M/s. Rajendra M. Developers & Builders Pvt.Ltd, Mumbai V. Deputy Commissioner of Income-tax, Central Circle - 1, Nashik

ITSSA 05/PUN/2018

• Counselvise Citation: [2021] 107 COUNSELVISE.COM (IT) 9237 (ITAT-PUNE)
• Duration Of Justice: 3 year(s) 7 month(s) 2 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 05-08-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 28-07-2021
• Assessment Year: 2014-2015
• Appeal Filed On: 02-01-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: A M MAHADEVAN KRISHNAN
• Keywords: Sale consideration of property below Jantri Value; Capital asset; Search and seizure; Loose papers; Opportunity of cross examination; Set aside
• Section: 143(3); 133A; 153A; 13; 132

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, PUNE (THROUGH VIRTUAL COURT) BEFORE SHRI INTURI RAMA RAO, AM AND SHRI S. S. VISWANETHRA RAVI, JM . / IT(SS)A NO.05/PUN/2018 / ASSESSMENT YEAR : 2014-15 M/S. RAJENDRA M. DEVELOPERS & BUILDERS PVT. LTD., 37/39, KANTOL NIWAS, MODI STREET, FORT, MUMBAI-400001. PAN : AAACR2040N ....... / APPELLANT / V/S. DCIT, CENTRAL CIRCLE-1, NASHIK. / RESPONDENT ASSESSEE BY : SHRI RAKESH JOSHI REVENUE BY : SHRI A. M. MAHADEVAN KRISHNAN / DATE OF HEARING : 28.07.2021 / DATE OF PRONOUNCEMENT : 05.08.2021 / ORDER PER INTURI RAMA RAO, AM: THIS IS AN APPEAL FILED BY THE ASSESSEE DIRECTED AGAINST THE ORDER OF THE LD. COMMISSIONER OF INCOME TAX (APPEALS)-12, PUNE [THE CIT(A)] DATED 23.10.2017 FOR THE ASSESSMENT YEAR 2014-15. 2. THE APPELLANT RAISED THE FOLLOWING GROUNDS OF APPEAL :- 1. UPHOLDING THE ISSUE OF NOTICE U/S 153A & THE ASSESSMENT ORDER PASSED U/S 143(3) R.W.S. 153A, INSPITE OF ABSENCE OF ANY INCRIMINATING MATERIAL OR UNEXPLAINED ASSET FOUND IN THE SEARCH ACTION CONDUCTED U/S 132 AGAINST THE APPELLANT. THEREFORE, IT IS PRAYED TO ANNUL THE NOTICE ISSUED U/S 153A & THE ASSESSMENT ORDER PASSED U/S 143(3) R.W.S. 153A. 2. UPHOLDING THE ADDITION OF RS. 5,31,58,400/-, ON THE GROUND OF ALLEGED RECEIPT OF CASH OVER & ABOVE THE CONSIDERATION DECLARED IN THE SALE DEED, MERELY ON THE BASIS OF ASSUMPTIONS, PRESUMPTIONS, SURMISES & CONJECTURES. THEREFORE, IT IS PRAYED TO CANCEL THE ADDITION UPHELD OF RS. 5,31,58,400/-. 3. UPHOLDING THE ADDITION OF RS. 5,31,58,400/-, ON THE GROUND OF ALLEGED RECEIPT OF CASH OVER & ABOVE THE CONSIDERATION DECLARED IN THE SALE DEED, IN TOTAL 2 IT(SS)A NO.05/PUN/2018 DISREGARD OF THE EVIDENCES ON RECORD, PARTICULARLY THE STATEMENTS OF THE DIRECTORS OF SURYA PROPERTIES PVT. LTD, RECORDED BY THE A.O. DURING ASSESSMENT PROCEEDINGS & ON THEIR CROSS EXAMINATION BY APPELLANT & THE AFFIDAVIT SUBMITTED BY THE BROKER MR. VILAS CHAUDHARI. 