TaxTMI 
TaxTMI 
2021 (11) TMI 31
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....r Gudian and Sh. Prabhu Parmatama co-owners of the said land for a total consideration of Rs. 3,60,00 ,000 vide sale deed dated 02.03.2012 . That the purchasers paid stamp duty of Rs. 18,00, 000/-. As such the assessee paid Rs. 1,26,00 ,000/- as his share to the sellers towards sale consideration. 3. Since the assessee had not filed his return of income for the assessment year under consideration, AO issued notice u/s 148 read with 147 of the Act to the assessee on the basis of the said information. However, the AO did not receive any response from the assessee. Thereafter the AO issued notices u/s 142(1) of the Act on 19.05 .17, 28.06.17, 19. 07 .17 , 18. 09.17, 29.09.17 and 16.10. 17 directing the assessee to furnish the source of investment amounting to 1.28 crore and cash deposit of Rs. 18.35 lacs. However, the assessee either did not appear or sought adjournments. Accordingly, the AO issued show cause notice to the assessee directing him to explain as to why the assessment should not be completed u/s 144 of the Act. In response thereof, the authorized representative of the assessee appeared and filed return of income declaring total income of Rs. 276 and agricultural income o....
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....t order before the Ld. CIT(A). The Ld. CIT (A) after hearing the assessee dismissed the appeal and confirm the action of the AO. Aggrieved by the said order passed by the Ld. CIT (A), the assessee has filed the present appeal. 5. The assessee has challenged the impugned order passed by the Ld. CIT(A) on the following grounds. 1. That the Ld. Assessing Officer has erred in reopening the case u/s 147 and also there was no reason to believe that the income of the assessee has escaped assessment. 2. That no proper service of the notice U/s 148 had been made and also there is mechanical approval by the higher authorities with regard to reopening the case u/s 147and, thus, there being no application of mind, the reopening u/s 148 is bad in law. 3. Notwithstanding the above said grounds of appeal, the Ld. CIT has erred in confirming the action of the Assessing Officer in confirming the addition of Rs. 1,26,00,000/- as undisclosed investment u/s 69 of the Income Tax Act. 4. That the reliance by the Ld. CIT(A) on the judgment of Hon'ble Punjab a Haryana High Court in the case of Paramjit Vs ITO as reported in 323 ITR 588, is wholly misconceived and it is not applicable the fact....
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....against Sh. Gurdip Singh to demonstrate that the land in question was transferred by Mr. Tejinder Singh under a family arrangement to keep minimum assets during pendency of divorce petition and to take back after the disposal of the petition. The Ld. counsel further invited our attention to the statements of Sh. Prabhu Parmatama recorded by AO during assessment proceedings and contents of affidavits sworn by Mr. Baljit Singh assessee, Mr. Tejinder Gudian and Mr. Prabhu Parmatama, (copies of which are available on record) to substantiate the contention of the assessee. The Ld. Counsel further invited our attention to the copy of statement of Bank account of Sh. Tejinder Singh Gudian to prove withdrawal entry of Rs. 19,00,00/- on 02.03.2013 for making payment towards stamp duty. The Ld. counsel further contended that the judgment of the Hon'ble jurisdictional High court in the case of Pritam Singh vs. ITO 323 ITR 588 (P&H) relied upon by the Ld. CIT(A) is distinguishable on facts and not applicable to the present case. The Ld. counsel further pointed out that the concerned AOs have passed the assessment orders u/s 147 read with section 143(3) of the Act, in the case of Sh. Gurjit Sin....
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....s and prejudicial to the interest of the revenue, therefore proceedings under section 263 of the Act, are being contemplated in these cases. The Ld. DR invited our attention to the internal communications of the Department in this regard. 9. In rebuttal, the Ld. counsel for the assessee submitted that the cases relied upon by the Ld. DR are distinguishable on facts and the evidence on record, therefore the same are not applicable to the present appeal. The Ld. counsel submitted that in the case of Paramjit Singh (supra) sale deed was executed by uncle of the assessee in its favour whereby certain ancestral land was transferred to him. Amount of sale consideration was reflected in the sale deed. The assessee claimed that no consideration was paid and sale consideration was mentioned only for stamp duty purpose. The AO treated the amount of sale consideration as unexplained investment and added the same to the income of the assessee. The CIT(A) set aside the assessment order however, in further appeal the Tribunal confirmed the action of the AO. The Hon'ble High Court confirmed the findings of the Tribunal, whereas, in the present case the land was to be transferred by the so-called....
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....he documentary evidence oral evidence and the circumstantial evidence adduced by the assessee are sufficient to substantiate his contention that no payment was made by him towards sale consideration to Mr. Tejinder and Mr. Prabhu Parmatama and to further rebut the presumption that the sellers transferred the land in question to the assessee and two others for a total consideration of Rs. 3,60,00,000/- as recorded in the sale deed? 11. As pointed out by the Ld. counsel in the case of CIT versus Daulat Ram Rawatmull (supra) the Hon'ble Supreme Court has held that the onus to prove that the apparent is not real is on the party who claims it to be so. In the present case since the assessee has alleged that sale consideration was not paid to the transferrers, the burden is upon the assessee to establish the alleged facts by adducing cogent and convincing evidence. In order to discharged the said burden, the assessee has placed on record the documentary evidence in the form of an affidavits of Mr. Tejinder Singh and Mr. Prabhu Parmatama and the copy of statement of Mr. Prabhu Parmatama recorded by AO during assessment proceedings. The assessee has placed on record the copy of divorce pe....
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....essee and two others. Hence, we find merit in the contention of the Ld. counsel that the facts of the case relied upon by the Ld. DR are distinguishable from the facts of the present case, therefore the ratio laid down in the said case is not applicable to the present case. Hence, in view of the peculiar facts of the present case and the direct and circumstantial evidence adduced by the assessee in support of his contention, we hold that the assessee and his co-purchasers had not paid any money towards sale consideration to their uncle Mr. Tejinder Singh or the other co-owners when the land in question was transferred in their names. The circumstantial evidence that the two purchasers transferred back their share to Mr. Tejinder Singh without any consideration further corroborates the contention of the assessee that the purchasers had not paid sale consideration to Mr. Tejinder Singh when the said land was transferred in their names. So far as the legality or permissibility of such transaction is concerned, the same is not the subject matter of this appeal. As per the settled law income tax is levied on the real income of the assessee. In the present case, since the assessee has ad....