MITHILESH GANESHIA, Jaipur V. ITO, Jaipur

ITA 613/JPR/2013

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 1871 (ITAT-JAIPUR)
• Duration Of Justice: 4 year(s) 5 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-12-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2009-2010
• Appeal Filed On: 07-06-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: R A VERMA CIT DHK
• Assessee Lawyers: RAJIV SOGANI
• Keywords: Gift; Source of fund
• Section: 69

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 HKKXPAN] YS[KK LNL; ,OA JH DQY HKKJR ] U;KF;D LNL; DS LE{K BEFORE: SHRI BHAGCHAND, AM & SHRI KUL BHARAT, JM VK;DJ VIHY LA-@ ITA NO. 613/JP/2013 FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2009-10 MITHILESH GANESHIA, 169, DOCTORS COLONY, AJMER ROAD, JAIPUR. CUKE VS. INCOME TAX OFFICER, WARD- 2(3), JAIPUR. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO.: AHNPG 7017 P VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY : SHRI RAJIV SOGANI (CA) JKTLO DH VKSJ LS@ REVENUE BY : SHRI R.A. VERMA (ADDL.CIT) LQUOKBZ DH RKJH[K@ DATE OF HEARING : 25/10/2017 MN?KKS'K .KK DH RKJH[K @ DATE OF PRONOUNCEMENT : 01/12/2017 VKNS'K@ ORDER PER: BHAGCHAND, A.M. THIS IS AN APPEAL FILED BY THE ASSESSEE EMANATES FR OM THE ORDER OF THE LD. CIT(A)-1, JAIPUR DATED 26/04/2013 FOR THE A .Y. 2009-10, WHEREIN THE ASSESSEE HAS SOLE EFFECTIVE GROUND OF APPEAL, WH ICH IS AS UNDER: 1. IN THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD CIT(A) HAS ERRED IN CONFIRMING THE ACTION OF THE A.O. IN MAKING ADDITION OF RS. 65,00,000/- U/S 69 O F THE IT ACT, 1961 FOR THE ALLEGED REASON THAT THE SOURCE OF THE ACQUISITION OF THE PROPERTY HAS NOT BEEN EXPLAINED. THE ACTION OF THE LD. CIT(A) IS ILLEGAL, UNJUSTIFIED, A RBITRARY AND AGAINST THE FACTS OF THE CASE. RELIEF MAY PLEAS E BE ITA 613/JP/2013_ MITHILESH GANESHIA VS ITO 2 GRANTED BY DELETING THE SAID ADDITION U/S 69 AMOUNT ING TO RS. 65,00,000/-. 2. THE ASSESSEE FILED HER RETURN OF INCOME ON 12/10/ 2009 DECLARING TOTAL INCOME OF RS. 1,75,200/-. THE CASE OF THE ASSE SSEE WAS SELECTED FOR SCRUTINY AND THE ASSESSMENT WAS COMPLETED U/S 14 3(3) OF THE INCOME TAX ACT, 1961 (IN SHORT THE ACT) ON 15/11/201 1 DETERMINING THE INCOME OF THE ASSESSEE AT RS. 66,78,820/-. 3. THE SOLE EFFECTIVE GROUND OF APPEAL IS AGAINST CO NFIRMING THE ADDITION OF RS. 65,00,000/- MADE U/S 69 OF THE ACT. THE LD. CIT(A) HAS UPHELD THE ACTION OF THE ASSESSING OFFICER WITH REGA RD TO PROVISIONS OF SECTION 69 OF THE ACT BY HOLDING AS UNDER: 4. 3. 