4. RELYING ON THE STATEMENT OF MRS. SWETA KENI KATARIA, RECORDED AT THE BACK OF APPELLANT, TO JUSTIFY THE ADDITION MADE, WITHOUT APPRECIATING THE FACT THAT NO OPPORTUNITY OF CROSS EXAMINATION OF MRS. SWETA KENI KATARIA WAS ALLOWED TO APPELLANT. 5. UPHOLDING THE ADDITION OF RS. 5,31,58,400/-, ON THE GROUND OF ALLEGED RECEIPT OF CASH, OVER & ABOVE THE CONSIDERATION DECLARED IN THE SALE DEED, BY BELIEVING THE PART OF THE STATEMENTS OF THE DIRECTORS OF SURYA PROPERTIES PVT. LTD, RECORDED DURING SURVEY ACTION AGAINST SURYA PROPERTIES PVT. LTD & BY THE DDIT (INV) DURING POST SEARCH INQUIRIES & BY DISBELIEVING PART OF THE SAME, PARTICULARLY RELATING TO THE SUM OF RS. 7,00,00,000/-. IN VIEW OF SUCH BLOW HOT & BLOW COLD OF THE STATEMENTS RECORDED, IT IS PRAYED TO CANCEL THE ADDITION MADE ON THE BASIS OF THE SAID STATEMENTS RECORDED OF THE DIRECTORS OF SURYA PROPERTIES PVT. LTD, SINCE IN ABSENCE OF THE SAID STATEMENTS THE NOTING ON IMPOUNDED PAPERS ARE DUMB NOTING. 6. UPHOLDING THE ADDITION OF RS. 5,31,58,400/-, ON THE GROUND OF ALLEGED RECEIPT OF CASH OVER & ABOVE THE CONSIDERATION DECLARED IN THE SALE DEED, EVEN ON NOTICING THE IMPOSSIBILITY OF ALLEGATION THAT THE ALLEGED ON- MONEY WAS PAID IN OCTOBER, 2014 I.E. ALMOST A YEAR AFTER REGISTRATION OF SALE DEED ON 21.11.2013. THEREFORE, IT IS PRAYED TO CANCEL THE ADDITION OF RS.5,31,58,400/-. 7. UPHOLDING THE ADDITION OF RS. 5,31,58,400/-, ON THE GROUND OF ALLEGED RECEIPT OF CASH OVER & ABOVE THE CONSIDERATION DECLARED IN THE SALE DEED, WITHOUT APPRECIATING THAT THE TRANSACTION WAS DONE AT ABOUT THE STAMP DUTY VALUE OF THE PROPERTY & WITHOUT BRINGING ON RECORD THE EVIDENCE IN SUPPORT OF ACTUAL PASSING OF ALLEGED CASH COMPONENT. 8. UPHOLDING THE ADDITION OF RS. 5,31,58,400/-, ON THE GROUND OF ALLEGED RECEIPT OF CASH OVER & ABOVE THE CONSIDERATION DECLARED IN THE SALE DEED, WITHOUT FOLLOWING THE JURISDICTIONAL BOMBAY HIGH COURT DECISION IN THE CASE OF LATA MAGESHKAR (97 ITR 696) & THE PUNE ITAT B BENCH DECISION IN THE CASE OF THAKKERS DEVELOPERS LTD (ITA NO. 581/PN/2008 DECIDED ON 30.01.2015). 9. APPELLANT LEAVE TO ADD / AMEND / ALTER ANY GROUNDS OF APPEAL AND / OR PRAYERS BEFORE OR AT THE TIME OF HEARING. 3. BRIEFLY, THE FACTS OF THE CASE ARE AS UNDER :- THE APPELLANT IS A PRIVATE LIMITED COMPANY INCORPORATED UNDER THE PROVISIONS OF THE COMPANIES ACT, 1956. IT IS ENGAGED IN THE BUSINESS OF BUILDERS AND DEVELOPERS OF LAND. THE RETURN OF INCOME FOR THE ASSESSMENT YEAR 2014-15 WAS FILED ON 29.11.2014 DISCLOSING TOTAL INCOME OF RS.5,96,19,880/-. AGAINST THE SAID RETURN OF INCOME, THERE WAS NO SCRUTINY ASSESSMENT PROCEEDING. SUBSEQUENTLY, THE SEARCH AND SEIZURE OPERATIONS U/S 132 OF THE INCOME TAX ACT, 1961 (THE ACT) WERE CONDUCTED IN THE BUSINESS 3 IT(SS)A NO.05/PUN/2018 PREMISES OF THE ASSESSEE ON 15.01.2015. FOLLOWING THE SEARCH AND SEIZURE OPERATIONS, A NOTICE U/S 153A OF