TaxTMI 
TaxTMI 
2016 (9) TMI 1254
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....he appeals are, therefore, decided as under : ITA No.664/Chd/2011(Bimal Suri): 3. The Revenue has filed the present appeal on the following grounds : 1. On the facts and in the circumstances of the case and in law, the Ld. CIT(A) has erred in allowing appeal of the assessee without appreciating the facts of the case. 2. On the facts and in the circumstances of the case and in law, the Ld. CIT(A) has erred in deleting the addition of Rs. 1,12,04,166/- on account of investment in purchase of land of 25K 10M at Lohagarh made by the A.O. in the hands of the assessee (being l/3rdshare) on the basis of said agreement on account of unexplained sources of investment in the said property. 3. On the facts and in the circumstances of the case and in law, the Ld. CIT(A) has erred in deleting the addition of Rs. 1,44,50,000/- on account of profit on sale of land of 25K 10M at Lohagarh to M/s Parsav Colonizers & Consultants (P) Ltd. in the hands of the assessee on account of profit on sale of land, the assessee having I/3rd share in such profit. 4. On the facts and in the circumstances of the case and in law, the Ld. CIT(A) has erred in deleting the addi....
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....egistered sale deed that the sellers have sold l/3rd share of 25 kanal 10 marla i.e. 8 kanal 10 marlas to S/Shri Jagpal Singh, Gulshan Rai, Shekhar Chawla and Bimal Suri (Assessee) for Rs. 42.50 lacs only. The deed was registered in the name of buyer in two parts, one half in the name of S/Shri Gulshan Rai Satija, Jagpal Singh and Bimal Suri and remaining one half in the name of Shri Shekhar Chawla on 17.06.2005. The Assessing Officer observed that there is a huge difference in value shown in the registered sale deed and agreement to sell and made addition of Rs. 1,12,04,166/-. The Assessing Officer reproduced the assessee's explanation in para 4 of the assessment order but did not accept the explanation of assessee that the property was purchased by them at throw away price in view of cash receipts of Rs. 2,62,50,000/- mentioned in impounded documents and cash receipts of Rs. 2.10 crores mentioned on the back side of page 2 of the agreement to sell. 9. During the course of appellate proceedings, the Assessing Officer produced document Nos.18 & 19 of Annexure B2, Page 33 of Annexure Bl, on which reliance was placed by the department while making addition of unexplained inves....
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.... Singh. Under the said agreement to sell, i.e. for total consideration of Rs. 1.20 crores, the assessee along with other persons, namely, S/Shri Jagpal Singh and Gulshan Rai Satija. The assessee and other two persons has paid total sum of Rs. 40 lacs in equal proportion as on 29.01.2005. The Assessing Officer has made addition of Rs. 1,12,04,166/- on the basis of forged photocopy of agreement of total consideration of Rs. 3,76,00,000/-, which the assessee and two other persons has never executed. It was further submitted that the photocopies of the documents were not found at the premises of assessee and it was found during the course of survey conducted at the premises of third party, i.e., not party to the agreement. Further, the Assessing Officer collected the evidence at the back of assessee and no opportunity was given to the assessee to cross examine the persons with whom the alleged agreement was entered into. The assessee had already denied the contents of agreement on the basis of which the addition was made. The Assessing Officer had not made any enquiry from any of the parties to verify the truth. The assesseee alongwith other two persons to the agreement has paid in pre....
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....mount stated in the agreement was actually paid. On the basis of agreement to sell, it cannot be concluded that the price mentioned in the sale deed is not correct. 13. The counsel of assessee also placed reliance on judgement given by Madras High Court in case of CIT Vs P.V. Kalyana Sundaram, 282 ITR 259 concluding that in absence of any independent enquiry, Assessing Officer was not justified in making addition towards purchase consideration of land merely on the basis of statement of seller, who gave conflicting statements. He also stated that that the Hon'ble Supreme Court affirmed the decision of Madras High Court quoted supra. 14. The counsel also placed reliance on following judgements :- - Ram Saroop Saini, HUF vs. Assistant Commissioner of income Tax reported at 15 SOT 470 (Del). In this case the Hon'ble Tribunal concluded as under: - Moosa S Madha & Azam S Madha Vs CIT reported in 89 ITR 65(sc). - PRARTHANA CONSTRUCTION P LTD Vs DCIT 70TTJ 122. - CIT Vs RAM KUMAR 163 TAXMAN 253 (P&H) - 19 TTJ 546, 77 TTJ (MUMBAI)(TM) (1) , 59TTJ 574. 15. The learned CIT (Appeals) considering the material on record deleted....
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....erstatement of sale consideration case. In this case the Hon'ble Tribunal concluded as under: In the absence of any material, understatement of sale consideration could not be implied in respect of certain transactions of sale of land merely on the basis of unverified statement of a property agent and copies of agreements to sell relating to some other transactions; understatement of sale consideration cannot be said to have been established even in respect of those transactions in relation to which AO was in possession of copies of agreement to sell which disclosed higher sale consideration as the purchasers have not signed on the first page of the documents, requisite Court fee stamp is not affixed, AO did not possess the originals and the assessee was not given any opportunity to cross-examine the property agent who had allegedly made an adverse statement and, therefore, no addition can be sustained. " 22 In view of above discussion & Judgement given by Kerala High court reported at 128 Taxman 848. Amount stated in the sale deed can not be ignored on the basis of agreement of sale unless it is proved that the agreement of sale was acted upon and the amount ....