4 NOW THE QUESTION IS WHETHER TO ACCEPT THE EVIDENCE BY WAY OF STATEMENTS AND AFFIDAVIT OF THESE THREE WITNESSES O F THE APPELLANT AS RELIABLE EVIDENCE GIVEN THE FACT THAT AS PER DIE AD MISSION OF THE APPELLANT HIMSELF THE PRIMARY EVIDENCE BY WAY OF AF FIDAVIT AND STATEMENTS OF SHRI DWARKA PRASAD SHARMA WAS UNRELIA BLE EVIDENCE SINCE HE WAS NOT IN COMMAND OF HIS FACULTIES PARTIC ULARLY HIS MEMORY. I) ON EXAMINING THE STATEMENTS AND THE AFFIDAVITS I T BECOMES CLEAR THAT THE WITNESSES OF THE APPELLANT HAVE CO-GENERAT ED THIS EVIDENCE IN HER FAVOUR. FIRST OF ALL THE INCONSISTE NCIES IN THEIR STATEMENTS EXIST AS DISCUSSED ABOVE. II) SECONDLY, IT IS VERY INTERESTING TO NOTE THAT T HE FINAL AND MOST IMPORTANT ALIBI IN THIS ENTIRE CONSTRUCT THAT IS, S HRI OM PRAKASH SARRAF WITH WHOM THE MONEY AND THE JEWELLERY WAS KE PT AND WHO ITA 613/JP/2013_ MITHILESH GANESHIA VS ITO 3 ALLEGEDLY PURCHASED THE JEWELLERY HAS DIED AND HIS SHOP HAS ALSO CLOSED. THUS THE ONLY INDEPENDENT WITNESS OF THE CA SE NO LONGER EXISTS. III) MOST IMPORTANTLY NONE OF THE AVERMENTS ARE SUP PORTED BY ANY DOCUMENTARY EVIDENCE. IF SHRI RAGHUVEER SHARMA WAS SUCH A WEALTHY LAND OWNER AND WAS INDULGING IN MONEY LENDI NG BUSINESS AND HAD EXTENSIVE AGRICULTURAL INCOME, THEN THERE S HOULD HAVE BEEN SOME EVIDENCE REGARDING MONEY LENDING BUSINESS . WHILE AGRICULTURAL INCOME IS EXEMPT FROM TAXATION UNDER T HE I.T. ACT, SHRI RAGHUVEER PRASAD SHARMA WAS REQUIRED TO PAY TA X ON THE INTEREST INCOME FROM MONEY LENDING BUSINESS WHICH H AS NOT BEEN DONE. NEITHER HAS WEALTH TAX RETURN BEEN FILED BY R AGHUVEER PRASAD SHARMA ON HIS L/H SHRI DWARKA PRASAD SHARMA. IV) STRANGELY THERE IS NO EVIDENCE BY WAY OF DOCUME NT OR AGREEMENT OR SALE OR PURCHASE BILL BETWEEN OM PRAKASH SARRAF AND SHRI DWARKA PRASAD SHARMA IN-SPITE OF THE FACT THAT CASH OF RS.40,00,000/- AND JEWELLERY OF RS.30,00,000/- WAS KEPT WITH HIM FOR 2 YEARS AS CLAIMED BY THE WITNESSES. THERE IS N O EVIDENCE REGARDING THE QUANTITY, VALUE AND THE RATE AT WHICH THE JEWELLERY WAS PURCHASED BY HIM FROM SHRI DWARKA PRASAD SHARMA . CONVENIENTLY FOR ALL CONCERNED, SHRI OM PRAKASH SAR RAF IS STATED TO HAVE DIED AND HIS SHOP HAS ALSO BEEN CLOSED. V) THOUGH THE THREE WITNESSES HAVE ADMITTED THAT TH IS GIFT WAS WILLED BY SHRI RAGHUVEER PRASAD SHARMA IN FAVOUR OF SMT. MITHILESH GANESHIA VIDE A DOCUMENT WHICH WAS SIGNED BY ALL OF THEM THIS DOCUMENT HAS BEEN MISPLACED BY SHRI DWARK A PRASAD SHARMA. ITA 613/JP/2013_ MITHILESH GANESHIA VS ITO 4 VI) MOREOVER, IT IS NOT CLEAR WHY SHRI RAGHUVEER PR ASAD SHARMA GAVE HIS ENTIRE SAVINGS OF RS.70,00,000/- OF A LIFE