THE ACT WAS ISSUED ON 11.05.2016. THE APPELLANT FILED THE RETURN OF INCOME IN RESPONSE TO NOTICE U/S 153A OF THE ACT ON 07.06.2016 DECLARING SAME INCOME AS SHOWN IN THE ORIGINAL RETURN OF INCOME. AGAINST THE SAID RETURN OF INCOME, THE ASSESSMENT WAS COMPLETED BY THE DEPUTY COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE-1, NASHIK (THE ASSESSING OFFICER) VIDE ORDER DATED 30.12.2016 PASSED U/S 143(3) R.W.S. 153A OF THE ACT AT A TOTAL INCOME OF RS.11,27,78,280/-. WHILE DOING SO, THE ASSESSING OFFICER MADE AN ADDITION OF RS.5,31,58,400/- AS UNDISCLOSED SALE CONSIDERATION ON SALE OF THE PROPERTY. THE FACTUAL BACKGROUND LEADING TO THE ABOVE ADDITION IS AS UNDER :- THE APPELLANT OWNED A PROPERTY SITUATED IN VILLAGE MAKHAMALABAD BEARING SURVEY NO.347/1, TALUKA NASHKI ADMEASURING 19373 SQ.MTRS. OUT OF WHICH AN AREA ADMEASURING ABOUT 14125 SQ.MTRS. WAS SOLD VIDE DEVELOPMENT AGREEMENT AND POWER OF ATTORNEY EXECUTED ON 12.05.1995 TO M/S. THAKKERS DEVELOPERS LTD. FOR A CONSIDERATION OF RS.12,51,000/-. THOUGH THE AGREEMENT WAS EXECUTED AND REGISTERED, HOWEVER, NO SALE DEED WAS EXECUTED IN FAVOUR OF THE SAID THAKKERS DEVELOPERS LTD. SUBSEQUENTLY, THE THAKKERS DEVELOPERS LTD. SOLD THIS PROPERTY VIDE SALE DEED DATED 21.11.2013 TO M/S SURYA PROPERTIES (NASHIK) PVT. LTD. (HEREINAFTER REFERRED AS SPPL) FOR A CONSIDERATION OF RS.5,15,00,000/-. THE SURVEY OPERATIONS U/S 133A OF THE ACT WERE CARRIED OUT IN THE PREMISES OF THE SAID SPPL. DURING THE COURSE OF SUCH SURVEY OPERATIONS, THE ASSESSING OFFICER OF SPPL FOUND THE DOCUMENTS SUCH AS SALE DEED OF THE SAID PROPERTY AND ALSO CERTAIN 3 LOOSE SHEETS PAPERS CONTAINING ALLEGED TO BE DETAILS OF TRANSACTIONS OF SPPL WITH THE ASSESSEE COMPANY AND THE THAKKERS DEVELOPERS LTD. THE SCANNED IMAGES OF THE LOOSE SHEETS ARE REPRODUCED AT PAGE NO.3, 4 AND 5 OF THE 4 IT(SS)A NO.05/PUN/2018 ASSESSMENT ORDER. DURING THE COURSE OF SURVEY PROCEEDINGS, THE STATEMENT OF SHRI PRADEEP MADANLAL GUPTA, DIRECTOR OF SPPL WAS RECORDED ON 04.12.2014 BY THE ASSESSING OFFICER OF THE SAID COMPANY, NAMELY, ACIT, CIRCLE-2, NASHIK. WHEN THESE LOOSE SHEETS WERE CONFRONTED TO THE SAID SHRI PRADEEP MADANLAL GUPTA, HE ADMITTED THAT HAVING PAID SALE CONSIDERATION OF RS.5,31,58,400/- IN CASH OVER AND ABOVE THE CONSIDERATION STATED IN THE SALE DEED OF RS.5,15,00,000/- AT THE TIME OF PURCHASE OF THE PROPERTIES FROM THAKKERS GROUP. FURTHER, THE ASSESSING OFFICER OF SPPL ALSO RECORDED THE STATEMENT FROM ANOTHER DIRECTOR, NAMELY, SHRI SANJEEV RAMCHANDRA ADGAONKAR, WHO WHILE ANSWERING QUESTION NO.6 AND 7 HAD STATED THAT NOTING IN LOOSE SHEETS REFLECTS PAYMENT OF SALE CONSIDERATION IN CASH OVER AND ABOVE STATED IN THE SALE DEED TO M/S. RAJENDRA M. DEVELOPERS & BUILDERS PVT. LTD. 4. BASED ON THE STATEMENTS