Dharmendra mehta, Jaipur V. ITO, Jaipur

ITA 753/JPR/2014

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 5549 (ITAT-JAIPUR)
• Duration Of Justice: 1 year(s) 2 month(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-01-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2005-2006
• Appeal Filed On: 07-11-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RAJENDRA SINGH JCIT DHK
• Assessee Lawyers: G M MEHTA
• Section: 147; 148

Judgement Text

ITA NO. 753/JP/14 DHARMENDRA MEHTA, JAIPUR VS. ITO, WD.5(2), JAIPUR VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHE S, JAIPUR JH VKJ JH VKJ JH VKJ JH VKJ- -- -IH IHIH IH- -- -RKSYKUH] U;KF;D LNL; ,OA JH FOE FLAG ;KNO] YS[KK LNL; DS LE{K RKSYKUH] U;KF;D LNL; ,OA JH FOE FLAG ;KNO] YS[KK L NL; DS LE{K RKSYKUH] U;KF;D LNL; ,OA JH FOE FLAG ;KNO] YS[KK L NL; DS LE{K RKSYKUH] U;KF;D LNL; ,OA JH FOE FLAG ;KNO] YS[KK L NL; DS LE{K BEFORE: SHRI R.P.TOLANI, JM & SHRI VIKRAM SINGH YAD AV, AM VK;DJ VIHY LA- /ITA NO. 753/JP/14 FU/KKZJ.K O'KZ /ASSESSMENT YEAR : 2005-06 DHARMENDRA MEHTA, C/O G.MEHTA & CO., PARAS 127, HARI MARG, CIVIL LINES, JAIPUR CUKE VS. THE INCOME TAX OFFICER,WARD-5(2), JAIPUR. LFKK;H YS[KK LA- /PAN NO. AHQPM7381P VIHYKFKHZ /APPELLANT IZR;FKHZ /RESPONDENT FU/KKZFJRH DH VKSJ LS /ASSESSEE BY : SHRI G.M.MEHTA, (C.A.) JKTLO DH VKSJ LS /REVENUE BY : SHRI RAJENDRA SINGH, (JCIT) LQUOKBZ DH RKJH[K /DATE OF HEARING : 22/12/2015 ?KKS'K.KK DH RKJH[K /DATE OF PRONOUNCEMENT : 29/01/2016 VKNS'K@ VKNS'K@ VKNS'K@ VKNS'K@ ORDER PER SHRI R.P.TOLANI, J.M. THIS IS ASSESSEES APPEAL AGAINST THE ORDER OF LD. CIT(A) . FOLLOWING GROUNDS ARE RAISED: (1) LD. CIT(A) WAS NOT JUSTIFIED IN DECIDING THE AP PEAL ON THE BASIS OF SAME OLD FACTS AND STATEMENT DATED 23.01.2007 OF WITNESSES, RECORDED BEFORE DIFFERENT ASSESSING OFFICER (NOT HA VING JURISDICTION OVER CASE OF ASSESSEE) BY IGNORING AND NOT RELYING ON THE STATEMENT DATED 12..03.2013 OF THE SAME WITNESS RECORDED DURI NG COURSE OF CROSS EXAMINATION BY THE ASSESSEE AS PER DIRECTION OF THIS HONBLE TRIBUNAL AND THEREAFTER SAME WITNESS BEING RE-EXAMI NED BY THE LD. AO HIMSELF), WHICH RESULTED IN REPETITION OF THE SA ME ADDITION OF RS.39,00,000/-ON THE BASIS OF DEPOSITS MADE IN BANK A CCOUNTS OF THE SELLERS AND THEIR FAMILY MEMBERS WITHOUT ESTABLISHI NG ANY NEXUS BETWEEN AND ALLEGED ON MONEY PAYMENT . 