TIME TO ONLY ONE OF HIS GRANDCHILD EVEN WHEN HE HAD 3 OTHER SONS & THE AGRI CULTURAL LAND WAS EQUALLY DISTRIBUTED BETWEEN THEM. IT IS AN UNLI KELY SCENARIO PARTICULARLY WHEN NOT SUPPORTED BY ANY DOCUMENTARY EVIDENCE. IT IS HELD THAT IT IS NOT IMPERATIVE FOR LAW TO BE GULLIBLE AND TO ACCEPT BLINDLY THE AFFIDAVITS AND STATEMENTS FILED BY AN A SSESSEE BUT TO EXAMINE THEM IN PERSPECTIVE OF HUMAN PROBABILITY AN D CONTEXT. IN VIEW OF THE OBVIOUS ANAMOLIES AND IMPROBABILITIE S AS DISCUSSED IN DETAIL ABOVE, THE EVIDENCE BY WAY OF AFFIDAVITS AND THE STATEMENTS ARE HELD TO BE SELF SE RVING EVI DENCE GENERATED FOR THE BENEFIT OF THE APPELLANT BY HER RELATIVES AND ARE HELD TO BE UNREL IABLE EVIDENCE AND ARE DISMISSED. THE DECISION OF THE AO TO ADD RS.65, 00,000/- TO THE INCOME OF ASSESSEE UNDER THE DEEMING PROVISIONS OF SECTION 69 IS UPHELD. 4. NOW THE ASSESSEE IS IN APPEAL BEFORE THE ITAT. WHI LE PLEADING ON BEHALF OF THE ASSESSEE, THE LD AR HAS SUBMITTED AS UNDER: 1. GRANDFATHER OF THE ASSESSEE APPELLANT, SHRI RAGH UVEER PRASAD SHARMA WAS A NUMBERDAAR I.E. BIG ZAMINDAAR HAVING 90 BIGHAS OF LAND [PB 5] . UNDER THE COMPLEX FAMILY CIRCUMSTANCES EXPLAINED TO THE LOWER AUTHORITIES (AO PAGE 5), HE HANDED OVER THE MONEY TO HIS SON SHRI DWARKA PRASAD SHARMA FOR THE BENEFIT OF HIS GRANDDA UGHTER SMT. MITHILESH GANESHIA- THE ASSESSEE APPELLANT. THE FAC T IS CONFIRMED THROUGH THE FOLLOWING- STATEMENTS RECORDED AFFIDAVIT SHRI DWARKA PRASAD SHARMA 12 - 09 - 2011 23 - 09 - 2011 SHRI KAUSHAL KUMAR SHARMA 13 - 12 - 2012 08 - 10 - 2012 SHRI JAIDEV SHARMA 13 - 12 - 2012 09 - 10 - 2012 ITA 613/JP/2013_ MITHILESH GANESHIA VS ITO 5 SHRI SUBHASH SHARMA 12 - 02 - 2013 09 - 10 - 2012 SMT. RAJO DEVI 09 - 10 - 2012 2. DURING THE REMAND PROCEEDINGS, IT WAS ALSO REQUE STED THAT STATEMENTS OF SMT. RAJO DEVI SHARMA BE RECORDED AT HER NATIVE PLACE. [CIT(A) PAGE 10] 3. LD. CIT(A) HAS PRIMARILY DISREGARDED THE AFFIDAVIT AND STATEMENTS OF SHRI DWARKA PRASAD SHARMA FOR THE SOLE REASON THAT SHRI DWARKA PRASAD SHARMA WAS SUFFERING FROM MEMORY LOSS AND, T HEREFORE, HIS CONFIRMATION COULD NOT BE RELIED. IT IS SUBMITTED T HAT MEMORY LOSS DID NOT MEAN COMPLETE ABSENCE OF MEMORY. WE ALL SUFFER FROM MEMORY LOSS IN SOME OR THE OTHER WAY. LD. A.O. RECORDED TH E STATEMENTS OF SHRI DWARKA PRASAD SHARMA AND HAS NOT RECORDED ANY FINDI NG OF HIS HAVING COMPLETE LACK OF MEMORY. SHRI DWARKA PRASAD SHARMA HAD EVEN GIVEN THE DETAILS OF MARRIAGES OF HIS CHILDREN (AO PAGE 2 ). THE STATEMENTS WERE RECORDED ON 12-09-2011 AND THE EVENT HAS TAKEN PLACE IN THE YEAR 2008. SUCH A TIME GAP CAN LEAD TO SOME INCONSISTENC IES BUT THE SUM AND SUBSTANCE OF THE STATEMENT CANNOT BE DISREGARDE D FOR SMALL, MINOR OR IRRELEVANT INCONSISTENCIES. ATTENTION IS DRAWN T OWARDS THE PROVISION OF SECTION 292B WHICH IGNORES MISTAKES, DEFECTS OR OMISSIONS WHEN PITTED AGAINST SUBSTANCE OF THE MATTER. 