TaxTMI 
TaxTMI 
2020 (4) TMI 219
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....tive it is highly excessive w.r.t. facts and circumstances of the case and the additions sustained are also vitiated in law because it is based on no documentary evidence whatsoever. 2. That the findings given by the learned CIT (Appeals) in the impugned order particularly in para 6.2.11 reading, " I find that the transactions recorded on page no. 15 to 18 were actual transactions and were related to payment of sale consideration to the sellers of the land including the assessee but the seller intentionally wanted to be escape from tax liabilities and other consequences under the I.T. Act. In view of above, it is held that the total sale consideration of Rs. 12,30,84,000/- was established wherein the appellant's share (1/8th) at Rs. 1,53,85,500/- was rightly assessed in his hands of appellant on account of long term capital gain" are most arbitrary, whimsical, imaginary and without any basis and liable to be cancelled. 3. That the finding recorded by the learned CIT (A) in last lines of para 6.2.3 reading, "in contravention of his own statements, he admitted in submissions that he had received Rs. 12 lac through cheque of Allahabad Bank bearing number 296156. Ther....
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....156. Therefore, the appellant's contention of not having received money is found to be incorrect" is ambiguous, confusing and conveys no meaning. 4. That on the facts and circumstances of the case the learned CIT (A) erred in sustaining assessee's share in the sold agricultural land at 1/8 part as against correct share of assessee at 1/16 part, which sustenance of assessee's share as 1/8 part against correct share of 1/16th part is unjustified and not maintainable in law. 5. That the alternative ground of appeal is that the learned CIT (A) failed to take into consideration the fact that additions on account of alleged cash payment of Rs. 11,34,84,000/- by Madan Mohan Gupta, Director of Shri Kalyan Buildmart Pvt. Ltd. is made twice - once in the hands of all the six co-owners proportionately and again the hands of the power of attorney holder Shri Radhey Shyam Sharma." 2. The brief facts leading to the controversy are that the assessees are illiterate persons and by occupation agriculturists. These two assessees along with their two real brothers and two cousin brothers total 6 co-owners sold their agricultural land measuring 0.99 hectare in village Chainpura, T....
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....AO accordingly made addition of the said amount of Rs. 1,47,85,500/- as undisclosed Long Term Capital Gain in the hands of each of the brothers of the assessees. The assessees challenged the action of the AO before the ld. CIT (A) but could not succeed. 3. Before us, the ld. A/R of the assessees has submitted that the assessees are illiterate agriculturists and more than 75 to 80 years old. The regular source of income right from the beginning till date is income from agriculture operation on the agricultural land. Since the assessees were not having any other taxable income, therefore, no returns of income were being filed by them. The ld. A/R has further submitted that in the return of income filed in response to notice under section 148, the assessees shown the capital gain after reducing indexed cost of acquisition from the sale consideration of Rs. 6,00,000/- each. The said sale consideration was received by the assessees by way of account payee cheque. The ld. A/R has submitted that though the assessees received the sale consideration of Rs. 12,00,000/- as per the Sale Deeds, however, there are other co-owners, namely, Chunilal, Kanhaiyalal and Suresh and the assessees hav....
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....ll these four loose papers are deaf and dumb documents not conveying any meaning or sense. When there is no description about the transaction or the names of the assessees, then these documents in itself cannot be regarded as incriminating material against the assessees particularly regarding any On Money received. Therefore, these documents are not sufficient to draw any adverse inference against the assessees in the absence of any corroborative evidence to show that the alleged amount of Rs. 11,34,84,000/- was actually paid by the purchaser in addition to what has been disclosed in the registered sale deeds. Therefore, the AO has not brought any positive material or proof on record to establish that the seized material reveals the payment of sale consideration in cash over and above the sale consideration recorded in the sale deeds. The sale deeds executed by the parties and registered are documentary proof of sale consideration in respect of the land in question which was paid by way of account payee cheques at the time of execution of sale deeds. Even the entries in the loose papers Exhibit A-1 pertain to different dates of financial years 2007-08 to 09-10 and none of these ent....
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....eted. In support of his contention, he has relied upon various decisions as under :- ACIT vs. Satyapal Wasan (2007) 295 ITR (AT)352 (Jabalpur) CIT vs. Pawan Sharma 53 Tax World 2 (Rajasthan HC) CIT vs. Maverick Share Brokers Pvt. Ltd. 57 Tax World 87 (Rajasthan HC) CIT vs. Balram Prasad 150 ITR 687 DCIT vs. M/s. Countrywide Buildestate Pvt. Ltd. 48 Tax World 50 (ITAT Jaipur) M/s. Rameshwaram Tolls vs. ITO 55 Tax World 97 (ITAT Jaipur) Kamakshi Hospitality Pvt. Ltd. vs. DCIT ITA No. 481/JP/2016 (ITAT Jaipur) The ld. A/R has also relied upon the decision of this Tribunal dated 28th March, 2018 in case of Shri Rajendra Kumar Jain in ITA Nos. 293, 294, 295 & 408/JP/2017. 3.1. On the other hand, the ld. D/R has submitted that it is a case of no return of income filed by the assessee and reopening of the assessment based on the information received from Investigation Wing about the receipt of On Money for sale of land by the assessees. Further there was no compliance to the notice issued by the AO. The ld. D/R has referred to the seized material and submitted that the entries in these documents reveal cash payment by Sh....
