SHRI BANWARI LAL MEENA, Jaipur V. ITO, Jaipur

ITA 811/JPR/2011

• Counselvise Citation: 81123114 RSA 2011
• Duration Of Justice: 2 year(s) 10 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-08-2014
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 19-07-2012
• Assessment Year: 2008-2009
• Appeal Filed On: 19-09-2011
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: SUBHASH CHANDRA; D C SHARMA
• Keywords: Capital asset; Additional evidence; Cost of acquisition; Fair market value
• Section: 2(14); 133A

Judgement Text

ITA NO. 811/JP/2011 SHRI BANWARI LAL MEENA VS. ITO 1 IN THE INCOME TAX APPELLATE TRIBUNAL JAIPUR BENCH, JAIPUR (BEFORE SHRI R.P. TOLANI AND SHRI T.R. ME ENA) ITA NO. 811/JP/2011 ASSESSMENT YEARS : 2008-09 PAN : ACCPM 0447 P SHRI BANWARI LAL MEENA VS. THE ITO NEAR JAIN MANDIR WARD- 3 (4) 1, PURANA GHAT KHANIYA JAIPUR AGRA ROAD, JAIPUR (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI P.C. PARWAL DEPARTMENT BY: SHRI SUBHASH CHANDRA & SHRI D.C. SHARMA DATE OF HEARING: 07-08-2014 DATE OF PRONOUNCEMENT: 14 -08-2014 ORDER PER R.P. TOLANI, JM THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST T HE ORDER OF THE LD. CIT(A)- 1, JAIPUR DATED 02-08-2011 FOR THE ASSE SSMENT YEAR 2008-09 WHEREIN THE ASSESSEE HAS RAISED FOLLOWING GROUND S:- 1. THE LD. CIT(A) HAS ERRED IN LAW IN UPHOLDING T HE ACTION OF THE AO IN TREATING THE LAND SOLD BY THE A SSESSEE AS A CAPITAL ASSET. 2. THE LD. CIT(A) HAS ERRED IN LAW IN CONFIRMING TH E ADDITION MADE BY TAKING THE SALE CONSIDERATION OF T HE LAND AT RS. 80.87,500/- AS AGAINST ACTUAL SALE CONSIDERA TION OF RS. 36,90,000/- FOR WORKING OUT TAXABLE CAPITAL GAI N. ITA NO. 811/JP/2011 SHRI BANWARI LAL MEENA VS. ITO 2 3. THE LD. CIT(A) HAS ERRED IN LAW IN CONFIRMING TH E ASSESSMENT OF THE CAPITAL GAIN ON TRANSFER OF LAND IN ASSESSMENT YEAR 2008-09 WHEREAS THE LAND HAD ALREAD Y BEEN TRANSFERRED IN THE PREVIOUS YEAR RELEVANT TO T HE ASSESSMENT YEAR 2007-08. 4. THE ASSESSEE CRAVES TO AMEND, ALTER AND MODIFY ANY OF THE GROUNDS OF APPEAL. 5. THE APPROPRIATE COST BE AWARDED TO THE ASSESSEE. 2. THE GROUND NOS. 4 AND 5 RAISED BY THE ASSESSEE A RE GENERAL IN NATURE WHICH NEED NO ADJUDICATION. 3. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSE E OWNED AN AGRICULTURAL LAND ADMEASURING 6 BIGHA AND 3 BISWA BEARING KHASRA NO. 66, 67 AND 68 AT VILLAGE GOVINDPURA (BASDA), TEHSIL PHAGI, DISTT. JA IPUR (RAJASTHAN). AS PER RAJASTHAN LAND LAWS, THE AGRICULTURAL LAND BELONGIN G TO ANY MEENA COMMUNITY PERSON CAN BE PURCHASED BY A PERSON ONLY FROM SAME COMMUNITY. ONE CONCERN NAMELY M/S. GRASS FIELD FARM S & RESORTS LTD. (FOR SHORT GFFR) WAS IN PURSUIT OF ACQUIRING THIS LAND FOR ONWARD SALE THEREOF TO ITS ASSOCIATE CONCERN NAMELY M/S. GRASS FIELD FIRE CAPITAL DEVELOPERS (P) LTD. (FOR SHORT GFFC) FOR THE PURP OSE OF DEVELOPING THE TOWNSHIP. 