4. SO FAR AS THE ISSUE OF GIFT DEED IS CONCERNED IT IS SUBMITTED THAT FACT OF RECEIVING THE CASH AND JEWELLERY WAS VITAL AND RELE VANT AND THE FACT OF A DOCUMENT ACCOMPANYING CASH AND JEWELLERY COULD BE MISSED. THIS IS ALSO PROVED FROM THE SUBSEQUENT FACT THAT SHRI DWAR KA PRASAD SHARMA COULD NOT TRACE THAT DOCUMENT. 5. DOUBTING THE MONEY AND JEWELLERY BEING KEPT WHIC H SHRI OM PRAKASH SARRAF FOR THE SOLE REASON OF HIS DEATH IS NOT JUST IFIED. THIS FACT, WHEN ITA 613/JP/2013_ MITHILESH GANESHIA VS ITO 6 CONFIRMED BY OTHER WITNESSES, HAS TO BE ACCEPTED UN LESS CONTRARY IS PROVED BY THE DEPARTMENT. 6. SO FAR AS GIFT TO ONE GRANDCHILD IS CONCERNED TH E LOWER AUTHORITIES HAVE FAILED TO APPRECIATE THE COMPLEX FAMILY CIRCUMSTANC ES WHICH FULLY JUSTIFY THE GIFT IN FAVOUR OF THE ASSESSEE APPELLAN T SMT. MITHILESH GANESHIA. 7. THE ASSESSEE HAS EXPLAINED THE SOURCE OF INVESTM ENTS IN HER HANDS. THE DONOR I.E. SHRI DWARKA PRASAD SHARMA HAS ALSO EXPLA INED THE SOURCE OF FUNDS IN HIS HANDS. THUS, NOT ONLY THE SOURCE BUT E VEN THE SOURCE OF SOURCE IS ESTABLISHED. ALTHOUGH, HONBLE JURISDICTI ONAL HIGH COURT IN UNDERNOTED DECISIONS HAVE HELD THAT SOURCE OF SOURC E IS NOT REQUIRED TO BE PROVED: (I) CIT VS. JAI KUMAR BAKLIWAL [2014] 267 CTR 396 (RAJASTHAN) (II) LABH CHAND BOHRA VS. ITO [2008] 219 CTR 571 ( RAJASTHAN) 8. ONE MOST IMPORTANT ASPECT OF TRANSACTION IS BADL Y IGNORED BY LOWER AUTHORITIES. HAD THE ASSESSEE INVESTED HER OWN UNAC COUNTED MONEY IN PURCHASING THE SAID LAND SHE COULD HAVE VERY WELL U NDERVALUED THE PURCHASE TRANSACTION TO A SIGNIFICANTLY LOW VALUE. THE ASSESSEES HUSBAND IS A LEADING LAWYER AND MANAGING THE AFFAIR S IN A CONVENIENT WAY IN THIS REGARD WOULD NOT HAVE BEEN A DIFFICULT TASK FOR THE ASSESSEE. SEEING FROM THIS ANGLE ALSO THE FUNDING TRANSACTION APPEARS ABSOLUTELY GENUINE. THIS ASPECT OF THE SUBMISSION ALTHOUGH REP RODUCED BY ID. CIT(A) AT PAGE 7 PARA 10 OF HER ORDER BUT HAS NOT DEALT WITH THE SAME. 9. THUS, THE SUMMARIZED POSITION EMERGES AS UNDER- (A) DONOR OF THE AMOUNT IS CONFIRMING THE AMOUNT HA VING BEEN DONATED BY WAY OF GIFT. ITA 613/JP/2013_ MITHILESH GANESHIA VS ITO 7 (B) THE DONOR HAS NOT ONLY GIVEN A SWORN AFFIDAVIT IN CONFIRMATION OF THE ABOVE FACTS BUT ALSO