2 (2) LD. CIT(A) WAS NOT JUSTIFIED IN : (I) DISOBEYING THE DIRECTION OF THIS HONBLE TRIBUNAL IN RESPECT OF ITS DIRECTION NOT TO MAKE ADDITION OF TH E SUFFICIENT FUND AVAILABLE WITH THE ASSESSEE (WHICH WAS RS.3,60,863/- AS ON 31.03.2005). (II) NOT ADMITTING THE PARALLEL CASE AS ADDITIONAL EVIDE NCE WHICH WAS PURCHASES INSTANCE OF OTHER AGRICULTURAL LAND IN THE SAME TEHSIL IN WHICH THE DLC RATE WAS MUCH HIGH ER THAN ACTUAL PURCHASE PRICE AND THEREFORE IN THE INS TANT CASE, PURCHASE WHICH WAS AT DLC RATE SHOULD HAVE BEE N ACCEPTED AS ACTUAL PURCHASE PRICE . (3) WITHOUT PREJUDICE TO GROUND NO. (1) & (2), LD. CIT (A), WAS NOT JUSTIFIED IN HOLDING THAT THE ENTIRE ALLEGED ON MO NEY PAYMENT OF RS.39,00,000/- WAS PAID BY THE ASSESSEE BY IGNORING T HE FACT THAT AS PER THE STATEMENT OF WITNESS DATED 23.01.2007, RS.11 .00 LAC WAS PAID PRIOR TO INCORPORATION OF M/S.ADINATH BUILD ESTATE PVT. LTD. AND REMAINING RS.28 LAC WAS PAID AT THE TIME OF REGISTR ATION OF LAND BY M/S.ADINATH BUILD ESTATE PVT. LTD. IN AUGUST 2004 A ND BY IGNORING THE VERY BASIS OF REOPENING BEING FINDING OF THE LD . CIT(A) VIDE ORDER DATED 05.03..2008 IN ITA NO. 19/2007-08 IN CA SE OF SAID COMPANY THAT NO ADDITION COULD BE MADE IN HANDS OF COMPANY FOR PAYMENTS MADE PRIOR TO DATE OF ITS INCORPORATION. 2. LD. COUNSEL CONTENDS THAT BRIEF FACTS ARE THE AS SESSEE WAS DIRECTOR IN THIS COMPANY UP TO 16 TH JANUARY 2005 IN ONE M/S. ADINATH BUILD ESTATE PVT. LTD., (INCORPORATED ON 9 TH JULY 2004). A GRICULTURAL LAND AT VILLAGE VATIKA, (TEHSIL SANGANER), WAS PURCHASED BY THE COMPANY AT DLC RATE OF RS.13,58,000/- ON 5 TH AUGUST 2004 FROM THE SELLERS WHO WERE TWO BROTHERS NAMELY SHRI KANHA MALI AND SHRI GHASI MALI. IN THE SCRUTINY ASS ESSMENT OF M/S. ADINATH BUILD ESTATE PVT. LTD., LD. AO, WARD 2(2), JAIPUR S UMMONED BOTH THE SELLERS OF LAND. IN RESPONSE THERETO SHRI GHASI MALI AND SO N OF OTHER SELLER SHRI HANUMAN SAHAY, ATTENDED IN THE ASSESSMENT PROCEEDIN GS OF M/S. ADINATH BUILD ESTATE PVT. LTD, THEIR STATEMENTS WER E RECORDED . 3. SHRI GHASI MALI CORROBORATED THE TRANSACTIONS AND V ALUE OF LAND BY FOLLOWING REPLY -: 3 IZU IZU IZU IZU- -- -2 22 2 D`I;K CRKB,S FD VKIDS IKL FDRUH TEHU GS A O FDRUH TEHU CSP NH] O HKKBZ CV~VS ESA FDRUH TEHU GS A D`I; K FOLRKJ LS CRKB,S \ MRRJ MRRJ MRRJ MRRJ& && &GE NKS HKKBZ GS A ,D ES LO;A O DKUKJKE EKYH GS A G E NKSUKSA HKKB;KS DS IKL 17 CH?KK IDDH TEHU DS FGLLS ES FKH FTLES LS 7 CH?KK IDDH TEHU GE NKSUKS HKKB;KSA US VIUH LGERH LS CSP NH A O DJHC 10 CH?KK IDDH 'KS'K GEKJS IKL NKSUKS HKKB;KS D S IKL GS A BL TEHU DS DQY JDE 13 YK[K 58 GTKJ :I;S ES ESA- VKFNUK FK FCYM ,LVKS DKS CSP NH A FTLES ESJS FGLLS VK/KH JDE 6 YK[ K 79 GTKJ :I;S