3. TO OVERCOME THE DIFFICULTY OF LIMITATION OF THE SALE OF LAND OF THE MEENA COMMUNITY PERSON, THE SAID GFFR ENTERED INTO AN AGREEMENT DATED ITA NO. 811/JP/2011 SHRI BANWARI LAL MEENA VS. ITO 3 21-02-2007 WITH THE ASSESSEE NOT ITS NAME BUT IN TH E NAME OF ONE OF ITS EMPLOYEE SHRI MAHENDRA MEENA. IT IS CLAIMED THAT FO LLOWING PAYMENTS WERE RECEIVED BY THE ASSESSEE QUA THE SALE OF IMPUGNED L AND. DATE AMOUNT IN (RS.) MODE FROM WHOM RECEIVED 26-03-2007 10,00,000/- CHEQUE GFFR 11-05-2007 5,00,000/- CHEQUE GFFR 25-07-2007 10,00,000/- DD GFFC 06-09-2007 5,00,000/- CHEQUE GFFC 06-09-2007 90,838/- CHEQUE GFFC IT IS FURTHER CLAIMED BY THE ASSESSEE THAT AS PER A GREEMENT THE ASSESSEE GAVE AWAY THE POSSESSION OF AGRICULTURAL LAND TO THE BUY ER ON ENTERING THE AGREEMENT ITSELF I.E. ON 21-02-2007. IT IS FAIRLY C ONCEDED THAT THOUGH THE AGREEMENT IS SIGNED BY THE ASSESSEE AND TWO WITNESS ES YET IT IS NOT SIGNED BY APPARENT PURCHASER SHRI MAHENDRA MEENA. THEREAFTER, THE GFFR TOOK THE STEPS TO GET THE USE OF THE LAND CONVERTED FROM AGR ICULTURAL LAND TO RESIDENTIAL LAND WHICH WAS PERMITTED BY THE LAND REVENUE AUTHOR ITIES ON 08-06- 2007.THEREAFTER THE SALE DEED WAS EXECUTED ON 09-08 -2007 FOR A SALE CONSIDERATION AT RS. 36,90,000/- SPECIFYING THE ASS ESSEE AS A SELLER, GFFC AS A PURCHASER AND GFFR AS A CONFIRMING PARTY. THE PAR A 2 OF THE SALE DEED REVEALS THAT RS. 15.00 LACS IS PAID BY GFFC TO THE ASSESSEE BY CHEQUE AND THE BALANCE AMOUNT HAS BEEN PAID BY GFFR TO THE ASS ESSEE WHICH WAS TO BE REIMBURSED BY GFFC. ALL THE RELEVANT EXPENDITURE FO R CONVEYANCE, STAMP ITA NO. 811/JP/2011 SHRI BANWARI LAL MEENA VS. ITO 4 DUTY ETC. WERE PAID BY THE GFFC WHICH WAS TO BE REC OVERED FROM GFFR. THE ASSESSEE WAS OF THE VIEW THAT THE IMPUGNED TRAN SACTION WAS NOT LIABLE TO LONG TERM CAPITAL GAIN AS THE ASSESSEE HAD SOLD THE AGRICULTURAL LAND OUTSIDE THE SPECIFIED LIMITS AND IT DOES NOT COME IN THE DE FINITION OF CAPITAL ASSET U/S 2(14) OF THE ACT. THE AO PROPOSED TO TREAT THE SAME AS SALE OF LONG TERM CAPITAL ASSET, REJECTING THE WRITTEN SUBMISSION AND ARGUMENTS OF THE ASSESSEE. IT WAS HELD THAT THE ASSESSEE'S VERSION WAS NOT TEN ABLE AND WHAT WAS SOLD WAS CONVERTED TO NON-AGRICULTURAL LAND WHICH WAS THE CA PITAL ASSETS AND THE SALE WHEREOF WAS LIABLE TO LONG TERM CAPITAL GAIN IN THE HANDS OF THE ASSESSEE. DURING THE COURSE OF SURVEY IN THE PREMISES OF PURC HASER INCRIMINATING MATERIAL WAS FOUND ESTABLISHING THE SALE VALUE OF LAND AT RS. 80,87,500/-. THIS FACT WAS ADMITTED BY VENDEE. THE AO ADOPTED TH E SALE VALUE AT RS. 80,87,500/- AND NOT AS CLAIMED BY THE ASSESSEE TO B E RS. 36,90,500/-. THE FAIR MARKET VALUE OF THE LAND IN QUESTION ON 01-04- 1981 CLAIMED BY THE ASSESSEE AT RS. 50,000/- WAS ALSO FOUND TO BE WITH OUT ANY BASIS, ON PURE ESTIMATE AND WAS ON HIGHER SIDE. THE SAME WAS TAKEN AT RS. 30,000/- PER BIGHA. ACCORDINGLY, THE