TaxTMI 
TaxTMI 
2017 (2) TMI 733
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....rance to an MOU dated 14.09.2009 executed with vendors of the capital asset in question as capital gains thereby reversing Assessing Officer's action treating the same as income from other sources in assessment order dated 27.12.2011, in proceedings u/s.143(3) of the Income Tax Act, 1961; in short "the Act". 2. We straightway come to the relevant facts. The assessee acted as a confirming party in a sale deed dated 10.09.2008 for Rs. 4,68,55,612/- pertaining to the capital asset in question wherein eight vendors namely Anirudh B. Patel, Ansuyaben Patel, Ashok B. Patel, Dinesh B. Patel, Aurnaben Patel, Vibha Patel, Nilesh M. Patel and Kalpeshbhai M. Patel sold their ownership rights in favour of S/Shri Harish Talati, Hemant R. Raval and La....
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.... capital gains. 4. The assessee preferred appeal. The CIT(A) summarises Assessing Officer's two reasons of non registration of banakhat dated 16.12.1986 and lac of evidence proving advance payment of Rs. 5lacs as broader contours for rejecting his abovestated explanation. He then accepts assessee's contentions as follows: "3.3.1. I have carefully considered the submissions of the learned Authorized Representative and the order of the Assessing Officer. There is no dispute in the assessment order that the assessee has offered Long Term Capital Gain (LTCG) from sale of two landed properties. The first one i.e., land at Kelanpur S.No. 450 ABC was never owned by the assessee but he was treated as "Confirming Party" both by the land owners....
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.... or invalid. The banakhat is on Rs. 100/- stamp paper and the signature & seal of stamp vendor is clear. The date of sale of stamp paper is mentioned as 16.12.1986. Unless proved contrary, the normal presumption would be that the document is genuine. It is signed by all the landowners as well as by the assessee. This banakhat is recognized by the purchasers of the land also, who in the sale deed dated 10.09.2008 have acknowledged the same. lf there was any doubt in the mind of the A.O. about the genuineness of the banakhat, several options were open before him. He could have summoned the signatories of the documents i.e., the land owners and verified from them. Alternatively, the enquiry could have been made by deputing the inspector and re....
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....ected in course of assessment proceedings to be lacking any cogent evidence. Shri Soparkar (learned senior counsel) draws strong support from the CIT(A)'s twin reasoning extracted hereinabove. He seeks to place vehement emphasize to assessee's plea that the assessing authority never summoned the above stated vendors so as to express any doubt over genuineness of his claim of having entered into the banakhat in question. 6. We have given our thoughtful consideration to rival contentions. The sole dispute between the parties is qua onus of proving genuineness of the banakhat in question dated 16.12.1986 stated to be executed by the assessee/vendee with the owner of the land in question comprised in Revenue's survey no.613, Village Kelanpur....
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....e file in the nature of form 7/12 that the assessee ever remained in cultivating possession of the lands sold. We observe in these peculiar facts that the assessee has failed to prove veracity/genuineness of the banakhat in question dated 16.12.1986. We thus find force in Assessing Officer's observations on the latter aspect of the issue that the assessee had failed in proving any advance payment of Rs. 5lacs in question by way of any supportive material; whatsoever. 7. Shri Soparkar at this stage vehemently contends that the CIT(A) has rightly held the assessee to have proved the above stated banakahat indicating advance payment of Rs. 5lacs. We fail to concur with this plea because of the fact that the very banakhat itself is in disput....