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....order is passed on the basis of the said information forwarded by the Investigation Wing wherein some loose papers were found and seized during the course of seizure action carried on 23rd May, 2013 in case of Shri Rajendra Kumar Jain Group including the residential premises of Shri Madan Mohan Gupta. These loose papers were found from the residence of Shri Madan Mohan Gupta marked as Exhibit A-1 and relevant pages 15 to 18 containing various entries of the figures under the heading of "RPS", the total amount calculated as per these entries was Rs. 12,30,84,000/-. Shri Madan Mohan Gupta in his statement recorded during the course of search has explained that these entries are regarding the transaction of purchase of land in question from the assessees and other co-owners vide sale deeds dated 24.08.2006 and the sale consideration was paid in cheques as well as in cash. The AO has copied two of the seized documents at pages 4 & 5 of the assessment order as under :- It is clear from the entries recorded in these seized documents that the first entry is shown on 31st December, 2007 and thereafter the entries are shown from 15.08.2008 to 23.09.2009. All these entries are against the....
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....e the assessment cannot be on the sole basis of the statement made by Shri Madan Mohan Gupta until and unless the assessee be given an opportunity to cross examination. The AO called Shri Madan Mohan Gupta to further examine him during the assessment proceedings and recorded his statement on 2nd March, 2015. In his statement Shri Madan Mohan Gupta has clearly stated in his answer to question no. 4 that he has purchased the land in question against consideration of Rs. 96,00,000/- paid through cheques in the name of the land owners. He has again reiterated in reply to question no. 5 that other than cheques, he has not paid any cash. He has again reiterated that the entries in the seized material found and seized from his house relate to one Shri Rajendra Kumar Jain and the name of Shri Rameshwar Prasad Sharma is mentioned as per the instruction of Shri Rajendra Kumar Jain. Therefore, when the AO has examined Shri Madan Mohan Gupta during the assessment proceedings, he has denied to have paid any cash in respect of the transaction of land in question to the assessees and other co-owners. There is no dispute that the retraction of statement by a person cannot be accepted in his own de....
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....ent as on one hand no addition was made on account of On Money payment in the hands of Shri Madan Mohan Gupta whereas on the contrary the additions were made in the hands of the assessees on account of receipt of On Money from Shri Madan Mohan Gupta. There is no dispute that the considerations as shown in the Sale Deeds were paid by Shri Madan Mohan Gupta through cheques and in the name of the land owners being the assessees and other co-owners. When the cheques were not issued in the name of the alleged "RPS" then the alleged cash payment that too in future dates after the gap of more than one year to more than 3 years cannot be considered as the cash payment to the assessees. Even otherwise Shri Rameshwar Prasad Sharma has denied to the said alleged involvement of cash payment and an addition was also made in his hand by the department. The AO has also examined the assessees by recording their statements during the assessment proceedings and nothing incriminating was found from the statements of the assessees. They have clearly stated that except the sale considerations as recorded in the sale deeds and received through cheques, no other payment was received. Therefore, when the ....
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....d surmises which is not sustainable when Shri Madan Mohan Gupta himself during the assessment proceedings has denied. Accordingly, the addition is deleted. 5. Since the additions made in the hands of both the assessees are based on the identical facts and arising from the same transaction of sale of land, therefore, this finding is composite and applicable in both the cases. 6. Though the assessees have raised the other grounds of appeal, however, once we have decided the main issue of payment of cash consideration, then the other issues become infructuous. 7. In the result, appeals of the assessees are allowed. Order is pronounced in the open court on 21/02/2020. ============= Document 1 12 2007-08 151025 124327000 -1243 242 RPS NOTES 123084.000 (16) 1332 Cheegs G.Ram. 96,0001- 1,000 300 NOTES 5000 o G.Rm 31/12/87 10,000=00 RPS. 3118 4000 = 5,000 G. Rom 50,0002 SO 5.64,000 96,000 3019 RP 1511006RP 15/1107" 30 4 56121 10,000 =0 30.=. 3,000 = no TRUE COPY 4,000 a co 5,000 13.0000 1,50,000 20 300 660,000 = 2,000 200 4/3/4/ 115102 2....