INCOME OF THE ASSESSEE WAS CALCULATED BY THE AO AS UNDER:- NET TAXABLE AS PER RETURN 1,09,123/- LONG TERM CAPITAL GAIN (AS DISCUSSED) SALE CONSIDERATION 80,87,500/- COST OF ACQUISITION ITA NO. 811/JP/2011 SHRI BANWARI LAL MEENA VS. ITO 5 30000X6.15X551/100= 10,16,595/- 70,70,905/- INCOME FROM OTHER SOURCES 35,055/- NET TAXABLE INCOME RS. 72,15,083/- R/O RS. 72,15,080/- 4. AGGRIEVED, THE ASSESSEE PREFERRED FIRST APPEAL B EFORE THE LD. CIT(A) WHERE THE ASSESSEE'S STAND TAKEN BEFORE THE AO WAS REITERATED AND FOLLOWING SUBMISSIONS WERE MADE BEFORE HIM. THE APPELLANT HAD SOLD HIS AGRICULTURAL LAND SITU ATED IN VILLAGE GOVINDPURA URF BASDA, TEHSIL PHAGI DISTRICT JAIPUR TO SHRI MAHENDRA MEENA FOR A SUM OF RS. 36,90,000/-. COPY OF THE IKRARNAMA EXECUTED BY THE APPELLANT WITH SAID SHRI MAHENDRA MEENA IS ENCLOSED HEREWITH FOR YOUR KIND VERIFICATI ON. THIS DOCUMENT SHOWS THE MALAFIDE INTENTION OF THE BUYER OF M/S. GRASS FIELD CAPITAL DEVELOPERS (P) LTD.. INTENTIONALLY SA ID BUYER DID NOT GIVE SIGNED COPY OF THE IKRARNAMA TO THE APPELLANT SO AS TOTAL INCOME DISABLE THAT APPELLANT TO ARGUE THE CASE IN HIS FAV OUR DURING THE ASSESSMENT PROCEEDINGS. THE TRUE FACTS ARE THAT THE APPELLANT HAD SOLD THE LAND DURING FEBURARY, 2007 ITSELF, BUT AS PER MUTUAL AGREEMENT THE POSSESSION OF THE LAND HAD CONTINUED TO BE WITH THE APPELLANT UNTIL EXECUTION OF REGISTERED SALE DEED. THEREFORE, TRANSFER WAS COMPLETE DURING FEB. 2007 ITSELF AS PE R THE PROVISIONS OF S. 2(17(I) OF THE INCOME-TAX LAW. HE FURTHER SUBMITTED THAT THE SAID LAND WAS BEING C ULTIVATED AND HAS FILED COPIES OF COMBINED AFFIDAVIT BY SHRI BHANWARL AL MEENA S/O SHRI KALYAN MEENA R/O VILLAGE SARDARA AND SHRI RAMSAHAI S/O SHRI RAMCHANDRA R/O BAGRU WHO DEPOSED THAT THEY WERE CUL TIVATING THE LAND AND WERE BEARING ALL THE EXPENSES OF CULTIVATI ON WHILE THE AGRICULTURE PRODUCE WAS BEING SHARED BETWEEN THE FA MILY OF THE ASSESSEE AND THE CULTIVATORS. COPY OF AN AFFIDAVIT OF BOTH THE PERSONS WERE ENCLOSED. HE HAS RELIED ON THE ORDER OF CWT VS . OFFICER INCHARGE (COURT OF WARDS) 1976 - 105 ITR 133 (SC) W HEREIN IT WAS ITA NO. 811/JP/2011 SHRI BANWARI LAL MEENA VS. ITO 6 HELD THAT WHEN THE CAPITAL ASSET'S USE WAS IMPORTAN T WHILE DETERMINING ITS NATURE RATHER THEN THE REVENUE RECO RDS. HE ALSO FILED A COPY OF THE CERTIFICATE OF THE PATWARI OF PATWAR HALKA SAWAI JAI SINGHPURA WHEREIN IT WAS MENTIONED THAT LAND WAS AT A DISTANCE OF 12 KMS. FROM THE MUNICIPAL LIMITS OF BAGRU. 