESENCE THE DEAL OF SALE OF AGRICULTURE LAND WAS EXECUTED FOR A TOTAL CONSIDERATION OF RS. 25 LACS A ND THE SAME WAS HANDED OVER BY THE BUYERS TO THE ASSESSEE IN THEIR PRESENCE WHEN T HIS DOCUMENT (LIKHAWAT) WAS PREPARED WHICH THEY HAVE SIGNED IN THE CAPACITY OF WITNESS. ALL THESE DOCUMENTS WERE BROUGHT TO THE NOTICE OF LD. CIT(A) AS ADDITIO NAL EVIDENCES DURING THE COURSE OF APPELLATE PROCEEDINGS AND REMAND REPORT WAS SOUG HT BY THE LD CIT(A) AND AFTER CONSIDERING THE REMAND REPORT, LD. CIT(A) REJECTED THE CLAIM OF THE ASSESSEE. ON THE OTHER HAND, THE LD. DR DURING THE COURSE OF HEA RING FILED THE STATEMENTS OF THE BUYERS SHRI RAMAVTAR, GYARSA RAM, MADAN LAL AND ARG UED THAT ALL THE BUYERS HAVE DENIED OF MAKING PAYMENT OF RS. 25 LACS TO THE ASSE SSEE AND STATED THAT THE LAND WAS PURCHASED BY THEM AT THE PRICE ON WHICH THE SAL E DEED WAS REGISTERED I.E. RS. ITA NO.521/JP/2014 SHRI BHAWANI SINGH RATHORE VS ITO, WARD 1(4), JAIPUR 9 12,15,670/- AND THE LIKHAWAT SUBMITTED BY THE ASSES SEE IS NOTHING BUT AN AFTERTHOUGHT. IN REJOINDER, THE LD.AR STATED THA T IN THE STATEMENTS RECORDED BEFORE THE AO, THE BUYERS HAVE DENIED THE PAYMENT OF RS. 2 5 LACS, DUE TO THE FACT THAT SOURCE OF THE SAME WAS NOT DECLARED AND THEREFORE T HEIR STATEMENTS CANNOT BE RELIED UPON BEING BIASED AND WOULD AFFECT THEIR PERSONAL T AX LIABILITY. AFTER CONSIDERING THE FACTS AND THE DOCUMENTS PLACED BEFORE THE BENCH , IT IS UNDISPUTED FACT THAT THE ASSESSEE HAS SOLD THE LAND HOWEVER, THE SOLE ISSUE IS THE ACTUAL AMOUNT OF SALE CONSIDERATION RECEIVED BY THE ASSESSEE, WHICH AS PE R THE LOWER AUTHORITIES AND AS NOTED IN REGISTERED SALE DEED WAS OF RS. 12,15,670/ - AND ACCORDING TO ASSESSEE WAS RS. 25 LACS BASED ON THE LIKHAWAT MADE PRIOR TO T HE REGISTRATION OF THE SALE DEED. THE BUYERS EXCEPT DENYING THE PAYMENT OF RS. 25 LAC S MADE TO THE ASSESSEE AS PER LIKHAWAT HAD FAILED TO PRODUCE ANY FURTHER CORROB ORATIVE EVIDENCE TO SUPPORT THEIR CONTENTION THAT THEY HAVE MADE THE PAYMENT OF RS. 12,15,670/- ONLY AS WRITTEN IN THE REGISTERED SALE DEED. CONTRARY TO TH IS, THE ASSESSEE HAS NOT ONLY PRODUCED THE ORIGINAL COPY OF THE LIKHAWAT BUT ALSO FILED THE AFFIDAVITS OF THE WITNESSES NAMELY SHRI MOOLA RAM AND SHRI BANWARI LA L [PB 27-28] WHEREIN THEY HAVE CATEGORICALLY ACCEPTED THAT RS. 25 LACS WERE P AID BY THE BUYERS TO THE ASSESSEE IN THEIR PRESENCE FOR WHICH THEY HAD BEEN THE WITNE SS IN TERMS OF THE LIKHAWAT DATED 10.07.2006 PRODUCED BEFORE THE BENCH. CONSIDE RING THESE FACTS, I AM OF THE CONSIDERED VIEW THAT THE LAND WAS SOLD BY THE ASSES SEE FOR A TOTAL CONSIDERATION OF ITA NO.521/JP/2014 SHRI BHAWANI SINGH RATHORE VS ITO, WARD 1(4), JAIPUR 10 RS. 25 LACS WHICH WAS UTILIZED BY HIM FOR MAKING PA YMENT TOWARDS THE PURCHASE OF LAND IN AUCTION. ACCORDINGLY, THE ADDITION OF RS. 1 2,84,330/- IS DIRECTED TO BE DELETED. THUS GROUND OF APPEAL NO. 1 AND 1.1 OF THE ASSESSEE ARE ALLOWED. 