ABHA JAIN, Jaipur V. ITO, Jaipur

ITA 922/JPR/2012

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 99439 (ITAT-JAIPUR)
• Duration Of Justice: 2 year(s) 10 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-10-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2008-2009
• Appeal Filed On: 17-12-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: O P BHATEJA CIT DHK
• Keywords: Sale consideration of property below Jantri Value; Opportunity of being heard
• Section: 50C; 131

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 VH-VKJ-EHUK] YS[KK LNL; ,OA JH YFYR DQEKJ] U;KF; D LNL; DS LE{K BEFORE: SHRI T.R.MEENA, AM & SHRI LALIET KUMAR, JM VK;DJ VIHY LA-@ ITA NO. 922/JP/2012 FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2008-09 . ABHA JAIN, 121, SHANKER COLONY, VIDHYADHAR NAGAR, JAIPUR. CUKE VS. THE INCOME TAX OFFICER, WARD 1(3), JAIPUR. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO. ABMPJ 9210 C VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY : SHRI RAJEEV SOGANI (C.A.) JKTLO DH VKSJ LS@ REVENUE BY : SHRI O.P. BHATEJA (ADDL.CIT ) LQUOKBZ DH RKJH[K@ DATE OF HEARING : 17.09.2015. ?KKS'K .KK DH RKJH[K @ DATE OF PRONOUNCEMENT : 30/10/2015. VKNS'K@ ORDER PER SHRI LALIET KUMAR, J.M. THIS APPEAL IS BY THE ASSESSEE ARISING OUT OF THE O RDER PASSED BY LD. CIT (A), ALWAR ON 02.11.2012 IN RELATION TO THE ASSESSME NT YEAR 2008-09. THE ONLY EFFECTIVE GROUND RAISED IN THE APPEAL IS AS UNDER : - IN THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT (A) HAS ERRED IN CONFIRMING THE ACTION OF THE LD. A O IN ADDING A SUM OF RS. 15,00,000/- TO THE TOTAL INCOME OF THE ASSES SEE AS UNEXPLAINED DEPOSIT. THE ACTION OF LD. CIT (A) IS ILL EGAL, UNJUSTIFIED, ARBITRARY AND AGAINST THE FACTS OF THE CASE. RELIEF MAY PLEASE BE GRANTED BY DELETING THE SAID ADDITION OF RS. 15,00, 000/-. 2 ITA NO. 922/JP/2012 A.Y. 2008-09 SMT. ABHA JAIN VS. ITO 2. THE LD. COUNSEL FOR THE ASSESSEE DURING THE COURS E OF HEARING HAS EXPRESSED HIS WILLINGNESS NOT TO PRESS GROUND NO. 2. THEREFORE, THE SAME IS DISMISSED AS NOT PRESSED. 3. IN RESPECT OF GROUND NO. 1 , BRIEFLY STATED THE FACTS OF THE CASE ARE THAT THE ASSESSEE WAS CALLED UPON TO FURNISH INFORMATION/ DOCUMENTS SHOWING THE DETAILS IN RESPECT OF INVESTMENT MADE IN SHARES, MU TUAL FUND/GOVT. SECURITIES/FDRS/TERM DEPOSITS/OTHER BANK ACCOUNT/NSC S/LIPS EXPLAINING THE SOURCE THEREOF. IN RESPONSE THERETO THE ASSESSEE I NFORMED THAT SHE SOLD HER PLOT OF LAND BEARING NO. 319 UDYOG NAGAR, JHOTWARA, JAIPU R FOR A CONSIDERATION OF RS. 15,00,000/- AND THE DEPOSITS IN CASH IN HER BANK AC COUNT REFLECTS THIS SALE CONSIDERATION. THE AO HAS NOT ACCEPTED THE ASSESSEE S EXPLANATION