5. THE LD. CIT(A) REJECTED THE ASSESSEE'S APPEAL BY FOLLOWING OBSERVATION (I) WITH REGARD TO THE ISSUE OF THE LAND BEING AGRI CULTURAL LAND AND IT IS NOT LIABLE TO CAPITAL GAIN. 5.4 I HAVE CAREFULLY PERUSED THE ORDER OF THE AO AND SUBMISSIONS MADE BY THE AR. THE AR HAS FILED A COPY OF AGREEMENT BETWEEN THE ASSESSEE AND SHRI MAHENDRA MEENA WHEREI N IT IS MENTIONED THAT THE ASSESSEE TRANSFERRED THE LAND IN FAVQUR OF THE LATTER FOR RS.36,90,000/-. HOWEVER, THIS AGREEMENT IS UNDATED AND IS NOT SIGNED BY THE SECOND PARTY I.E. SHRI MAHENDRA MEENA. STAMP DU TY WAS REQUIRED TO BE PAID AS PER THE INDIAN STAMP ACT U/S 3, SCHEDULE -1, ARTICLE 45. THIS HAS NOT BEEN DONE AND NO STAMP DUTY HAS BEEN PAID O N THIS TRANSFER. GIVEN THESE FUNDAMENTAL DEFECTS IN THIS AGREEMENT T O SALE IT CANNOT BE ADMITTED AS RELIABLE EVIDENCE. 5.5 REGARDING THE COMBINED AFFIDAVIT FILED BY SHRI RAMSAHAI AND SHRI BHANWARLAL MEENA REGARDING THE CULTIVATION OF THE LAND, IT APPEARS TO BE A SELF SERVING DOCUMENT. IN MOST CASE S OF BATAI, IT IS VERY RARE THAT ALL THE EXPENSES ARE BORNE BY THE CULTIVA TOR WHILE THE PRODUCE IS SHARED EQUALLY. FROM THE AFFIDAVIT IT IS SEEN THAT SHRI BHANWARILAL MEENA IS 71 YEARS OLD AND IS ILLITERATE AS HE HAS PUT HIS THUMB IMPRESSION. BOTH THE DEPONENTS DO NOT HAVE LAND CONTIGUOUS TO THAT O F THE ASSESSEE. THEY LIVE IN BAGRU AND VILLAGE SARDARA RESPECTIVELY WHIL E THE LAND OF THE ASSESSEE IS IN VILLAGE GOVINDPURA IN PHAGI DISTT. IT IS NOT CLEAR AS TO HOW THESE AGRICULTURAL OPERATIONS WERE CARRIED ON B Y THEM UNDER THESE CIRCUMSTANCES. FURTHERMORE, THE SUBMISSIONS MADE BY THE ASSESSEE A RE SELF CONTRADICTORY. DURING THE COURSE OF APPELLATE PROCE EDINGS HE TOOK UP 2 ITA NO. 811/JP/2011 SHRI BANWARI LAL MEENA VS. ITO 7 NEW GROUNDS OF APPEAL. IN GROUND OF APPEAL NO.5 IT WAS SUBMITTED THAT THE ASSESSEE TRANSFERRED THE LAND TO SHRI MAHENDRA MEEN A VIDE AGREEMENT TO SALE IN F.Y. 2006-07 SO THE AO ERRED IN CONSIDER ING THE TRANSACTION OF SALE OF LAND IN A.Y. 2008-09 RATHER THAN A.Y. 2007- 08. THIS SUBMISSION OF THE ASSESSEE IS TOTALLY CONTRARY TO THE AFFIDAVIT F ILED BY BANWARI LAL MEENA & RAMSAHAI WHO HAVE DEPOSED THAT THEY WERE CU LTIVATING THE LAND FOR THE ASSESSEE ASSESSEE TILL AUGUST 2007. IF AS PER ASSESSEE'S OWN ADMISSION THE LAND HAD BEEN TRANSFERRED IN FEB. 200 7 THEN HOW WERE SHRI RAMSAHAI CULTIVATING THE LAND FOR THE ASSESSEE TILL AUG. 2007. THUS IT IS SEEN THAT THE ASSESSEE IS CREATING SELF SERVI NG EVIDENCE WHICH IS SELF CONTRADICTORY AND CANNOT BE RELIED UPON. MOREOVER, THE ASSESSEE HAS FAILED TO FILE A COPY OF THE KHASRA GIRDAWARI WHICH WOULD HAVE BEEN A CONCLUSIVE PROOF OF THE CROPS CULTIVATED ON THE LAN D DURING THE PERIOD. THEREFORE, THE EVIDENCE BY WAY OF THIS COMB INED AFFIDAVIT FILED BY THE ASSESSEE IS NOT ACCEPTED AS RELIABLE EVIDENCE. 5.7 I HAVE ALSO PERUSED THE CERTIFICATE OF THE PATW ARI OF TEHSIL PHAGI. IN THE SAID CERTIFICATE HE HAS MERELY MENTIO NED THAT THE LAND WAS 12 KMS. FROM THE MUNICIPAL LIMITS OF BAGRIU. I T HAS ALSO BEEN MENTIONED IN THE SAID CERTIFICATE THAT THE SAID LAN D WAS SARVPARIVARTIT BHUMI. TO BEGIN WITH THE TEHSILDAR HAD NO JURISDICTION OR WHEREWITHAL TO ISSUE SUCH A CERTIFI CATE. ONLY THE CONCERNED OFFICER OF THE NAGAR PALIKA BAGRU HAD