INCOME TAX OFFICER, WARD-7-2, JAIPUR V. SHRI BHANWAR LAL, JAIPUR

ITA 948/JPR/2018

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 2195 (ITAT-JAIPUR)
• Duration Of Justice: 1 year(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-08-2019
• Appeal Filed By: Department
• Order Result: Partly Allowed
• Bench Allotted: B
• Assessment Year: 2012-2013
• Appeal Filed On: 09-08-2018
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Keywords: Additional evidence; Tangible material; Wrong claim; Corroborative evidences; Valuation report; Reassessment proceedings; Set aside
• Section: 54B; 54F; 143(1); 250; 251; 147; 148; 28

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCH B, JAIPUR JH JES'K LH- 'KEKZ] YS[KK LNL; ,O A H JH FOT; IKY JKWO] U;KF;D LNL; DS LE{K BEFORE: SHRI RAMESH C. SHARMA, AM & SHRI VIJAY PAL RAO, JM VK;DJ VIHY LA-@ ITA NO. 948/JP/2018 FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2012-13. THE INCOME TAX OFFICER, WARD 7(2), JAIPUR. CUKE VS. SHRI BHANWAR LAL, S/O SHRI BALU RAM 26, BARALA WORK SHOP, RAMPURA ROAD, SUKHIYAN, TEHSIL SANGANER, JAIPUR. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN NO. AHNPL 0438 K VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT C.O. NO. 32/JP/2018 (ARISING OUT OF VK;DJ VIHY LA-@ ITA NO. 948/JP/2018) FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2012-13. SHRI BHANWAR LAL, S/O SHRI BALU RAM 26, BARALA WORK SHOP, RAMPURA ROAD, SUKHIYAN, TEHSIL SANGANER, JAIPUR. CUKE VS. THE INCOME TAX OFFICER, WARD 7(2), JAIPUR. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN NO. AHNPL 0438 K VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT JKTLO DH VKSJ LS@ REVENUE BY : MS. ANURADHA (JCIT) FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY : SHRI RAJEEV SOGANI (CA) & MS. SHIVANGI SAMDHANI (CA) LQUOKBZ DH RKJH[K@ DATE OF HEARING : 20.08.2019. ?KKS'K .KK DH RKJH[K@ DATE OF PRONOUNCEMENT : 23/08/2019. VKNS'K@ ORDER PER VIJAY PAL RAO, JM : THIS APPEAL BY THE REVENUE AND CROSS OBJECTION BY THE ASSESSEE ARE DIRECTED AGAINST THE ORDER DATED 23 RD MAY, 2018 OF LD. CIT (A)-1, JODHPUR (CAMP AT JAIPU R) FOR THE ASSESSMENT YEAR 2012-13. THE REVENUE HAS R AISED THE FOLLOWING GROUNDS :- 2 ITA NO. 948/JP/2018 & CO 32/JP/2018 SHRI BHANWAR LAL, JAIPUR. 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE C ASE, WHETHER THE LD. CIT (A) WAS JUSTIFIED IN ACCEPTING ADDITIONAL E VIDENCE CONTRARY TO THE CONDITIONS UNDER RULE 46A EVEN WHEN THE AO HAS OBJECTED TO THE SAME BY NOTING IN THE REMAND RE PORT THAT SUFFICIENT OPPORTUNITY WAS GIVEN TO THE ASSESSEE TO PRODUCE THE EVIDENCE REGARDING ALLEGED EXPENDITURE OF RS. 1,02, 92,495/- TO CLAIM U/S 54F? 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E, WHETHER THE LD. CIT (A) WAS JUSTIFIED IN GIVING RELIEF TO THE A SSESSEE BY ACCEPTING ADDITIONAL EVIDENCE CONTRARY TO RULE 46A AND WITHOUT APPRECIATING THE FACT THAT THE ASSESSEE WAS REPRESE NTED BY AN AUTHORIZED REPRESENTATIVE DURING THE COURSE OF ASSE SSMENT PROCEEDINGS AND IN SPITE OF REPEATED OPPORTUNITIES AS PER THE ORDER SHEET THE DOCUMENTS FURNISHED BEFORE CIT (A) WERE NOT FURNISHED BEFORE THE AO NOR WAS TIME SOUGHT TO FURN ISH THESE DOCUMENTS ON ACCOUNT OF ALLEGED ILLNESS OF THE ASSE SSEE OR HIS SON. 3. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E, WHETHER THE LD. CIT (A) WAS JUSTIFIED IN ACCEPTING THE CLAIM OF THE ASSESSEE WITHOUT EXAMINING THE LEGALITY OF THE CLAIM OF ALLO WING DEDUCTION U/S 54F OF THE ACT OF RS. 1,02,92,495/- TO THE ASSE SSEE EVEN THOUGH THE VALUATION REPORT SUBMITTED BY THE ASSESS EE CLEARLY STATES THAT THE PROPERTY IS UNDER JOINT OWNERSHIP A ND THE SHARE IS NOT DIVIDED, AND SO THE DECISION OF CIT (A) IS C ONTRARY TO THE FINDING OF THE HONBLE JURISDICTIONAL HIGH COURT OR DER IN THE CASE OF KALYAN VS. CIT & OTHER (251 CTR 174 (RAJ.). 4. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E, WHETHER THE LD. CIT (A) WAS JUSTIFIED IN DELETING THE DISALLOWA NCE OF DEDUCTION CLAIMED U/S 54B OF THE ACT OF RS. 1,28,40 ,000/- IGNORING THE FACT THAT INVESTMENT FOR QUALIFYING TH E DEDUCTION CLAIMED WAS NOT MADE BY THE ASSESSEE IN HIS OWN NAM E BUT IN THE NAME OF HIS SON AND DAUGHTER-IN-LAW. THIS IS CO NTRARY TO THE FINDING OF THE HONBLE RAJASTHAN HIGH COURT IN CASE OF KALYA VS. CIT & ORS., 250 CTR 174 (RAJ.) AND DECISION OF HON BLE ITAT, JAIPUR BENCH, JAIPUR IN CASE OF LATE SH. BHAGWANT M EENA L/H OF SH. SHRAWAN LAL MEENA VS ITO (145/JP/2015 DT. 24.11 .2016)? 5. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E, WHETHER THE LD. CIT (A) WAS JUSTIFIED IN GIVING RELIEF TO THE A SSESSEE BY ACCEPTING ADDITIONAL EVIDENCE CONTRARY TO RULE 46A AND WITHOUT APPRECIATING THE FACT THAT THE ASSESSEE WAS REPRESE NTED BY AN AUTHORIZED REPRESENTATIVE DURING THE COURSE OF ASSE SSMENT PROCEEDINGS AND IN SPITE OF REPEATED OPPORTUNITIES AS PER THE ORDER SHEET THE DOCUMENTS FURNISHED BEFORE CIT (A) WERE NOT 3 ITA NO. 948/JP/2018 & CO 32/JP/2018 SHRI BHANWAR LAL, JAIPUR. FURNISHED BEFORE THE AO NOR WAS TIME SOUGHT TO FURN ISH THESE DOCUMENTS ON ACCOUNT OF ALLEGED ILLNESS OF THE ASSE SSEE OR HIS SON AND THEREAFTER DELETING THE ADDITION OF RS. 3,0 5,184/- MADE BY DISALLOWING COST OF IMPROVEMENT OF LAND ON ACCOU NT OF NON- PRODUCTION OF RELEVANT DETAILS/DOCUMENTS & NON-VERI FICATION OF ASSESSEES CLAIM? 6. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E, WHETHER THE LD. CIT (A) WAS JUSTIFIED IN GIVING RELIEF TO THE A SSESSEE BY ACCEPTING ADDITIONAL EVIDENCE CONTRARY TO RULE 46A AND WITHOUT APPRECIATING THE FACT THAT THE ASSESSEE WAS REPRESE NTED BY AN AUTHORIZED REPRESENTATIVE DURING THE COURSE OF ASSE SSMENT PROCEEDINGS AND IN SPITE OF REPEATED OPPORTUNITIES AS PER THE ORDER SHEET THE DOCUMENTS FURNISHED BEFORE CIT (A) WERE NOT FURNISHED BEFORE THE AO NOR WAS TIME SOUGHT TO FURN ISH THESE DOCUMENTS ON ACCOUNT OF ALLEGED ILLNESS OF THE ASSE SSEE OR HIS SON AND THEREAFTER DELETING THE ADDITION OF RS. 4,3 0,000/- MADE BY DISALLOWING TRANSFER EXPENSES ON ACCOUNT OF NON- PRODUCTION OF RELEVANT DETAILS/DOCUMENTS & NON-VERIFICATION OF ASSESSEES CLAIM ? 7. THE APPELLANT CRAVES LEAVE TO ADD, ALTER, AMEND, WITHDRAW OR INSERT ANY GROUND OR GROUNDS OF APPEAL BEFORE OR AT THE TIME OF HEARING OF THE APPEAL. GROUND NOS. 1 TO 3 ARE REGARDING THE DISALLOWANCE O F CLAIM OF DEDUCTION UNDER SECTION 54F OF THE IT ACT WHICH WAS ALLOWED BY THE LD. CIT (A) AFTER CONSIDERING THE ADDITIONAL EVIDENCE F ILED BY THE ASSESSEE. 2. THE ASSESSEE IS AN INDIVIDUAL AND FILED HIS RETU RN OF INCOME FOR THE YEAR UNDER CONSIDERATION ON 26.03.2013 DECLARING TOTAL INCOME AT RS. 2,41,740/- INCLUDING LONG TERM CAPITAL GAIN OF RS. 1,51,821/-. SUBSEQUENTLY, THE AO INITIATED THE PROCEEDINGS UNDER SECTION 147/148 OF THE I.T. ACT ON THE BASIS OF INFORMATION RECEIVED FROM THE INVESTIGATION WING REGARDING THE DEDUCTION CLAIMED BY THE ASSESSEE UNDER SECTION 54F AND 54B OF THE IT ACT AS WELL AS UNEXPLAINED CA SH DEPOSIT IN THE BANK, BY ISSUING A NOTICE UNDER SECTION 148 ON 28 TH MARCH, 2014. DURING THE YEAR UNDER CONSIDERATION, THE ASSESSEE SOLD LAND SITUATED AT V ILLAGE SUKHIYA, PATWAR HALKA- 4 ITA NO. 948/JP/2018 & CO 32/JP/2018 SHRI BHANWAR LAL, JAIPUR. KALYANPURA, TEHSIL SANGANER, JAIPUR BEARING KHASRA NO. 142 ADMEASURING 1.21 HECTARES TO M/S. TRIVENI PROPCON PVT. LTD. FOR A CO NSIDERATION OF RS. 2,43,11,000/- VIDE SALE DEED DATED 4 TH MAY, 2011. THE AO WHILE PASSING THE REASSESSMENT ORDER DISALLOWED THE CLAIM OF DEDUCTION UNDER SECTION 54F AS WELL AS 54B OF THE IT ACT ON THE GROUND THAT DESPITE THE SHOW CAUSE NOTICE ISSUE D TO THE ASSESSEE NEITHER THE ASSESSEE NOR HIS AUTHORIZED REPRESENTATIVE APPEARED AND NO DETAILS AS REQUIRED WERE FILED BY THE ASSESSEE. THUS THE AO HELD THAT T HE ASSESSEE FAILED TO EXPLAIN THE SOURCE OF DEDUCTION OF RS. 2,31,32,495/- CLAIMED UN DER SECTION 54F AND 54B OF THE IT ACT. ON APPEAL BEFORE THE LD. CIT (A), THE ASSE SSEE FILED ADDITIONAL EVIDENCE IN SUPPORT OF THE CLAIM OF DEDUCTION UNDER SECTION 54F AND 54B OF THE IT ACT. THE LD. CIT (A) CALLED FOR A REMAND REPORT FROM THE AO ON T HE ADDITIONAL EVIDENCE FILED BY THE ASSESSEE AND AFTER CONSIDERING THE REMAND REPOR T ALLOWED THE CLAIM OF DEDUCTION UNDER SECTION 54F AS WELL AS 54B OF THE IT ACT. 3. BEFORE US, THE LD. D/R OF THE ASSESSEE HAS SUBMI TTED THAT THE EVIDENCE PRODUCED BY THE ASSESSEE BEFORE THE LD. CIT (A) IN SUPPORT OF THE CLAIM OF DEDUCTION UNDER SECTION 54F IS NOTHING BUT AN AFTERTHOUGHT SE LF SERVING DOCUMENT WITHOUT EVEN ESTABLISHING THAT THE ASSESSEE HAS CONSTRUCTED A NE W RESIDENTIAL HOUSE. THE LD. D/R HAS REFERRED TO THE VALUATION REPORT FILED BY THE A SSESSEE AND SUBMITTED THAT THE VALUER HAS ALSO STATED IN THE REPORT THAT THE RESID ENTIAL FOUR STORIED HOUSE CLAIMED TO HAVE BEEN CONSTRUCTED BY THE ASSESSEE IS A JOINT PR OPERTY OF HUF AND THE SHARE OF THE ASSESSEE IS ALSO NOT IDENTIFIABLE. THEREFORE, T HE CLAIM OF THE ASSESSEE OF INVESTING THE PROCEEDS OF EXISTING ASSET IN CONSTRUCTION OF T HE HOUSE IS VAGUE WHICH IS BASED ONLY ON THE REPORT OF THE VALUER. THE VALUER HIMSE LF HAS NOT GIVEN THE SEPARATE 5 ITA NO. 948/JP/2018 & CO 32/JP/2018 SHRI BHANWAR LAL, JAIPUR. VALUATION OF THE ASSESSEES SHARE BUT IT WAS A JOIN T PROPERTY OF THE HUF WHEREIN THE ASSESSEE IS HAVING ONLY A SHARE. 4. ON THE OTHER HAND, THE LD. A/R OF THE ASSESSEE H AS SUBMITTED THAT THE ASSESSEE PRODUCED THE EVIDENCE IN SUPPORT OF THE EX PENDITURE INCURRED BY THE ASSESSEE IN CONSTRUCTION OF THE HOUSE. THE ENTIRE E VIDENCE HAS BEEN EXAMINED BY THE AO AND ACCEPTED IN THE REMAND REPORT. THUS WHE N THE AO HAS NOT DISPUTED THE CORRECTNESS OF THE EVIDENCE IN THE REMAND REPORT, T HEN THE AO CANNOT CHALLENGE THE FINDING OF THE LD. CIT (A) WHICH IS BASED ON THE RE MAND REPORT. HE HAS SUPPORTED THE ORDER OF THE LD. CIT (A). 