WITH REGARD TO THE SOURCE OF CASH DEPOSIT OF RS. 15,00,000/- IN HER BANK ACCOUNT. SINCE THE SOURCE IS NOT EXPLAINED, THEREFORE, THE AMOUNT IS T AXED IN THE ASSESSEES HAND AS UNEXPLAINED CASH DEPOSIT. THE ABOVE SAID CONCLUSIO N WAS DRAWN BY THE AO ON THE BASIS OF FOLLOWING REASONS :- I HAVE CONSIDERED THE TOTALITY OF THE FACTS OF TH E CASE AND THE ARGUMENT OF THE ASSESSEE. IT IS THE CLAIM OF THE AS SESSEE THAT THE SOURCE OF DEPOSIT IN CASH IN HER BANK ACCOUNT IS OU T OF THE CASH GIVEN TO HER BY SHRI SHAKEEL KHAN REPRESENTING THE SALE CONSIDERATION FOR THE LAND SOLD TO HIM THROUGH AGRE EMENT TO SALE DATED 4.6.07. ON THE CONTRARY, SHRI SHAKEEL KHAN IN HIS STATEMENT RECORDED U/S 131 IN THE PRESENCE OF THE A/R OF THE ASSESSEE REFUTED 3 ITA NO. 922/JP/2012 A.Y. 2008-09 SMT. ABHA JAIN VS. ITO THE CLAIM OF THE ASSESSEE AND HE DENIED TO HAVE ENT ERED INTO ANY AGREEMENT WITH THE ASSESSEE. HE WAS SIMPLY A POWER OF ATTORNEY HOLDER OF THE ASSESSEE. IT IS HIS CLAIM THAT HE EXE CUTED THE REGISTERED SALE DEEDS ON BEHALF OF THE ASSESSEE. FR OM THE TWO SALE DEEDS, RELIED UPON BY THE ASSESSEE AS AN EVIDENCE T O EST4ABLISH THAT THE LAND SOLD TO SHRI SHAKEEL KHAN WAS SUBSEQUENTLY SOLD BY HIM, IT IS FOUND THAT THE SALE CONSIDERATION IN BOTH THE CA SES WERE SHOWN TO HAVE BEEN MADE THROUGH CHEQUES, BUT ON ENQUIRY FROM THE BANK IT WAS FOUND THAT THE CHEQUE FOR RS. 1,10,000/- WAS NEVE R PRESENTED TO THE STANDARD CHARTERED BANK, M.I. ROAD, JAIPUR F OR CLEARANCE AND IN THE CASE OF 2 ND CHEQUE FOR RS. 6,50,000/-, THE DRAWER OF THE CHEQUE HIMSELF WITHDREW THE MONEY FROM THE BANK OF BA RODA, POWER HOUSE BRANCH, KE-56, KABIR MARG, JAIPUR. IN O THER WORDS, THE SALE CONSIDERATION WAS PAID BY THE PURCHASER IN CASH ONLY. IN THE ABSENCE OF ANY OTHER CORROBORATIVE EVIDENCE IT CANN OT BE ESTABLISHED THAT THE POWER OF ATTORNEY HOLDER SOLD THE LAND AS O WNER OF THE LAND. THE POWER OF ATTORNEY HOLDER ACTS ON BEHALF OF THE PERSONS WHO HAS EXECUTED THE POWER OF ATTORNEY. IN THESE CIRC UMSTANCES, ASSESSEES RELIANCE ON THE POWER OF ATTORNEY FOR EST ABLISHING THE GENUINENESS OF THE CASH DEPOSITED IN THE BANK IS NO T LEGALLY SUSTAINABLE. THE AGREEMENT TO SALE DO NOT BEAR THE S IGNATURE OF THE PURCHASER IN TOKEN OF THE CONFIRMATION OF THE TRANS ACTION. EVEN IN STATEMENT RECORDED U/S 131 HE HAS DENIED THE SANCTI TY OF THE SALE DEED. THUS IN THE AGREEMENT TO SALE THERE IS NO CONF IRMATION OF THE PURCHASER. EVEN IN THE STATEMENT RECORDED U/S 131 I N THE PRESENCE OF THE A/R OF THE ASSESSEE ALSO REITERATED THE FACT THAT HE HAS NOT PURCHASED ANY LAND FROM THE ASSESSEE. THERE IS NO DO CUMENTARY 4 ITA NO. 922/JP/2012 A.Y. 2008-09 SMT. ABHA JAIN VS. ITO EVIDENCE