GIVEN BY DIRECTORS OF SPPL, THE ASSESSING OFFICER OF APPELLANT HAD CALLED UPON THE ASSESSEE VIDE SHOW CAUSE NOTICE DT.21.10.2016 TO EXPLAIN AS TO WHY THE ADDITION OF RS.5,31,58,400/- SHOULD NOT BE MADE IN THE HANDS OF THE APPELLANT COMPANY. AFTER RECEIPT OF THE SHOW CAUSE NOTICE, THE APPELLANT HAD SOUGHT FOR CROSS-EXAMINATION OF THE SAID DIRECTORS OF SPPL NAMELY, SHRI PRADEEP M. GUPTA AND SHRI SANJEEV R. ADGAONKAR. ON 24.10.2016, THE CROSS-EXAMINATION OF THE SAID DIRECTORS WAS HELD. ONE OF THE DIRECTORS ON THE CROSS-EXAMINATION HAD STATED THAT THEY NEGOTIATED AND FINALIZED THE TERMS AND CONDITIONS REGARDING THE SALE OF LAND WITH ONE MR. KENNY KATARIA, WHO ACTED AS A BROKER BETWEEN THE APPELLANT AND SPPL AND FINALLY, THE APPELLANT HAD FILED A DETAILED SUBMISSION IN RESPONSE TO SHOW CAUSE NOTICE ON 30.09.2016 WHICH IS EXTRACTED BY THE ASSESSING OFFICER VIDE PARA 7.12 OF THE ASSESSMENT ORDER DENYING THE PAYMENT OF ANY CONSIDERATION OVER AND ABOVE THE CONSIDERATION STATED IN THE SALE DEED. THE SAID EXPLANATION WAS REJECTED BY THE ASSESSING OFFICER BY STATING THAT THE 5 IT(SS)A NO.05/PUN/2018 DIRECTORS OF PURCHASING COMPANY I.E., SPPL HAD CHANGED THEIR STAND ON THE CROSS-EXAMINATION BY STATING THAT THEY NEGOTIATED THE DEAL AND FINALIZED THE TERMS AND CONDITIONS WITH LAND BROKER NAMELY, KENNY KATARIA, WHO WAS NO MORE, ONLY IN ORDER TO SAVE THE APPELLANT HEREIN. THE ASSESSING OFFICER ALSO RECORDED THE STATEMENT OF SPOUSE OF THE SAID KENNY KATARIA, WHICH IS EXTRACTED AT PARA 7.18 OF THE ASSESSMENT ORDER. THE ASSESSING OFFICER ALSO HAD NOT BELIEVED THE STATEMENTS GIVEN BY DIRECTORS OF SPPL ON CROSS- EXAMINATION STATING THAT THEY ONLY NEGOTIATED THE DEAL AND FINALIZED THE TERMS AND CONDITIONS FOR THE SALE WITH SAID KENNY KATARIA AS THE SAID NAME IS NOT APPEARING IN ANY OF THE IMPOUNDED DOCUMENTS. FURTHER, THE ASSESSING OFFICER ANALYZED THE NOTINGS FOUND IN THE IMPUGNED SHEETS AND CONCLUDED THAT THE AMOUNTS MENTIONED IN THE LOOSE SHEETS WOULD SHOW THAT THE AMOUNT WAS PAID TO SELLERS OF THE PROPERTY AND CONCLUDED THAT THE CASH PORTION IS ALSO PAID TO THE SELLER OF THE LAND AND ACCORDINGLY CONCLUDED THAT THE APPELLANT RECEIVED A SUM OF RS.5,31,58,400/- OVER AND ABOVE THE CONSIDERATION STATED IN THE SALE DEED. ACCORDINGLY, MADE ADDITION OF RS.5,31,58,400/- AS UNDISCLOSED CONSIDERATION ON SALE OF LANDS. 