M/S B.S. Associates, Bhopal V. D.C.I.T , Bhopal

ITSSA 198/Ind/2017

• Counselvise Citation: [2019] 112 COUNSELVISE.COM (IT) 0507 (ITAT-INDORE)
• Duration Of Justice: 2 year(s) 4 month(s) 4 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 09-12-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 14-11-2019
• Assessment Year: 2010-2011
• Appeal Filed On: 04-08-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ASHIMA GUPTA
• Keywords: Unexplained investment; Sale consideration of property below Jantri Value; Capital asset; Source of fund; Cost of acquisition; Fair market value; Corroborative evidences; Set aside
• Section: 143(3); 50C; 153A; 69B; 48; 13; 131; 69; 132

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL, INDORE BENCH, INDORE BEFORE HONBLE KUL BHARAT, JUDICIAL MEMBER AND HONBLE MANISH BORAD, ACCOUNTANT MEMBER IT(SS) NOS.197 & 198/IND/2017 ASSESSMENT YEARS 2009-10 & 2010-11 REVENUE BY SMT. ASHIMA GUPTA, CIT ASSESSEE BY SHRI HITESH CHIMNANI, CA DATE OF HEARING 1 4 . 1 1 .2019 DATE OF PRONOUNCEMENT 09 . 1 2 .2019 O R D E R PER MANISH BORAD, AM THE ABOVE CAPTIONED APPEALS FILED AT THE INSTANCE O F THE ASSESSEE PERTAINING TO ASSESSMENT YEARS 2009-10 & 2010-11 ARE DIRECTED AGAINST THE ORDERS OF LD. COMMISSIONER OF INCOME TAX (APPEALS)-3 (IN SHORT LD.CIT(A)], BHOPAL DATED 23 .05.2017 WHICH ARE ARISING OUT OF THE ORDER U/S 153A R.W.S 143(3) OF THE INCOME TAX ACT 1961(IN SHORT THE ACT) DATED 25.02.2015 F RAMED BY DCIT(CENTRAL)-I, BHOPAL. M/S. B.S. ASSOCIATES, E-7/100, MEGHA TOWER, G-1, LALA LAJPAT RAI SOCIETY, ARERA COLONY, BHOPAL VS. DCIT , CENTRAL - I , BHOPAL (APPELLANT) (RESPONDENT ) PAN NO.AAKFB1425C B.S. ASSOCIATES IT(SS)NOS.197 & 198 /IND/17 2 2. ASSESSEE HAS RAISED FOLLOWING GROUNDS OF APPEALS ; IT(SS) NO.197/IND/2017 FOR ASSESSMENT YEAR 2009-10 1. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE C ASE AND IN LAW, THE LD. CIT(A) ERRED IN MAINTAINING THE ADDITI ON TO THE EXTENT OF RS.19,41,000/- (OUT OF RS.1,30,00,000/-) MADE U/S 69B TOWARDS UNEXPLAINED INVESTMENT IN PURCHASE OF P LOT (SITUATED AT GRAM PANCHAYAT HALALPURA DISTRICT- BHO PAL) WITHOUT PROPERLY APPRECIATING THE FACTS OF THE CASE AND SUBMISSIONS MADE BEFORE HER. 2. THE APPELLANT CRAVES LEAVE TO ADD, AMEND, MODIFY OR WITHDRAW ANY OF THE GROUND OF APPEALS AT THE TIME O F HEARING.. IT(SS) NO.198/IND/2017 FOR ASSESSMENT YEAR 2010-11 1. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE C ASE AND IN LAW, THE LD. CIT(A) ERRED IN CONFIRMING THE ADDITIO N OF RS.1,33,48,750/- MADE U/S 69B TOWARDS ALLEGED UNEXPLAINED INVESTMENT IN PURCHASE OF PLOT (SITUATE D AT GRAM PIPLANER, BHOPAL) WITHOUT PROPERLY APPRECIATING THE FACTS OF THE CASE AND SUBMISSIONS MADE BEFORE HIM. 2. THE APPELLANT CRAVES LEAVE TO ADD, AMEND, MODIFY OR WITHDRAW ANY OF THE GROUND OF APPEALS AT THE TIME O F HEARING.. 3. AS THE ISSUES RAISED ARE COMMON BOTH THESE APPEA LS WERE HEARD TOGETHER AND ARE BEING DISPOSED OFF BY THIS C OMMON ORDER FOR SAKE OF CONVENIENCE AND BREVITY. 4. BRIEFLY STATED FACTS AS CULLED OUT FROM THE RECORDS ARE THAT THE ASSESSEE COMPANY IS A MEMBER OF DBL GROUP, BHOPAL. THE GROUP IS ENGAGED IN THE BUSINESS OF CIVIL CONSTRUCTION. T HE GROUP IS ALSO RUNNING VARIOUS EDUCATIONAL INSTITUTIONS AT BHOPAL A SEARCH WAS CONDUCTED ON THE BUSINESS PREMISES OF THE ASSESSEE COMPANY AS B.S. ASSOCIATES IT(SS)NOS.197 & 198 /IND/17 3 WELL AS ON THE PREMISES OF OTHER RELATED CONCERNS O N 20.06.2012. THE ASSESSEE COMPANY HAS NOT FILED ITS RETURN OF IN COME FOR THE ASSESSMENT YEAR 2009-10 & 2010-11. NOTICES U/S 153A OF THE I.T. ACT DATED 03.01.2013 ISSUED TO THE APPELLANT COMPAN Y TO FILE THE RETURNS OF INCOME FOR ASSESSMENT YEARS 2007-08 TO 2012-13. IN RESPONSE TO NOTICES U/S 153A ASSESSEE FILED WRITTEN REPLY STATING THAT THE COMPANY WAS INCORPORATED ON 01.04.2008 AND FIRST RETURN WAS FILED BY THE ASSESSEE FIRM FROM ASSESSMENT YEAR 2009-10. IN RESPONSE TO NOTICES U/S 153A OF THE ACT ASSESSEE DE CLARED ITS INCOME FOR ASSESSMENT YEARS 2009-10 & 2010-11 AS N IL IN THE RETURN FILED ON 20.02.2014. ASSESSMENT FOR THE ABOV E TWO YEARS WERE COMPLETED U/S 153A R.W.S. 143(3) OF THE ACT AF TER MAKING ADDITION OF RS.1,30,00,000/- ON ACCOUNT OF UNEXPLAI NED INVESTMENT FOR ASSESSMENT YEAR 2009-10 AND RS.1,33,48,750/- ON ACCOUNT OF ON-MONEY PAYMENT FOR ASSESSMENT YEAR 2010-11. AGGRI EVED ASSESSEE PREFERRED APPEALS BEFORE LD. CIT(A) BUT PA RTLY SUCCEEDED FOR A.Y.2009-10 BUT FAILED TO SUCCEED FOR A.Y.2010- 11. 