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....he premises of third party. The counsel during the course of appellate proceedings submitted that the assessee had not entered into any agreement dated 19.4.2005 and that these documents were forged & bogus and were not found from the premises of assessee. Further the department did not make any enquiry from M/S Parsav Colonisers & Consultant Limited to know the truth. 20. During the course of appellate proceedings, the counsel of assessee submitted that M/s Parshav Colonisers and Consultants Pvt. Ltd. had not purchased any land at Lohgarh from the assessee & Other two persons till date and therefore, the question of profit on sale of land at Lohgarh to M/s Parshav Colonisers and Consultants Pvt. Ltd. does not arise. The department relied upon the agreement and from the para-C of Assessing Officer's order, it is clear that the department has calculated the profit only on the basis of agreement without ascertaining the fact that whether the land in question was actually sold to M/s Parshav Colonisers and Consultants Pvt. Ltd or not. The assessee hereby undertook that no land at Lohgarh was ever sold to M/s Parshav Colonisers and Consultants Pvt. Ltd. There is no evidence with the....
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.... document , impounded from third party premises, absence of enquiry in preceding paras there is no justification to sustain the addition on account of sale of land to Parsav Colonisers & Consultant Private Limited. The addition so made is deleted, allowing assessee's plea on this ground." 22. On ground No.4, the Assessing Officer made addition of Rs. 19,65,625/-. The Assessing Officer also observed from the impounded documents 23-30 of Annexure B-2 that on the back side of document No. 30 an amount of Rs. 1,30,01,100/- has been received as advance money by S/Shri Gulshan Rai, Jagpal Singh, Bimal Suri (assessee) & Shekhar Chawla. 23. As per details available on back side of Document No.30 of Annexure B:2, an amount of Rs. 22,00,000/- by chque has been received by Shri Shekhar Chawla, an amount of Rs. 22,00,000/- by Cheque has been received by the seller, i.e. Party No.2 and another amount of Rs. 85,00,000/- by cheques has been received by the Party No.1 and another amount of Rs. 1,01,000/- has been received in cash by Party No.1. It is also mentioned that original owner i.e. Smt. Pushpinder Kaur and other would get land registered in the name of party No.3. As per Point No....
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....d as per the agreement dated 19.04.2005. The sale price of this land comes to Rs. 3,87,81,250/- calculated @ Rs. 3.65 crores per acre as per the agreement dated 29.06.2005. 24. In view of this, the profit on sale of this land measuring 8 kanal 10 marlas is calculated as under:- Sale consideration @ Rs. 3.65 Crores per acre 3,87,81,250/- Cost price @ Rs. 2.54 crores per acre 2,69,87,500/- Short term capital gain 1,17,93,750/- Assessee' s share (l/6th) 19,65,625/- 25. The learned counsel for the assessee submitted that the Assessing Officer has made addition on the basis of Tripartite agreement (as mentioned in order) among Gee City Builders Pvt. Ltd., Parshav Colonizers and Consultants Pvt. Ltd. and Shekhar Chawla and Gulshan Rai & Others, which was never executed by the assessee. Further, no such documents were procured from the premises of the assessee. The Assessing Officer has not made any enquiry from Gee City Builders Pvt. Ltd, and by relying on the photocopy of documents which was not executed by assessee and made addition without any enquiry from Gee City Builders Pvt. Ltd. Further in photocopy, all parties to agreement have not si....
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....garh Overseas Private Limited. No original document was found or recovered during the course of survey or later on. Therefore, photocopy of the original is not admissible as evidence and relied upon unreported decision of Delhi High Court in the case of CIT Vs. Moorti Devi in ITA No.979/2010 dated 20.9.2010, in which departmental appeal was dismissed observing that the original documents were never confronted to the assessee and nothing has been brought on record as to what happened to the original documents. There is no material even to indicate that photocopies are the copies of the original documents. The learned counsel for the assessee also submitted that no enquiry was conducted from any party, i.e. buyer or seller to the agreement to sell. In the case of one of the buyers, M/s Gee City Builders Private Limited, the Assessing Officer passed order under section 153A r.w.s. 143 (3)) of the Act for assessment year 2006-07 but no addition have been made in this case. The copy of the assessment order dated 31.12.2010 is placed on record. The learned counsel for the assessee submitted that all the parties have not signed any agreement, therefore, additions have been rightly deleted....
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....were found from any person and original documents were never confronted to the assessee. Therefore, there is no question of preparing copies from the original agreement to sell. Therefore, photocopies of the agreement to sell cannot be compared with original documents. Reliance of the learned D.R. thus on sections 63, 64 and 65 of the Evidence Act is clearly misplaced. There was thus no basis to make any addition against the assessee on account of investment or earning any profits out of any sale transaction alleged to have been recorded in the agreement to sell. Since the documents were impounded from third party and no enquiry have been made from them or from any party related to the agreement to sell, therefore, there was no justification to make any addition against the assessee on the basis of such agreement to sell. Even in the case of M/s Gee City Builders Private Limited, the Assessing Officer passed regular assessment order under section 153A r.w.s. 143(3)) of the Act but no addition have been made in this case. The learned CIT (Appeals) on proper appreciation of facts and material on record correctly deleted the additions. 30. Considering the above discussion and total....