EQ>S FEYS A IZU IZUIZU IZU- -- -3 33 3 D`I;K CRKOS FD MIJKSDR TEHU VKIUS DC O FDLDKS CSPH RFKK BLDS VYKOK VKT RD VU; DKSBZ TEHU FDLH HKH O;FDR DKS CSPH GS A D;K \ MRRJ MRRJ MRRJ MRRJ ESA- VKFNUKFK FCYM ,LVSV IZK-FY- DKS TEHU CSPH FKH FTLDH JFTLVH DH DKWIH VKIDKS IZLRQR DJ JGK GWWA A CSPH F TLDK FOOJ.K FUEU IZDKJ GS %& - -- -LA LALA LA- -- - FNUKAD FNUKAD FNUKAD FNUKAD JDE JDE JDE JDE TEHU FDRUH TEHU FDRUH TEHU FDRUH TEHU FDRUH 1- 2@8@2004 4]34]000@& 0-62 GSDVS;J 2- 3@8@2004 4]41]000@& 0-63 GSDVS;J 3- 5@8@2004 4]83]000@& 0-69 GSDVS;J DQY %&13]58]000@& BLES LS EQ>S VK/KK FGLLK DS ISLS FEY X;S A BL JKKH DS VYKOK EQ>S DKSBZ ISLK TEHU DS &&& NYKYH ;K DKSBZ HKH IZDKJ DK HKQXRK U VAXWBK FUKKUH BL MIJKSDR TEHU DS VYKOK ESAUS O ESJS HKKBZ US DKSBZ HKH TEHU UGH CSPH A 4. HOWEVER, WHEN REQUIRED TO EXPLAIN THE CASH IN HIS BANK ACCOUNTS; HE CHANGED HIS STATEMENT AND ALLEGEDLY ACCEPTED HAV ING RECEIVED RS. RS.39,00,000/- IN CASH AGAINST SALE OF THESE AGRICU LTURAL LAND TO M/S. ADINATH BUILD ESTATE PVT. LTD . 4 5. NO DOCUMENT OR AGREEMENT WAS GOT PREPARED PRIOR TO REGISTRY FOR SALE OF LAND OR WHEN ADVANCE WAS GIVEN TO THEM AND ASSESSEE WAS THE CONTACT PERSON. ON THE BASIS OF THE STATEMENTS OF S ELLERS, LD. AO MADE ADDITION OF RS.39,00,000/- U/S. 69B OF IT ACT IN TH E HANDS OF M/S. ADINATH BUILD ESTATE PVT. LTD. IN THE FIRST APPEAL, LD. CI T(A) WITHOUT CONSIDERING THE DATES OF PAYMENTS HELD THAT THE COMPANY M/S. ADINAT H BUILD ESTATE WAS NOT IN EXISTENCE WHEN CASH WAS PAID, NO ADDITION CO ULD BE MADE IN THE HAND OF THE COMPANY U/S. 69B OF IT ACT AND DIRECTED TO DELETE THE ADDITION SO MADE IN CASE OF M/S. ADINATH BUILD ESTA TE PVT. LTD. AND TO CONSIDER IN THE HANDS OF ASSESSEE. 6. ON THE BASIS OF THIS INDICATION GIVEN IN CIT(A) S ORDER & WITHOUT HEARING THE ASSESSEE, LD. AO INITIATED PROCEEDINGS U/S. 147 OF IT ACT IN CASE OF THE ASSESSEE WHICH WERE DULY OBJECTED LD.AO HOWEVER MADE ADDITION OF RS.39,00,000/- WAS MADE U/S. 69B OF IT ACT IN ASSESSEES HANDS. THE APPEAL OF THE ASSESSEE WAS DISMISSED BY LD. CIT (A). AGGRIEVED ASSESSEE PREFERRED SECOND APPEAL AND ITAT WAS PLEAS ED TO SET-ASIDE THE PROCEEDINGS BACK TO THE LD. AO WITH CLEAR DIRECTION S TO PROVIDE OPPORTUNITY TO THE ASSESSEE TO CROSS EXAMINE THE SE LLERS, NOT ALLOWED EARLIER AND TO ALLOW REBATE OF THE FUNDS AVAILABLE WITH THE ASSESSEE QUA THE ADVANCE OF RS.11 LACS. THE RELEVANT OBSERVATION AND DIRECTIONS ISSUED BY ITAT ORDER DTD. 14.10.2011 ARE AS UNDER: 21 . A SUM OF RS.11 LAKH STAND PAID BEFORE INCORPORATION