5. NOW THE ASSESSEE IS IN APPEAL BEFORE THE TRIBUNA L. 6. WE WILL FIRST TAKE UP APPEAL FOR A.Y. 2009-10 IN WHICH SOLE GROUND RAISED BY THE ASSESSEE CHALLENGES THE ACTION OF THE LD. CIT(A) SUSTAINING ADDITION FOR UNEXPLAINED INVESTME NT U/S 69 OF THE ACT FOR PURCHASE OF PLOT AT RS.19,41,000/- AS AGAIN ST THE ADDITION MADE BY THE LD. AO AT RS.1,30,00,000/-. B.S. ASSOCIATES IT(SS)NOS.197 & 198 /IND/17 4 7. LD. COUNSEL FOR THE ASSESSEE VEHEMENTLY ARGUED REFERRING TO THE FOLLOWING WRITTEN SUBMISSIONS PLACED ON RECORD: 1. ASSESSEE HAS PURCHASED LAND ADMEASURING 1.05 ACRES FOR RS.1,20,00,000. 2. SUMMONS U/S 131 OF THE IT ACT WERE ISSUED TO THE SE LLER ( I.E. PRESIDENT OF THE SOCIETY GRAH NIRMAN SAHKARI SAMITI ). 3. HOWEVER SUCH NON AVAILABILITY OF SELLER DOES NOT DI SCREDIT THE GENUINENESS OF THE TRANSACTION WHICH IS SUPPORTED B Y REGISTERED SALE DEED AND BANK STATEMENT TO PROVE PAYMENTS HAVE BEEN MADE THROUGH BANKING CHANNELS. PURCHASERS GENERALLY DO NOT KEEP A TAB ON THE SELLERS. 4. THE ASSESSEE HAS PURCHASED ABOVE LAND AT THE PREVAI LING MARKET RATE. 5. FURTHER, AN ENQUIRY WAS ALSO MADE BY SHRI SANDEEP C HATURVEDI - INSPECTOR ON 10.12.2014 TO FIND OUT PREVAILING MA RKET RATE OF THIS AREA. ( I.E. AFTER 5.5 YEARS FROM THE PURCHASE DATE OF 21.05.2008) 6. FIGURE OF RS.2,50,00,000 ADOPTED BY THE ASSESSING O FFICER WAS WITHOUT ANY PROPRIETY AND WAS MERELY A WILD GUESS. THE FAIR MARKET VALUE ESTIMATED CANNOT BE APPROPRIATELY USED IN DETERMINING THE ACCURATE/CORRECT PURCHASE COST OF T HE LAND. THE LD. AO ON THE BASIS OF ENQUIRY REPORT OF INSPECTOR OF INCOME TAX SHRI SANDEEP CHATURVEDI PRESUMED THAT THE ACTUAL PU RCHASE MAY HAVE BEEN DONE AT RS. 2,50,00,000/- STATING THA T THE AREA IS ONE OF THE MOST DEMANDING AREA OF BHOPAL. HOWEVE R, THE ACTUAL MARKET VALUE I.E. RS. 1,39,41,000/- (AS PER GUIDELINE RATE TAKEN BY LD CIT(A) AND NOT ON THE BASIS OF PRESUMED MARKET VALUE I.E. RS. 2,50,00,000/- IS ALSO NOT POSSIBLE S INCE THE RELEVANT PROVISION WAS INSERTED IN 56(2)(VII) W.E.F 1.10.20009 ONLY.. A.Y. DATE OF FILING RETURN INCOM E DECLAR ED INCOME DECLARED IN RETURN BY ASSESSEE AGAINST NOTICE U/S 153A ADDITION MADE BY AO ADDITION MAINTAIN ED BY CIT 2009- 20.02.2 NIL NIL 1,30,00, 19,41,0 B.S. ASSOCIATES IT(SS)NOS.197 & 198 /IND/17 5 10 014 000 00 7. THEREFORE, THE ADDITION ON THIS ACCOUNT TO THE EXTE NT OF RS. 19,41,000 ONLY ( RS. 1,39,41,000 RS. 1,20,00,000/ -) BEING THE DIFFERENCE BETWEEN ACTUAL MARKET VALUE (BEING GUIDE LINE VALUE AS TAKEN BY CIT(A)) AND THE PURCHASE PRICE WAS CONF IRMED BY CIT. 8. THE DIFFERENCE BETWEEN THE MARKET VALUE OF THE LA ND AND PURCHASE COST PAID BY THE BUYER THROUGH THE BANKI NG CHANNEL CANNOT BE OUT RIGHTLY TREATED AS UNEXPLAINED INVEST MENTS, WITHOUT BACKED BY ANY DOCUMENTARY EVIDENCE TO SUPPO RT THE SAME. 9. THE ESTIMATION OF THE FAIR MARKET VALUE OF THE LAND CANNOT BE TREATED AS THE DETERMINATION OF THE PURCHASE COST O F THE LAND FOR THE PURPOSES OF DETERMINATION OF THE INVESTMENT MAD E IN THE LAND BECAUSE PURCHASE COST MEANS WHAT IS ACTUALLY SPENT BY THE ASSESSEE IN A PARTICULAR YEAR FOR PURCHASING, W HEREAS FAIR MARKET VALUE IS WHAT THE LAND WOULD FETCH, IF SOLD IN THE OPEN MARKET. 10. WHERE THE ASSESSEE HAS PURCHASED THE LAND THROUGH CHEQUE, THE ADDITION BASED ON ESTIMATION OF FAIR MA RKET VALUE TREATED AS COST OF LAND CANNOT BE TREATED AS UNEXPL AINED INVESTMENTS AS SECTION 69, SINCE THE COST FOR A PUR CHASER IS NOT NECESSARILY REQUIRED TO BE EQUATED WITH THE FAIR MA RKET VALUE, IT CAN BE EITHER ON THE ABOVE OR LOWER SIDE AS WELL, D EPENDING UPON THE BARGAINING POWER OF THE PURCHASED AND REQU IREMENTS OF THE SELLER. MOREOVER, THE TRANSACTION STANDS DUL Y RECORDED IN THE BOOKS OF ACCOUNTS. 11. WHERE THE ASSESSING OFFICER SUSPECTED THAT THE EXTE NT OF ASSESSEES INVESTMENTS WERE UNDERSTATED AS COMPARED TO THE VALUE ESTIMATED BY THE ASSESSING OFFICER TO BE THE FAIR MARKET VALUE AND THE DIFFERENCE WAS ADDED AS UN-EXPLAINED INVESTMENTS. THUS, THE ADDITION WAS MADE BASED IN A MERE OPINION. IN ABSENCE OF ANY EVIDENCE SINCE THE PAYME NT FOR THE PURCHASE COST OF LAND HAS BEEN MADE THROUGH THE BAN KING CHANNELS, THE ADDITION MADE UNDER THIS SECTION COUL D NOT BE ON SURMISES AND CONJECTURES BY ASSESSING OFFICER BUT S HOULD BE BASED ON A CONCRETE MATERIAL ONCE IT IS PLACED ON R ECORD. B.S. ASSOCIATES IT(SS)NOS.197 & 198 /IND/17 6 12. IN THE ABOVE CASE, THE ASSESSEE HAS PURCHASED THE LAND AGAINST THE PAYMENTS MADE THROUGH CHEQUE (NO. 09059 2, 090593 AND 050594 AMOUNTING RS. 38,25,000/-, RS. 30,00,000/- AND RS. 53,00,000/-). HOWEVER ASSESSING OFFICER HAS PROVIDED NO EVIDENCE BASED ON WHICH SECTION 69 CAN BE INVOKED SINCE THE ASSESSEE IS ABLE TO TRACE THE ENT IRE TRANSACTION COMPLETELY AND IT IS DULY RECORDED IN T HE BOOKS OF ACCOUNTS. 13. NO ESTIMATION WORK, WHERE THE ACTUAL COST IS DULY R EFLECTED IN THE BOOKS CAN BE ENTERTAINED. 