SHRI SUKHVEER YADAV, ALWAR V. INCOME TAX OFFICER, WARD-1-5, ALWAR

ITA 739/JPR/2017

• Counselvise Citation: [2018] 121 COUNSELVISE.COM (IT) 6123 (ITAT-JAIPUR)
• Duration Of Justice: 7 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-05-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2009-2010
• Appeal Filed On: 03-10-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: POONAM RAI DCIT DHK
• Assessee Lawyers: R S YADAV
• Keywords: Corroborative evidences
• Section: 148

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHE S, JAIPUR JH FOT; IKY JKWO] U;KF;D LNL; ,O A JH HKKXPUN KNO] YS[KK LNL; DS LE{K BEFORE: SHRI VIJAY PAL RAO, JM & SHRI BHAGCHAND, A M VK;DJ VIHY LA- @ ITA NO. 739/JP/2017 FU/KZKJ.K O'K Z @ ASSESSMENT YEARS : 2009-10. SH. SUKHVEER YADAV S/O RAM SWAROOP, KURIYAN KI DHANI, TEHSIL-BANSUR DISTT. ALWAR. CUKE VS. THE INCOME TAX OFFICER, WARD 1(5), ALWAR. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO. APBPY 7125 C VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY : SHRI R.S. YADAV (CA) JKTLO DH VKSJ LS@ REVENUE BY : SMT. POONAM RAI (DCIT) LQUOKBZ DH RKJH[K@ DATE OF HEARING : 17.05.2018. ?KKS'K .KK DH RKJH[K @ DATE OF PRONOUNCEMENT : 21/05/2018. VKNS'K@ ORDER PER VIJAY PAL RAO, J.M. THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST TH E ORDER DATED 28.07.2017 OF LD. CIT (A), ALWAR FOR THE ASSESSMENT YEAR 2009-10. 2. THE ASSESSEE IS AN INDIVIDUAL AND AGRICULTURIST. THE ASSESSEE IS NOT ASSESSED TO TAX. THE AO RECEIVED INFORMATION OF NON PAN AIR THAT THE ASSESSEE HAS DEPOSITED IN HIS BANK ACCOUNT AN AMOUNT OF RS. 32,5 0,000/- IN CASH. ACCORDINGLY, THE AO REOPENED THE ASSESSMENT BY ISSUING A NOTICE UNDER SECTION 148 DATED 21 ST MARCH, 2016. DURING THE ASSESSMENT PROCEEDINGS THE ASSESSEE EXPLAINED THE SOURCE OF CASH DEPOSIT IN THE BANK ACCOUNT AS THE SALE CON SIDERATION OF AGRICULTURAL LAND IN WHICH THE ASSESSEE IS HAVING SHARE ALONG WITH HIS BROTHER. THE AO NOTED THAT AS PER THE SALE DEED THE SALE CONSIDERATION WAS ONLY R S. 21,60,000/- AND ASSESSEES 2 ITA NO. 739/JP/2017 SHRI SUKHVEER, ALWAR. 50% SHARE COMES TO RS. 10,80,000/-. THUS THE AO ACC EPTED THE SOURCE OF DEPOSIT TO THE EXTENT OF RS. 10,80,000/-. THE ASSESSEE PRODUCE D AN AGREEMENT TO SALE DATED 28 TH AUGUST, 2008 AND SUBMITTED THAT THE ACTUAL SALE CO NSIDERATION AGREED BY THE PARTIES AND RECEIVED BY THE ASSESSEE IS GIVEN IN TH E AGREEMENT TO SALE AND, THEREFORE, THE ASSESSEE RECEIVED THE CONSIDERATION OF RS. 32,50,000/- AGAINST THE SALE OF AGRICULTURAL LAND AS PER THE AGREEMENT TO S ALE. THE AO DID NOT ACCEPT THE CONTENTION OF THE ASSESSEE AND WAS OF THE VIEW THAT THE SAID AGREEMENT TO SALE IS NOT A REGISTERED DOCUMENT AND, THEREFORE, THE SAME CANNOT BE ACCEPTED AS A VALID DOCUMENT OF TRANSFER. THE ASSESSEE CHALLENGED THE ACTION OF THE AO BEFORE THE LD. CIT (A) BUT COULD NOT SUCCEED. 