5. BEING AGGRIEVED WITH THE ASSESSMENT ORDER, APPELLANT FILED APPEAL BEFORE THE LD.CIT(A) CONTENDING THAT IN THE ABSENCE OF ANY INCRIMINATING MATERIAL FOUND DURING THE SEARCH AND SEIZURE ACTION, NO ADDITION CAN BE MADE IN THE ASSESSMENT MADE U/S 153A OF THE ACT. IT WAS FURTHER CONTENDED THAT NO ADDITION AS UNDISCLOSED CONSIDERATION CAN BE MADE IN THE HANDS OF THE APPELLANT COMPANY MERELY BASED ON THE STATEMENTS OF THE THIRD PARTIES WITHOUT ANY CORROBORATIVE EVIDENCE. THESE CONTENTIONS HAD BEEN OVER-RULED BY THE LD.CIT(A) BY HOLDING THAT AN ADDITION CAN BE MADE EVEN WITHOUT INCRIMINATING MATERIAL, IN CASE THERE IS AN ABATEMENT OF REGULAR ASSESSMENT PROCEEDINGS. AS REGARDS TO, THE ADDITION ON MERITS, THE LD.CIT(A) HELD THAT 6 IT(SS)A NO.05/PUN/2018 THE AMOUNTS FINDING PLACE IN THE LOOSE SHEETS WERE PAID TO THE SELLER OF LAND AND THEREFORE, HE PRESUMED THAT EVEN THE AMOUNT OF RS.5,31,58,400/- FINDING PLACE IN THE SAME NOTINGS ALSO SHOULD BE TREATED AS PAID TO THE SELLER OF THE PROPERTY AND THE STATEMENTS GIVEN BY THE DIRECTORS OF SPPL ON CROSS- EXAMINATION WAS NOT BELIEVED BY LD.CIT(A), BY HOLDING TO BE AFTER THOUGHT, ACCORDINGLY, CONFIRMED THE ADDITION. 6. BEING AGGRIEVED WITH THE ORDER OF LD.CIT(A), THE APPELLANT IS IN APPEAL BEFORE US. 7. THE LD.A.R. FOR THE APPELLANT HAD NOT PRESSED THE GROUND RELATING TO JURISDICTION U/S 153A OF THE ACT. HE TOOK US THROUGH THE STATEMENTS OF DIRECTORS OF SPPL NAMELY, SHRI PRADEEP M. GUPTA AND SHRI SANJEEV R. ADGAONKAR RECORDED BY THE ADIT, NASHIK AND SUBMITTED THAT IN THE STATEMENTS GIVEN BY THE SAID TWO DIRECTORS, THE NAME OF THE APPELLANT COMPANY HAD BEEN NOWHERE MENTIONED. THEY ONLY STATED THAT CONSIDERATION OF RS.5,31,58,400/- WAS PAID IN CASH OVER AND ABOVE THE CONSIDERATION STATED IN THE SALE DEED TO THE SELLER OF THE LAND. HE ALSO TOOK US THROUGH THE STATEMENTS RECORDED ON CROSS-EXAMINATION OF THE SAID TWO DIRECTORS. HE SUBMITTED THAT ON DUE CONSIDERATION OF THE STATEMENTS GIVEN BY THE SAID DIRECTORS, IT CANNOT BE CONCLUDED THAT THERE IS ANY EVIDENCE TO SAY THAT THE APPELLANT HAS RECEIVED CONSIDERATION OF RS.5,31,58,400/- IN CASH OVER AND ABOVE THE CONSIDERATION STATED IN THE SALE DEED. FINALLY, HE SUBMITTED THAT THE SUBJECT LAND WAS ALREADY SOLD TO M/S. THAKKERS DEVELOPERS LTD VIDE THE DEVELOPMENT AGREEMENT DT.12.05.1995 WHICH IS EXECUTED AND REGISTERED ON THE SAME DAY. HE HAS ALSO TAKEN US THROUGH THE RELEVANT CLAUSE OF THE ENGLISH TRANSLATED COPY OF THE SAID DEVELOPMENT OF AGREEMENT PLACED AT PAGES 35 TO 37 OF THE PAPER BOOK. HE SUBMITTED THAT THE APPELLANT HAD NO 7 IT(SS)A NO.05/PUN/2018 INTEREST OR TITLE IN THE SUBJECT LAND AS THE APPELLANT HAD RELINQUISHED OWNERSHIP RIGHTS OVER THE SUBJECT LAND IN FAVOUR OF THAKKAR DEVELOPERS LTD. THE APPELLANT EXECUTED SALE DEED AS THE NAME OF THE APPELLANT STILL APPEARS IN LAND RECORDS AS LAND OWNER. HE ALSO TOOK US THROUGH THE ENGLISH TRANSLATED COPY OF THE SALE DEED DT.21.11.2013 ENTERED AMONG THE SPPL, THE APPELLANT AND THAKKARS DEVELOPERS LTD., PLACED AT PAGES 56 59 OF THE PAPER BOOK AND ALSO TOOK US TO THE RELEVANT CLAUSES OF THE SALE DEED TO SHOW THAT SALE CONSIDERATION WAS ALSO PAID ONLY TO THAKKERS DEVELOPERS