8. PER CONTRA LD. DEPARTMENTAL REPRESENTATIVE(DR) V EHEMENTLY ARGUED SUPPORTED THE ORDERS OF BOTH LOWER AUTHORITI ES ALSO SUBMITTED THAT LD. CIT(A) HAS RIGHTLY SUSTAINED THE ADDITION ADOPTING THE VALUATION OF THE STAMP VALUATION AUTHO RITY. 9. WE HAVE HEARD RIVAL CONTENTIONS AND PERUSED THE RECORDS PLACED BEFORE US. THE ADDITIONS SUSTAINED BY THE LD. CIT(A ) AT RS.19,41,000/- IS FOR ALLEGED UNEXPLAINED INVESTMEN T U/S 69 OF THE ACT FOR PURCHASE OF PLOT OF LAND HAS BEEN CHALLENGE D BY THE ASSESSEE RAISING SOLE GROUND OF APPEAL FOR A.Y. 2009-10. 10. WE OBSERVE THAT ON 21.05.2008 ASSESSEE PURCHASE D PLOT OF LAND MEASURING 1.05 ACRES LOCATED AT GRAM PANCHAYAT HALA LPURA, DISTRICT BHOPAL FROM M/S SIRS GRAH NIRMAAN SAHKARI SAMITI GRAM HALALPURA FOR A PURCHASE CONSIDERATION OF RS.1,20,0 0,000/- DULY APPEARING IN THE REGISTERED DOCUMENTS. IN THE VERY SAME REGISTERED DOCUMENTS VALUE ADOPTED BY THE STAMP VALUATION AUTH ORITY WAS RS.1,39,41,000/-. THE LD. AO MADE AN ADDITION FOR U NEXPLAINED INVESTMENT AT RS.1,30,00,000/- APPLYING THE PREVAIL ING MARKET RATE OF RS.2,50,00,000/- WITHOUT ANY SUPPORT OF ANY DOCU MENTARY B.S. ASSOCIATES IT(SS)NOS.197 & 198 /IND/17 7 EVIDENCES. LD. CIT(A) SUSTAINED THE ADDITION ONLY T O THE EXTENT OF RS.19,41,000/- TAKING BASIS OF THE VALUE ADOPTED BY THE STAMP VALUATION AUTHORITY APPEARING IN THE REGISTERED DOC UMENTS. 11. IT HAS BEEN CONTENDED BY LD. COUNSEL FOR THE AS SESSEE THAT NO EVIDENCE HAS BEEN BROUGHT ON RECORD WHICH CAN PROVE THAT ASSESSEE HAD PAID AMOUNT OVER AND ABOVE THE STATED PURCHASE CONSIDERATION OF RS.1,20,00,000/-. 12. IT SEEMS THAT LD. CIT(A) WHILE SUSTAINING THE A DDITION AT RS.19,41,000/- KEPT IN MIND THE PROVISION OF SECTIO N 50C OF THE ACT WHICH IS A SPECIAL PROVISION FOR APPLYING FULL VALU E OF CONSIDERATION IN CERTAIN CASES. PROVISIONS OF SECTION 50C OF THE ACT IS APPLICABLE ON THE PERSON WHO RECEIVES THE CONSIDERATION FROM S ALE OF CAPITAL ASSET I.E. THE SELLER AND IF THE VALUE RECEIVED BY THE SELLER IS LESS THAN THE VALUE ADOPTED OR ASSESSABLE BY ANY AUTHORI TY OF STATE GOVERNMENT FOR THE PURPOSE OF PAYMENT OF STAMP DUTY IN RESPECT OF SUCH TRANSFER, THE VALUATION WAS ADOPTED OR ASSESSE D IS DEEMED TO THE FULL VALUE OF CONSIDERATION RECEIVED OR ACCRUED AS A RESULT OF SUCH TRANSFER FOR THE PURPOSE OF SECTION 48 OF THE ACT. FURTHER SUB- SECTION (2) OF SECTION 50C PROVIDES AN OPPORTUNITY TO THE ASSESSEE TO CHALLENGE THE VALUATION MADE BY THE STAMP VALUATION AUTHORITY IN CASE THE PREVAILING MARKET RATE IS LESS THAN THE VA LUE ASSESSED BY THE STAMP VALUATION AUTHORITY AS PER THE JANTRY RAT E. SO SECTION 50C SUB-SECTION (1) DOES NOT GIVE BLANKET PERMISSIO N TO THE REVENUE AUTHORITIES TO ADOPT THE VALUE OF THE PROPERTY AS P ER THE JANTRY RATE B.S. ASSOCIATES IT(SS)NOS.197 & 198 /IND/17 8 AND THERE IS A RIGHT AVAILABLE WITH THE ASSESSEE TO CHALLENGE THE SAME. 13. IN THE INSTANT CASE WHICH RELATES TO PURCHASER OF PLOT OF LAND AND THE ADDITION IS MADE FOR UNEXPLAINED INVESTMENT . THERE IS NO IOTA OF EVIDENCE PLACED ON RECORD WHICH COULD SHOW THAT ANY INVESTIGATION HAS BEEN CARRIED OUT BY THE REVENUE A UTHORITIES IN RELATION TO THE SELLER OF THE PROPERTY FOR THE ACTU AL CONSIDERATION RECEIVED BY HIM. THE ADDITION IN THE HANDS OF ASSES SEE WHICH IS MERELY BASED ON THE JANTRY RATES, SO FAR AS SECTION 50C OF THE ACT IS CONCERNED THE SAME IS NOT APPLICABLE ON THE ASSESSE E AS THE ASSESSEE IS PURCHASER WHEREAS SECTION 50C OF THE AC T APPLIES TO SELLER. 14. NOW SECTION UNDER WHICH THE ADDITION IN THE HAN DS OF ASSESSEE HAS BEEN MADE IS SECTION 69 OF THE ACT WHICH RELATE S TO UNEXPLAINED INVESTMENT AND IT READS AS FOLLOWS: WHERE IN THE FINANCIAL YEAR IMMEDIATELY PRECEDING THE ASSESSMENT YEAR THE ASSESSEE HAS MADE INVESTMENTS W HICH ARE NOT RECORDED IN THE BOOKS OF ACCOUNT, IF ANY MAINTA INED BY HIM FOR ANY SOURCE OF INCOME, AND THE ASSESSEE OFFERS N O EXPLANATION ABOUT THE NATURE AND SOURCE OF THE INVE STMENTS OR THE EXPLANATION OFFERED BY HIM IS NOT, IN THE OPINI ON OF THE ASSESSING OFFICER SATISFACTORY, THE VALUE OF THE IN VESTMENTS MAY BE DEEMED TO BE THE INCOME OF THE ASSESSEE OF SUCH FINANCIAL YEAR. 15. THE ABOVE PROVISION IS APPLICABLE IN CASE ANY E VIDENCE OR DOCUMENTS IS FOUND BY THE REVENUE AUTHORITIES SHOWI NG SOME INVESTMENT MADE BY THE ASSESSEE WHICH IS NOT RECORD ED IN THE B.S. ASSOCIATES IT(SS)NOS.197 & 198 /IND/17 9 BOOKS OF ACCOUNTS AND THE ASSESSEE IS UNABLE TO GIV E ANY EXPLANATION ABOUT THE SOURCE OF SUCH INVESTMENT. IN THE CASE OF ASSESSEE THE TRANSACTIONS OF PURCHASE OF THE PLOT O F LAND MEASURING 1.05 ACRES IS DULY INCORPORATED IN THE BOOKS SHOWIN G THAT THE LAND HAS BEEN PURCHASED FOR CONSIDERATION OF RS.1,20,00, 000/- ON 21.05.2008. APART FROM THE PURCHASE DOCUMENTS