3. BEFORE US, THE LD. A/R OF THE ASSESSEE HAS SUBMI TTED THAT THE ACTUAL SALE CONSIDERATION OF LAND IN QUESTION IS STATED IN THE AGREEMENT TO SALE DATED 28.8.2008. HOWEVER, THEREAFTER THE SALE DEED DATED 15.10.2008 WAS EXECUTED AND IN ORDER TO SAVE THE STAMP DUTY, THE PURCHASER OF THE LAND HAS SHOWN THE CONSIDERATION IN THE SALE DEED ONLY TO THE EXTENT OF DLC RATE OF THE LAN D IN QUESTION. THUS THE LD. A/R HAS SUBMITTED THAT WHEN THE ACTUAL SALE CONSIDERATI ON IS RECEIVED BY THE ASSESSEE AS PER THE AGREEMENT TO SALE, THEN THE CONSIDERATION M ENTIONED IN THE SALE DEED CANNOT BE A BASIS FOR ADDITION MADE BY THE AO FOR DEPOSIT IN THE BANK ACCOUNT. THE AO HAS NOT BROUGHT ANYTHING ON RECORD TO SHOW THAT THE ASS ESSEE IS HAVING ANY OTHER SOURCE OF INCOME OTHER THAN AGRICULTURE. THEREFORE, IF TH E SAID AMOUNT IS NOT ACCEPTED AS SALE CONSIDERATION OF AGRICULTURAL LAND, THEN IN TH E ABSENCE OF OTHER SOURCE OF INCOME, THE AGRICULTURAL INCOME OF THE ASSESSEE IS ALSO NOT LIABLE TO TAX. 3 ITA NO. 739/JP/2017 SHRI SUKHVEER, ALWAR. 3.1 ON THE OTHER HAND, THE LD. D/R HAS STRONGLY REL IED ON THE ORDERS OF THE AUTHORITIES BELOW AND SUBMITTED THAT AS PER SECTION 17 OF THE REGISTRATION ACT, AN AGREEMENT FOR TRANSFER OF IMMOVABLE PROPERTY MUST B E REGISTERED FOR THE PURPOSE OF SECTION 53A OF THE TRANSFER OF PROPERTY ACT. THUS THE LD. D/R HAS CONTENDED THAT THE ALLEGED AGREEMENT TO SALE WHICH IS UNREGISTERED DOCUMENT CANNOT BE CONSIDERED A VALID EVIDENCE IN SUPPORT OF THE CLAIM OF THE ASS ESSEE. 4. HAVING CONSIDERED THE RIVAL SUBMISSIONS AS WELL AS THE RELEVANT MATERIAL ON RECORD, WE NOTE THAT THE ASSESSEE ALONG WITH HIS BR OTHER ENTERED INTO AN AGREEMENT DATED 28.8.2008 WITH SHRI SHABUDEEN, JAMSHED S/O JA GDEV RESIDENT OF VILLAGE MUNDANA MEO, TEHSIL- TIJARA, DISTRICT ALWAR (RAJAST HAN) FOR SALE OF AGRICULTURAL LAND FOR A CONSIDERATION OF RS. 68,37,600/-. THE ASSESS EE IS HAVING 50% SHARE IN THE SAID LAND AND ACCORDINGLY THE SHARE OF THE ASSESSEE COME S TO RS. 34,18,800/-. WE FURTHER NOTE THAT THE AGREEMENT TO SALE WAS DULY SI GNED BY THE SELLER AS WELL AS BY THE PURCHASER AND WAS ALSO SIGNED BY THE ATTESTING WITNESSES AND NOTARY PUBLIC. THE ATTESTATION OF NOTARY PUBLIC ALSO HAS GIVEN THE DET AILS OF THE SERIAL NUMBER, DATE AS PER ITS REGISTER MAINTAINED FOR THE PURPOSE OF ATT ESTATION OF DOCUMENTS. THUS IT IS CLEAR THAT THOUGH THE SAID AGREEMENT TO SALE IS NOT A REGISTERED DOCUMENT BUT THE ASSESSEE HAS NOT CLAIMED THE TRANSFER OF THE AGRICU LTURAL LAND THROUGH THE SAID AGREEMENT TO SALE BUT THE TRANSFER WAS FINALLY COMP LETED VIDE TWO SALE DEEDS DATED 15 TH OCTOBER, 2008. THE ONLY DISPUTE IS THE SALE CONSID ERATION WHICH IS SHOWN IN THE AGREEMENT TO SALE WHICH IS MUCH HIGHER THAN THE CON SIDERATION SHOWN IN THE SALE DEEDS. THE ASSESSEE EXPLAINED THAT THE ACTUAL