THE RELEVANT INFORMATION TO ISSUE SUCH A CERTIFICATE. SECONDLY, EVEN_IN THIS CERTIFICATE, IT HAS BEEN MENTIONED THAT THE LAND HAD BEEN CONVER TED. THEREFORE, THE FACTS OF THE CASE DO NOT SUPPORT THE ASSESSEE;S CON TENTION THAT THE LAND SOLD DID NOT COME WITHIN THE PURVIEW OF S.2(14) OF THE INCOME-TAX ACT. I UPHOLD THE DECISION OF THE AO OF TREATING THE LAND AS A CA PITAL ASSET U/S 2(14). (II) WITH REGARD TO FAIR MARKET VALUE OF THE LAND A S ON 01-04-1981 ESTIMATED BY THE AO AT RS. 30,000/- AS AGAINST CLAIM OF THE ASSE SSEE AT RS. 50,000/- PER BIGHA. 6.3 THE AR TOO HAS NOT BROUGHT ANY EVIDENCE ON RE CORD BY WAY OF LAND TRANSACTION IN OR AROUND ASSESSEE'S LAN D IN F.Y. 1980-81 TO ITA NO. 811/JP/2011 SHRI BANWARI LAL MEENA VS. ITO 8 HELP DETERMINE THE CORRECT RATE. SINCE THE SALE PRI CE OF RS.80,87,500/- HAS BEEN ACCEPTED BY THE DEPARTMENT FOR TRANSFER OF 6 BIGHAS 3 BISWAS OF LAND THE PER BIGHA RATE COMES TO APPROXIM ATELY RS. 13,47,917- IN F.Y. 2007-08. IF THE RATE OF LAND IS ESTIMATED AT RS.30,000/- PER BIGHA THEN COST OF ESCALATION OF LA ND DURING 27 YEARS COMES TO 439% WHILE IF THE RATE OF LAND IS ESTIMATE D AT RS. 50,000/- PER BIGHA THE ESCALATION COST OF LAND COMES TO 260%. TH E LATTER APPEARS TO BE A MORE RATIONALE ESTIMATION THEREFORE, THE SUBMI SSION OF A.R. IS ACCEPTED AND IT IS DIRECTED THAT THE FAIR MARKET VA LUE OF THE LAND ON 1-4-81 BE ESTIMATED AT RS. 50,000/- PER BIGHA AND L ONG TERM CAPITAL GAIN BE CALCULATED ACCORDINGLY. (III) WITH REGARD TO SALE CONSIDERATION OF THE LAND AT RS. 80,87,500/- AS AGAINST CLAIM OF THE ASSESSEE AT RS. 36,90,000/- 7.4 I HAVE CAREFULLY PERUSED THE ORDER OF THE AO AND THE SUBMISSIONS OF THE A.R.. AS DISCUSSED ABOVE THE DOC UMENTS REGARDING THE AGREEMENT OF SALE BETWEEN THE ASSESSEE AND MAHE NDRA MEENA CANNOT BE ACCEPTED AS ADMISSIBLE EVIDENCE GIVEN THE FUNDAMENTAL FLAWS DISCUSSED IN THE AGREEMENT IN PARA 5.4 ABOVE, NAMELY IT IS NOT SIGNED BY THE ALLEGED PURCHASER NOR HAS THE DOCUMEN T BEEN REGISTERED AS REQUIRED BY LAW. 7.5 THE RELIABLE EVIDENCE IN THE CASE OF THE ASSESS EE IS THE SALE DEED WHEREIN IT HAS CLEARLY BEEN MENTIONED ON PAGE 4 THAT THE SELLER I.E. THE ASSESSEE TRANSFERRED HIS RIGHTS, TI TLE AND INTEREST IN THE LAND TO THE COMPANY M/S. GRASS FIELD FIRE CAPITAL D EVELOPERS (P) LTD. FOR A CONSIDERATION OF RS. 80,87,500/-. THIS S ALE DEED IS DULY REGISTERED AND SIGNED BY THE SELLER AND THE PURCHAS ER COMPANY THROUGH ITS MANAGER AND IS DULY ATTESTED BY TWO WIT NESSES. THE SALE DEED WAS EXECUTED ON 9-8-2007 AND STAMP DUTY WAS DU LY PAID AS PER THE STAMP OF SUB-REGISTRAR. GIVEN THE FACT THAT THE ASSESSEE IS AN EDUCATED PERSON WHO IS EMPLOYED WITH THE GOVT. OF R AJASTHAN IT IS NOT UNDERSTOOD HOW HE SIGNED THE SALE DEED WHEREIN IT H AS CLEARLY BEEN MENTIONED THAT HE RECEIVED RS. 80,87,500/- FOR SALE OF HIS LAND WHEN HE GOT ONLY RS. 36,90,000/- AS