WITH THE ASSESSEE TO ESTABLISH THE FACT OF RECEIPT OF RS. 15 LAKHS FROM MR.SHAKEEL KHAN. 4. FEELING AGGRIEVED BY THE ORDER OF AO, THE ASSESS EE HAS PREFERRED APPEAL BEFORE LD. CIT (A) AND THE LD. CIT (A) HAS REAFFIRMED THE ORDER PASSED BY THE AO. THE REASONS GIVEN BY LD. CIT (A) IS AS UNDER :- 4.3. I HAVE CONSIDERED THE ASSESSMENT ORDER AS WEL L AS SUBMISSIONS MADE BY THE APPELLANT AND THE DETAILS F ILED. (A) THE APPELLANT HAS SOUGHT TO EXPLAIN THE SOURCE OF CA SH DEPOSIT OF RS. 15 LACS IN HER SAVINGS BANK ACCOUNT ON 16.07 .2007 AS THE CASH PAYMENT RECEIVED FROM THE SALE OF LAND SIT UATED AT 319, UDYOG NAGAR, JHOTWARA, JAIPUR TO SHAKEEL KHAN S /O AMEEN KHAN. THE APPELLANT HAS RELIED UPON THE AGREEM ENT TO SALE/IKRARNAMA DATED 04.06.2007, POWER OF ATTORNEY D ATED 04 TH JUNE, 2007 AND WILL DATED 4 TH JUNE, 2007 EXECUTED BY HER AS PER PRACTICE OF THE REAL ESTATE MARKET. THE AO HAS EXAMINED THE DOCUMENTS AS WELL AS THE PERS ON SHAKEEL KHAN AND HAS COME TO THE CONCLUSION THAT TH E ASSESSEES EXPLANATION WITH REGARD TO THE SOURCE OF CASH DEPOSIT OF RS. 15 LACS IN HER BANK ACCOUNT WAS UNACC EPTABLE BECAUSE OF FOLLOWING REASONS : (I) THE AGREEMENT TO SALE/IKRARNAMA DO NOT BEAR THE SIGNATURE OF THE PURCHASER IN TOKEN OF THE CONFIRMATION OF THE SALE TRANSACTION AND PAYMENT O F RS. 15 LACS BY THE BUYER TO THE APPELLANT. 5 ITA NO. 922/JP/2012 A.Y. 2008-09 SMT. ABHA JAIN VS. ITO (II) IN THE STATEMENT RECORDED U/S 131 THE ALLEGED BUYER I.E. SHAKEEL KHAN HAS DENIED THE MAKING OF ANY AGREEMENT FOR PURCHASE OF LAND WITH THE APPELLANT OR MAKING THE PAYMENT OF RS. 15 LACS IN CASH ON 15.03.2007 (RS. 1 LAC), 15.04.2007 (RS. 5 LACS), 15.05.2007 (RS. 5 LACS) AND 04.06.2007 (RS. 4 LACS) IN RESPONSE TO QUESTION NO. 4 AND 18. (III) THERE IS NO DOCUMENTARY EVIDENCE WITH THE ASSESSEE TO ESTABLISH THE FACT OF RECEIPT OF RS. 15 LACS FRO M MR. SHAKEEL KHAN. FROM THE COPY OF THE DOCUMENTS FILED WITH THE SUBMISSIONS, I FIND THAT THE AGREEMENT TO SALE IS S IGNED ONLY BY THE APPELLANT AND NOT BY THE PURCHASER AND SINCE THE PURCHASER HAS DENIED THE MAKING OF ANY AGREEMENT FO R PURCHASE OF LAND WITH THE APPELLANT OR MAKING THE PA YMENT OF RS. 15 LACS IN CASH, THE EXPLANATION FURNISHED BY T HIS APPELLANT REMAINS UNSUBSTANTIATED. THE WILL DATED 04.06.2007 I S ALSO A DOCUMENT PREPARED AND SIGNED ONLY BY THE APPELLANT IN FAVOUR OF SHAKEEL KHAN S/O AMEEN KHAN AND IT CAN BE SEEN O NLY AS A SELF SERVING DOCUMENT SUBMITTED BY THE APPELLANT. TH E POWER OF ATTORNEY IN FAVOUR OF SHRI SHAKEEL BY SMT. ABHA JAIN HAS BEEN ACCEPTED IN THE STATEMENT GIVEN ON 11.10.2007 AND IT HAS BEEN STATED BY SHAKEEL KHAN THAT ON THE BASIS O F SAID POWER OF ATTORNEY HE HAS SOLD THE