APPEARED PERSONALLY BEFORE THE ID. AO AND HAS CONFIRMED THE FACT OF HIS FUNDING THE PURCHASE TRAN SACTION OF LAND OF SMT. MITHILESH (ASSESSEE) (C) OTHER PERSONS, WITNESS TO THE FUNDING BY SHRI R AGHUVEER SHARMA, HAVE CONFIRMED THE FACTS BY WAY OF SWORN AFFIDAVITS AND HAVE ALSO APPEARED AND GIVEN STATEMENTS UNDER OATH CONFIRMING THE FACT . (D) THERE IS NO ONUS ON THE ASSESSEE TO EXPLAIN THE SOURCE OF DONOR ALTHOUGH THAT ONUS HAS ALSO BEEN FULLY DISCHARGED B Y THE ASSESSEE. THE COMPLEX SOCIAL CIRCUMSTANCES OF THE ASSESSEE AND AL L RELATED CIRCUMSTANTIAL EVIDENCES DO CONFIRM THE TRANSACTION HAVING TAKEN PLACE AS EXPLAINED BY FATHER OF THE ASSESSEE. 5. ON THE OTHER HAND, THE LD SR. DR HAS RELIED ON T HE ORDERS OF THE AUTHORITIES BELOW. 6. WE HAVE HEARD BOTH THE SIDES ON THIS ISSUE. THE U NDISPUTED FACTS OF THE ISSUE ARE THAT THE ASSESSEE HAS PURCHASED TH E LAND AT KHASRA NO. 249/5/1 (10 BIGHA) AND 249/5/2 (10 BIGHA) SITUATED IN VILLAGE GAIZI, TEHSIL- MOZAMABAD, DISTRICT- JAIPUR FOR RS. 60.00 LA CS ON 08/10/2008. THIS INFORMATION WAS RECEIVED BY THE DEPARTMENT THROU GH AIR. THE ASSESSEE FILED AN AFFIDAVIT OF HER FATHER SHRI DWARI KA PRASAD SHARMA WHEREIN HER FATHER HAS STATED THAT HE HAD DECIDED TO GIFT IN THE FORM OF LAND TO HER DAUGHTER (ASSESSEE). IN THE STATEMENT O N 12/09/2011, SHRI DWARIKA PRASAD SHARMA STATED THAT HIS FATHER LATE SH RI RAGHUVEER ITA 613/JP/2013_ MITHILESH GANESHIA VS ITO 8 SHARMA HAS DIED IN 2004 AND HAD GIVEN HIM RS. 70.00 LACS IN CASH AND OUT OF THIS FUND, HE PURCHASED THE LAND TO THE ASSE SSEE (HIS DAUGHTER SMT. MITHILESH GANESHIA). IN HIS STATEMENT ON 23/09 /2011, SHRI DWARIKA PRASAD SHARMA HAS STATED THAT HIS FATHER LATE SHRI RAGHUVEER SHARMA GAVE HIM RS. 40.00 LACS IN CASH AND GOLD JEWELLERY O F RS. 25.00 LACS TO HIM PRIOR TO HIS DEATH AND AS PER HIS FATHERS DIRE CTION, THIS AMOUNT WAS HANDED OVER TO THE ASSESSEE. DURING THE APPELLATE P ROCEEDINGS, THE ASSESSEE SUBMITTED AFFIDAVITS OF SHRI JAI DEV SHARM A, BROTHER OF THE ASSESSEE, SMT. RAJO DEVI, STEP MOTHER OF THE ASSESS EE, SHRI SUBHASH CHAND SHARMA, HUSBAND OF THE ASSESSEES SISTER AND SHRI KAUSHAL KUMAR SHARMA, SON OF STEP MOTHER. IN THESE AFFIDAVITS, IT HAS BEEN DEPOSED THAT THE MONEY HAS BEEN GIVEN BY LATE SHRI RAGHUVEE R SHARMA TO FATHER OF THE ASSESSEE SHRI DWARIKA PRASAD SHARMA BY WAY OF CASH AND JEWELLERY, WHICH HAS BEEN FURTHER GIVEN TO SMT. MITHI LESH GANESHIA (ASSESSEE). THE STATEMENTS OF THESE PERSONS WERE ALSO RECORDED. THE ASSESSING OFFICER AND THE LD CIT(A) DID NOT ACCEPT T HESE AFFIDAVITS AND CONFIRMED THE