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AS WELL AS THE RELEVANT MATERIAL ON RECORD. THERE IS NO DISPUTE THAT THE REASSESSMENT ORDER HAS BEEN PASSED EX PARTE UNDER SECTION 147/144 OF THE IT ACT AS THE ASSESSEE HAS NOT RESPONDED TO THE SHOW CAUSE NOTICE ISSUED BY THE AO. IT IS ALSO MANIFEST FROM THE RECORD THAT THE ASSESSEE HAS NOT PRODUCED ANY SUPPORTING EVIDENCE FOR CLAIM OF DEDUCTION UNDER SECTION 54F AS WELL AS UNDER SECTION 54B OF THE ACT. THEREFORE , THE AO DISALLOWED THE CLAIM OF THE ASSESSEE WHILE PASSING THE REASSESSMENT ORDER. ON APPEAL BEFORE THE LD. CIT (APPEALS), THE ASSESSEE HAS PRODUCED THE ADDITIONAL EVIDENCE ALONG WITH THE APPLICATION UNDER RULE 46A OF THE IT RULES. THE DE TAILS OF THE ADDITIONAL EVIDENCE HAVE BEEN PRODUCED BY THE LD. CIT (A) AT PAGES 5 TO 7 OF THE IMPUGNED ORDER ARE AS UNDER :- S.NO. PARTICULARS PAGE NO. ADDITIONAL EVIDENCES 1. PAYMENT VOUCHER OF CONSTRUCTION EXPENSES AMOUNTING TO RS. 1,80,000/- INCURRED IN F.Y. 2003-04 ON THE LAND SOL D. 1 - 2 6 ITA NO. 948/JP/2018 & CO 32/JP/2018 SHRI BHANWAR LAL, JAIPUR. 2. PAYMENT VOUCHER BROKERAGE PAID ON SALE OF LAND RS. 1,66,667 / - TO SHRI BABU SINGH ALONG WITH HIS IDENTITY PROOF. 3 - 4 3. PAYMENT VOUCHER BROKERAGE PAID ON SALE OF LAND RS. 1,66,667/ - TO SHRI RAJU CHOUDHARY ALONG WITH HIS IDENTITY PROOF. 5 - 6 4. PAYMENT VOUCHER BROK ERAGE PAID ON SALE OF LAND RS. 1,66,667/ - TO SHRI MAHENDRA SINGH ALONG WITH HIS IDENTITY PROOF. 7 - 8 5. VALUATION REPORT OF THE HOUSE CONSTRUCTED DATED 20. 03.2013 ( RS. 1,02,92,495) AND BILLS RELATED TO CONSTRUCTION FOR WHICH CLAIM U/S 54F HAS BEEN MADE. 9 - 78 6. PURCHASE DEED OF AGRICULTURE LAND (RS. 34,15,500) D ATED 17.08.2011 IN THE NAME OF SON HANUMAN SAHAY CHOUDHARY FOR WHIC H CLAIM U/S 54B HAS BEEN MADE. 79 - 85 7. PURCHASE DEED OF AGRICULTURE LAND (RS. 34,15,500) D ATED 17.08.2011 IN THE NAME OF DAUGHTER-IN-LAW SMT. NAINA DEVI FOR WHICH CLAIM U/S 54B HAS BEEN MADE. 86 - 97 8. GIRDARWARI REPORT OF THE AGRICULTURE LAND PURCHASED , EVIDENCING AGRICULTURE ACTIVITIES. 98 - 103 9 . SUPPORTING BILLS AND VOUCHERS OF DEVELOPMENT EXPENS ES INCURRED ON THE AGRICULTURE LAND PURCHASED. A PAYMENT VOUCHERS, JAMABANDI AND IDENTITY PROOF OF F ARMERS FROM WHOM SOIL IS PURCHASED. 104 - 123 B PAYMENT VOUCHERS FOR JCB CHARGES (LOADING & UNLOADI NG) ALONG WITH THE IDENTITY PROOF OF CONTRACTORS. 124 - 139 C PAYMENT VOUCHERS OF TROLLEY/DUMPER CHARGES (TRANSPORTATION) ALONG WITH THE IDENTIFY PROOF OF CONTRACTORS. 140 - 180 D PAYMENT VOUCHERS OF LEAVING CHARGES ALONG WITH THE IDENTITY PROOFS OF CONTRACTORS. 181 - 183 E PAYMENT VOUCHER AND IDENTITY PROOF OF FENCING CHARG ES PAID . 184 - 185 10. PHOTOGRAPH OF THE LAND PURCHASED EVIDENCING THE DEV ELOPMENT ACTIVITIES CARRIED ON IT. 186 11. LETTER OF SARPANCH CERTIFYING THE DEVELOPMENT ACTIV ITIES. 187 12 . CONFIRMATION OF AGENTS THROUGH WHOM AGRICULTURE PRO DUCE OF THE ASSESSEE WAS SOLD AND CONFIRMATION OF THE SEED TRAD ER FROM WHO SEEDS AND FERTILIZERS WERE PURCHASED, EVIDENCING AG RICULTURE ACTIVITIES ON THE LAND SOLD. 188 - 189 THE LD. CIT (A) VIDE LETTER DATED 24 TH MARCH, 2017 ASKED THE AO TO SUBMIT THE REMAND REPORT ON THE ADMISSION OF ADDITIONAL EVIDEN CE AS WELL AS AFTER VERIFICATION OF 7 ITA NO. 948/JP/2018 & CO 32/JP/2018 SHRI BHANWAR LAL, JAIPUR. ADDITIONAL EVIDENCE SUBMITTED BY THE ASSESSEE. WE FIND THAT THE AO IN THE REMAND PROCEEDINGS HAVE EXAMINED THE EVIDENCE FILED BY THE ASSESSEE IN SUPPORT OF THE CLAIM UNDER SECTION 54F. THE RELEVANT PART OF THE REMAND REPORT ARE AS UNDER :- CLAIMS OF DEDUCTION U/S 54F : THE OBJECTION OF THE APPELLANT ARE THE FOLLOWING GROUNDS :- THE LAND SOLD WAS AGRICULTURE LAND ONLY AND THE FAC TS IS EVIDENT FROM THE CONFIRMATIONS WHICH REPRESENTS THE VALU E OF THE PROPERTY AS PER THE VALUATION REPORT. COMMENTS : DURING THE COURSE OF ASSESSMENT PROCEEDINGS, NEITHE R ASSESSEE/AR OF THE ASSESSEE ATTENDED NOT FILED ANY WRITTEN SUBMISS ION, THEREFORE, THE LIABILITY OF CAPITAL GAIN COULD NOT BE VERIFIED THA T TIME. THE ASSESSEE HAS FILED NEW EVIDENCE U/S 46A OF THE ACT BEFORE THE L/ D CIT (A)-5, JAIPUR WHICH IS REFERRED TO ASSESSING OFFICER FOR VERIFY. ASSESSEE HAS INVESTED INTO CONSTRUCTION OF A RESIDE NTIAL HOUSE PROPERTY AT LAND OWNED BY HIM (INHERITED FROM HIS FATHER). T HE AMOUNT OF RS. 1,02,92,495/- WAS INVESTED ON THE CONSTRUCTION OF H OUSE, IN SUPPORT OF CONSTRUCTION OF HOUSE, ASSESSEE HAS PRODUCED VALUAT ION REPORT BY REGISTERED VALUER. THE FOLLOWING DOCUMENTARY EVIDEN CE IS PRODUCED BY THE ASSESSEE WHICH ARE AS UNDER :- A) SHRI BHANWAR LAL CHAUDHARY, CONTRACTOR OF THE FURNI TURE, POP PAIN AND COLOURS HAS BEEN GIVEN STATEMENT ON 16/06/2017 AND ALSO PRODUCED AFFIDAVIT, AGREEMENT AND BILL/VOUCHERS WHI CH ENCLOSED FOR KIND REFERENCE. B) SHRI MANOJ CHAUDHARY, PLUMBER AND SANITARY FITTING ETC HAS BEEN GIVEN STATEMENT ON 18/08/2017 AND HE IS ALSO PRODUC ED AFFIDAVIT, AGREEMENT, LEDGER AND BILL/VOUCHERS ETC. WHICH IS E NCLOSED FOR KIND REFERENCE. 