LTD., AND THE APPELLANT HAD NO INTEREST WHATSOEVER OVER THE SUBJECT LAND. THUS, HE SUBMITTED THAT IN THE ABSENCE OF EVIDENCE ON RECORD, NO ADDITION CAN BE MADE MERELY BASED ON THE STATEMENTS GIVEN BY THE THIRD PARTIES, BASED ON THE NOTINGS ON THE LOOSE PAPERS IMPOUNDED DURING THE COURSE OF SURVEY. HE PLACED RELIANCE ON THE DECISION OF HONBLE BOMBAY HIGH COURT IN THE CASE OF ACIT VS. LATA MANGESHKAR REPORTED IN 97 ITR 696. 8. ON THE OTHER HAND, THE LD.D.R. PLACED RELIANCE ON THE ORDERS OF LD.CIT(A). LD.D.R. SUBMITS THAT THE STATEMENTS GIVEN BY THE DIRECTORS OF SPPL ON CROSS-EXAMINATION CANNOT BE BELIEVED. LD.D.R. FINALLY SUBMITTED THAT THE FIGURES MENTIONED IN THE LOOSE SHEETS REPRESENT THE MONEY PAID TO THE SELLER OF THE LAND. WHEN THE OTHER FIGURES ARE FOUND TO BE CORRECT, THERE IS NO REASON AS TO WHY NOT TO BELIEVE THAT THE CASH PORTION OF CONSIDERATION I.E., 5,31,58,400/- WAS NOT PAID TO THE SELLER OF THE PROPERTY. THUS, HE SUBMITTED THAT THE ORDER OF THE LD.CIT(A) NEEDS NO INTERFERENCE BY THIS TRIBUNAL. 9. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECORD. THE ONLY ISSUE IN THE PRESENT APPEAL RELATES TO THE ADDITION MADE ON ACCOUNT OF RECEIPT OF ALLEGED ON MONEY CONSIDERATION OF RS.5,31,58,400/- AT 8 IT(SS)A NO.05/PUN/2018 THE TIME OF SALE OF THE PROPERTY LOCATED AT S.NO.347/1 OF MUKHMALABAD, NASHIK TO SPPL. THE SALE OF THE SAID PROPERTY WAS MADE VIDE SALE DEED DT.21.11.2013 ENTERED AMONG SPPL (PURCHASER), RAJENDRA M. BUILDERS AND DEVELOPERS LTD (VENDOR), THE APPELLANT HEREIN AND THAKKARS DEVELOPERS LTD. FROM THE RECITALS OF THE SAID SALE DEED, IT IS CLEAR THAT THE APPELLANT I.E., RAJENDRA M BUILDERS AND DEVELOPERS HAD RELINQUISHED THE OWNERSHIP AND TITLE IN FAVOUR OF M/S. THAKKARS DEVELOPERS LTD VIDE DEVELOPMENT AGREEMENT AND POWER OF ATTORNEY ENTERED ON 12.05.1995. ON MERE READING THE COVENANTS IN CLAUSES 3, 9, 13 AND 16 OF THE SAID AGREEMENT PLACED AT PAGES 35 TO 38, IT WOULD BE EVIDENT THAT THE RIGHTS OF THE SAID PROPERTY WERE TRANSFERRED IN FAVOUR OF THAKKARS DEVELOPERS LTD. FURTHER, ON PERUSAL OF THE AGREEMENT TO SALE ENTERED ON 23.04.2013 AMONG SPPL AS A PURCHASER, RAJENDRA M. BUILDERS AND DEVELOPERS AS VENDOR AND THAKKARS DEVELOPERS LTD AS CONSENTING PARTY, IT CLEARLY SHOWS THAT THE SALE CONSIDERATION WAS PAID TO THAKKARS DEVELOPERS LTD AND THAKKARS DEVELOPERS LTD HAD ACKNOWLEDGED THE RECEIPT OF THE CONSIDERATION ALSO. WE REFER TO THE DECISION OF HONBLE APEX COURT IN THE CASE OF SANJEEVLAL AND SMT. SHANTILAL MOTILAL VS. CIT REPORTED IN 365 ITR 389 WHEREIN IT WAS CLEARLY HELD THAT ON ENTERING INTO AN AGREEMENT TO SALE, IT RESULTS IN RELINQUISHING OF AN INTEREST IN PROPERTY WHICH AMOUNTS TO TRANSFER. THE RELEVANT PORTION IS EXTRACTED BELOW FOR READY REFERENCE. 