ADDITION, TREATING THESE AFFIDAVITS AS SELF SERVING EVIDENCE. THUS, THE ISSUE TO BE DECIDED WHETHER THE C ONTENTS OF THESE AFFIDAVITS CAN BE ACCEPTED AS SUFFICIENT EVIDENCE TO EXPLAIN THE SOURCE OF THE MONEY BY WHICH THE ASSESSEE PURCHASED THE LA ND IN ABSENCE OF ANY OTHER DOCUMENTARY EVIDENCE FOR AND AGAINST THE CONTENTS OF THESE ITA 613/JP/2013_ MITHILESH GANESHIA VS ITO 9 AFFIDAVITS. SHRI RAGHUVEER PRASAD SHARMA, GRANDFATH ER OF THE ASSESSEE WAS A NUMBERDAR AND HAVING 90 BIGHAS LAND IS DISPUTE D BY THE AUTHORITIES BELOW. THE ASSESSEE WAS A FIRST GIRL CHI LD IN FAMILY AND GRANDDAUGHTER OF SHRI RAGHUVEER SHARMA. THE ASSESSEE S CONTENTION THAT THE AFFIDAVIT FILED BY THE VARIOUS PERSONS ARE SUFFICIENT EVIDENCE TO BE ACCEPTED TO EXPLAIN THE SOURCE OF THE CASH BY WHI CH THE ASSESSEE AS PURCHASED THE LAND. IN THE CASE OF MEHTA PARIKH & C O. VS CIT, BOMBAY [1956] 30 ITR 181 (SC), WHEREIN THE HON'BLE SUPREME COURT HAS HELD AS UNDER: IT HAS TO BE NOTED, HOWEVER, THAT BEYOND THESE CALC ULATIONS OF FIGURES, NO FURTHER SCRUTINY WAS MADE BY THE INCOME-TAX OFFI CER OR THE APPELLATE ASSISTANT COMMISSIONER OF THE ENTRIES IN THE CASH BOOK OF THE APPELLANTS. THE CASH BOOK OF THE APPELLANTS WAS ACC EPTED AND THE ENTRIES THEREIN WERE NOT CHALLENGED. NO FURTHER DOC UMENTS OR VOUCHERS IN RELATION TO THOSE ENTRIES WERE CALLED FOR, NOR W AS THE PRESENCE OF THE DEPONENTS OF THE THREE AFFIDAVITS CONSIDERED NECESS ARY BY EITHER PARTY. THE APPELLANTS TOOK IT THAT THE AFFIDAVITS OF THESE PARTIES WERE ENOUGH AND NEITHER THE APPELLATE ASSISTANT COMMISSIONER, N OR THE INCOME-TAX OFFICER, WHO WAS PRESENT AT THE HEARING OF THE APPE AL BEFORE THE APPELLATE ASSISTANT COMMISSIONER, CONSIDERED IT NEC ESSARY TO CALL FOR THEM IN ORDER TO CROSS- EXAMINE THEM WITH REFERENCE TO THE STATEMENTS MADE BY THEM IN THEIR AFFIDAVITS. UNDER THESE CIRCU MSTANCES IT WAS NOT OPEN TO THE REVENUE TO CHALLENGE THE CORRECTNESS OF THE CASH BOOK ENTRIES OR THE STATEMENTS MADE BY THOSE DEPONENTS I N THEIR AFFIDAVITS. THUS, THE HON'BLE SUPREME COURT HELD THAT THE AFFIDA VITS OF THE PARTIES WERE ENOUGH WHEN NEITHER THE APPELLATE ASSISTANT COMM ISSIONER NOR THE INCOME TAX OFFICER, (WHO WAS PRESENT AT THE TIME OF HE ARING OF APPEAL) CONSIDERED IT NECESSARY TO CALL FOR THEM IN ORDER T O CROSS EXAMINATION ITA 613/JP/2013_ MITHILESH GANESHIA VS ITO 10 VALUATION WITH REFERENCE TO THE STATEMENT MADE BY TH EM IN THEIR AFFIDAVITS. THUS, THE HON'BLE SUPREME COURT HAS HEL D THAT THE REVENUE HAS NOT CALLED THE DEPONENT TO CROSS EXAMINE THEM I T IS NOT OPEN TO THE REVENUE TO