NO OT HER MATERIAL WAS FOUND DURING THE COURSE OF SEARCH CONDUCTED ON 20.06.2012 AT THE BUSINESS PREMISES OF THE ASSESSEE. UNLESS ANY D OCUMENTS OR EVIDENCE IS FOUND WHICH COULD PROVE THAT UNEXPLAINE D INVESTMENT HAS BEEN MADE BY THE ASSESSEE OVER AND ABOVE THE PU RCHASE CONSIDERATION MENTIONED IN THE REGISTERED DEED, WE DO NOT FIND ANY JUSTIFICATION IN THE ACTION OF THE REVENUE AUTHORIT IES APPLYING THE VALUATION OF THE PROPERTY MADE BY THE STAMP VALUATI ON AUTHORITY. WE, THEREFORE, SET ASIDE THE FINDING OF LD. CIT(A) AND DELETE THE ADDITION OF RS.19,41,000/- SUSTAINED BY THE LD. CIT (A) AND DIRECT THE LD. AO TO ADOPT THE PURCHASE CONSIDERATION OF R S.1,20,00,000/- . THUS, GROUND NO.1 OF THE ASSESESSEE APPEAL FOR A. Y. 2009-10 IS ALLOWED. GROUND NO.2 IS GENERAL IN NATURE WHICH NEE DS NO ADJUDICATION. IN THE RESULT ASSESSEES APPEAL FOR A.Y. 2009-10 IS ALLOWED. 16. NOW WE TAKE UP THE ASSESSEEES APPEAL FOR A.Y.2 010-11 WHEREIN SOLE GROUND HAS BEEN RAISED CHALLENGING THE FINDING OF LD. CIT(A) CONFIRMING THE ADDITION OF RS.1,33,48,750/- MADE U/ S 69B OF THE ACT TOWARDS ALLEGED UNEXPLAINED INVESTMENT IN PURCH ASE OF PLOT SITUATED AT GRAM-PIPALNER, BHOPAL. B.S. ASSOCIATES IT(SS)NOS.197 & 198 /IND/17 10 17. LD. COUNSEL FOR THE ASSESSEE VEHEMENTLY ARGUED MENTIONING THE BRIEF FACTS AND SUBMISSIONS CHALLENGING THE FINDING OF LD. CIT(A) REFERRING TO THE FOLLOWING WRITTEN SUBMISSIONS PLAC ED ON RECORD:- (ADDITION OF RS. 1,33,48,750/- ) AO (PGS) CIT(A) (PGS) COMPILATION (PGS) REMARKS/BRIEF SUBMISSIONS - 1. THE ASSESSEE FIRM PURCHASED LAND MEASURING 5.026 ACRE LOCATED AT GRAM-PIPALNER, BHOPAL ON 22.10.2009 FOR RS. 1,21,30,000 FROM SHRI BALA PRASAD. 2. THE ADDITIONS WERE MADE ON THE BELIEF THAT ASSESSEE FIRM HAS MADE PAYMENTS. 3. THE ADDITIONS WERE MADE BASELESSLY IN ABSENCE OF ANY SUPPORTING EVIDENCE ON RECORD. 4. THE LD. CIT-(A) HAS CONFIRMED UNDER SEC 69 BY LD. AO ON THE GROUND THAT SUMMON U/S 131 ISSUED TO THE SELLER, AFTER EXAMINING SELLER ON OATH WHEREIN SELLER CONFIRMED THE RECEIPT OF RS. 2,40,00,000 IN TOTAL, AGAINST THE SALE OF TOTAL 6.4 ACRE OF LAND. 5. SELLER HAS SOLD MULTIPLE PROPERTIES TO THREE DIFFERENT ASSESSEES ONE OF WHICH IS B S ASSOCIATE. 1. ASSESSEE FIRM PURCHASED LAND FOR RS. 1,21,30,000 FROM BALA PRASAD S/O KEWAL RAM. 2. SUMMONS U/S 131 OF THE IT ACT WERE ISSUED ON BALA PR ASAD AND STATEMENT ON OATH WAS RECORDED ON 04.12.2012 WHE REIN B.S. ASSOCIATES IT(SS)NOS.197 & 198 /IND/17 11 HE STATED THAT HE RECEIVED AMOUNT OF RS.2,40,00,000 BY CHEQUE AND RS. 20,00,000/- BY CASH. FURTHER SHRI LAKHAN S/O BALA PRASAD HAS ALSO STATED THAT HE RECEIVED ADDITIONAL CASH OF RS. 50,00,000/- AGAINST THE SALE. THUS ON GOING THROUGH THE STATEMENT OF SHRI BALA PRASAD IT EMERGES THAT SHRI BA LA PRASAD S/O KEWAL RAM HAS SOLD TOTAL 6.4 ACRE LAND TO ASSESSE E (B. S. ASSOCIATES) AND SHRI DILIP SURYAVANSHI. FOR WHICH H E HAS RECEIVED TOTAL CONSIDERATION OF RS. 3,10,00,000/- (R S. 2,40,00,000/- BY CHEQUE AND RS. 20,00,000/- + 50,00, 000/- BY CASH) AGAINST THE SALE OF ABOVE LAND. ALSO THE S ELLER HAS CONFIRMED ABOVE STATEMENT DURING THE COURSE OF STATE MENT BEFORE DDIT-(INV)-I, BHOPAL ON 04.02.2012 AND BEFOR E ASSESSING OFFICER ON 13.10.2014. A. SHRI BALA PRASAD WAS THE OWNER OF LAND MEASURING 8.4 4 ACRES WHICH IS ALSO SHOWN IN REGISTRY. B. HE HAS SOLD HIS ENTIRE LAND TO THREE DIFFERENT PERSO NS IN THE FOLLOWING MANNER. LAND IN ACRES SOLD TO PARTY (IN ACRES) PARTY NAME AMOUNT MODE 5.26 ACRES M/S B. S. ASSOCIATES RS. 38,25,000/- RS. 30,00,000/- RS. 53,00,000/- RS. 5,000/- TOTAL =1,21,30,000/- CHQ NO. 090592 CHQ NO. 090593 CHQ NO. 090594 CASH 1.81 ACRES SHRI DILIP SURYAWANSHI HE OWNED UP PAYING THE CASH OF 50,00,000/- AND PAID TAX THEREON. MATTER SETTLED IN SETTLEMENT COMMISSION(PG31- 32 PARA 18 OF ORDER OF SETTLEMENT COMMISSION B.S. ASSOCIATES IT(SS)NOS.197 & 198 /IND/17 12 DATED 29.09.2016) 1.37 ACRES OTHERS TOTAL 8.44 ACRES 8.44 ACRES 3. THUS BASED ON ABOVE FACTS AND CIRCUMSTANCE, IT IS E VIDENT THAT THE ASSESSEE HAD PURCHASED ABOVE LAND ON PAYMENT THR OUGH BANK WITHOUT ANY BEING INVOLVED IN COMPLETE TRANSA CTION. WHATEVER ON-MONEY WAS PAID, IT WAS OWNED UP AND TAX PAID THEREON BY SHRI DILIP SURYAVANSHI. THEREFORE ASSESS EES LIMB OF THE TRANSACTION STANDS EXPLAINED. 