SAID LAND IN PARTS ON 28.09.2007 AND 08.10.2007 FOR WHICH SALE DEEDS HAVE BEEN EXECUTED BY HIM. THE SALE PROCEEDS ARE STATED TO HA VE BEEN 6 ITA NO. 922/JP/2012 A.Y. 2008-09 SMT. ABHA JAIN VS. ITO GIVEN TO THE APPELLANT SUBSEQUENT TO THE SALE OF PL OT AS SALE DEED. FROM ABOVE IT IS CLEAR THAT THE APPELLANT HAS FAILED TO EXPLAIN THE SOURCE OF CASH DEPOSITS OF RS. 15 LACS IN HER SAVINGS BANK ACCOUNT MADE IN THE MONTH JULY, 2007. THE PLEA OF THE APPELLANT THAT ALL THE THREE DOCUMEN TS SHOULD BE SEEN TOGETHER AND AS PER MARKET PRACTICE THE SALE TRANSACTION AS PER AGREEMENT TO SALE SHOULD BE ACCE PTED IS FOUND TO BE WITHOUT MERIT SINCE WHAT IS ACCEPTABLE I N THE EYES OF LAW IS THE POWER OF ATTORNEY GIVEN BY THE APPELLAN T WHICH HAS BEEN REGISTERED IN THE OFFICE OF SUB REGISTRAR AND THE REGISTERED SALE DEEDS AND MONEY TRANSACTION REFLECT ED IN THOSE DOCUMENTS. THE CASH TRANSACTIONS WHICH MAY HAVE BEEN UNDERTAKEN BEHIND THE SCENE IS ONLY A MATTER OF GUE SS WORK AND PRESUMPTION UNLESS IT IS CONFIRMED BY THE OTHER PARTY I.E. THE ALLEGED BUYER AS NAMED IN THE IKRARNAMA/SALE AG REEMENT. THE PLEA OF THE APPELLANT THAT THE POSSESSION OF THE SAID LAND WAS HANDED OVER TO SHAKEEL KHAN IS NOT BORNE OUT BY THE ADMITTED DOCUMENT I.E. THE POWER OF ATTORNEY IN WHIC H IT IS MENTIONED THAT THE PLOT IS IN THE POSSESSION OF THE APPELLANT THE POWER OF ATTORNEY IS SUBJECT TO CANCELLATION. THE RELIANCE PLACED BY THE APPELLANT ON THE CROSS EXAMINATION OF SHAKEEL KHAN IS FOUND TO BE WITHOUT MERIT SINCE IN THE CROSS EXAMINATION THERE IS NO CONFIRMATION BY THE SAID WIT NESS THAT HE HAD MADE THE PAYMENT OF RS. 15 LACS IN CASH TO T HE APPELLANT. THE RELIANCE OF THE APPELLANT ON THE JUDG MENT OF HONBLE SUPREME COURT IN THE CASE OF SUMATI DAYAL V S. CIT IS 7 ITA NO. 922/JP/2012 A.Y. 2008-09 SMT. ABHA JAIN VS. ITO ALSO FOUND TO BE WITHOUT ANY MERIT SINCE THE APPELLA NT HAS FAILED TO SHOW THAT THE APPARENT IS NOT THE REAL. IN THESE FACTS AND CIRCUMSTANCES OF THE CASE, I AM OF THE CONSIDERED OPINION THAT THE AO HAS PASSED A WEL L REASONED AND DETAILED ORDER AFTER CONSIDERING THE I NQUIRIES MADE AND THE SUBMISSIONS GIVEN BY THE APPELLANT AND IT CAN NOT BE SAID TO BE ILLEGAL, UNJUSTIFIED, ARBITRARY A ND AGAINST THE FACTS OF THE CASE. THE APPELLANT HAS FAILED TO EXPLA IN THE SOURCE OF CASH DEPOSIT OF RS. 15 LACS IN HER SAVING S BANK ACCOUNT. ACCORDINGLY, THE ADDITION OF RS. 15 LACS A S UNEXPLAINED MONEY/CASH DEPOSIT IN BANK IS CONFIRMED IN VIEW OF THE PROVISIONS OF SECTION 69A OF THE ACT. GROUND NO. 1 OF THE APPELLANT IS DISMISSED. 5. NOW THE ASSESSEE IS BEFORE US. THE PRIMARY CONTENT IONS OF THE ASSESSEE BEFORE US ARE SUMMARIZED HEREIN BELOW. 