CLAIMED BY HIM. ITA NO. 811/JP/2011 SHRI BANWARI LAL MEENA VS. ITO 9 7.6 MOREOVER, DURING THE COURSE OF APPELLATE PROCEE DINGS THE A.R. OF THE ASSESSEE WAS ALSO SHOWN THE RECORDS OF THE PURCHASER COMPANY I.E. M/S. GRASS FIELD FIRE CAPITAL (P) LTD. IT IS PERTINENT TO MENTION THAT A SURVEY WAS CONDUCTED ON THE PREMISES OF THE SAID COMPANY U/S 133A AND ON CONCLUSION OF THE SURVEY TH E DIRECTORS OF THE COMPANY HAD PREPARED AN ANNEXURE ON THE BASIS O F THE RECORDS/ DOCUMENTS/ PAPERS FOUND DURING THE COURSE OF SURVEY TO SHOW THE DETAILS OF PAYMENTS MADE FOR PURCHASE OF LAND OUT O F THE BOOKS OF ACCOUNTS. ON PAGE 12 OF THIS ANNEXURE IT HAS BEEN M ENTIONED THAT RS. 80,87,500/- WERE PAID TO SHRI BANWARILAL MEENA BY THE COMPANY FOR PURCHASE OF LAND AT KHASRA NO. 66, 67, & 68 AT VILLAGE BASDA/ JAISINGHPURA. THESE RECORDS WERE SHOWN TO THE A.R. OF THE ASSESSEE AND HE WAS ASKED WHETHER HE NEEDED A PHOTOSTAT COPY OF THE SAME VIDE ORDER SHEET ENTRY DATED 24-05-2011 SINCE THIS DOCUMENT WAS PROPOSED TO BE USED AS EVIDENCE AGAINST THE ASSESSE E. THE AR DECLINED TO TAKE THE PHOTOSTAT COPY OF THE SAID DOC UMENTS. SINCE THE CASE OF THE COMPANY HAS ALREADY BEEN DECIDED AND TH E COMPANY PAID TAX ON THIS SURRENDERED AMOUNT THERE SEEMS TO BE NO FORCE IN THE ARGUMENT OF THE ASSESSEE THAT THE SAID PAYMENTS WA S NOT MADE BY THE COMPANY GIVEN THE EVIDENCE ON RECORD GATHERED BY TH E DEPARTMENT IN THE CASE OF THE PURCHASER COMPANY. 7.7 REGARDING THE FIR FILED BY THE ASSESSEE IT IS SEEN THAT THE ASSESSEE'S CASE WAS TAKEN UP FOR SCRUTINY AND THE F IRST NOTICE U/S 143(2) WAS ISSUED ON 24-08-2009. THE ORDER U/S 143( 3) WAS PASSED ON 16-12-2010 AND APPEAL AGAINST THIS ORDER WAS FILED BY THE ASSESSEE ON 4-12-2011. THE FIRST NOTICE FIXING THE CASE OF THE ASSESSEE FOR HEARING WAS ISSUED ON 14-12-2011. THEREAFTER SEVERAL NOTICE S WERE ISSUED. WHILE THE ASSESSEE FILED THE FIR ONLY ON 01-06-201 1 ALMOST A WEEK AFTER THE ORDER SHEET ENTRY MENTIONED ABOVE DATED 2 4-05-11. IT IS NOT CLEAR WHY, IF THE ASSESSEE HAD BEEN DEFRAUDED AS CL AIMED BY HIM, BY THE PURCHASER COMPANY DID HE WAIT FOR TWO YEARS BEF ORE FILING THE FIR. IT APPEARS THAT WHEN HE WAS CONFRONTED WITH IR REFUTABLE EVIDENCE AGAINST HIM HE ATTEMPTED TO CREATE EVIDENCE IN HI S FAVOUR BY FILING OF THIS FIR. IN ANY CASE MERELY FILING OF AN FIR IS N OT EVIDENCE ENOUGH TO PROVE THE VERACITY OF THE CLAIM OF THE ASSESSEE THAT HE WAS PAID ONLY RS. 36,90,000/- AND NOT RS. 80,87,500/- UNLESS A REPORT OF THE INVESTIGATION IS PLACED ON FILE. THEREFORE, THE COP Y OF THE FIR IS NOT TAKEN AS RELIABLE EVIDENCE IN FAVOUR OF THE ASSESSE E. ITA NO. 811/JP/2011 SHRI BANWARI LAL MEENA VS. ITO 10 IN VIEW OF THE ABOVE DISCUSSION, THE AOS COMPUTATI ON OF THE LONG TERM CAPITAL GAIN IN THE CASE OF THE ASSESSEE OF RS. 70,70,905/- IS UPHELD AND THE ADDITION IS CONFIRMED. THEREFORE, TH E GROUNDS OF