3.1 APROPOS GROUND NO. 2 OF THE ASSESSEE, THE FACTS AS EMERGES FROM THE ORDER OF THE LD. CIT(A) IS AS UNDER:- 8. I HAVE CONSIDERED FACTS OF THE CASE. IT IS NO TED THAT THE ADDITION HAD BEEN MADE BY THE AO ON THE GROUND THAT THE APPELLANT HAD EARNED SALARY OF RS.9,47,302/-INCLUDING GPF LOA N ETC. FROM 1993- 94 TO 2006-07 AND HE HAD FAILED TO SHOW ANY BANK AC COUNT WHERE THE SAVINGS OF RS.4,50,000/- FROM HIS SALARY. NO CREDIB LE EVIDENCE HAS BEEN FURNISHED EVEN AT THE APPELLATE STAGE IN SUPPO RT OF THE SO-CALLED SAVINGS. I, THEREFORE, DO NOT FIND ANY REASON TO IN TERFERE WITH THE ORDER OF THE AO ON THIS ISSUE. 3.2 DURING THE COURSE OF HEARING, THE LD.AR OF THE ASSESSEE PRAYED FOR DELETION OF ADDITION OF RS. 3.10 LACS CONFIRMED BY THE LD. C IT(A) FOR WHICH THE LD.AR OF THE ASSESSEE FILED THE FOLLOWING WRITTEN SUBMISSION. IN THIS REGARD IT IS SUBMITTED THAT FURTHER SOURC E OF INVESTMENT IN LAND OF RS. 5,19,030/- WAS CLAIMED TO BE MADE OUT OF THE PE RSONAL SAVINGS AND AGRICULTURE INCOME OF RS. 7,50,000/- (AGRICULTURE INCOME RS. 3, 00,000/- AND SALARY SAVINGS RS. 4,50,000/-). THUS OUT OF THE TOTAL SAVINGS OF R S. 7.50 LACS, THE ASSESSEE HAD INVESTED RS. 5,19,030/- IN THE PURCHASE OF SAID LAN D. OUT OF THE SAME THE LD. AO ACCEPTED THE SALARY SAVINGS AT RS. 1,40,000/- AND O UT OF AGRICULTURAL INCOME, ACCEPTED THE SAVINGS TO THE TUNE OF RS. 175,000/- [ TOTAL SAVINGS HELD EXPLAINED RS. 315,000/-]. HOWEVER, WHILE MAKING ADDITION OF T HE BALANCE AS UNEXPLAINED INVESTMENT IN LAND, THE LD. AO COMPUTED THE AMOUNT BY DEDUCTING THE EXPLAINED SAVINGS FROM TOTAL SAVINGS CLAIMED BY THE ASSESSEE [RS. 7,50,000 RS. 3,15,000] INSTEAD OF DEDUCTING THE EXPLAINED SAVINGS FROM THE AMOUNT CLAIMED AS INVESTED FROM SAVINGS [RS. 5,19,030 RS. 3,15,000]. THUS ER RED IN COMPUTING THE DISALLOWANCE AT RS. 4,35,000/- AS AGAINST THE APPRO PRIATE DISALLOWANCE IF ANY OF RS. 2,04,030/-. THE LD. CIT(A) HELD THE ENTIRE SAVINGS FROM AGRICUL TURAL INCOME AS CLAIMED BY THE ASSESSEE WAS ACCEPTED AS EXPLAINED. THUS EFFECTIVELY THE AMOUNT ITA NO.521/JP/2014 SHRI BHAWANI SINGH RATHORE VS ITO, WARD 1(4), JAIPUR 11 OF [RS. 300,000 + RS. 140,000/-] STOOD EXPLAINED IN THE APPELLATE ORDER