18. LD. COUNSEL FOR THE ASSESSEE HAS REFERRED FOLLO WING JUDGMENTS: 1. CIT VS. KHANDELWAL SHRINGI & CO. (2018) 100 TAX MANN.COM 345 (SC) 2. RENU AGARWAL VS. ACIT (2017) 88 TAXMANN.COM 872 (JAIPUR- TIRUNBAL) 19. PER CONTRA LD. DEPARTMENT REPRESENTATIVE (DR) V EHEMENTLY ARGUED SUPPORTED THE ORDERS OF THE LOWER AUTHORITIE S. 20. WE HAVE HEARD RIVAL CONTENTIONS AND PERUSED THE RECORDS PLACED BEFORE US AND CAREFULLY GONE THROUGH THE DECISIONS REFERRED AND RELIED BY THE LD. COUNSEL FOR THE ASSESSEE. THE ASS ESSEE HAS CHALLENGED THE FINDING OF LD. CIT(A) CONFIRMING ADD ITION OF RS.1,33,48,750/- MADE U/S 69B OF THE ACT. 21. POST SEARCH DURING THE ASSESSMENT PROCEEDINGS I T WAS OBSERVED THAT ASSESSEE HAS PURCHASED LAND MEASURING 5.26 ACR ES LOCATED AT GRAM-PIPALNER, BHOPAL ON 22.10.2009 FOR A CONSIDERA TION OF B.S. ASSOCIATES IT(SS)NOS.197 & 198 /IND/17 13 RS.1,21,30,000/-. THIS LAND WAS PURCHASED FROM MR. BALA PRASAD. LD. ASSESSING OFFICER IN ORDER TO EXAMINE THE ALLEG ED TRANSACTIONS REFERRED TO THE INVESTIGATION CARRIED OUT BY THE IN VESTIGATION WING POST SEARCH PROCEEDINGS U/S 132 OF THE ACT CONDUCTE D ON 20.06.2012. THE INVESTIGATION WING IN ORDER TO VERI FY THE TRANSACTION ISSUED SUMMON U/S 131 OF THE ACT ISSUED TO BALA PRA SAD AND THE STATEMENT ON OATH WAS RECORDED ON 04.12.2012. MR. B ALA PRASAD STATED THAT HE HAD SOLD 6.4 ACRES LAND TO MR. DILIP SURYAVANSHI AND RECEIVED AMOUNT OF RS.2,40,00,000/- BY CHEQUE AND R S.20,00,000/- IN CASH. ALONG WITH MR. BALA PRASAD HIS SON MR. LA KHAN PRASAD WAS ALSO EXAMINED AND HE IN THE STATEMENT DATED 05. 12.2012 STATED TO HAVE RECEIVED CASH OF RS.50,00,000/- AS ON MONEY AGAINST THE SALE OF LAND. LD. AO TAKING BASIS OF TH ESE INFORMATION OBSERVED FOLLOWING FACTS IN THE IMPUGNED ASSESSMENT ORDER FOR WHICH THE ASSESSEE WAS SHOW CAUSED TO RECONCILE THE STATEMENT: ON GOING THROUGH THE ABOVE STATEMENT OF SHIR BALA PRASAD FOLLOWING FACTS EMERGES:- I. SHRI BALA PRASAD S/O SHRI KEWAL RAM LAND HAS SOL D 6.4 ACRE TO ASSESSEE AND SHRI DILIP SURYAVANSHI. HE HAS RECE IVED TOTAL CONSIDERATION OF RS.3,10,00,000/-( RS.2,40,00,000/- BY CHEQUE AND RS.20,00,000/- + 50,00,000/- BY CAHS) AGAINST T HE SALE OF ABOVE LAND. AS PER THE RECORD THE ASSESSEE HAS PURC HASED TOTAL 5.26 ACRE LAND FROM THE SELLER. II. THE SELLER HAS CONFIRMED THE ABOVE STATEMENT DU RING THE COURSE OF STATEMENT BEFORE DDIT-(INV.)-1, BHOAPL ON 04.12.2012 AND BEFORE THE ASSESSING OFFICER ON 13.10.2014. III. THE SHRI BALA PRASAD S/O SHRI KEWAL RAM HAS AL SO STATED THAT AGAINST THE SALE OF ABOVE LAND HE DISTRIBUTED ALL THE PAYMENT BETWEEN HIS SONS AND DAUGHTER. B.S. ASSOCIATES IT(SS)NOS.197 & 198 /IND/17 14 IV. HE HAS ALSO STATED THAT AN AGREEMENT WAS MADE F OR THE SALE OF THIS LAND HOWEVER THE SAME WAS NOT HANDED OVER T O HIM. 22. IN REPLY TO THE SHOW CAUSE NOTICE, ASSESSEE SUB MITTED THAT IN THE STATEMENT GIVEN BY MR. BALA PRASAD AND HIS SON THERE IS NO MENTION OF ASSESSEE FIRM. THE TOTAL LAND OWNED BY M R. BALA PRASAD ADMEASURING 8.44 ACRES, OUT OF WHICH ONLY 5.26 ACRE S WAS SOLD TO THE ASSESSEE AND THE REMAINING LAND HAS BEEN SOLD T O OTHER PARTIES. IT WAS ALSO SUBMITTED THAT NO ON MONEY HAS BEEN P AID BY THE ASSESSEE FIRM. HOWEVER, LD. AO WAS NOT CONVINCED WI TH THE SUBMISSIONS AND HE MADE THE ADDITION FOR ALLEGED O N MONEY PAYMENT OF RS.1,33,48,750/- GIVING FOLLOWING REASON S: THE ASSESSEE HAS NOT SUBMITTED ANY DOCUMENTARY EVI DENCES, WHICH SUBSTANTIATE ITS CLAIM. AS PER THE RECORD SHR I BALA PRASAD S/O SHRI. KEWAL RAM LAND HAS SOLD 6.4 ACRE TO ASSES SEE AND SHRI DILIP SURYAVANSHI. HE HAS RECEIVED TOTAL CONSI DERATION OF RS.3,10,00,000/- (RS.2,40,00,000/- + 50,00,000/- B Y CHEQUE AND RS.20,00,000/- BY CASH) AGAINST THE SALE OF TOT AL 6.4 LAND. AS PER THE RECORD THE ASSESSEE HAS PURCHASED TOTAL 5.26 ACRE LAND FROM THE SELLER. II. AS PER THE TOTAL SALE CONSIDERATION RECEIVED BY THE SELLER OF RS.3,10,00,000/- THE ABOVE LAND WAS SOLD BY THE SEL LER OF RS.48,43,750/- PER ACRE. THEREFORE, AMOUNT OF RS.2, 54,78,750/- HAS BEEN PAID BY THE ASSESSEE AGAINST THE SALE OF 5 .26 ACRE LAND, HOWEVER THE REGISTRY WAS MADE OF RS.1,21,30,0 00/- ONLY. THEREFORE, AMOUNT OF RS.1,33,48,750/- (RS. 2,54,78, 750/-- RS.1,21,30,000) HAS BEEN PAID BY THE ASESSEEE AS ON -MONEY. III. THE SELLER HAS CONFIRMED THE ABOVE STATEMENT D URING THE COURSE OF STATEMENT BEFORE DDIT-(INV.)-IN BHOPAL ON 04.12.2012 AND BEFORE THE ASSESSING OFFICER ON 13.10.2014. B.S. ASSOCIATES IT(SS)NOS.197 & 198 /IND/17 15 SHRI BALA PRASAD S/O SHRI KEWAL RAM HAS ALSO STATED THAT AGAINST THE SALE OF ABOVE LAND HE DISTRIBUTED ALL T HE PAYMENT BETWEEN HIS SONS AND DAUGHTER. V. HE HAS ALSO STATED THAT AN AGREEMENT WAS MADE FO R THE SALE OF THIS LAND HOWEVER THE SAME WAS NOT HANDED OVER T O HIM. VI. THE ASSESSEE HAS ALSO NOT SUBMITTED ANY DETAIL OF THE CLAIM THAT THE SELLER HAS SOLD LAND TO OTHER PERSONS AT T HE SAME TIME. 23. WHEN THE MATTER COME UP BEFORE THE LD. CIT(A) T HE ASSESSEEE REITERATED THE SUBMISSIONS AS WERE MADE BEFORE THE LD. ASSESSING OFFICER AND ALSO CONTENDED THAT THE ALLEGED ADDITI ON HAS BEEN MADE MERELY ON PRESUMPTION AND GUESS WORK AND WITHOUT