6. THAT THE USUAL ACCEPTED TRANSFER DOCUMENTS LIKE A GREEMENT TO SALE, REGISTERED GPA AND WILL ALL DATED 4 TH JUNE, 2007 WERE EXECUTED BY THE ASSESSEE FOR TRANSFER OF A PIECE OF LAND SITUATED AT 319 UDY OG NAGAR, JHOTWARA, JAIPUR TO SHAKEEL KHAN FOR A TOTAL SALE CONSIDERATION OF RS. 15,00,000/-. SHRI SHAKEEL KHAN HAD MADE CASH PAYMENT OF RS. 15,00,000/- ON VARIOUS OCCASIONS I.E. THE DETAILS OF WHICH ARE AS UNDER :- 8 ITA NO. 922/JP/2012 A.Y. 2008-09 SMT. ABHA JAIN VS. ITO DATE AMOUNT 15.03.2007 1,00,000/- 15.04.2007 5,00,000/- 15.05.2007 5,00,000/- 04.06.2007 4,00,000/- TOTAL 15,00,000/- THE POSSESSION OF THE PLOT OF LAND WAS HANDED OVER TO SHRI SHAKEEL KHAN CONTEMPORANEOUSLY AT THE TIME OF EXECUTION OF ABOVE SAID DOCUMENTS. THEREFORE, THE SALE WAS COMPLETED FOR ALL PURPOSES. THE ASSESSEE HAD DEPOSITED THIS SUM OF RS. 15,00,000/- IN HER BANK ACCOUNT ON 16.07.2007. THE ASSESSEE HAS EXPLAINED THE SOURCE OF CASH DEPOSIT IN HER BAN K ACCOUNT AND, THEREFORE, THERE IS NO UNEXPLAINED CASH DEPOSIT IN HER BANK AC COUNT. 6.1. THE ASSESSEE HAS TAKEN US TO THE STATEMENT OF S HRI SHAKEEL KHAN WHO WAS EXAMINED BY THE AO AND ALSO CROSS EXAMINED BY THE A SSESSEE. THE SUM AND SUBSTANCE OF THE EXAMINATION AND CROSS EXAMINATION OF SHRI SHAKEEL KHAN WAS THAT SHAKEEL KHAN IS A UNSCRUPULOUS PERSON AND HAS DELIBERATELY DENYING THE EXECUTION OF THE AGREEMENT DATED 4 TH JUNE, 2007. HE HAD FURTHER DENIED THE PAYMENT OF RS. 15,00,000/- TO THE ASSESSEE. THE SAI D SHAKEEL KHAN HAD AVOIDED AND EVADED ALL THE RELEVANT QUESTIONS. IN RESPONSE TO QUESTION NOS. 9, 15 & 16, HE HAS REPLIED AS UNDER :- 9 ITA NO. 922/JP/2012 A.Y. 2008-09 SMT. ABHA JAIN VS. ITO IZU&9 IZU LA-5 DS MRRJ ESA VKIUS DGK FD VKHKK LSB H US VKIDS UKE EQ[RKJUKEK FN;K FKK MLESA OG MUDS IYKV LA-319 DK ,D FGLLK 123-87 OXZ XT VKIUS CSPK GS VXJ ;G CKR LR; GS RKS ML CSPKU DK IZFRQY TC PSD DS :I ESA IZKIR FD;K GS RKS VKIUS OG PSD VIUS UKE LS D;KSA FY;K RFKK VIUS CSAD [KKRS ESA D;KSA TEK FD;K RFKK CSAD LS UXN FUDKY DJ VKHKK LSBH RD IGWAWPKUS DK D;K DKJ.K GS\ MRRJ VKHKKLSBH US ESJS UKE IKWOJ VKWQ VVKUHZ DJ J[K H FKH BLFY;S ISLS NSUS FKS ESUSA NS FN;SA IZ'U&15 D;K VKIUS ;S NKSUKSA PSD VIUS CSAD[KKRS ESA TEK FD;K GS\ MRRJ&15 EQ>S ;KN UGHA GS ESA VIUK NKSUKSA CSAD [KKR S NS[KDJ CRKAXKA CSAD [KKRKSA DH UDY VHKH ESJS IKL UGHA GSA ESA DY NKSUKSA CSAD [KKRKSA DH UDY JH 'KJHQ [KKU IQ= JH GQLSU [KKU] IYKV UA-30] LSFUD EKXZ] >KSVOKM+K DS EKQZR 11-30 IZKR% IZLRQR DJ NWAXKA IZU&16 D`I;K CRK;SA VKI VKHKK LSBH DS IYKV UA-319 DK IWJK FGLLK DC&DC CSPK VKSJ DC&DC VKHKK LSBH DKS JDE IGWWAPK;K RFKK DQY FDRUK JDE FN;K GSA MRRJ EQ>S ;KN UGHA GSA IYKV LA-319 IWJS DKS ESUSA C SP FN;K ;G EQ>S ;KN GSA VKXS DQN HKH EQ>S ;KN UGHA GSA IN RESPONSE TO QUESTION NOS. 1 & 3 IN CROSS EXAMINA TION, HE HAS REPLIED AS UNDER :- 10 ITA NO. 922/JP/2012 A.Y. 2008-09 SMT. ABHA JAIN VS. ITO IZU&1 VKIUS CRK;K FD VKI ,P-DS- LSYL ESA DK;Z DJRS GSA D`I;K CRK;SA ,P-DS- LSYL FDLDH GS MLESA D;K O;KIKJ GKSRK GS RFKK VKI OGKWA D;K DJRS GSA MRRJ& ,P-DS- LSYL 'KEKSJ [KKU DK GS MUDS FIRK TH D K UKE JH GQLSU [KKU GS OG ESJS LXK EKEK GSA ,P-DS- LSYL ESA LSUSVJH VKBZVE VSFMAX O;KIKJ DJRS GSAA ESA OGKWA IJ LSYL ESU DS :I ESA DK;Z DJRK GWWAA EQ>S NQDKU DS ,D HKKX ESA ,D DEJK FN;K GS ESA OGKWA JGRK GWWAA ESJK IFJOKJ XKWAO&NKOVK&DYK RG- TK;Y] FTYK&UKXKSJ ESA JGRK GSA IZU&3 VKHKK LSBH LS VKIDH IGPKU DC VKSJ DSLS GQBZA MRRJ 3&4 LKY IGYS ESA FTL NQDKU IJ DKE DJRK GWWA OG KWA LS LKEKU YSUS VK;S FKSA 6.2. THE LD. COUNSEL FOR THE ASSESSEE ALSO RELIED UP ON THE JUDGMENT PASSED BY THE HONBLE SUPREME COURT IN THE CASE OF SURAJ LAMP & INDUSTRIES PVT. LTD. VS. STATE OF HARYANA & ANOTHER IN SLP NO. 13917 OF 2009 DATED 11 TH OCTOBER, 2011 TO BUTTRESS HIS CONTENTION THAT THE AGREEMENT TO SA LE, GPA AND WILL IS AN ACCEPTED PREVALENT PRACTICE IN THE COUNTRY AS NOTIC ED BY THE HONBLE SUPREME COURT. IT WAS ALSO CONTENDED BY THE LD. COUNSEL FOR THE ASSESSEE THAT THE DEAL WAS COMPLETED BETWEEN HER AND SHAKEEL KHAN, THEREFOR E, THERE IS A DIRECT NEXUS BETWEEN THE SALE AND DEPOSIT OF THE AMOUNT IN THE BA NK ACCOUNT. 6.3. IT WAS ALSO CONTENDED THAT THERE WAS NO PRIOR RE LATIONSHIP BETWEEN THE ASSESSEE AND THE SELLER. THIS WAS REFERRED IN THE CO NTEXT THAT THE POWER OF 11 ITA NO. 922/JP/2012 A.Y. 2008-09 SMT. ABHA JAIN VS. ITO ATTORNEY CANNOT BE GIVEN TO A PERSON WHO IS STRANGER TO THE ASSESSEE. IT WAS SUBMITTED THAT THERE WAS NO PRIOR RELATIONSHIP BETWEE N THE ASSESSEE AND SHAKEEL KHAN, THEREFORE, THERE IS NO QUESTION OF ISSUING AN Y POWER OF ATTORNEY WITH AN AUTHORITY TO SELL AND DISPOSE OFF THE PROPERTY. THE SAID POWER OF ATTORNEY CAN ONLY BE GIVEN TO THE ASSESSEE IN CASE OF TRANSFER O F LAND IN FAVOUR OF SHAKEEL KHAN. THE LD. A/R HAS ALSO DRAWN OUR ATTENTION TO TH E VARIOUS ANSWERS GIVEN BY SHAKEEL KHAN DURING HIS EXAMINATION/CROSS EXAMINATI ON FOR THE PURPOSE OF STRENGTHENING HIS CASE THAT THERE WAS NO PRIOR RELAT IONSHIP BETWEEN THEM. 6.4. LASTLY IT WAS CONTENDED THAT LD. CIT (A) HAS ACC EPTED THE VERSION OF SALE OF PLOT BY SUB-DIVISION IN TWO SMALLER PLOTS BY SHAKEEL KHAN FOR A CONSIDERATION OF RS. 1,10,000/- AND RS. 6,50,000/- THROUGH TWO REGIST ERED SALE DEEDS. HOWEVER, THE REGISTRATION AUTHORITIES HAVE EVALUATED THE SAL E CONSIDERATION FOR THE PURPOSE OF STAMP DUTY AT RS. 1,18,383/- AND RS. 7,5 4,845/- RESPECTIVELY. THE TOTAL SALE CONSIDERATION UNDER SECTION 50C THUS COM ES