OF THE COMPANY. FURTHER IT SEEMS THAT A SUM OF RS.28 LAKH HAS BEEN P AID AT THE TIME OF REGISTRATION. THE COMPANY IS ARTIFICIAL JURISTIC PER SON. THE PRIMARY ONUS WAS ON THE COMPANY AND IF THE COMPANY SAYS THAT MONEY W AS PAID BY SH. DHARMENDER MEHTA, THEN THE MATTER WILL BE RECONSIDE RED BY THE AO. IN RESPECT OF ADDITION OF RS.11 LAKH, THE AO, IN THE R EASONS RECORDED HAS STATED 5 THAT ASSESSEE HAS NOT DECLARED SUFFICIENT FUNDS. HE NCE THE REBATE IS TO BE GIVEN FOR THE DECLARED SUFFICIENT FUNDS. TO THE EXTE ND OF SUFFICIENT FUNDS, ADDITION SHOULD NOT BE MADE. 22. THERE IS ONE OTHER REASON FOR SETTING ASIDE THE ASSE SSMENT ORDER IS THAT THE ASSESSEE HAD NOT BEEN PROVIDED OPPORTUNITY TO C ROSS EXAMINE SH. GHASI RAM AND SH. HANUMAN SAHAY. LD. CIT(A) ALSO RECORDED A FINDING AGAINST HIM WHILE DISPOSING OF THE APPEAL OF THE COMPANY. THE AS SESSEE ASKED THE A.O. TO ALLOW HIM OPPORTUNITY. GROUND OF APPEAL WAS ALSO RAISED BEFORE LD. CIT(A) THAT OPPORTUNITY HAS NOT BEEN GIVEN HIM. TO ASCERTAI N THE UNDISCLOSED INCOME IN THE HANDS OF ASSESSEE, IT IS NECESSARY TO PROVID E OPPORTUNITY OF CROSS EXAMINE THE AGRICULTURIST. 23. WE ARE AWARE OF THE FACT SUCH OPPORTUNITY WAS N OT AVAILED WHEN MATTER WAS ADJOURNED TO 7.2.2007 BY THE I.T.O. WARD 2(2) JA IPUR DURING THE COURSE OF ASSESSMENT PROCEEDINGS IN THE CASE OF THE COMPANY. HOWEVER, IN THE CASE OF ASSESSEE, NOTICE U/S. 148 HAS BEEN ISSUED ON 16,03. 2009 AND IT MEANS THAT THE PRESENT AO HAS NOT PROVIDED OPPORTUNITY TO THE ASSESSEE. WE UPHOLD THE RE-OPENING BUT ON MERITS OF ADDITION, THE ISSUE IS SET ASIDE TO BE DECIDED AGAIN AS PER OUR OBSERVATIONS INDICATED ABOVE. 7. IN SET ASIDE PROCEEDINGS, OPPORTUNITY TO CROSS E XAMINE THE SELLER HANUMAN SAHAY WAS OFFERED BY AO AS THE OTHER SELLERS SH. GHASI MALI HAD EXPIRED ON 09.07.2012, SHRI HANUMAN SAHAY ATTENDED AND STATED IN CROSS EXAMINATION AS UNDER: IZU IZU IZU IZU- -- -1 1 1 1 D`I;K VKI VIUK IFJP; FNFT;S \ MRRJ& MRRJ& MRRJ& MRRJ& ESJK UKE GUQEKU LGK; EKYH IQ= JH DKUK JKE EKYH] OK FVDK] VHCK OKYH FY;K GS TKS FD ESJS FG GS A CROSS EXAMINATION BY SH. G.M.MEHTA, CA/AR OF ASSESSES SH. DHARMENDRA MEHTA. IZU IZUIZU IZU- -- -3 33 3 D;K VKI MU C;KUKS LS LGER GS ;K FQJ VKIUS ;S C;KU FDLH NCKO ES FN;S FKS \ MRRJ MRRJ MRRJ MRRJ& && &LGER UGH GWWA] ;S C;KU BLFY;S FN;S D;KSAFD GES NYK YKSA US CGDK;K FKK FD GE RQEGS VKSJ ISLS NSAXS ;S DEAL CANCEL DJK NKS A 6 IZU IZUIZU IZU- -- -4 44 4 VKIUS IZ0 LA[;K 3 DS MRJ ES CRK;K FD VKI ?KKLH TH DS C;KUKS DS LE; MIFLFKR FKS RFKK MUDS RF;KSA LS