8 ITA NO. 948/JP/2018 & CO 32/JP/2018 SHRI BHANWAR LAL, JAIPUR. C) SHRI MADHU SUDAN, ELECTRICITY FITTER HAS BEEN GIVEN STATEMENT ON 18/08/2017 AND HE IS ALSO PRODUCED AFFIDAVIT, AGREE MENT, LEDGER AND BILL/VOUCHERS ETC. WHICH IS ENCLOSED FOR KIND R EFERENCE. D) SHRI MADAN LAL CHAUDHARY, CIVIL CONTRACTOR HAS BEEN GIVEN STATEMENT ON 18/08/2017 AND HE IS ALSO PRODUCED AFF IDAVIT, AGREEMENT, LEDGER AND BILL/VOUCHERS ETC. WHICH IS E NCLOSED FOR KIND REFERENCE. E) SHRI CHAVAR SINGH RAJPOOT, TILES AND MARBLES FITTER HAS BEEN GIVEN STATEMENT ON 18/08/2017 AND HE IS ALSO PRODUCED AFF IDAVIT, AGREEMENT, LEDGER AND BILL/VOUCHERS ETC. WHICH IS E NCLOSED FOR KIND REFERENCE (COPIES OF RELEVANT DOCUMENTS ENCLOSED HE REWITH). THE AO HAS SPECIFICALLY MENTIONED THE DOCUMENTS PRO DUCED BY THE ASSESSEE WHICH INCLUDES THE STATEMENTS, AFFIDAVITS, AGREEMENTS, BI LLS, VOUCHERS REGARDING THE VARIOUS WORKS GOT DONE IN RESPECT OF THE CONSTRUCTION OF TH E HOUSE. THE AO HAS NOT GIVEN ANY ADVERSE COMMENTS OR EVEN NOT DOUBTED THE CORREC TNESS OF THE EVIDENCE PRODUCED BY THE ASSESSEE. THEREFORE, WHEN THE AO H IMSELF WAS SATISFIED WITH THE EVIDENCE PRODUCED BY THE ASSESSEE, THEN THE CLAIM O F DEDUCTION UNDER SECTION 54F ALLOWED BY THE LD. CIT (A) BASED ON THE ADDITIONAL EVIDENCE AS WELL AS REMAND REPORT OF THE AO CANNOT BE DISTURBED IN THE ABSENCE OF ANY CONTRARY MATERIAL BROUGHT ON RECORD BY THE DEPARTMENT. ACCORDINGLY, IN THE FACT S AND CIRCUMSTANCES OF THE CASE, WE DO NOT FIND ANY ERROR OR ILLEGALITY IN THE ORDER OF THE LD. CIT (A) QUA THE ISSUE OF ALLOWING THE DEDUCTION UNDER SECTION 54F OF THE IT ACT. GROUND NO. 4 IS REGARDING THE DEDUCTION UNDER SECTI ON 54B OF THE IT ACT ALLOWED BY THE LD. CIT (A). 6. THE LD. D/R HAS SUBMITTED THAT THE AO HAS OBJECT ED TO THE CLAIM OF DEDUCTION UNDER SECTION 54B IN THE REMAND REPORT AND THE ASSE SSEE HAS ALSO FAILED TO ESTABLISH 9 ITA NO. 948/JP/2018 & CO 32/JP/2018 SHRI BHANWAR LAL, JAIPUR. THAT THE CONDITIONS AS PRESCRIBED UNDER SECTION 54B HAVE BEEN SATISFIED. THUS THE LD. D/R HAS CONTENDED THAT THE CONTENTIONS REGARDIN G THE EXISTING LAND SOLD BY THE ASSESSEE WAS BEING USED FOR AGRICULTURAL PURPOSE FO R TWO YEARS IMMEDIATELY PRECEDING TO THE DATE OF SALE AND ALSO THE NEW AGRI CULTURAL LAND PURCHASED BY THE ASSESSEE HAS BEEN USED FOR CARRYING OUT THE AGRICUL TURAL OPERATIONS, THE LD. CIT (A)S FINDING IS CONTRARY TO THE FACTS AND RECORD WHILE A CCEPTING THE CLAIM OF THE ASSESSEE. THUS THE LD. D/R HAS SUBMITTED THAT ONCE THE PRIMAR Y CONDITION AS PRESCRIBED UNDER SECTION 54B ARE NOT SATISFIED, THEN THE CLAIM OF DE DUCTION UNDER SECTION 54B IS NOT ALLOWABLE TO THE ASSESSEE. THE AO IN THE REMAND RE PORT HAS RELIED UPON THREE DECISIONS ON THIS ISSUE INCLUDING THE DECISION OF H ONBLE PUNJAB & HARYANA HIGH COURT IN CASE OF JAI NARAYAN VS. ITO, 306 ITR 335 ( P&H) AS WELL AS THE DECISION OF HONBLE JURISDICTIONAL HIGH COURT IN CASE OF KALYA VS. CIT & OTHERS, 251 CTR 174 (RAJ.). 7. ON THE OTHER HAND, THE LD. A/R OF THE ASSESSEE H AS SUBMITTED THAT THE AO HAS OBJECTED TO THE CLAIM OF THE ASSESSEE ON THE GROUND THAT THE NEW AGRICULTURAL LAND HAS BEEN PURCHASED BY THE ASSESSEE IN THE NAMES OF HIS SON AND DAUGHTER-IN-LAW AND NOT IN THE NAME OF THE ASSESSEE HIMSELF. WHERE AS THERE ARE DECISIONS ON THIS POINT INCLUDING THE DECISION OF HONBLE JURISDICTIO NAL HIGH COURT IS SUBSEQUENT TO THE DECISION IN CASE OF KALYA VS. CIT (SUPRA) RELIED UP ON BY THE AO WHEREIN THE HONBLE HIGH COURT HAS HELD THAT MERELY BECAUSE THE LAND WA S PURCHASED IN THE NAME OF THE FAMILY MEMBERS WOULD NOT DISENTITLE THE ASSESSEE FO R CLAIMING DEDUCTION UNDER SECTION 54B OF THE ACT. IN SUPPORT OF HIS CONTENTI ON, THE LD. A/R RELIED UPON THE DECISION OF THE HONBLE JURISDICTIONAL HIGH COURT I N CASES OF SHRI LAXMI NARAYAN VS. CIT, L/H SHRI SHRAVAN LAL MEENA VS. ITO AND SHRI MA HADEV BALAI VS. ITO DATED 10 ITA NO. 948/JP/2018 & CO 32/JP/2018 SHRI BHANWAR LAL, JAIPUR. 07.11.2017 IN DB IT APPEAL NOS. 20/2016, 118/2017 A ND 136/2017 RESPECTIVELY. THUS THE LD. A/R HAS SUBMITTED THAT IN VIEW OF THE LATEST DECISION OF THE HONBLE JURISDICTIONAL HIGH COURT THE CLAIM OF DEDUCTION UN DER SECTION 54B CANNOT BE DISALLOWED ON THE GROUND THAT THE ASSESSEE HAS PURC HASED THE LAND IN THE NAME OF OTHER FAMILY MEMBERS INSTEAD OF HIS OWN NAME. THE LD. A/R HAS ALSO RELIED UPON THE DECISION OF DELHI BENCHES OF THE TRIBUNAL IN CASE O F JAGPAL SINGH VS. ITO, 186 TAXMAN 26 (DELHI TRIBUNAL). THUS THE ASSESSEE IS E NTITLED FOR DEDUCTION UNDER SECTION 54B IN RESPECT OF THE AGRICULTURAL LAND PUR CHASED IN THE NAME OF SON AS WELL AS DAUGHTER-IN-LAW OF THE ASSESSEE. 8. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AS WELL AS THE RELEVANT MATERIAL ON RECORD. AS FAR AS THE DISPUTE REGARDING THE AGRICUL TURAL LAND PURCHASED BY THE ASSESSEE IN THE NAME OF HIS SON AND DAUGHTER-IN-LAW AND CLAIM OF DEDUCTION UNDER SECTION 54B IS CONCERNED, WE FIND THAT THERE ARE DIVERGENT VIEWS ON THIS POINT. THE AO IN THE REMAND REPORT HAS RELIED UPON THE DECISION OF HONBLE JURISDICTIONAL HIGH COURT IN CASE OF KALYA VS. CIT (SUPRA) AS WELL AS DECISION OF HONBLE PUNJAB & HARYANA HIGH COURT IN CASE OF JAI NARAYAN VS. ITO (SUPRA). WE FURTHER NOTE THAT THE HONBLE JURISDICTIONAL HIGH C OURT IN A SUBSEQUENT DECISION IN CASE OF SHRI LAXMI NARAYAN VS. CIT (SUPRA) HAS TAKE N A VIEW THAT THE CLAIM OF DEDUCTION UNDER SECTION 54B CANNOT BE DENIED MERELY ON THE GROUND THAT THE ASSESSEE HAS INVESTED THE SALE PROCEEDS FOR PURCHAS E OF AGRICULTURAL LAND IN THE NAME OF WIFE. WE FURTHER NOTE THAT THE HONBLE PUN JAB & HARAYAN HIGH COURT IN A SUBSEQUENT DECISION IN CASE OF CIT VS. DINESH VERMA , 233 TAXMAN 409 (P&H) HAS REITERATED ITS EARLIER VIEW AND HELD THAT THE DEDUC TION UNDER SECTION 54B IS NOT AVAILABLE WHEN THE LAND IS PURCHASED IN THE NAME OF SON AND GRANDSON OF THE 11 ITA NO. 948/JP/2018 & CO 32/JP/2018 SHRI BHANWAR LAL, JAIPUR. ASSESSEE. WITHOUT GOING INTO THE CONTROVERSY OF TH E ENTITLEMENT OF DEDUCTION UNDER SECTION 54B WHEN THE LAND PURCHASED BY THE ASSESSEE IN THE NAME OF HIS SON AND DAUGHTER-IN-LAW, WE HAVE TO FIRST EXAMINE THE PRECE DENT CONDITION FOR ALLOWING THE DEDUCTION UNDER SECTION 54B BEING THE EXISTING LAND SOLD BY THE ASSESSEE WAS BEING USED BY THE ASSESSEE FOR AGRICULTURAL PURPOSES IN T WO YEARS IMMEDIATELY PRECEDING THE DATE ON WHICH THE TRANSFER TOOK PLACE. WE FI ND THAT THE ASSESSEE BEFORE TRANSFERRING THE LAND IN QUESTION IN FAVOUR OF THE REAL ESTATE COMPANY GOT CONVERTED THE AGRICULTURAL LAND TO NON-AGRICULTURAL USE ON 23 .08.2010. THIS FACT HAS BEEN RECORDED IN THE SALE DEED DATED 4 TH MAY, 2011 WHEREBY THE ASSESSEE SOLD THE EXISTING LAND AS UNDER :- ;G FD MKJKSDR OF.KZR HKWFE DKS [KKRSNKJ FOSRK US V KOKLH; ;KSTUK CLKUS GSRQ HKWFE DK VKOKLH; ,OA VU; :IKURJ.K DS CKCR~ T;IQJ FODKL IZKF/KDJ.K T;IQJ DS ;GKWA IJ VKOSNU DJ [KKRSNKJH VF/KDKJ JKTLFKKU HKW&JKTLO VF/KFU;E 1956 DH /KKJK 9 0 [K MI/KKJK 3 DS VARXZR T;IQJ FODKL IZKF/KDJ.K T;IQJ DKS LEFIZR DJ FN;S] MLDS IPKR~ MDR HKWFE IZDJ.K LA[;K 54@2010 FU.KZ; FNUAKD 23-08-2010 DKS /KKJK 90 CH HK W&JKTLO VF/KFU;E DS RGR T;IQJ FODKL IZKF/KDJ.K T;IQJ LS VKO KLH; ;KSTUK DS FY, :IKURFJR DH TK PQDH GS] IJURQ JKTLFKK U HKW&JKTLO VF/KFU;E 1956 DH /KKJK 90 [K MI/KKJK 3 DS VUQLKJ MDR DFFKR HKWFE IJ FOSRK DS FUFGR FGR LQJF{ KR GS] FTLDK T;IQJ FODKL IZKF/KDJ.K LS IQU% VKOAVU FOSRK DKS ;K FOSRK }KJK UKFER LNL;KSA@FUNSZFKR O;FDR;KSA DKS F D;K TKOSXKA 12 ITA NO. 948/JP/2018 & CO 32/JP/2018 SHRI BHANWAR LAL, JAIPUR. THIS FACT AS RECORDED IN THE SALE DEED IS NOT IN DI SPUTE AND THEREFORE, IT IS APPARENT THAT THE LAND SOLD BY THE ASSESSEE WAS CONVERTED TO NON-AGRICULTURAL USE VIDE ORDER DATED 23.08.2010 AS PER SECTION 90-B OF RAJASTHAN L AND REVENUE ACT, 1956. THEREFORE, THE CONDITION PRECEDENT FOR ALLOWING THE DEDUCTION UNDER SECTION 54B OF THE ACT IS NOT SATISFIED IN THIS CASE AS THE LAND W AS NOT BEING USED FOR AGRICULTURAL PURPOSE DURING THE TWO YEARS IMMEDIATELY PRECEDING TO THE DATE OF SALE AS THIS LAND WAS CONVERTED TO NON-AGRICULTURAL USE FOR ABOUT 9 M ONTHS PRIOR TO THE DATE OF SALE. WHAT WAS SOLD BY THE ASSESSEE WAS A RESIDENTIAL LAN D AND NOT AN AGRICULTURAL LAND. THEREFORE, THE SAID CLAIM OF DEDUCTION UNDER SECTIO N 54B IS NOT AVAILABLE TO THE ASSESSEE ON TRANSFER OF THE RESIDENTIAL LAND. WE F URTHER NOTE THAT THE LD. CIT (A) WHILE ALLOWING THE CLAIM OF ASSESSEE HAS OBSERVED I N PARA 5.5.4 AS UNDER :- 5.5.4. A PLAIN READING OF THIS SECTION REVEALS TH AT THE FIRST AND FOREMOST CONDITION FOR CLAIMING EXEMPTION U/S 54B I S THAT THE LAND BEING SOLD SHOULD HAVE BEEN USED BY THE ASSESSEE OR HIS PARENT OR A HINDU UNDIVIDED FAMILY FOR AGRICULTURAL PURPOSES. I N THE INSTANT CASE, THE APPELLANT HAS PRODUCED VARIOUS EVIDENCES SUCH A S JAMABANDI, GIRDAWARI REPORT ETC. WHICH REVEAL THAT THE APPELLA NT HAS BEEN CULTIVATING THE LAND FOR MANY YEARS AND HENCE, THE ASSESSEE SATISFIES FOREMOST/FIRST CONDITION FOR CLAIMING EXEMPTION U/S 54B OF THE ACT. IN FACT, THE AO HAS ALSO NOT RAISED ANY DOUBT REGARDIN G THE CULTIVATION OF LAND SOLD BY THE ASSESSEE AS THERE IS NO ADVERSE MA TERIAL BROUGHT ON RECORD TO ESTABLISH THAT THE LAND SOLD BY THE ASSES SEE WAS NEVER CULTIVATED BY HER. THIS FINDING OF THE LD. CIT (A) IS PERVERSE AND CON TRARY TO THE RECORD AS WELL AS FACTS BECAUSE THE EVIDENCE PRODUCED BY THE ASSESSEE BEING JAMABANDI, GIRDAWARI REPORT 13 ITA NO. 948/JP/2018 & CO 32/JP/2018 SHRI BHANWAR LAL, JAIPUR. ETC. IS ONLY IN RESPECT OF THE LAND PURCHASED BY TH E ASSESSEE AND NOT IN RESPECT OF THE LAND SOLD BY THE ASSESSEE. THEREFORE, THE FIND ING OF THE LD. CIT (A) IS BASED ON PRESUMPTION OF WRONG FACTS AND RATHER BASED ON THE FACTS WHICH ARE CONTRARY TO THE MATERIAL ON RECORD. ACCORDINGLY, WE SET ASIDE THE ORDER OF THE LD. CIT (A) QUA THIS ISSUE AND RESTORE THE ORDER OF THE AO DENYING THE C LAIM OF DEDUCTION UNDER SECTION 54B OF THE ACT. GROUND NO. 5 IS REGARDING DISALLOWANCE OF COST OF D EVELOPMENT OF LAND WHICH WAS ALLOWED BY THE LD. CIT (A). 