TO RS. 8,73,228/-. IT IS THE CASE OF THE ASSESSEE THAT THE CAPITAL GAINS ARISING FROM THESE TWO TRANSACTIONS ARE TAXABLE IN THE HANDS OF THE ASSESSEE. HOWEVER, THE ASSESSEE HAS MADE A NEW HOUSE AND COMPLETED CONSTRUCTION BY MAKING INVES TMENT EXCEEDING RS. 8,73,228/-. THEREFORE, IT WAS CONTENDED THAT THE CAP ITAL GAIN IS EXEMPT IN THE HANDS OF THE ASSESSEE. IN VIEW OF THE ABOVE, THE AS SESSEE HAS NOT PRESSED GROUND NO. 2, REFERRED HEREIN ABOVE. 12 ITA NO. 922/JP/2012 A.Y. 2008-09 SMT. ABHA JAIN VS. ITO 7. PER CONTRA, THE LD. D/R FOR THE REVENUE HAS RELI ED UPON THE ORDER PASSED BY LD. AUTHORITIES BELOW AND HAS CONTENDED THAT RS. 15,00,000/- DEPOSITED BY THE ASSESSEE IN HER BANK ACCOUNT ON 16 TH JULY, 2007 HAS NO CO-RELATION WITH THE CASH PAYMENTS ALLEGEDLY RECEIVED BY THE ASSESSEE ON VARI OUS OCCASIONS REFERRED HEREIN ABOVE FROM 15.03.2007 TO 04.06.2007. IT WAS ALSO CONTENDED BY THE LD. D/R THAT IF THE AMOUNT OF RS. 1,00,000/- WAS RECEIVE D ON 15.03.2007 I.E. IN THE PREVIOUS ASSESSMENT YEAR, THE SAME WAS REQUIRED TO B E DEPOSITED BY THE ASSESSEE, IF THE SALE AGREEMENT WAS CORRECT IN THAT FINANCIAL YEAR. FURTHER, IT WAS CONTENDED BY THE LD. D/R THAT THE AGREEMENT TO SALE WAS NEVER EXECUTED BETWEEN THE PARTIES AND THE SAME IS A SHAM DOCUMENT AS IT NEITHER REFLECTS THE INTENTION OF THE ASSESSEE NOR IT BEARS THE SIGNATUR E OF SHAKEEL KHAN. 7.1. THE LD. D/R ALSO RELIED UPON THE STATEMENT OF S HAKEEL KHAN PURSUANT TO THE NOTICE ISSUED BY THE AO AND HAS SUBMITTED THAT SHAKEEL KHAN HAS CATEGORICALLY DENIED THE EXECUTION OF THE AGREEMENT TO SALE AND HAS FURTHER DENIED THE PAYMENT OF RS. 15,00,000/- TO THE ASSESS EE. 7.2. LASTLY IT WAS CONTENDED THAT THE ASSESSEE CANNO T BE PERMITTED TO BLOW HOT AND COLD. 8. ON THE OTHER HAND, THE ASSESSEE IS CLAIMING THAT THE SALE CONSIDERATION OF RS. 15,00,000/- WAS RECEIVED BY HER ON THE BASIS OF DOCUMENTS EXECUTED BY HER IN FAVOUR OF SHAKEEL KHAN AND THE ASSESSEE CLAIMED EXEMPTION FROM CAPITAL GAINS 13 ITA NO. 922/JP/2012 A.Y. 2008-09 SMT. ABHA JAIN VS. ITO ON ACCOUNT OF THE TWO SALE DEEDS EXECUTED BY SHAKEEL KHAN WHICH WERE EVALUATED FOR THE PURPOSE OF STAMP DUTY FOR RS. 8,7 3,228/-. IT WAS SUBMITTED THAT IF THE SALE AGREEMENT EXECUTED BY SHAKEEL KHAN WAS CORRECT AND THE BENEFIT OF WHICH WAS TAKEN BY THE ASSESSEE, THE CASH DEPOSIT OF RS. 15,00,000/-, THEREFORE, REMAINS UNEXPLAINED AND HAS RIGHTLY BEEN TAXED BY THE A.O. 9. WE HAVE HEARD RIVAL CONTENTIONS AND PERUSED THE MATERIAL ON RECORD. IN THE PRESENT CASE ASSESSEE WAS CALLED UPON TO EXPLAIN THE DEPOSITS MADE IN HER SAVINGS BANK ACCOUNT TO THE EXTENT OF RS. 15,00,000 /-. THE ASSESSEE WAS REQUIRED TO SATISFACTORILY EXPLAIN THE SOURCE