23. CONSEQUENCES OF EXECUTION OF THE AGREEMENT TO SELL ARE ALSO VERY CLEAR AND THEY ARE TO THE EFFECT THAT THE APPELLANTS COULD NOT HAVE SOLD THE PROPERTY TO SOMEONE ELSE. IN PRACTICAL LIFE, THERE ARE EVENTS WHEN A PERSON, EVEN AFTER EXECUTING AN AGREEMENT TO SELL AN IMMOVEABLE PROPERTY IN FAVOUR OF ONE PERSON, TRIES TO SELL THE PROPERTY TO ANOTHER. IN OUR OPINION, SUCH AN ACT WOULD NOT BE IN ACCORDANCE WITH LAW BECAUSE ONCE AN AGREEMENT TO SELL IS EXECUTED IN FAVOUR OF ONE PERSON, THE SAID PERSON GETS A RIGHT TO GET THE PROPERTY TRANSFERRED IN HIS FAVOUR BY FILING A SUIT FOR SPECIFIC PERFORMANCE AND THEREFORE, WITHOUT HESITATION WE CAN SAY THAT SOME RIGHT, IN RESPECT OF THE SAID PROPERTY, BELONGING TO THE APPELLANTS HAD BEEN EXTINGUISHED AND SOME RIGHT HAD BEEN CREATED IN FAVOUR OF THE VENDEE/TRANSFEREE, WHEN THE AGREEMENT TO SELL HAD BEEN EXECUTED. 24. THUS, A RIGHT IN RESPECT OF THE CAPITAL ASSET, VIZ. THE PROPERTY IN QUESTION HAD BEEN TRANSFERRED BY THE APPELLANTS IN FAVOUR OF THE VENDEE/TRANSFEREE ON 27TH 9 IT(SS)A NO.05/PUN/2018 DECEMBER, 2002. THE SALE DEED COULD NOT BE EXECUTED FOR THE REASON THAT THE APPELLANTS HAD BEEN PREVENTED FROM DEALING WITH THE RESIDENTIAL HOUSE BY AN ORDER OF A COMPETENT COURT, WHICH THEY COULD NOT HAVE VIOLATED. 10. THEREFORE, FROM THE ABOVE FACTS IT CLEARLY EMANATES THAT THE APPELLANT HEREIN HAS NO INTEREST WHATSOEVER IN THE SUBJECT LAND AS ON DATE OF SALE OF PROPERTY TO SPPL. THERE IS NO REASON TO INFER OR BELIEVE THAT ON MONEY CONSIDERATION IN CASH WAS PAID TO THE APPELLANT WHO HAD NO INTEREST WHATSOEVER IN THE PROPERTY SOLD. THAT APART, WE HAD CAREFULLY GONE THROUGH THE STATEMENTS GIVEN BY THE DIRECTORS OF SPPL NAMELY, SHRI PRADEEP M. GUPTA AND SHRI SANJEEV R. ADGAONKAR ON CROSS-EXAMINATION AND WE FOUND THAT THE STATEMENTS GIVEN BY THE SAID DIRECTORS DOES NOT INDICATE THAT ON MONEY CONSIDERATION WAS PAID TO THE APPELLANT. IN THE STATEMENT GIVEN BY ONE OF THE DIRECTORS NAMELY, PRADEEP M. GUPTA, WHILE ANSWERING QUESTION NO.8, HE STATED THAT ON MONEY CONSIDERATION OF RS.5,31,58,400/- WAS PAID IN CASH BUT HE HAS NOT MENTIONED THE NAME OF THE PAYEE. SIMILARLY, IN THE STATEMENT GIVEN BY OTHER DIRECTOR NAMELY, SHRI SANJEEV R. ADGAONKAR, NO WHERE IT WAS STATED THAT ON MONEY CONSIDERATION IN CASH WAS PAID TO THE APPELLANT. EVEN ON CROSS-EXAMINATION, THEY ONLY STATED THAT THE TERMS AND CONDITIONS OF SALE WAS FINALIZED BY MR. KENNY KATARIA WHO WAS INVOLVED IN THE SALE IN THE CAPACITY OF LAND BROKER BETWEEN SELLER AND PURCHASER. THUS, WE FIND THAT THERE IS NO CONCLUSIVE EVIDENCE BROUGHT ON RECORD BY THE ASSESSING OFFICER IN SUPPORT OF ALLEGATION OF THE ASSESSING OFFICER THAT THE APPELLANT WAS PAID ON MONEY CONSIDERATION IN CASH OF RS.5,31,58,400/-. EVEN OTHERWISE, NO ADDITION CAN