APPEAL NO 3 & 4 ARE REJECTED. ((IV) WITH REGARD TO ASSESSEE'S CLAIM THAT SAID TRA NSACTION TOOK PLACE IN ASSESSMENT YEAR 2007-08 AND NOT IN ASSESSMENT YEAR 2008-09 I HAVE CONSIDERED THE SUBMISSION AND THE EVIDENCE FILED BY THE A.R. THE FOLLOWING FACTS EMERGE:- 1. SALE OF AGREEMENT IS NEITHER DATED NOR SIGNED BY MAHENDRA MEENA NOR REGISTERED WITH THE SUB-REGISTRA R AND SO IS NOT ADMITTED AS RELIABLE EVIDENCE AS DISCUSSED I N DETAIL IN PARA 5.4 OF THIS ORDER. ANYBODY CAN CREATE ANY DOCU MENT BUT IF IT HAS NO MERIT IN THE EYES OF LAW AS EVIDENCE IT I S NOT IMPERATIVE FOR THE AO TO REBUT IT. THE ASSESSEE CANNOT DEMAND IT OF THE AO TO EXAMINE SHRI MAHENDRA MEENA ON THE BASIS OF THIS TOTALLY UNRELIABLE EVIDENCE. 2. THE PURCHASER COMPANY HAS ADMITTED TO PAYING MON EY FOR PURCHASE OF THIS LAND FROM UNACCOUNTED SOURCES AND HAS SURRENDERED THE AMOUNT AND PAID TAXES ON THE SAME. THIS IS THE MOST DAMAGING EVIDENCE AGAINST THE ASSESSEE. IT IS OBVIOUS THAT WHEN THE MONEY PAID TO THE ASSESSEE WAS FROM UNACCO UNTED SOURCES AS ADMITTED BY THE PURCHASER COMPANY IT WAS NOT RECORDED BY THE ASSESSEE IN HIS REGULAR BOOKS OF A CCOUNTS. AN OPPORTUNITY WAS GIVEN TO THE ASSESSEE TO REBUT THIS EVIDENCE WHICH HE HAS FAILED TO DO SO. 3. THE FIR WAS NOT FILED ON 01-06-07 AS SUBMITTED B Y THE ASSESSEE BUT ON 01-06-11. MOREOVER, EVEN IF HIS SUB MISSION IS ACCEPTED THAT HE COULD NOT FURNISH A COPY OF THE SA ID FIR BEFORE THE AO AS IT WAS FILED ON 01-06-07 IT IS SEEN THAT THE ORDER BY THE AO WAS PASSED ON 16-12-10. THEREFORE, THE ASSE SSEE HAD AMPLE OPPORTUNITY TO FURNISH THIS EVIDENCE BEFORE T HE AO IF AS PER HIS SUBMISSION HE FILED THE FIR ON 1-6-07. ITA NO. 811/JP/2011 SHRI BANWARI LAL MEENA VS. ITO 11 6, BY THE ABOVE OBSERVATIONS, THE LD. CIT(A) DISMIS SED THE ASSESSEE'S GROUNDS ON EVERY COUNT AND CONFIRMED THE ORDER OF T HE AO. 7. AGGRIEVED, THE ASSESSEE IS BEFORE US. 8. THE LD. COUNSEL FOR THE ASSESSEE SHRI P.C. PARWA L TOOK THE SAME LINE OF ARGUMENTS BEFORE US AS WERE TAKEN BEFORE THE LOW ER AUTHORITIES. THE LD. COUNSEL FOR THE ASSESSEE FAIRLY CONCEDED THAT PAGE 25 OF THE PAPER BOOK I.E. COPY OF THE COPY OF THE ACCOUNT OF THE ASSESSEE IN THE BOOKS OF M/S. GFFR, IS A NEW EVIDENCE AND IT IS NOT FILED BEFORE THE LO WER AUTHORITIES AND ORALLY REQUESTED TO ADMIT THE SAME AS AN ADDITIONAL EVIDEN CE. 9. THE LD. DR RELIED ON THE ORDERS OF THE LOWER AUT HORITIES AND OPPOSED TO THE ADDITIONAL EVIDENCE. 10 WE HAVE HEARD BOTH THE PARTIES PERUSED THE MATER IALS AVAILABLE ON RECORD. WE FOUND THAT NO VALID JUSTIFICATION HAS BE EN CANVASSED BEFORE US BY THE ASSESSEE TO ADMIT THIS ADDITIONAL EVIDENCE AT T HIS STAGE. THUS THE REQUEST OF THE ASSESSEE IS REJECTED ON THE ISSUE OF ADDITIO NAL EVIDENCE. 