TH E BASIS OF ANY INCRIMINATING MATERIAL FOUND AGAINST THE ASSESS EE. HOWEVER, THE IMPUGNED ADDITION WAS SUSTAINED BY THE LD. CIT( A) OBSERVING AS FOLLOWS: I HAVE CONSIDERED THE MATRIX OF THE CASE AND FILE D WRITTEN SUBMISSIONS IT IS SEEN THAT A LAND MEASURING 5.26 A CRE WAS PURCHASED BY THE APPELLANT ASSESSEE AT GRAM PANCHY AT PIPALNER, BHOPAL FROM SHRI BALA PRASAD ON 21.10.200 9 FOR A TOTAL SALE CONSIDERATION OF RS.1,21,30,000/- DURING THE COURSE OF ASSESSMENT PROCEEDING SUMMON U /S 131 WERE ISSUED TO THE SELLER SHRI BALA PRASAD. DURING THE STATEMENT ON OATH SHRI BALA PRASAD CONFIRMED TO HAV E RECEIVED TOTAL AMOUNT OF RS.20,00,000/- BY CHEQUE AND RS.50, 00,000/- IN CASH IN ADDITION TO RS.2,40,00,000/- TOTALING TO RS.3,10,00,000/-. FURTHER, THE AO VIDE SHOW CAUSE N OTICE DATED 09.01.2015 ASKED THE APPELLANT TO RECONCILE THE ABO VE TRANSACTION IN THE BOOKS OF ACCOUNT AND ALSO REQUIR ED TO SHOW CAUSE AS TO WHY NO ADDITION SHOULD BE MADE ON THIS ACCOUNT. VIDE REPLY DATED 02.02.2015 THE APPELLANT ASSESSEE HAS STATED THAT THE ENTIRE LAND MEASURING TO 8.44 ACRES WAS PU RCHASED NOT ONLY BY THE APPELLANT ASSESSEE BUT BY OTHERS PERSON S ALSO FROM SHRI BALA PRASAD. B.S. ASSOCIATES IT(SS)NOS.197 & 198 /IND/17 16 4.2 THE SELLER SHRI BALA PRASAD HAS CONFIRMED TO HA VE RECEIVED FOR THE SALE OF ABOVE MENTIONED LAND. THE APPELLANT ASSESSEE FAILED TO PRODUCE ANY MATERIAL EVIDENCE TO SUBSTANT IATE ITS CLAIM THAT NO HAS BEEN PAID NEITHER BEFORE THE AO NOR DU RING THE APPELLATE STAGE. THE LAND MEASURING TO 5.26 ACRE WA S PURCHASED BY THE APPELLANT ASSESSEE OUT OF TOTAL SO LD LAND I.E. 8.44 ACRES. THEREFORE, FROM THE TOTAL AMOUNT I.E. RS.3,10,00,000/- FOR TOTAL LAND 8.44 ACRES RECEIVED BY THE SELLER, PAYMENT WHICH WAS MADE BY THE APPELLANT ASS ESSEE ON ACCOUNT OF ITS SHARE 5.26 ACRE WORKS OUT TO RS.2,54 ,78,750/- ACRES. (PARA6.5(II) OF THE ASSESSMENT ORDER). THUS, IN VIEW OF THE FOREGOING DISCUSSION, I DO NOT FIND ANY MERIT IN INTERFERING WITH THE ORDER OF THE AO AND THE ADD ITION OF RS.1,33,48,750/- AS UNEXPLAINED INVESTMENT U/S 69 I N A.Y. 2010-11 IS SUSTAINED. 24. DURING THE COURSE OF HEARING BEFORE US ONE ADDI TIONAL INFORMATION WAS PROVIDED BY LD. COUNSEL FOR THE ASS ESSEE SUBMITTING THAT THE ALLEGED SUM OF RS.50,00,000/- WHICH THE SE LLER MR. BALA PRASAD AND HIS SON MR. LAKHAN HAVE STATED TO HAVE B EEN RECEIVED FOR THE SALE OF LAND STANDS ALREADY OFFERED TO TAX BY MR. DILIP SURYAVANSHI BEFORE INCOME TAX SETTLEMENT COMMISSION . REFERENCE WAS MADE TO THE COPY OF ORDER U/S 245D(4) DATED 30. 09.2016 PASSED BY THE INCOME TAX SETTLEMENT COMMISSION (ITS C) IN THE CASE OF SHRI DILIP SURYAVANSHI PLACED AT PAGE 27 TO 88 OF THE PAPER BOOK FILED ON 06.09.2019. IT WAS ALSO SUBMITTED BY THE LD. COUNSEL FOR THE ASSESSEE THAT IN THE STATEMENT GIVEN ON OAT H BY SELLER AND HIS SON ,THERE IS MENTIONED OF THE ASSESSEE FIRM NA ME AND THE REFERENCE IS ONLY MADE FOR MR. DILIP SURYAVANSHI AN D THE ALLEGED ON MONEY IF ANY RECEIVED BY THE SELLER HAS BEEN OFFER ED TO TAX AND B.S. ASSOCIATES IT(SS)NOS.197 & 198 /IND/17 17 THEREFORE, NO ADDITION SHOULD HAVE BEEN MADE IN THE HANDS OF ASSESSEE FOR UNEXPLAINED INVESTMENT U/S 69B OF THE ACT. 25. WE FIND THAT THE VERY BASIS OF THE ADDITION MAD E BY THE LD. AO AND SUSTAINED BY LD. CIT(A) IS ON THE BASIS OF STAT EMENT GIVEN U/S 131 OF THE ACT BY THE SELLER OF THE PLOT OF LAND MR . BALA PRASAD ON 30.10.2014 & 04.12.2012 AND ALSO THE STATEMENT OF M R. LAKHAN (SON OF MR. BALA PRASAD) GIVEN ON 05.12.2012. NOW B EFORE EXAMINING THE CORRECTNESS OF THE STATEMENT WE FIND THAT FOLLOWING FACTS REMAINS UNDISPUTED AT THE END OF BOTH THE PAR TIES. (I) MR. BALA PRASAD HELD 8.44 ACRE LAND OUT OF WHIC H 5.26 ACRES WAS SOLD TO B.S. ASSOCIATES I.E. THE ASSESSEE, 1.81 ACR ES TO MR. DILIP SURYAVANSHI AND 1.37 ACRES TO OTHERS FOR WHICH NO I NFORMATION IS AVAILABLE ON RECORD. (II) THE ASSESSEE FIRM PAID TOTAL CONSIDERATION OF RS.1,21,30,000/- WHICH COMPRISED OF CASH AT RS.5,000/- & RS.1,21,25, 000/- BY CHEQUE GIVEN TO MR. BALA PRASAD. (III) AS REGARD 1.81 ACRES LAND SOLD TO MR. DILIP S URYAVANSHI, COPY OF REGISTERED DEED OF THIS TRANSACTION IS PLACED AT PA GE 16 TO 19 OF THE PAPER BOOK. AS PER THIS DEED MR. BALA PRASAD RECEIV ED PAYMENT BY CHEQUE AT RS.25,00,000/- & CASH AT RS.20,000/-. IV. NO INCRIMINATING MATERIAL OR DOCUMENTARY EVIDEN CE FOUND DURING THE COURSE OF SEARCH AT THE ASSESSEES PREMISES OR AT THE PREMISES OF OTHER GROUP CONCERN WHICH COULD PROVE THAT UNACCOUN TED INVESTMENT WAS MADE BY THE ASSESSEE FOR THE PURCHAS E OF LAND. THE B.S. ASSOCIATES IT(SS)NOS.197 & 198 /IND/17 18 ONLY BASIS WITH THE REVENUE AUTHORITIES FOR MAKING ADDITION IS STATEMENT OF MR. BALA PRASAD & HIS SON LAKHAN. 