AND EFFECTIVELY OUT OF RS. 5,19,030/- CLAIMED TO HAVE B EEN INVESTED OUT OF SAVINGS FROM THE TWO SOURCES ONLY A SUM OF RS. 79,030/- REM AINS TO BE EXPLAINED, WHICH HAS BEEN CLAIMED AS ARISING FROM HIS PERSONAL SAVIN GS FROM SALARY. IN THIS REGARD IT IS SUBMITTED THAT, THE ASSESSEE H AS CLAIMED THAT OUT OF THE TOTAL NET RECEIPTS FROM SALARY (BEING A STATE GOVER NMENT EMPLOYEE) DURING THE PERIOD FROM 1993-94 TO 2005-06 AT RS. 9,05,802/-, A SSESSEE HAS SAVED A SUM OF RS. 4,50,000/- WHICH ALSO INCLUDE THE GPF AND STATE INSURANCE LOAN OF RS. 41,500/-. THE NECESSARY COPIES OF FORM 16 [APB 31] AND GA-55A WERE ALSO FILED BY THE ASSESSEE IN SUPPORT OF SALARY INCOME. THE LD. CIT(A) AND THE AO HAS NOT ACCEPTED THE SAVI NG TO THE TUNE OF RS.3,10,000/- MADE OUT OF SALARY INCOME FROM 1993-9 4 TO 2006-07 WITHOUT ANY COGENT REASON NOR HAS BROUGHT ANY EVIDENCE OR MATE RIAL ON RECORD TO SUPPORT ALLEGATIONS. AS REGARDS THE OBSERVATION OF THE LD. AO, WHICH WAS ALSO AFFIRMED BY LD. CIT(A), THAT THE ASSESSEE TOOK GPF AND SI LOAN, AND HENCE THERE COULD BE NO SAVING, IT IS SUBMITTED THAT IN CASE OF GOVERNMENT EMPLOYEE, GPF AND SI LOAN ARE RECEIVED AT VERY LOW INTEREST RATE, THUS MERELY FOR THE REASON THAT THE ASSESSEE HAS TAKEN LOAN, SAVING MADE BY HIM CANNOT BE DOUBTED. A SAVING OF RS. 4,50,000/- IN A SERVICE PERIOD OF 16 YEARS IS QUITE REASONABLE AN D SHOULD NOT BE DOUBTED, AND MORE SO WITHOUT ANY INADVERTENT MATERIAL ON RECORD. IN THE CIRCUMSTANCES, IT IS HUMBLY PRAYED THAT THE SAVINGS OF THE ASSESSEE DESERVES TO BE ACCEPTED AND THE ADDITION MADE DESER VES TO BE DELETED. 3.3 ON THE OTHER HAND, THE LD. DR SUPPORTED THE ORD ER OF THE LD. CIT(A). 3.4 I HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIALS AVAILABLE ON RECORD. IT IS NOTED THAT ASSESSEE HAS CLAIMED RS. 5 ,19,030/- AS INVESTED OUT OF THE SALARY SAVINGS AND AGRICULTURE INCOME OF RS. 7,50,0 00/- (AGRICULTURE INCOME RS. 3,00,000/- AND SALARY SAVINGS RS. 4,50,000/-) OUT O F WHICH AO HELD RS. 3,15,000/- AS EXPLAINED [ RS. 1,40,000/- SALARY SAVINGS, AND RS. 1,75,000/-OUT OF AGRICULTURAL INCOME] HOWEVER, THE AO MADE THE ADDITION OF RS. 4, 35,000/- [7,50,000 3,15,000]. THE LD. CIT(A) ACCEPTED THE ENTIRE AGRIC ULTURE INCOME AS EXPLAINED AND NOT ACCEPTED THE SALARY SAVINGS AS CLAIMED BY THE A SSESSEE WHICH HAS RESULTED INTO ITA NO.521/JP/2014 SHRI BHAWANI SINGH RATHORE VS ITO, WARD 1(4), JAIPUR 12 FURTHER ALLOWANCE OF RS. 1,25,000/- [AGRICULTURE IN COME CLAIMED AT RS. 3,00,000/- AND ALLOWED BY AO AT RS. 1,75,000/-]. BEFORE THE BE NCH THE LD. AR