TaxTMI 
TaxTMI 
2013 (8) TMI 704
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....ther on the facts and circumstances of the case the ITAT was justified in ignoring the provisions of Section 68 when such interpretation by the ITAT would result in serious curtailment of powers of Section 68. (3) Whether on the facts and circumstances of the case the ITAT was justified in deleting the addition of Rs. 77,80,000/- without appreciating that the assessee himself declared the sale consideration of Rs. 22,20,000/- as per the registered deed and there was no evidence on record that the purchase had given total consideration of Rs. 1,20,00,000/-. (4) Whether on the facts and circumstances of the case, the ITAT was justified in not testing the case of the assessee on the anvil of the provisions of Section 68. (5) Whether on the facts and circumstances of the case, the ITAT was justified in deleting the addition of Rs. 77,80,000/- without appreciating that the assessee had grossly failed to discharge its onus to prove the source of cash deposit in its banks account." 3. The assessee voluntarily filed return on 17.10.2008 disclosing total income of Rs. 64,188/- and agricultural income of Rs. 1,25,000/-. On receipt of certain information t....
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....rea the land was valued at Rs. 4 lac per bigha, which has increased manifold. The Income Tax Officer did not disbelieve the evidence that the amount was received by sale consideration. He, however, relying only on the report of the Stamp Valuing Authority took cognizance of the complaint and treated the amount to be undisclosed income. The findings recorded by the Assessing Officer are quoted as below:- "In view of the circumstantial evidence, based on the statements of three witnesses including that of the Branch Manager, Syndicate Bank Dehra who has been said to facilitate the deposit of Rs. 90.00 lacs in the bank as late hour deposit on 12.11.2007 coupled with the affidavit of the assessee and report of the Tehsildar, Hapur dated 30.11.2010 prima facie support the version of the assessee. However stamp valuation authority, Ghaziabad has taken cognizance of the complaint of the assessee far evasion of stamp duty but sale consideration claimed in the impugned sale deed is not adjudicated in favour of the assessee till date. Further assessee could not furnish sources of funds ot purchasers to the extent of Rs. 1,20,00,000/- instead of Rs. 22,20,000/- neither t....
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....yment of Rs. 1,00,00,000/- to the assessee (Rs. 7,00,000/- by DD and Rs. 93,00,000/- in cash) and that the bank manager had collected the money from the assessee. They further stated that the market price of the land at that time was Rs. 4,00,000/- per bigha which had increased manifold on the date of their statement. The bank manager, Syndicate Bank, Dehra where the sale proceeds 90,00,000/- was deposited, has also stated on oath that the assessee had told him that on 12.11.2007 sale deed in respect of his agricultural land would be executed and the sale consideration was intended to be deposited in his bank account on the same day and he (Bank Manager) should remain with him. The assessee had also filed a report of Tehsildar Hapur dated 28.9.2010 showing that the agricultural land in question lies more than 8 km. from the local limit of Nagar Palika, Pilakhua and also 9 km. from the local limit of town area Dasna. He submitted that the agricultural land in the instant case is not a capital asset within definition of Section 2 (14) (iii) (a) (b) and is therefore, not chargeable to capital gain tax. He pointed out further that the assessee on his own had filed his re....
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....ments made available at page nos. 1 to 78 were made available before the Assessing Officer. The ld. DR on the other hand tried to justify the orders of the authorities below on the issue. He submitted that onus lies heavily on the claimant to establish the claimed source of deposit to which the assessee has thoroughly failed to. The AO was thus justified in making the addition of Rs. 77,80,000/- as unexplained." 8. The ITAT considered the submissions and found that the evidence led in the light of the explanation submitted by the assessee, source of deposit in question in the bank is sale of land by him. The reasons shown by the authorities below for deposit and the explanation of assessee are wholly arbitrary. The assessee had explained that the land was sold for Rs. 1.20 crores out of which Rs. 20 lacs was paid in advance and remaining sale consideration was paid to him at the time of registration of sale deed. Out of which Rs. 93 lacs was paid in cash and Rs. 7 lacs by demand draft. In this manner total amount of Rs. 1,20,00,000/- was paid. The amount of Rs. 22,40,000/- is shown in the sale deed out of which Rs. 20 lacs was paid in advan....
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....e and others and the prevalent practice in the land transaction it can be safely inferred that whatever the assessee had explained about the source of the deposit cannot be doubted especially in absence of contrary material on record. We thus while setting aside orders of the authorities below in this regard, direct the AO to delete the addition in question made at Rs. 77,80,000/- on account of income from undisclosed sources. The grounds involving the assessee are thus allowed." 9. We have gone through the orders passed by the A.O., CIT (A) and ITAT and find that the questions of law as raised do not arise for consideration in as much as findings recorded by ITAT are findings of fact, which do not call for consideration or reconsideration of this Court. 10. We may observe here that the assessee as an honest citizen not only made a complaint to the registering authority that the sale deed has been registered at a value much below the amount, which he has actually received, he deposited the entire amount in the bank and voluntarily filed return. There was no material whatsoever or any circumstance, which could have suggested that this amount was received by him from any othe....