11. COMING TO THE ASSESSEE'S GROUNDS, WE SEE NO INF IRMITY IN THE ORDER OF THE LD. CIT(A) INASMUCH AS (I) THE ASSESSEE CLAIMED THAT POSSESSION OF THE LAND WAS TRANSFERRED TO SHRI MAHENDRA MEENA, IS NO T TENABLE INASMUCH THE AGREEMENT DOES NOT BEAR THE SIGNATURE OF MAHENDRA M EENA. NO OTHER EVIDENCE IS ADDUCED OR CANVASSED TO ESTABLISH THAT THE POSSESSION OF LAND WAS ITA NO. 811/JP/2011 SHRI BANWARI LAL MEENA VS. ITO 12 TRANSFERRED TO SHRI MAHENDRA MEENA ON THE DATE OF A GREEMENT. THE ASSESSEE'S CONTENTION IMPLIES THAT BEFORE EVEN PAYI NG ANY AMOUNT, THE POSSESSION OF THE LAND WAS TRANSFERRED TO SHRI MAHE NDRA MEENA HAS NOT BEEN ESTABLISHED. IN THESE CIRCUMSTANCES, WE AGREE WITH THE LD. CIT(A) THAT IMPUGNED TRANSACTION TOOK PLACE IN ASSESSMENT YEAR 2008-09 AND NOT IN ASSESSMENT YEAR 2007-08. (II) COMING TO THE ISSUE OF SALE OF THE LAND BEING AGRICULTURAL LAND AS CLAIMED BY THE ASSESSEE AND IT IS NOT LIABLE TO CAP ITAL GAIN, CANNOT BE ACCEPTED INASMUCH AS IT IS NOT DISPUTED THAT BEFORE CONVEYANCE DEED IN FAVOUR OF THE VENDEE, THE LAND WAS CONVERTED FROM A GRICULTURAL LAND TO NON- AGRICULTURAL LAND AND WHAT IS EXEMPT U/S 2(14)(III) OF THE ACT IS AGRICULTURAL LAND BEYOND SPECIFIED LIMIT. FROM THE RECORD, IT CL EARLY EMERGES THAT IT IS ADMITTED BY THE ASSESSEE THAT THE AGRICULTURAL LAN D WAS CONVERTED INTO NON- AGRICULTURAL LAND. THIS BEING SO, WE SEE NO INFIRMI TY IN THE ORDER OF THE LD. CIT(A) HOLDING THE LAND TO BE NON-AGRICULTURAL LAN D I.E. BEING AN ASSET AND THE TRANSFER WHEREOF IS LIABLE FOR CAPITAL GAIN. (III) COMING TO THE ESTIMATION OF SALE CONSIDERATIO N, THERE IS NO SUBSTANCE IN ASSESSEE'S CLAIM THAT THOUGH THE CONSIDERATION OF TRANSFER SHOULD BE ADOPTED AT RS. 36,90,000/-. THERE IS NO MERIT IN THE ARGUME NTS IN THIS PROPOSITION AS SALE CONSIDERATION STAND CONFIRMED BY SURVEY U/S 13 3A OF THE ACT THAT ON ITA NO. 811/JP/2011 SHRI BANWARI LAL MEENA VS. ITO 13 VENDEE COMPANY REVEALING VARIOUS PAPERS DEPICTING T HE ACTUAL SALE CONSIDERATION OF RS. 80,87,500/- WHICH WAS PAID TO THE ASSESSEE . THIS FACT HAS BEEN ALSO DEPOSED BY THE VENDEE. THE ASSESSEE C OULD NOT CONTROVERT THE EVIDENTIARY VALUE OF THESE CRUCIAL FACTS ON RECORD . IN VIEW THEREOF, WE HAVE NO HESITATION TO HOLD THAT SALE CONSIDERATION HAS B EEN RIGHTLY ADOPTED AT RS. 80,87,500/-. THUS WE CONFIRM THE ORDER OF THE LD. C IT(A) AND THE APPEAL OF THE ASSESSEE IS DISMISSED. 12. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS DI SMISSED. THE ORDER IS PRONOUNCED IN THE OPEN COURT ON 14- 08-2014 SD/- SD/- (T.R. MEENA) (R.P. TOLANI) ACCOUNTANT MEMBER JUDICIAL MEMBER JAIPUR DATED: 14 TH AUG. 2014 *MISHRA COPY FORWARDED TO:- 1. SHRI BANWARI LAL MEENA, JAIPUR 2. THE ITO, WARD- 3 (4), JAIPUR 3. THE LD. CIT 4. THE LD. CIT(A), JAIPUR BY ORDER 5..THE LD. DR 6.THE GUARD FILE (IT NO. 811/JP/2011) AR ITAT, JAIPUR ITA NO. 811/JP/2011 SHRI BANWARI LAL MEENA VS. ITO 14 ITA NO. 811/JP/2011 SHRI BANWARI LAL MEENA VS. ITO 15 ITA NO. 811/JP/2011 SHRI BANWARI LAL MEENA VS. ITO 16