CONSI DERATION FOR THE AGRICULTURAL LAND IN QUESTION WAS RECEIVED BY THE ASSESSEE AND HIS BR OTHER AS PER THE AGREEMENT TO 4 ITA NO. 739/JP/2017 SHRI SUKHVEER, ALWAR. SALE. HOWEVER, THE CONSIDERATION SHOWN IN THE SALE DEED WAS PURPOSEFULLY SHOWN EQUIVALENT TO THE DLC RATE SO THAT THE STAMP DUTY E XPENDITURE COULD HAVE BEEN KEPT MINIMIZED BY THE PURCHASER. THOUGH THE LD. D/R HAS RAISED AN OBJECTION OF UNREGISTERED AGREEMENT TO SALE, HOWEVER, WE FIND TH AT THE EXECUTION OF AGREEMENT TO SALE AND THE SIGNATURES OF THE PARTIES HAS NOT B EEN DISPUTED BY THE AO AND EVEN IF THE AO WAS HAVING ANY DOUBT ABOUT THE GENUINENES S OF THE AGREEMENT, THEN IT COULD HAVE BEEN VERIFIED AND EXAMINED BY CALLING AL L THE PARTIES TO THE AGREEMENT. THE AO INSTEAD OF CONDUCTING ENQUIRY TO VERIFY THE AGREEMENT TO SALE, HAS PROCEEDED ONLY ON THE BASIS OF THE SALE DEED FOR TH E PURPOSE OF THE SALE CONSIDERATION OF AGRICULTURAL LAND IN QUESTION. THE AO HAS NOT DISPUTED THE LAND IN QUESTION BEING AGRICULTURAL LAND AND NOT SUBJECTED TO CAPITAL GAINS TAX AND, THEREFORE, WHEN THE ASSESSEE IS NOT HAVING ANY OTHE R SOURCE OF INCOME AND THE ONLY INCOME IS AGRICULTURAL INCOME, THEN THE SAID EXPLAN ATION OF THE ASSESSEE CANNOT BE REJECTED WITHOUT BRINGING ANY EVIDENCE TO CONTRADIC T THE FACTS RECORDED IN THE AGREEMENT TO SALE. ONCE THE ASSESSEE HAS EXPLAINED THE SOURCE OF DEPOSIT IN THE BANK AS SALE CONSIDERATION OF AGRICULTURAL LAND AND ALSO PRODUCED THE AGREEMENT TO SALE IN SUPPORT OF THE SAID CLAIM, THE AO OUGHT TO HAVE VERIFIED THE GENUINENESS OF THE AGREEMENT TO SALE AND THE CONSIDERATION AS AGRE ED UPON BY THE PARTIES AS PER THE AGREEMENT TO SALE. IN THE ABSENCE OF ANY CONTR ARY FACTS OR MATERIAL BROUGHT BY THE AO, THE REJECTION OF EVIDENCE PRODUCED BY THE A SSESSEE IS NOT JUSTIFIED. ACCORDINGLY HAVING REGARD TO THE FACTS AND CIRCUMST ANCES OF THE CASE, WE FIND THAT THE ASSESSEE HAS EXPLAINED THE SOURCE OF DEPOSIT IN BANK BY PRODUCING THE 5 ITA NO. 739/JP/2017 SHRI SUKHVEER, ALWAR. SUPPORTING EVIDENCE AND, THEREFORE, THE ADDITION MA DE BY THE AO IS NOT JUSTIFIED. ACCORDINGLY, WE DELETE THE ADDITION MADE BY THE AO. 5. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED . ORDER PRONOUNCED IN THE OPEN COURT ON 21/05/201 8. SD/- SD/- HKKXPUN FOT; IKY JKWO (BHAGCHAND) ( VIJAY PAL RAO ) YS[KK LNL;@ ACCOUNTANT MEMBER U;KF;D LNL;@ JUDICIAL MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 21/05/2018. DAS/ VKNS'K DH IZFRFYFI VXZSFKR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT- SHRI SUKHVEER YADAV, ALWAR. 2. IZR;FKHZ@ THE RESPONDENT-THE ITO WARD 1(5), ALWAR. 3. VK;DJ VK;QDR@ CIT 4. VK;DJ VK;QDR@ CIT(A) 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ@ DR, ITAT, JAIPUR 6. XKMZ QKBZY@ GUARD FILE {ITA NO. 739/JP/2017} VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASST. REGISTRAR