OKFDQ FKS] RFKK CRK;S FD ?KKLH TH LO;A D;KS UGH VK;S RFKK CHECK O ISLKS DS YSU NSU DS LE; LO;A MIFLFKR FKS D;K \ MRRJ MRRJ MRRJ MRRJ& && & ?KKLH TH DK LOXZOKL 9@7@12 DKS GKS X;K TC TEHU DS LKSNS DK IZFRQY FEY ML LE; ES EKSTWN UGH FKK IZU IZUIZU IZU -5 IZ-LA[;K 4 DS MRJ ES VKIUS CRK;K FD VKIDKS CHECK LS 13]58]000@& :I;S IZFRQY DS :I ESA RFKK 39]00]000@& CASH IZKIR GQVK FTLDK VK/KK FGLLK VKIDS FIRKTH DK FKK ;S FDL V K/KKJ IJ DGK \ MRRJ& MRRJ& MRRJ& MRRJ& ESA CHECK DK ISLK FIRKTH DS BANK A/C ES TEK GS RFKK CASH DS CKJS ES ESJS RKTH DKS NYKYKS }KJK HKM+DKUS IJ C ;KU FN;K A IZU IZUIZU IZU- -- -6 66 6 D`I;K CRK;S FD ML LE; TEHU FD DLC RATE D;K GS \ MRRJ& MRRJ& MRRJ& MRRJ& DLC RATE OGH GS FTL IJ TEHU FD REGISTRY GQBZ GS IZU IZUIZU IZU- -- -7 77 7 TEHU FD LOCATION DGK FKH \ MRRJ& MRRJ& MRRJ& MRRJ& MAIN ROAD LS DJHC KM VANJ GS A IZU IZUIZU IZU- -- -8 88 8 ML PERIOD ESA D;K VKIDH TEHU DS VKL&IKL FJGKKH VKCKNH HKH CLH GQBZ FKH D;K \ MRRJ& MRRJ& MRRJ& MRRJ& UGH] ML LE; FLQZ [KSR FG [KSR FKS 8. THUS SHRI HANUMAN SAHAY RETRACTED THE STATEMENT DATED 23.01.2007 AS GIVEN BY HIM DUE TO MISGUIDANCE OF BROKERS OF LA ND DEALINGS FOR CANCELLING THE DEAL TO GET SOME FURTHER ADVANTAGES. HE WAS RE-CROSS EXAMINED BY LD. AO WHERE HE DEPOSED AS UNDER: IZU IZUIZU IZU- -- -10 1010 10 VKIUS VHKH&2 DGK FD VKI FNUKAD 23@1@07 DKS NTZ FD; S C;KUKS LS LGER UGH GS D`I;K CRK;S FD DKSU&2 LS VAK LS VKI LGER UGH GS \ MRRJ& MRRJ& MRRJ& MRRJ& FNUKAD 23@1@07 DS IZU LA[;K 3] 4] 5 O 6 DS MRJ LS ES LGER UGH GWWA A IZU IZUIZU IZU- -- -11 1111 11 VHKH VKIUS DGK FD MIJKSDR IZUKS DS MRRJ ESUS NYKY KS DS CGDKOS ES FN;K D;K VKI MUDK UKE CRK LDRS GS \ 7 MRRJ& MRRJ& MRRJ& MRRJ& CGQR IQJKUH CKR GS EQ>S ;KN UGH GS A IZU IZUIZU IZU- -- -12 1212 12 D;K VKIDK PAN GS ;FN GKW RKS NO D;K GS \ MRRJ& MRRJ& MRRJ& MRRJ& GKWA] ESJK PAN GS IJ VHKH EQ>S NO. ;KN UGH GSA A 9. THUS IN RE-EXAMINATION BY THE LD. AO ALSO THE DE PONENT ASSERTED THAT NO EXTRA MONEY WAS RECEIVED FROM THE IMPUGNED SALE OF AGRICULTURAL LAND AND ONLY AMOUNT MENTIONED IN SALE DEED HAS REC EIVED. THE EARLIER STATEMENT WAS GIVEN DUE TO MISGUIDANCE OF BROKERS T HAT IF DEAL IS CANCELLED THAN SOME MORE MONEY CAN BE OBTAINED. LD. AO CONTRARY TO ITAT DIRECTIONS REFUSED TO ACCEPT THIS UNEQUIVOCAL DEPOSITION OF SELLER SHRI HANUMAN SAHAY AND FURTHER WITHOUT ALLOWING ANY REBA TE OF FUNDS AVAILABLE WITH THE ASSESSEE, REPEATED THE SAME ADDI TIONS AS MADE IN ORIGINAL ASSESSMENT. THE FIRST APPEAL OF THE ASSESS EE WAS DISMISSED BY THE LD. CIT(A) WITHOUT CONSIDERING