9. THE LD. D/R HAS SUBMITTED THAT THE AO DISALLOWED THE CLAIM OF COST OF IMPROVEMENT OF THE LAND SOLD BY THE ASSESSEE ON THE GROUND THAT THE ASSESSEE HAS NOT FURNISHED ANY DOCUMENTARY EVIDENCE IN SUPPORT O F THE CLAIM. THE LD. CIT (A) HAS ALLOWED THE CLAIM OF THE ASSESSEE ONLY ON THE B ASIS OF SOME VOUCHERS PRODUCED BY THE ASSESSEE WHICH WERE NOT PRODUCED OR EXAMINED DURING THE REMAND PROCEEDINGS. THUS IN THE ABSENCE OF VERIFICATION OF THE DOCUMENTS PRODUCED BY THE ASSESSEE THE CLAIM CANNOT BE ALLOWED. SHE HAS RELI ED UPON THE ORDER OF THE AO. 10. ON THE OTHER HAND, THE LD. A/R OF THE ASSESSEE HAS SUBMITTED THAT THE ASSESSEE PRODUCED THE VOUCHERS REGARDING THE EXPEND ITURE INCURRED ON CONSTRUCTION OF BOUNDARY WALL WHEREIN THE PAYMENT OF RS. 1,80,00 0/- HAS BEEN PROVED. THE ASSESSEE CLAIMED THE INDEXED COST OF SAID EXPENDITU RE AT RS. 3,05,184/-. HE HAS FURTHER CONTENDED THAT THE ASSESSEE HAS FILED THE F ULL DETAILS OF THE PAYMENT THROUGH VOUCHERS/RECEIPTS TOWARDS CONSTRUCTION OF THE BOUND ARY WALL ADMEASURING 450 FT. @ RS. 400/- PER FT. HE HAS SUPPORTED THE ORDER OF THE LD. CIT (A). 11. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AS WEL L AS THE RELEVANT MATERIAL ON RECORD. WE FIND THAT THE VOUCHERS REGARDING THE CLA IM OF COST OF CONSTRUCTION OF 14 ITA NO. 948/JP/2018 & CO 32/JP/2018 SHRI BHANWAR LAL, JAIPUR. BOUNDARY WALL WERE PRODUCED BY THE ASSESSEE BEFORE THE LD. CIT (A) WHICH WERE ALSO FORWARDED TO THE AO FOR SUBMITTING THE REMAND REPOR T AFTER EXAMINATION OF THE ADDITIONAL EVIDENCE FILED BY THE ASSESSEE. THE AO IN THE REMAND REPORT HAS NOT COMMENTED UPON THE CORRECTNESS OF THE VOUCHERS PROD UCED BY THE ASSESSEE IN SUPPORT OF THE COST OF CONSTRUCTION OF THE BOUNDARY WALL. THE LD. CIT (A) HAS DECIDED THIS ISSUE IN PARA 6 AS UNDER :- 6. VIDE GROUND NO. C, THE APPELLANT HAS CONTENDED THAT THEAO WAS NOT JUSTIFIED IN DISALLOWING COST OF IMPROVEMENT AM OUNTING TO RS. 3,05,184/-. THE AO NOTED THAT THE ASSESSEE HAD CLAI MED RS. 3,05,.184/- BEING COST OF IMPROVEMENT INCURRED IN R ESPECT OF PROPERTY SOLD. SINCE THE ASSESSEE COULD NOT FURNISH ANY DOCU MENTARY EVIDENCE, THEREFORE, THE AO DISALLOWED THE SAME AND ADDED BAC K TO THE TOTAL INCOME OF THE ASSESSEE. THE APPELLANT HAS SUBMITTE D BEFORE ME THAT HE INCURRED DEVELOPMENT EXPENSES OF RS. 1,80,000/- ON THE LAND SOLD, FOR CONSTRUCTION OF BOUNDARY WALL ON THE LAND, IN O RDER TO PREVENT THE ENTRY OF ANIMALS WHO DESTROY THE AGRICULTURE PRODUC E IN THE F.Y. 2003- 04. THE ASSESSEE THEREFORE, CLAIMED THE BENEFIT OF COST OF DEVELOPMENT OF RS. 1,80,000, WHICH RESULTED INTO INDEXED COST O F IMPROVEMENT RS. 3,05,184/- WHILE CALCULATING THE CAPITAL GAINS IN H IS RETURN OF INCOME. HOWEVER, THE AO DISALLOWED THE SAME FOR WANT OF SUP PORTING EVIDENCE. DURING THE COURSE OF APPELLATE PROCEEDINGS, THE APP ELLANT FURNISHED COPY OF PAYMENT VOUCHERS SHOWING EXPENSES OF RS. 1, 80,000/- INCURRED INFY 2003-04 ON THE LAND SOLD. THESE EVIDE NCES/VOUCHERS WERE SENT TO THE AO FOR HIS COMMENT, HOWEVER, IN TH E REMAND REPORT, HE DID NOT COMMENT ON THESE VOUCHERS. I HAVE ALSO PERUSED THESE PAYMENTS VOUCHERS/RECEIPTS, WHEREIN PAYMENTS OF RS. 1,80,000/- TOWARDS CONSTRUCTION OF AREA ADMEASURING 450 FEET @ 400/- PER FEET IS REFLECTING. THE SIGNATURE OF THE RECIPIENT IS DULY TAKEN ON REVENUE STAMP. THE APPELLANT ALSO FILED DRIVING LICENSE AN D PAN OF THE 15 ITA NO. 948/JP/2018 & CO 32/JP/2018 SHRI BHANWAR LAL, JAIPUR. RECIPIENT. THUS, BY FILING THESE EVIDENCES, THE APP ELLANT HAS DULY DISCHARGED HIS ONUS OF PROVING THE INCURRENCE OF EX PENDITURE. THEREFORE, CONSIDERING THESE FACTS AND PARTICULARLY THE FACT THAT THE AO HAS NOT DOUBTED THE GENUINENESS OF THESE DOCUMENTS, THE ADDITION OF RS. 3,05,184/- MADE ON ACCOUNT OF DISALLOWANCE OF E XPENSES INCURRED ON COST OF IMPROVEMENT, IS HEREBY DELETED. THE GROU ND OF APPEAL IS ALLOWED. THUS THE FACTS RECORDED BY THE LD. CIT (A) THAT THE PAYMENT WAS MADE TOWARDS CONSTRUCTION OF THE AREA ADMEASURING 450 FT. @ RS. 400/- PER FT HAS BEEN REFLECTED IN THE EVIDENCE PRODUCED BY THE ASSESSEE. THE AO H AS NOT POINTED OUT ANY DEFECT IN THE EVIDENCE PRODUCED BY THE ASSESSEE IN SUPPORT OF THE CLAIM. ACCORDINGLY, IN THE ABSENCE OF ANY CONTRARY FACT OR MATERIAL, WE DO NOT FIND ANY ERROR OR ILLEGALITY IN THE IMPUGNED ORDER OF THE LD. CIT (A) QUA THIS ISSUE. GROUND NO. 6 IS REGARDING DISALLOWANCE OF TRANSFER EXPENSES BY THE AO WHICH WAS ALLOWED BY THE LD. CIT (A). 