26. NOW AS FAR AS THE CORRECTNESS OF THE STATEMENT OF MR. BALA PRASAD IS CONCERNED, WE FIND THAT IN THE STATEMENT GIVEN ON 04.12.2012 BY MR. BALA PRASAD IN REPLY TO QUESTION NO.4 WHICH IS APPEARING AT PAGE 23 OF THE ASSESSEEES PAPER BOOK AND IS GIVEN IN HINDI IF TRANSLATED TO ENGLISH WILL READ AS: I HAD NOT PURCHASED ANY PROPERTY IN LAST SIX YEARS . DURING THE YEAR 2010, I SOLD 6.4 ACRES TO MR. DILIP SURYAVANSH I AGAINST WHICH FOUR MONTHS BEFORE THE DATE OF REGISTRY I REC EIVED CASH OF RS.20,00,000/- AND THEREAFTER AT THE TIME OF REGIST RY I RECEIVED CHEQUES TOTALLING TO RS.2,40,00,000/-. AT PAGE 26 OF ASSESSEES PAPER BOOK THERE IS A STAT EMENT OF MR. LAKHAN SON OF SHRI BALA PRASAD GIVEN ON 05.12.2012 OWN HAND WRITING READS; I LAKHAN SON OF BALA PRASAD STATE ON OATH THAT I R ECEIVED CASH OF RS.50,00,000/- AGAIN SALE OF LAND AT GRAM PIPAL NER AND THIS AMOUNT HAS BEEN USED TO PURCHASE AGRICULTURAL LAND IN GRAM PIPALNER IN THE NAME OF MY CHILDREN. 27. AS FAR AS THE STATEMENT OF MR. BALA PRASAS IS C ONCERNED. FIRSTLY, HE HAS SAID TO HAVE RECEIVED CHEQUE OF RS.2,40,00,0 00/- FOR SALE OF 6.4 ACRES LAND. HOWEVER, THE CONSIDERATION PAID BY THE ASSESSEE IN CHEQUE IS RS.1,21,25,000/- AND BY MR. DILIP SURYAVA NSHI AT RS.25,00,000/- WHICH TOTALS TO 1,46,25,000/-. SO TH E QUESTION B.S. ASSOCIATES IT(SS)NOS.197 & 198 /IND/17 19 REMAINS ABOUT THE REMAINING CONSIDERATION IN CHEQUE OF RS.93,75,000/-. WHETHER IT WAS RECEIVED FOR 6.4 ACR ES LAND OR WHETHER IT WAS RECEIVED FOR REMAINING PORTION OF 1. 37 ACRES LAND? THERE IS NO EXPLANATION FOR DIFFERENCE OF CHEQUE AM OUNT OF RS.94,75,000/-. SECONDLY, MR. BALA PRASAD HAS NOT T AKEN THE NAME OF B. S. ASSOCIATES IN THE STATEMENT. THIRDLY, MR. BALA PRASAD HAS ALSO STATED TO HAVE RECEIVED RS.20,00,000/- IN CASH BUT AT THAT POINT OF TIME HE HAS NOT MENTIONED ABOUT THE ALLEGE D CASH OF RS.50,00,000/- RECEIVED BY SON. AS THE LAND WAS OWN ED BY MR. BALA PRASAD THEN HE OUGHT TO HAVE SHARED TOTAL DETAILS O F CASH AND CHEQUE RECEIVED BY HIM. 28. SURPRISINGLY, A DAY AFTER OF HIS STATEMENT HIS SON STATED ON OATH IN HIS OWN HAND WRITING TO HAVE RECEIVED RS.50,00,0 00/- AS ON MONEY IN CASH. BUT MR. LAKHAN PRASAD DID NOT MENTI ON FROM WHOM HE HAS RECEIVED THE ALLEGED ON MONEY OF RS.50,00, 000/-. 29. SO AFTER EXAMINING STATEMENT GIVEN BY MR. BALA PRASAD & MR. LAKHAN WHAT EMERGES IS THAT THE STATEMENT OF MR. BA LA PRASAD IS INCOMPLETE WITH REGARD TO THE CONSIDERATION RECEIVE D IN CHEQUE WHICH DO NOT MATCH WITH THE REGISTERED DOCUMENTS AN D ALSO THERE IS NO REFERENCE OF THE REMAINING PORTION OF LAND WHICH WAS SOLD TO OTHER PARTIES. ALSO MR. BALA PRASAD DID NOT MENTION ABOUT THE ON MONEY RECEIVED FROM DILIP SURYANVANSHI AND HIS SON MR. LAKHAN ACCEPTED TO HAVE RECEIVED ON MONEY OF RS.50,00,00 0/- BUT DID NOT MENTION FROM WHOM IT HAS BEEN RECEIVED. B.S. ASSOCIATES IT(SS)NOS.197 & 198 /IND/17 20 30. IN VIEW OF THE ABOVE, ARE OF THE CONSIDERED VI EW THAT INCOMPLETE STATEMENT GIVEN BY A SELLER IN WHICH HE HAS NOT MEN TIONED THE NAME OF THE ASSESSEE AND MISMATCH OF CONSIDERATION RECEIVED BY CHEQUE CANNOT BE USED AGAINST THE ASSESSEE MERELY O N PRESUMPTION AND GUESS WORK. EVEN OTHERWISE THE ALLEGED SUM OF R S.50,00,000/- BEING THE ON MONEY RECEIVED BY THE SELLERS SON T HE SAME ALREADY STANDS OFFERED TO TAX BY MR. DILIP SURYAVANSHI BEFO RE INCOME TAX SETTLEMENT COMMISSION(ITSC) AND FOLLOWING PARA 18 O F THE ORDER OF THE ITSC DISCUSSES THE ON MONEY OF RS.50,00,000/- OFFERED TO TAX BY MR. DILIP SURYAVANSHI: ISSUE REGARDING UNACCOUNTED CASH PAYMENT FOR PURCHA SE OF LAND. IN RULE -9 REPORT THE PR. CIT HAS STATED THAT DURIN G THE COURSE OF SEARCH ACTION, IT WAS FOUND THAT THE APPLICANT HAS PAID AN AMOUNT OF RS.50,00,000/- IN CASH FOR PURCHASE OF LA ND FROM SHRI BALA PRASAD S/O SHRI KEWAL WHICH WAS NOT DULY ACCOUNTED FOR IN HIS BOOKS OF ACCOUNTS. THE SELLERS IN THEIR STATEMENTS ON OATH HAVE ADMITTED OF HAVING RECEIVED RS.50,00,000/ - IN CASH OVER AND ABOVE THE REGISTERED SALE CONSIDERATION.(C OPY OF STATEMENTS OF SHRI BALA PRASAD AND SHRI LAKHAN PRAS AD HAVE BEEN PROVIDED AS ANNEXURE-DS-9). DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE APPLICANT WAS ASKED TO EXPLAIN THIS TRANSACTION; HOWEVER NO DETAILS WERE FURNISHED BY THE APPLICANT BEFORE THE ASSESSING OFFICER. HOWEVER, IN HIS APPLICATION BEFORE THE COMMISSION, THE APPLICANT HA S OWNED UP THIS TRANSACTION AND THIS AMOUNT OF RS.50,00,000/- HAS BEEN TAKEN INTO ACCOUNT IN THE CASH FLOW STATEMENT FOR A .Y. 2012-13. AS THE APPLICANT HAS NOW OWNED UP THIS TRANSACTION, THE GENUINENESS AND CORRECTNESS OF THE TRANSACTION HAS BEEN ESTABLISHED. IT HAS TO BE NOTICED THAT THE APPLICAN T HAS PURCHASED THIS LAND ON 19.05.2010 I.E. DURING A.Y. 2011-12 BUT HE HAS TAKEN THE PAYMENT OF RS.50,00,000/- INTO A.Y . 