THE MERITS OF THE CA SE. AGGRIEVED ASSESSEE IS BEFORE ITAT. 10. IT IS CONTENDED THAT THE ITAT HAD ISSUED A CLEA R DIRECTIONS AS MENTIONED ABOVE TO AO TO CONSIDER THE ISSUES OF ADD ITION IN THE HANDS OF ASSESSEE AFRESH, AFTER GIVING ADEQUATE OPPORTUNITY OF CROSS EXAMINING THE SELLERS WHO HAD DEPOSED AGAINST ASSESSEE BEHIND HIS BACK AND CONSIDERING THE IMPACT OF THE CROSS EXAMINATION. BY THE TIME OF ASSESSMENT OF M/S ADINATH BUILD ESTATE HAS MADE, AS SESSEE HAD LEFT THE DIRECTORSHIP OF COMPANY AND WAS THUS UNAWARE ABOUT THE PROCEEDINGS. DURING FRESH PROCEEDINGS IN CROSS-EXAMINATION HANUM AN SAHAY CLEARLY RETRACTED HIS STATEMENT DATED 23.01.2007 GIVING COG ENT REASONS AND ATTRIBUTING IT TO MISGUIDANCE BY BROKERS FOR SOME M ORE MONEY. LD. CIT(A) WHILE UPHOLDING THE FINDING OF LD. AO, SUSTAINED TH E ADDITION OF 8 RS.39,00,000/- AND DISMISSED THE APPEAL WITHOUT CONSIDERING THE ME RITS OF THE CASE WITHOUT PROPERLY FOLLOWING THE DIRECTIONS OF THIS HONBLE ITAT. 11. IT IS FURTHER CONTENDED THAT: I. UNDOUBTEDLY THE LAND IN QUESTION WAS REGISTERED WHE N COMPANY WAS INCORPORATED, ITS OWNERSHIP IN THE HAND S OF COMPANY IS NOT DISPUTED. II. ITAT HAD CLEARLY DIRECTED THAT COMPANY IS ARTIFICIA L JURIDICIAL PERSON, AMOUNT OF RS. 28 LACS WAS PAID B Y COMPANY AT THE TIME OF REGISTRATION OF SALE DEED. B Y THAT TIME COMPANY WAS INCORPORATED AND SALE DEED IS REGISTERED IN ITS NAME. III. PRIMARY ONUS ABOUT CLAIM OF OWNERSHIP OF LAND AND PAYMENT OF ADVANCE OF RS. 11 LACS WERE ON COMPANY IN THIS BEHALF. NEITHER COMPANY HAS SAID ANYTHING AGAINST ASSESSEE IN THIS BEHALF NOR LD. CIT(A) OR A O HAVE RELIED ON ANY SUCH DISCHARGE OF ONUS. THUS NO ADVER SE INFERENCE CAN BE DRAWN ON THIS COUNT. IV. NOBODY PAYS ANY ALLEGED ON MONEY AT THE TIME OF ADVANCE ITSELF AS THE DEAL MAY BE CANCELLED FOR VARIOUS REASON. THE SELLER IN CROSS EXAMINATION AND RE- CROSS EXAMINATION BY AO HAS ASSERTED THAT THE VALUE SHOWN IN REGISTERED DOCUMENT IS THE CORRECT SALE PR ICE AND NO EXTRA MONEY WAS RECEIVED. V. SELLER HAS EXPLAINED REASON FOR DEVIATION IN ORIGIN AL STATEMENT BEING MISGUIDANCE BY BROKERS FOR SOME MORE MONEY. THUS ON RECORD, IN CROSS AND RE-CROSS EXAMINATION THE SELLER HAS STUCK TO THE STATEMENT O F OSTENSIBLE VALUE OF SALE DOCUMENT AS THE TRANSACTIO N VALUE. THEY HAVE CLEARLY DENIED HAVING RECEIVED ANY ON MONEY. VI. ABOUT THE RS. 11 LACS ADVANCE PAID BY ASSESSEE BEFO RE INCORPORATION OF COMPANY DETAILED EXPLANATION HAS BEEN GIVEN DEMONSTRATING THE AVAILABILITY OF FUNDS THAT THE ASSESSEE