12. WE HAVE HEARD THE LD. D/R AS WELL AS THE LD. A/ R AND CONSIDERED THE RELEVANT MATERIAL ON RECORD. THE AO DISALLOWED THE CLAIM FOR WANT OF SUPPORTING EVIDENCE. HOWEVER, THE ASSESSEE CLAIMED THAT HE HAS PAID BROK ERAGE TO THE PARTIES REGARDING THE SALE OF THE LAND. THE ASSESSEE ALSO PRODUCED TH E PAYMENT VOUCHERS OF BROKERAGE WHICH WERE SENT TO THE AO BUT THE AO HAS NOT MADE A NY COMMENT ON THE EVIDENCE IN THE REMAND REPORT. THE LD. CIT (A) HAS DECIDED THE ISSUE IN PARA 7 AS UNDER :- 7. VIDE GROUND NO. D, THE APPELLANT CONTENDED THA T THE AO WAS NOT JUSTIFIED IN DISALLOWING EXPENDITURE INCURRED ON TR ANSFER OF RS. 4,86,000/-. THE AO NOTED THAT THE ASSESSEE HAD CLAI MED EXPENDITURE 16 ITA NO. 948/JP/2018 & CO 32/JP/2018 SHRI BHANWAR LAL, JAIPUR. ON TRANSFER TO THE TUNE OF RS. 4,86,000/-. THE AO D ISALLOWED THIS EXPENSES BY STATING THAT EXPENDITURE ON TRANSFER IS SUPPOSED TO INCURRED BY PURCHASER AND SINCE NO EVIDENCE FURNISH ED BY THE ASSESSEE TO SUBSTANTIATE HIS CLAIM, THE SAME CANNOT BE ALLOW ED. HENCE, THE AO MADE AN ADDITION OF RS. 4,86,000/- ON THIS ACCOUNT. THE APPELLANT CONTESTED THE AOS ACTION BY STATING THAT IS A WIDE LY ACCEPTED FACT THAT EVEN SELLER PAYS BROKERAGE TO THE BROKERS WHO HAVE FACILITATED THE TRANSACTION. IT WAS SUBMITTED THAT ASSESSEE HAD PAI D BROKERAGES TO THIS PARTIES TOTALING TO RS. 5,00,000/-; THIS OUTFLOW OF MONEY IS ALSO TAKEN INTO CONSIDERATION IN THE FUND FLOW STATEMENT. THUS , IT WAS CLAIMED THAT THE ASSESSEE IS ENTITLED TO CLAIM THE TRANSFER EXPENSES OF RS. 4,86,000/-. DURING THE COURSE OF APPELLATE PROCEED INGS, THE APPELLANT FURNISHED COPIES OF PAYMENT VOUCHERS OF BROKERAGE P AID ON SALE OF LAND RS. 1,66,667/- EACH TO SHRI BABU SINGH, SHRI R AJU CHOUDHARY AND SH. MAHENDRA CHOUDHARY ALONG WITH THEIR IDENTITY PR OOF (VOTER ID CARDS AND THEIR CONFIRMATIONS). THESE EVIDENCES/VO UCHERS WERE SENT TO THE AO FOR HIS COMMENT, HOWEVER, IN THE REMAND R EPORT, HE DID NOT COMMENT ON THESE EVIDENCES. I HAVE ALSO PERUSED THE SE PAYMENTS VOUCHERS/RECEIPTS, WHEREIN PAYMENTS OF RS. 4,86,000 /- (RS. 1,66,667/- TO EACH PERSON) BEING BROKERAGES PAID TO THESE THRE E PERSON ARE REFLECTING. THE SIGNATURE OF THE RECIPIENT IS DULY TAKEN ON REVENUE STAMP. THE APPELLANT ALSO FILED DRIVING LICENSE AND PAN OF THE RECIPIENT. THUS, BY FILING THESE EVIDENCES, THE APPELLANT HAS DULY DISCHARGED HIS ONUS OF PROVING THE INCURRENCE OF EXPENDITURE. THER EFORE, CONSIDERING THESE FACTS AND PARTICULARLY THE FACT THAT THE AO H AS NOT DOUBTED THE GENUINENESS OF THESE DOCUMENTS, THE ADDITION OF RS. 4,86,000/- MADE ON ACCOUNT OF DISALLOWANCE OF EXPENSES INCURRED ON TRANSFER, IS HEREBY DELETED. THE GROUND OF APPEAL IS ALLOWED. ACCORDINGLY, IN VIEW OF THE FACT THAT THE ASSESSEE PRODUCED THE EVIDENCE IN SUPPORT OF THE CLAIM AND THE AO HAS NOT MADE ANY COMMENT IN THE REMAND REPORT ABOUT THE 17 ITA NO. 948/JP/2018 & CO 32/JP/2018 SHRI BHANWAR LAL, JAIPUR. CORRECTNESS OF THE EVIDENCE PRODUCED BY THE ASSESSE E, THEN THE DECISION OF THE LD. CIT (A) BASED ON THE EVIDENCE CANNOT BE DISTURBED W HEN THE AO HIMSELF HAS NOT MADE ANY COMMENT IN THE REMAND REPORT. C.O. NO. 32/JP/2018 : 13. IN THE CROSS OBJECTION, THE ASSESSEE HAS RAISED THE SOLITARY GROUND AS UNDER :- IN THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, LD. CIT (A) HAS ERRED IN CONFIRMING THE ACTION OF LD. AO IN REOPENING THE CASE OF THE ASSESSEE UNDER SECTION 147 OF THE I NCOME TAX ACT, 1961. THE ACTION OF THE LD. CIT (A) IS ILLEGAL , UNJUSTIFIED AND ARBITRARY AND AGAINST THE FACTS OF THE CASE. R ELIEF MAY PLEASE BE GRANTED BY QUASHING SUCH RE-ASSESSMENT PROCEEDINGS. 14. THE LD. A/R OF THE ASSESSEE HAS SUBMITTED THAT THE AO HAS REOPENED THE ASSESSMENT WITH A VIEW TO EXAMINE THE CLAIM OF DEDU CTION UNDER SECTION 54F AND 54B OF THE IT ACT. THEREFORE, THE PROVISIONS OF SE CTION 147/148 CANNOT BE RESORTED TO CONDUCT AN ENQUIRY AND TO ASCERTAIN THE CORRECTN ESS OF THE RETURN OF INCOME. HE HAS FURTHER CONTENDED THAT THE AMENDMENT IN SECTION 133C(2) AND EXPLANATION 2 (CA) TO SECTION 147 WERE INTRODUCED BY THE FINANCE ACT, 2016 WITH EFFECT FROM 01.06.2016 ARE NOT APPLICABLE FOR THE ASSESSMENT YE AR UNDER CONSIDERATION. THE LD. CIT (A) HAS REJECTED THE PLEA OF THE ASSESSEE BY PL ACING RELIANCE ON VARIOUS DECISIONS WHICH ARE DISTINGUISHABLE ON THE FACTS OF THE CASE. THUS THE LD. A/R HAS SUBMITTED THAT THE REOPENING IS NOT VALID AND LIABL E TO BE QUASHED. 