2012-13 WHICH IS NOT ACCEPTABLE. B.S. ASSOCIATES IT(SS)NOS.197 & 198 /IND/17 21 18.2 FURTHER, THE PR. CIT HAS SUBMITTED THAT THE AP PLICANT HAS NOT OFFERED ANY ADDITIONAL INCOME ON ACCOUNT OF THI S TRANSACTION. ALSO THE APPLICANT HAS NOT SUBMITTED DATE WISE CASH FLOW STATEMENT. ALSO, NO EXPLANATION CORRELATING THE DAT E WISE PAYMENT MADE WITH DATE WISE AVAILABILITY OF FUNDS F OR THIS PAYMENT HAS BEEN SUBMITTED EVEN NOW. THEREFORE, THE SOURCE OF FUNDS FOR THIS PAYMENT HAS NOT BEEN CONCLUSIVELY ES TABLISHED. THEREFORE, THIS AMOUNT OF RS.50,00,000/- HAS BEEN P ROPOSED TO BE ADDED TO THE TOTAL INCOME OF THE APPLICANT FOR A .Y. 2011-12. 18.3 THE APPLICANT HAS SUBMITTED THAT HE HAS OWNED UP THIS TRANSACTION AND AN AMOUNT OF RS.50,00,000/- HAS BEE N ACCORDINGLY TAKEN INTO ACCOUNT IN THE CASH FLOW STA TEMENT DURING A.Y. 2011-12. IN THE SETTLEMENT APPLICATION FILED BEFORE THE ITSC, THE APPLICANT HAS MADE A TYPOGRAPHICAL ER ROR AND MENTIONED A.Y. 2012-13 AS THE ASSESSMENT YEAR IN WH ICH THE AMOUNT OF RS.50,00,000/- HAS BEEN CONSIDERED IN CASH FLOW STATEMENT. THIS FACT HAS ALSO BEEN BROUGHT BEFORE T HE ITSC AT THE TIME OF THE HEARING. FURTHER ATTENTION HAS BEEN INVITED TO THE CASH FLOW STATEMENT PROVIDED IN PB 3 PAGE 321 WHERE IN THE APPLICANT HAS CORRECTLY SHOWN THE PAYMENT OF RS.50, 00,000/- DURING A.Y. 2011-12. 18.4 IN THE APPLICATION FILED BEFORE THE SETTLEMENT COMMISSION , THE APPLICANT HAS OFFERED ADDITIONAL INCOME EARNED IN CASH FROM VARIOUS SOURCES IN RESPECTIVE AYS AND APPROPRIATE T AX THEREON IS PAID BY THE APPLICANT BEFORE FILING OF THE APPLICAT ION. AS THE APPLICANT HAS NOT BEEN MAINTAINING REGULAR BOOKS OF ACCOUNTS, THE EXACT DATES FOR THE INCOME FROM STONE CRUSHING AND TRADING IS NOT AVAILABLE AND ACCORDINGLY A YEARLY CASH FLOW HAS BEEN PREPARED AND SUBMITTED BEFORE THE ITSC VIDE PB 3 PA GE 321. THEREFORE, HAVING SHOWN INCOME ENTITLED TO APPLICAT ION, THERE IS NO QUESTION OF MAKING ADDITION ON ACCOUNT OF APPLIC ATION AS IT MAY RESULT IN DOUBLE TAXATION OF THE SAME AMOUNT. 18.5 FINDING OF THE COMMISSION THE CLAIM MADE BY THE APPLICANT WITH REGARD TO THE AMOUNT OWNED UP BY HIM AND HOW THE CORRESPONDING FIGURES A RE TELESCOPED INTO CASH FLOW STATEMENT AND THE CORRECT RELEVANT ASSESSMENT YEAR(S) ARE CAREFULLY EXAMINED AND NO AD VERSE INFERENCE CAN BE DRAWN IN THE MATTER. B.S. ASSOCIATES IT(SS)NOS.197 & 198 /IND/17 22 31. SO IN VIEW OF THE ABOVE WE FIND THAT THERE IS N O INCRIMINATING MATERIAL OR ANY EVIDENCE PLACED BEFORE US BY THE RE VENUE AUTHORITIES WHICH COULD INDICATE THAT ANY SUM OVER AND ABOVE THE STATED CONSIDERATION OF RS.1,21,30,000/- HAS BEEN P AID BY THE ASSESSEE FOR THE PURCHASE OF LAND. THE STATEMENT GI VEN MR. BALA PRASAD IS NOT COMPLETE AND THE FIGURES MENTIONED TH EREIN HAVE NOT BEEN CORRELATED BY THE REVENUE AUTHORITIES TO COME TO A RIGHT CONCLUSION. THE ON MONEY MATTER ALREADY STANDS RE SOLVED SINCE SAME HAS BEEN OFFERED TO TAX SO THE SAME CANNOT BE TAXED AGAIN IN THE HANDS OF ASSESSEE. 32. COORDINATE BENCH OF JAIPUR IN THE CASE OF RENU AGARWAL V. ACIT (SUPRA) HAS HELD THAT THERE IS NO EVIDENCE OF PAYMENT OF ANY ON THE PURCHASE OF THE VACANT PLOT. THEREFORE, THE LOW ER AUTHORITIES HAD ERRED IN CONFIRMING THE ADDITION ON ACCOUNT OF UNEX PLAINED INVESTMENT IN PURCHASE OF PLOT. 33. WE, THEREFORE, IN THE GIVEN FACTS AND CIRCUMSTA NCES OF THE CASE AND IN VIEW OF THE DISCUSSION MADE HEREINABOVE, ARE OF THE CONSIDERED VIEW THAT REVENUE AUTHORITIES FAILED TO BRING ANY STRONG EVIDENCE AGAINST THE ASSESSEE TO PROVE THAT UNEXPLA INED INVESTMENT HAS BEEN MADE BY THE ASSESSEE IN THE PURCHASE OF LA ND AND WE ALSO FIND THAT THE STATEMENT OF THE SELLER TAKEN AS A BA SIS BY THE REVENUE AUTHORITIES IS ON A LOOSE WICKET AND CANNOT BE USED AGAINST THE ASSESSEE MERELY ON SURMISES AND GUESS WORK. WE, THE REFORE, SET ASIDE THE FINDING OF LOWER AUTHORITIES AND DELETE T HE ADDITION OF RS.1,33,48,750/- MADE BY THE LD. AO U/S 69B OF THE ACT. B.S. ASSOCIATES IT(SS)NOS.197 & 198 /IND/17 23 34. GROUND NO.2 IS GENERAL IN NATURE WHICH NEEDS NO ADJUDICATION. 35. AS A RESULT, APPEAL OF ASSESSEE FOR A.Y. 2010-1 1 STANDS ALLOWED. 36. IN THE NET RESULT, BOTH THE APPEALS OF THE ASSE SSEE FOR A.Y. 2009- 10 VIDE IT(SS)NO.197/IND/2017 & FOR A.Y. 2010-11 VI DE ITANO.198/IND/2017 ARE ALLOWED. THE ORDER PRONOUNCED IN THE OPEN COURT ON 09.12.201 9. SD/- SD/- ( KUL BHARAT) (MANISH BOR AD) JUDICIAL MEMBER ACCOUNTANT MEMBER / DATED : 9 TH DECEMBER, 2019 PATEL/PS COPY TO: THE APPELLANT/RESPONDENT/CIT CONCERNED/CIT (A) CONCERNED/ DR, ITAT, INDORE/GUARD FILE. BY ORDER, ASSTT.REGISTRAR, I.T.A.T., INDORE