OF TH E CASH DEPOSIT IN THE SAVINGS BANK ACCOUNT DURING THE ASSESSMENT YEAR. FOR THE PU RPOSE OF EXPLAINING THE SOURCE OF CASH DEPOSIT, THE ASSESSEE HAS SUBMITTED THAT THE AMOUNT WAS RECEIVED BY HER ON ACCOUNT OF SALE OF HER PLOT T O ONE SHRI SHAKEEL KHAN VIDE DOCUMENTS DATED 4.6.2007 . THE SALE CONSIDERATION RE CEIVED BY HER WAS DEPOSITED BY HER IN SAVINGS BANK ACCOUNT AFTER FINA LIZATION OF SALE. 9.1. THE ASSESSEE TRANSFERRED THIS PLOT ON THE BASIS OF AGREEMENT TO SALE, WILL AND GENERAL POWER OF ATTORNEY. THE GENERAL POWER OF A TTORNEY HAD BEEN REGISTERED IN FAVOUR OF SHRI SHAKEEL KHAN ON 04.06. 2007. THE ASSESSEES CASE PRIMA FACIE APPEARS TO BE IN FAVOUR OF ASSESSEE THA T NO ONE WITHOUT ANY RECEIPT OF CONSIDERATION WOULD REGISTER THE GENERAL POWER OF ATTORNEY IN FAVOUR OF A STRANGER. BUT IT IS ALSO UNDISPUTED FACT THAT ON VE RIFICATION FROM THE SIDE OF SHRI 14 ITA NO. 922/JP/2012 A.Y. 2008-09 SMT. ABHA JAIN VS. ITO SHAKEEL KHAN THROUGH STATEMENT RECORDED UNDER SECTI ON 131 HAS SHOWN THAT HE HAD DENIED HAVING GIVEN RS. 15,00,000/- AGAINST THE SALE CONSIDERATION AS CLAIMED BY THE ASSESSEE. THEREAFTER SHRI SHAKEEL KH AN HAD SOLD THIS PLOT SUB- DIVIDING TO THIRD PARTY ON SUBSEQUENT DATE THROUGH REGISTERED SALE DEED. THERE IS NO EVIDENCE ABOUT SUBSEQUENT SALE AND WHAT STATUS HAS BEEN SHOWN IN THE REGISTERED SALE DEED OF SHRI SHAKEEL KHAN. ON VERI FICATION OF BANK ACCOUNT, IT IS ALSO CLEAR THAT ASSESSEE HAS WITHDRAWN MONEY FROM THE BANK ACCOUNT IN WHICH CASH OF RS. 15,00,000/- WERE DEPOSITED FOR PURCHASE OF RESIDENTIAL HOUSE. IT IS ALSO FOUND FROM THE COPY OF ACCOUNT THAT ASSESSEE H AD ALSO TAKEN LOAN FROM PUNJAB NATIONAL BANK FOR CONSTRUCTION OF THE HOUSE. ALL THESE FACTS ARE REQUIRED TO BE RE-EXAMINED BY THE AO WHICH HAS NOT BEEN CONS IDERED AT THE TIME OF ASSESSMENT AS WELL AS BY THE LD. CIT (A), WHICH SHALL EXPLAIN THE NATURE OF TRANSACTION. ACCORDINGLY, WE SET ASIDE THIS ISSUE TO THE FILE OF AO FOR FRESH DECISION AFTER AFFORDING OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 10. IN THE RESULT, ASSESSEES APPEAL IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 30/10/2015. SD/ SD/- VH-VKJ-EHUK YFYR DQEKJ (T.R. MEENA) (LALIET KUMAR) YS[KK LNL;@ ACCOUNTANT MEMBER U;KF;D LNL;@ JUDICIAL MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 30/10/2015 DAS/ 15 ITA NO. 922/JP/2012 A.Y. 2008-09 SMT. ABHA JAIN VS. ITO VKNS'K DH IZFRFYFI VXZSFKR @ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ @ THE APPELLANT- SMT. ABHA JAIN, JAIPUR. 2. IZR;FKHZ @ THE RESPONDENT- THE ITO, WARD 1(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. 922/JP/2012) VKNS'KKUQLKJ @ BY ORDER, LGK;D IATHDKJ @ ASST. REGISTRAR