HAD CASH BALANCE OF RS.3,60,863/- AS P ER HIS BALANCE SHEET AS ON 31.03.2005 AND OTHER ACCRET ION TO OWN THIS AMOUNT. THIS HAS NOT BEEN CONTROVERTED BY BOTH THE AUTHORITIES I.E. LD. CIT(A) AND AO. 12. LD. COUNSEL FURTHER CONTENDS THAT DLC RATES FOR THE AGRICULTURAL LAND IN SANGANER TEHSIL ARE MUCH HIGHER THAN THE MARKET RATES. WHEN THE DLC RATE OF SOLD AGRICULTURAL LAND WAS JUST RS.13,58,00 0/-, IT WAS NOT POSSIBLE THAT 9 ASSESSEE WILL PAY ON MONEY OF RS.39,00,000/- IN CAS H. IN A COMPARABLE CASE OF MRS. PRATIMA PANWAR, SIMILAR AGRICULTURAL L AND WAS PURCHASED IN SANGANER TEHSIL; FOLLOWING WAS THE PURCHASE AND DLC RATES IN THE YEAR 2006-07: LOCATION OF AGRICULTURAL LAND PURCHASE PRICE DLC RATE VILLAGE PIPLA BHARAT SINGH JAISINGHPURA, SANGANER RS.58,00,000/- RS.1,03,80,000/- 13. AUTHORITIES BELOW HAVE NOT IMPLEMENTED THE ITAT DIRECTIONS IN PROPER MANNER AND FAILED TO LEGALLY APPRECIATE THE EVIDENTIARY VALUE OF THE CROSS-EXAMINATION OF SELLER WHICH CLINCHES THE ISSUE. THE FACT THAT BY THE TIME OF REGISTRATION OF SALE DEED, COMPANY WAS ALREADY INCORPORATED AND LAND HAS BEEN CLAIMED AS ITS ASSET DEMONSTRATES THAT ASSESSEE PAID NO ON MONEY. THE CORROBORATIVE COMPARABLE EVIDENCE IN RESPECT OF PREVAILING MARKET AND DLC RATES ALSO HAS BEEN BRUSH ED ASIDE. LD. AO WITHOUT ANY COGENT REASON HELD THE CROSS-EXAMINATIO N STATEMENT OF SHRI HAMUMAN SAHAY AS TUTORED AND GIVEN UNDER THE INFLUE NCE OF THE APPELLANT WITHOUT APPRECIATING THAT DEAL WAS COMPLE TED 6 YEARS BACK, ASSESSEE WAS NO MORE DIRECTOR OF COMPANY. IT WAS IM POSSIBLE ON THE PART OF ASSESSEE TO EXERT ANY INFLUENCE ON THE SELLER AN D THERE WAS NO IOTA OF REASON TO DRAW SUCH OUTLANDISH INFERENCE BY LD.A.O. 14. WITHOUT PREJUDICE TO ABOVE CONTENTIONS, IT I S SUBMITTED THAT THE EFFECT OF ORIGINAL STATEMENTS GIVEN BY THE SELLERS WAS RIGHTLY NEGATED BY ITAT AS THEY WERE RECORDED BY THE LD. ITO, WARD 2(2 ) JAIPUR BEHIND THE BACK OF THE ASSESSEE. IN THE CASE OF M/S. ADINATH B UILD ESTATE. LD. CIT(A) HAS GIVEN A FINDING THE AMOUNT OF RS.28,00,000/- PAID AFTER INCORPORATI ON 10 OF COMPANY. THE LAND IN QUESTION BEING UNDISPUTEDLY OWNED BY COMPANY CANNOT BE ADDED IN THE HANDS OF THE ASSESSEE AS NEI THER HE OWNS THE LAND NOR THE AMOUNT WAS PAID BY HIM. THE AMOUNT OF RS. 11 LACS HAS BEEN CLEARLY EXPLAINED BY ASSESSEE AS AVAILABLE WITH HIM WHICH IS NOT EFFECTIVELY CONTROVERTED BY REVENUE. THUS CONSIDERING THE ITAT DIRECTIONS, FACTS, CIRCUM STANCES AND EVIDENCE ON RECORD NO AMOUNT CAN BE ADDED IN THE HANDS OF TH E ASSESSEE, LOOKING FROM ANY ANGLE. THE ADDITION HAS BEEN ARBITRARILY S USTAINED BY AUTHORITIES BELOW IN UTTER DISREGARD OF ITAT DIRECTIONS AND FAC TS ON RECORD THE SAME DESERVES BE DELETED. 