CHALLENGE THE CORRECTNESS OF THE AFFIDAV ITS. THE LD AR HAS ALSO PLACED RELIANCE ON THE DECISION OF HONBLE RAJ ASTHAN HIGH COURT IN THE CASES OF CIT VS JAI KUMAR BAKLIWAL (2014) 267 CTR 396 (RAJ) AND LABH CHAND BOHRA VS ITO (2008) 219 CTR 571 (RAJ). THE REVENUES RELIANCE WAS ON THE DECISION OF HONBLE ALLAHABAD HI GH COURT IN THE CASE OF SHRI KRISHNA VS CIT & ORS. 142 ITR 0618 (ALL) HAS ALSO BEEN CONSIDERED BY US WHEREIN, IN THE RECOVERY PROCEEDIN GS, THE AFFIDAVIT OF THE KARTA WAS HELD TO BE NOT RELIANCE FOR THE REASON THAT SUCH ASSERTION THOUGH SUPPORTED BY THE AFFIDAVIT, THE SAME HAD NO CONSEQUENCE AS KARTA WAS HIGHLY INTERESTED PERSON IN THE RECOVERY P ROCEEDINGS. SIMILARLY IN THE CASE OF SMT. GUNWANTIBAI RATILAL VS CIT 146 IT R 0140 (MP), HONBLE M.P. HIGH COURT HELD THAT SUCH AFFIDAVITS WE RE HELD TO BE UNRELIABLE ON THE BASIS OF CROSS EXAMINATION OF THE DEPONENT OR BY REFERENCE TO OTHER MATERIAL ON THE RECORD LEADING T O THE INFERENCE THAT THE STATEMENT MADE IN THE AFFIDAVITS CANNOT BE HELD TRUE. THUS, THE FACTS IN BOTH THESE CASES RELIED UPON BY THE LD DR WERE AT VARIANCE FROM THE FACTS OF THE ASSESSEES CASE. IN THE ASSESSEES CAS E, THE CONTENTS OF AFFIDAVITS ARE NOT IN CONTRADICTION TO THE MATERIAL GATHERED BY THE ITA 613/JP/2013_ MITHILESH GANESHIA VS ITO 11 REVENUE AUTHORITIES. FURTHER THESE AFFIDAVITS WERE O F THE RELATIVES BUT THEY WERE NOT THE PERSONS, WHO WERE HAVING ANY INTERES T IN THIS TRANSACTION, THEREFORE, CONTENTS OF THESE AFFIDAVIT S CANNOT BE BRUSHED ASIDE. THE CERTAIN FACTS REGARDING THE LAND HOLDING OF LATE SHRI RAGHUVEER SHARMA AND AFFIDAVITS OF VARIOUS NON INTE RESTED PERSONS CANNOT BE HELD SELF SERVING EVIDENCE. THEREFORE, CON SIDERING VARIOUS FACTS OF THE CASE, PECULIAR ASPECTS OF FAMILY STRU CTURE OF THE ASSESSEES PARENT SIDE, WE ALLOW THE APPEAL OF THE ASSESSEE. 7. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED. ORDER PRONOUNCED IN THE OPEN COURT ON 01/12/2017. SD/- SD/- DQY HKKJR HKKXPAN (KUL BHARAT) (BHAGCHAND) U;KF;D LNL;@ JUDICIAL MEMBER YS[KK LNL;@ ACCOUNTANT MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 1 ST DECEMBER, 2017 *RANJAN VKNS'K DH IZFRFYFI VXZSFKR @ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ @ THE APPELLANT- SMT. MITHILESH GANESHIA, JAIPUR. 2. IZR;FKHZ @ THE RESPONDENT- THE ITO, WARD- 2(3), JAIPUR. 3. VK;DJ VK;QDR @ CIT 4. VK;DJ VK;QDRVIHY @ THE CIT(A) 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ @ DR, ITAT, JAIPUR 6. XKMZ QKBZY @ GUARD FILE (ITA NO. 613/JP/2013) VKNS'KKUQLKJ @ BY ORDER, LGK;D IATHDKJ @ ASST. REGISTRAR