15. ON THE OTHER HAND, THE LD. D/R HAS SUBMITTED TH AT IN THE RETURN OF INCOME THE ASSESSEE HAS MADE A WRONG CLAIM OF DEDUCTION UNDER SECTIONS 54F AS WELL AS 54B OF 18 ITA NO. 948/JP/2018 & CO 32/JP/2018 SHRI BHANWAR LAL, JAIPUR. THE ACT WHICH WERE SUBSEQUENTLY CAME TO THE NOTICE OF THE AO BASED ON THE INFORMATION RECEIVED FROM THE INVESTIGATION WING. THE AO HAS ALSO CONDUCTED AN ENQUIRY AND DURING THE PRE-INITIATION OF REASSESSME NT PROCEEDINGS ENQUIRY THE ASSESSEE HAS NOT RESPONDED AND FILED ANY EVIDENCE I N SUPPORT OF THE CLAIM. THEREFORE, SUCH AN ENQUIRY CONDUCTED BY THE AO WHIC H CONSTITUTES A TANGIBLE MATERIAL TO FORM THE BELIEF THAT THE INCOME ASSESSA BLE TO TAX HAS ESCAPED ASSESSMENT. SHE HAS RELIED UPON THE ORDER OF THE L D. CIT (A) ON THIS ISSUE. 16. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AS WEL L AS THE RELEVANT MATERIAL ON RECORD. THE ORIGINAL RETURN OF INCOME WAS FILED BY THE ASSESSEE ON 26 TH MARCH, 2013 WHICH WAS PROCESSED UNDER SECTION 143(1) OF THE IT ACT AND SUBSEQUENTLY THE AO REOPENED THE ASSESSMENT BY RECORDING THE REASONS AS UNDER :- REASONS FOR REOPENING THE ASSESSMENT U/S 147 OF T HE INCOME-TAX ACT, 1961 IN THE CASE OF SHRI BHANWAR LAL S/O SHRI BALU RAM, P. NO. 26, BARALA WORK SHOP, RAMPURA ROAD, SUKHIYA, TEHSIL- SA NGANER, JAIPUR. A.Y. 2012-13. PAN:AHNPL 0438 K STATUS : INDIVIDUAL AS PER INFORMATION AVAILABLE WITH THIS OFFICE, DURI NG THE YEAR UNDER CONSIDERATION, THE ASSESSEE HAS SOLD PIECE OF LAND SITUATED AT VILLAGE SUKHIYA, KALYANPURA, TEHSIL SANGANER, JAIPUR TO M/S . TRIVENI POPCORN PVT. LTD., JAIPUR FOR RS. 2,43,11,000/-. THE ASSESS EE FILED HIS RETURN OF INCOME FOR THE A.Y. 2012-13 ON 26/03/2013 AND IN TH IS RETURN HE HAS SHOWN CAPITAL GAIN OF RS. 1,51,821/- AFTER CLAIMING DEDUCTION OF RS. 2,41,59,179/- (RS. 10,26,684/- U/S 48 OF IT ACT AND RS. 2,31,32,495/- U/S 54/54B/54D/54EC/54F/54G/54GA OF THE IT ACT). DURING THE ENQUIRY PROCEEDINGS, THE ASSESSEE HAS NO T FURNISHED DOCUMENTARY EVIDENCE IN SUPPORT OF HIS CLAIM, THERE FORE, THE CLAIM OF THE ASSESSEE FOR DEDUCTION OF RS. 2,41,59,179/- COU LD NOT BE PROVED IN ABSENCE OF ANY CORROBORATIVE EVIDENCES. FURTHER, ON PERUSAL BANK ACCOUNT STATEMENT (SB A/C NO. 31833919903) OF THE ASSESSEE IN SBI, CASH DEPOSITS TOTALING TO R S. 10,20,000/- WERE 19 ITA NO. 948/JP/2018 & CO 32/JP/2018 SHRI BHANWAR LAL, JAIPUR. MADE BY THE ASSESSEE ON VARIOUS DATES. THE SOURCE O F WHICH ALSO REMAINS UNEXPLAINED. CONSIDERING ALL THE FACTS, THE INCOME ESCAPED ASSES SMENT IN RESPECT OF THE ASSESSEE AMOUNTS TO RS. 2,51,79,179/- (RS. 2,41 ,59,179 + RS. 10,20,000). THUS, IT IS A FIT CASE FOR ISSUING NOTI CE U/S 148. PLACE : JAIPUR (ALOK JAIN) DATED : 10/03/2014. INCOME-TAX OFFICER, WARD 7(2), JAIPUR. THE AO HAS GIVEN THE PARTICULARS OF THE CAPITAL GAI N DECLARED BY THE ASSESSEE IN THE RETURN OF INCOME AT RS. 1,51,821/- AS WELL AS CLAIM OF DEDUCTION OF RS. 2,41,59,179/- WHICH INCLUDES THE CLAIM OF DEDUCTION UNDER SECTION 54F/54B OF RS. 2,31,32,495/-. THE AO HAS CLEARLY RECORDED IN THE REASONS THAT DUR ING THE ENQUIRY PROCEEDINGS THE ASSESSEE HAS NOT FURNISHED ANY DOCUMENTARY EVIDENCE IN SUPPORT OF THE CLAIM. THEREFORE, THE CLAIM OF DEDUCTION OF RS. 2,41,59179 /- WAS FOUND TO BE NOT SUBSTANTIATED BY ANY EVIDENCE. THIS RESULT OF ENQU IRY ITSELF CONSTITUTES A TANGIBLE MATERIAL TO FORM THE BELIEF THAT THE INCOME ASSESSA BLE TO TAX IN THE FORM OF EXCESS CLAIM OF DEDUCTION HAS ESCAPED ASSESSMENT. WE FURT HER NOTE THAT EVEN DURING THE REASSESSMENT PROCEEDINGS THE ASSESSEE HAS NOT PRODU CED ANY DOCUMENTARY EVIDENCE IN SUPPORT OF THE CLAIM AND ONLY IN THE AP PELLATE PROCEEDINGS BEFORE THE LD. CIT (A), THE ASSESSEE FIRST TIME PRODUCED THE DOCUM ENTARY EVIDENCE. THEREFORE, IN THESE PECULIAR FACTS OF THE CASE, WE DO NOT FIND AN Y DEFECT OR ILLEGALITY IN THE INITIATION OF PROCEEDINGS UNDER SECTION 147/148 OF THE ACT. THE AO HAS DONE HIS BEST PRIOR TO INITIATING THE PROCEEDINGS UNDER SECT ION 147/148 BY CONDUCTING AN ENQUIRY IN RESPECT OF THE CLAIM OF DEDUCTION OF RS. 2.41 CRORES AGAINST THE SALE CONSIDERATION OF RS. 2.43 CRORES. AT THE TIME OF R EOPENING OF THE ASSESSMENT, THE AO IS NOT SUPPOSED TO ESTABLISH THE CORRECTNESS OF THE REASONS, IF PRIMA FACIE THE 20 ITA NO. 948/JP/2018 & CO 32/JP/2018 SHRI BHANWAR LAL, JAIPUR. REASONS RECORDED BY THE AO LEAD TO THE FORMATION OF BELIEF THAT INCOME ASSESSABLE TO TAX HAS ESCAPED ASSESSMENT. ACCORDINGLY, WE DO NOT FIND ANY SUBSTANCE OR MERIT IN THE CROSS OBJECTION FILED BY THE ASSESSEE. THE SAME IS DISMISSED. 17. IN THE RESULT, APPEAL OF THE DEPARTMENT IS PART LY ALLOWED WHEREAS CROSS OBJECTION OF THE ASSESSEE IS DISMISSED. ORDER IS PRONOUNCED IN THE OPEN COURT ON 23/08/2 019. SD/- SD/- ( JES'K LH- 'KEKZ ) ( FOT; IKY JKWO (RAMESH C. SHARMA ) (VIJAY PAL RAO) YS[KK LNL;@ ACCOUNTANT MEMBER U;KF;D LNL;@ JUDICIAL MEMBER JAIPUR DATED:- 23/08/2019. DAS/ VKNS'K DH IZFRFYFI VXZSF'KR@ COPY OF THE ORDER FORWARDED TO: 1. THE APPELLANT- THE ITO, WARD 7(2), JAIPUR. 2. THE RESPONDENT SHRI BHANWAR LAL, SUKHIYAN, JAI PUR. 3. THE CIT(A). 4. THE CIT, 5. THE DR, ITAT, JAIPUR 6. GUARD FILE (ITA NO. 948/JP/2018 & CO 32/JP/2018) VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASSISTANT. REGISTRAR