BE MADE MERELY BASED ON THE STATEMENT GIVEN BY THIRD PARTIES WITHOUT BRINGING INDEPENDENT CORROBORATIVE EVIDENCE ON RECORD, IN THE PRESENT ASSESSMENT PROCEEDINGS. RELIANCE IN THIS REGARD CAN BE PLACED ON THE FOLLOWING DECISIONS: 10 IT(SS)A NO.05/PUN/2018 I) PR.CIT VS. UMESH ISHRANI (2019) 108 TAXMANN.COM 437 (BOM) II) CIT VS. ATAM VALVES (P.) LTD. (2009) 184 TAXMAN 6 (P&H) III) CIT VS. MAULIKKUMAR K. SHAH (2008) 307 ITR 137 (GUJ) IV) CIT VS. C.L. KHATRI (2006) 282 ITR 97 (MP) V) PR.CIT VS. KAMLESH PRAHLADBHAI MODI (2018) 94 TAXMANN.COM 356 (GUJ) VI) CIT VS. SHRI GIRISH CHAUDHARY (2008) 296 ITR 619 (DEL) VII) CIT VS. VIVEK AGGARWAL (2015) 56 TAXMANN.COM 7 (DEL) VIII) CIT VS. SALEK CHAND AGARWAL (2008) 300 ITR 426 (ALL) IX) CIT VS. DINESH JAIN (HUF) 352 ITR 629 (DEL). 11. WE FIND THAT THE CONCLUSIONS REACHED BY THE ASSESSING OFFICER ARE MERELY BASED ON PRESUMPTIONS AND ASSUMPTIONS WITHOUT BRINGING CORROBORATIVE MATERIAL ON RECORD. IT IS SETTLED POSITION OF LAW THAT NO ADDITION IN THE ASSESSMENT CAN BE MADE MERELY BASED ON ASSUMPTIONS, SUSPICION, GUESS WORK AND CONJUNCTURE OR ON IRRELEVANT INADMISSIBLE MATERIAL. RELIANCE CAN BE PLACED IN THIS REGARD ON THE FOLLOWING DECISIONS: I) DHIRAJLAL GIRDHARILAL VS. CIT (1954) 26 ITR 736 (SC) II) DHAKESWARI COTTON MILLS LTD. VS. CIT (1954) 26 ITR 775 (SC) III) CIT VS. MAHARAJADHIRAJA KAMESHWAR SINGH OF DARBHANGA (1933) 1 ITR 94 (PC) 25 IT(SS)A NOS.65, 67 & 69/PUN/2017 IV) LALCHAND BHAGAT AMBICA RAM VS. CIT (1959) 37 ITR 288 (SC) V) UMACHARAN SHAW & BROS VS. CIT (1959) 37 ITR 271 (SC) VI) OMAR SALAY MOHAMED SAIT VS. CIT (1959) 37 ITR 151 (SC). 12. THUS, WE ARE OF THE CONSIDERED OPINION THAT THE LD.CIT(A) HAD MERELY CONFIRMED THE ASSESSMENT ORDER WITHOUT LOOKING INTO THE SUBSTANCE OF THE TERMS AND CONDITIONS ENTERED BETWEEN THE APPELLANT AND SPPL, CONFIRMED ADDITION MERELY BASED ON THE UNCORROBORATED NOTINGS ON ASSUMPTIONS AND 11 IT(SS)A NO.05/PUN/2018 CONJUCTURES. THE LOWER AUTHORITIES HAD FAILED TO NOTE THAT THE NOTINGS DOES NOT CLEARLY INDICATE THAT THE AMOUNT WAS PAID ONLY TO THE APPELLANT HEREIN. THEREFORE, THE ORDERS OF BOTH THE ASSESSING OFFICER AND LD.CIT(A) WERE SET ASIDE AND DIRECTED THE ASSESSING OFFICER TO DELETED THE ADDITION. THUS, THE APPEAL OF THE ASSESSEE IS ALLOWED. 13. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED ON THIS 05 TH DAY OF AUGUST, 2021. SD/- SD/- (S. S. VISWANETHRA RAVI) (INTURI RAMA RAO) / JUDICIAL MEMBER / ACCOUNTANT MEMBER / PUNE; / DATED : 05 TH AUGUST, 2021. SUJEET / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT. 2. / THE RESPONDENT. 3. THE CIT(A)-12, PUNE. 4. THE PR. CIT CENTRAL, NAGPUR. 5 . , , , / DR, ITAT, B BENCH, PUNE. 6. / GUARD FILE. / BY ORDER, // TRUE COPY // SENIOR PRIVATE SECRETARY , / ITAT, PUNE.