15. LD. DR. SUPPORTED THE ORDERS OF AUTHORITIE S BELOW. 16. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUS ED THE MATERIAL AVAILABLE ON RECORD. IT IS NOT IN DOUBT THAT THE CO MPANY M/S ADINATH BUILD. ESTATE WAS DULY INCORPORATED ON 9-7-2004. THE SALE DEED WAS REGISTERED IN ITS NAME AFTER INCORPORATION AND OWNERSHIP OF THE L AND BELONGED TO COMPANY. BEFORE INCORPORATION ASSESSEE PAID ADVANCE OF RS. 11 LACS FOR AGREEMENT TO SALE. AS DIRECTED BY ITAT THERE IS NO REFERENCE TO ANY DENIAL BY THE COMPANY IN THIS BEHALF. ONCE THE ITAT DIREC TIONS ARE ACCEPTED BY THE REVENUE, FULL EFFECT IS TO BE GIVEN TO THE DIRE CTIONS IN ACCORDANCE WITH LAW. IN CROSS AND RE-CROSS EXAMINATION SELLER UNEQU IVOCALLY DEPOSED THAT THE LAND WAS SOLD AT THE PRICE SHOWN IN THE REGISTE RED SALE DEED TO M/S ADINATH BUILD. ESTATE AND ASSESSEE WAS ONLY A CONTA CT PERSON. THIS CROSS EXAMINATION CANNOT BE BRUSHED ASIDE IN A CAPRICIOUS MANNER BY ALLEGING THAT SELLERS WAS STATEMENT UNDER GIVEN INFLUENCE A ND TUTORED BY ASSESSEE. 11 THE CROSS EXAMINATION TOOK PLACE AFTER ABOUT 6 YEAR S AND THE ASSESSEE LONG BACK CEASED TO BE THE DIRECTOR OF COMPANY AND HAD NO POSITION TO EXERT AND INFLUENCE ON SELLER. THUS REJECTION OF ST ATEMENT IN CROSS EXAMINATION IS ONLY ON AN UNFOUNDED PRESUMPTION AND CONJECTURES, WHICH IS NOT PERMISSIBLE IN LAW. THE ASSESSEES EXPLANATION ABOUT AVAILABILITY OF FU NDS OF RS. 11 LACS HAS BEEN EXPLAINED AND UNCONTROVERTED BY AUTHORITIES BE LOW. THE ASSUMPTION THAT THERE WAS ON MONEY THAT TOO PAID AT THE TIME O F AGREEMENT ITSELF IS BEREFT OF ANY COGENCY AND AGAINST PREPONDERANCE OF PROBABILITIES. IN VIEW OF ALL THESE FACTS AND CIRCUMSTANCES WE SEE NO JUSTIFICATION IN THE IMPUGNED ADDITION WHICH IS DELETED, ASSESSEES GROU ND ARE ALLOWED. 17. IN THE RESULT ASSESSEES APPEAL IS ALLOWED . ORDER PRONOUNCED IN THE OPEN COURT ON 29-01-2016 SD/- SD/- FOE FLAG ;KNO VKJ-IH-RKSYKUH (VIKRAM SINGH YADAV) (R.P.TOLANI) YS[KK LNL;@ ACCOUNTANT MEMBER U;KF;D LNL;@ JUDICIAL MEMBER JAIPUR: DTD 29-01-2016 VKNSK DH IZFRFYFI VXZSF'KR@ COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT-DHARMENDRA MEHTA, JAIPUR. 2. THE RESPONDENT-THE ITO, WARD-5(2), JAIPUR. 3. THE CIT, 4. THE CIT(A), 5. THE DR, ITAT, JAIPUR 6. THE GUARD FILE (ITA NO. 753/JP/14) VKNS'KKUQLKJ@ BY ORDER LGK;D IATYHDKJ@ ASSISTANT REGISTRAR