CONTENDED THAT FIRSTLY THE AO HAS WRONGLY MADE THE ADDITION OF RS. 4,35,000/- AS THE ASSESSEE OUT OF TOTAL SAVINGS FROM SALARY AND AGRICULTURE INCOME AT RS. 7,50,000/- HAD CLAIMED INVESTMENT OF RS. 5,19,030/- ONLY AND THE AO ACCEPT ED RS. 3,15,000/- AS EXPLAINED THEREFORE THE ADDITION OF RS. 2,04,030/- [5,19,030 3,15,000] WAS REQUIRED TO BE MADE AS AGAINST WHICH THE ADDITION OF RS. 4,35,000/ - WAS MADE. LD.AR FURTHER CLAIMED THAT IF THE RELIEF OF RS. 1,25,000/- ALLOWE D BY LD. CIT(A) HAD BEEN REDUCED, FINAL ADDITION WOULD HAVE BEEN RS. 79,030/- [2,04,0 30 1,25,000] ONLY AS AGAINST RS. 3,10,000/- SUSTAINED BY LD. CIT(A). THEREFORE H E PRAYED FOR REDUCING THE ADDITIONS TO RS. 79,030/- AS AGAINST RS. 3,10,000/- WRONGLY MADE AND UPHELD BY THE LOWER AUTHORITIES. FOR THE REMAINING ADDITION OF RS . 79,030/- REMAINED SUSTAINED AS PER THE LD. AR, HE CONTENDED THAT THE SAME WAS M ADE OUT OF SALARY SAVINGS FOR WHICH THE COPIES OF FORM NO. 16 AND OTHER DOCUMENTS WERE FILED BEFORE THE BENCH. AFTER CONSIDERING THE FACTS AND CIRCUMSTANCES, IT I S NOTED THAT THE LOWER AUTHORITIES HAS FAILED TO APPRECIATE THE FACT THAT ASSESSEE HAS CLAIMED INVESTMENT OF RS. 5,19,030/- ONLY OUT OF TOTAL SAVINGS OF RS. 7,5 0,000/-, THEREFORE, THE FINAL ADDITIONS SHOULD BE RS. 79,030/- AND NOT RS. 3,10,0 00/- AS UPHELD BY LOWER AUTHORITIES. FURTHER IT IS SEEN THAT ASSESSEE IS A STATE GOVERNMENT EMPLOYEE, SINCE 1993 AND WAS IN RECEIPT OF SALARY BESIDES AGRICULTU RE INCOME. THE LOWER AUTHORITIES ITA NO.521/JP/2014 SHRI BHAWANI SINGH RATHORE VS ITO, WARD 1(4), JAIPUR 13 HAVE ACCEPTED THE SAVINGS OF RS. 4,40,000/- AS EXPL AINED WITHOUT STATING ANY REASON FOR NOT ACCEPTING THE ENTIRE SAVINGS OF RS. 5,19,03 0/- CLAIMED BY THE ASSESSEE. ON THE CONTRARY, THE ASSESSEE HAS DULY EXPLAINED THE S OURCE WITH SUPPORTING EVIDENCES. IN VIEW OF THE FACTS STATED ABOVE, THE ADDITION OF RS. 3,10,000/- BEING MADE ON WRONG APPRECIATION AND CALCULATION IS HEREBY DIRECT ED TO BE DELETED. THUS, THE GROUND NO. 2 AND 2.1 OF THE ASSESSEE ARE ALLOWED. 4.0 IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 9 /10/20 17. SD/- HKKXPUN ( BHAGCHAND) YS[KK LNL;@ ACCOUNTANT MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 9 /10/ 2017 *MISHRA VKNS'K DH IZFRFYFI VXZSF'KR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT- SHRI BHAWANI SINGH RATHORE, JAIPUR 2. IZR;FKHZ@ THE RESPONDENT- THE ITO, WARD- 1(4), 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. 521/JP/2014 ) VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ @ ASSISTANT. REGISTRAR