TaxTMI 
TaxTMI 
2022 (3) TMI 241
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....: "1. That on the facts and circumstances of the case, learned Commissioner of Income Tax (Appeals) {C1T(A)} has grossly erred in law in rejecting ground of appeal of the assessee that impugned assessment framed u/s 143(3)/147 of the Act is without assumption of valid jurisdiction and as such is illegal and bad in law. 2. That on the facts and circumstances of the case, learned CIT(A) has grossly erred in law in confirming addition of Rs. 1,50,00,000/- by holding that Rs. 1,50,00,000/- alleged to be received from alleged purchaser Sh. Surjit Singh as unexplained money received u/s 69 of the Act. 3. That on the facts and circumstances of the case, addition of Rs. 1,50,00,000/- made by Ld. Assessing Officer confirmed by Learned CIT(A) is illegal and bad in law since: a) Certified true copy of agreement alleged to have been executed by the assessee in favour of some Surjit Singh has never been provided to the assessee in spite of repeated requests. b) Department is in possession of photocopy of agreement alleged to have been executed by the assessee in favour of Surjit Singh. Agreement in original is not available with the department. ....
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.... in his saving account which has not been considered by learned CIT(A). c). Without prejudice to issues raised in (a) & (b) above, even otherwise also no adverse inference can be drawn in the case of the assessee since her husband is independent assessee. 7. That observation of Id. CIT(A) in para 4.9 of the appellate order while confirming addition that signatures of the appellant have been confirmed by the husband of the appellant in his statement recorded by the DDIT investigation and also it was stated that sale consideration has been received by the appellant is without any material on records and this was never case of the assessing officer. 8. That submissions made during the course of hearing have not been considered properly. 9. That assessee requests for leave to add or annex any other grounds of appeal before the appeal is heard or disposed off." 2. Succinctly stated, the assessee had filed her return of income for A.Y 2008-09 on 09.01.2009, declaring an income of Rs. 3,64,110/- a/w agriculture income of Rs. 7,88,964/-. Information was received by the A.O from the Dy. Director of Income-tax (Investigation), Ludhiana, that the assesse....
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....orged document, and claimed to have sold the land in question vide a registered sale deed, dated 08.10.2008. However, the A.O was not persuaded to subscribe to the aforesaid claim of the assessee. Observing, that the witnesses to the "agreement to sell", viz. S/sh. Rishikesh Verma and Baldev Raj (since deceased) had in the course of the proceedings before the Dy. DIT (Inv.), Ludhiana admitted that the "agreement" in question was executed in their presence and the assessee had signed the same in their presence, the A.O rejected the claim of the assessee that she had not executed the said "agreement". Further, the fact that the sale deed of the land in question was executed on 08.10.2008, i.e, within the stipulated time period within which the same was to be executed as per the "agreement to sell", i.e, latest by 03.12.2008, also did weigh in the mind of the A.O for rejecting the claim of the assessee that the same was a dumb document. In so far the routing of the unaccounted sale consideration was concerned, the A.O was of the view that the same was deposited in the bank accounts of the assessee's husband, viz. Shri. Kulwant Singh, a property dealer by profession, i.e (i). A/c No. 0....
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....quests had not been confronted with the original "agreement to sell" in question; (v). that the A.O in his 'remand report' had admitted that though he had received from the Dy. DIT(Inv.), Ludhiana a copy of the "agreement to sell", dated 25.02.2008, while for the Dy. DIT(Inv.), Ludhiana in his letter dated 16.12.2016 had informed the A.O that the Original "agreement to sell" was not available with him.; (vi). that the statements of S/sh. Baldev Raj (since deceased) and Rishikesh Verma, witnesses to the impugned "agreement to sell" that were used by the A.O for drawing of adverse inferences were recorded at the back of the assessee; (vii). that despite requests no cross-examination of Sh. Rishikesh Verma, witness to the 'agreement' had been facilitated by the department; (viii). that no adverse inferences had been drawn by the department in the case of the alleged purchaser, viz. Sh. Surjit Singh, and in fact the reassessment proceedings that were initiated in his case for A.Y 2008-09 had been dropped by his A.O vide her order passed u/s 147/148(3), dated 23.03.2016; (ix). that the bank accounts held by the assessee's husband, viz. Sh. Kulwant singh, a regular income-tax assessee (P....
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.... In this case also, the position is similar as per the evidence available on record. The signatures of the appellant have been confirmed by the husband of the appellant in his statement and sale consideration has been received by the appellant. 4.10 It is also a common knowledge that malaise of on-money is widely prevalent in all real estate transactions where the circle rate fixed for the purpose of payment of stamp duty on execution of sale deed is much below the prevalent market price of the property. This fact of receipt of on-money under the agreement to sell by the appellant stands amply proved by the quantum of cash deposits made in the bank accounts of the appellant and family members. Hence, I do not find force in the contentions of the appellant and the judicial decisions relied upon are found to be distinguishable on account of differences in factual matrix of the case. Further, I find that the agreement to sell is not a dumb document and authenticity of the same stands established in the course of enquiries conducted by the investigation wing. Accordingly, I hold that AO was justified in treating an amount of Rs. 1.50 crores as unexplained money of the appellan....
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....records, we find that the A.O in his 'remand report' that was filed in the course of the proceedings before the CIT(A), had fairly admitted that he had only received a copy of the "agreement to sell", dated 25.02.2008 from the Dy. DIT (Inv.), Ludhiana, and the latter on a specific request by him vide his letter dated 09/15.12.2016, had reverted back, and vide his letter dated 16.12.2016 intimated that no such original agreement was available with him during the inquiry proceedings. Backed by the aforesaid facts, we shall herein look into the sustainability of the adverse inferences that have been drawn by the lower authorities on the basis of the contents of the copy of the "agreement to sell", dated 25.02.2008 in the backdrop of the other circumstantial evidences /observations. Before proceeding any further, we may herein observe, that the assessee in the course of the proceedings before the lower authorities had time and again requested for a certified copy of the "agreement to sell", dated 25.02.2008, which however was never made available to her. At this stage, we would not hesitate to observe, that as stated by the ld. A.R, and rightly so, it has been held by the Hon'ble Supre....
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....basis of which they have tried to support the adverse inferences qua the sale transaction in question. As observed by us hereinabove, one of the issue that had weighed in the mind of the A.O for concluding that the assessee had executed the "agreement to sell", dated 25.02.2008 was that the two witnesses to the said agreement, viz. (i). Shri. Baldev Raj Taneja S/o. Sh. Ram Rang R/o. 29, Partap Colony, Model Gram, Ludhiana; and (ii). Shri. Rishikesh Verma S/o. Sh. Kundan Lal Verma, R/o. 999/6, Rama Mandi, Jalandhar, had in the course of the inquiries carried out by the Dy. DIT (Inv.), Ludhiana, stated that the "agreement to sell", dated 25.04.2008 was executed in their presence and Smt. Gurjeet Kaur, i.e, the assessee had signed the same in their presence. As is discernible from the records, the assessee in the course of the assessment proceedings, had requested the A.O, that as the statements of the aforesaid persons, viz. S/sh. Baldev Raj Taneja and Rishikesh Verma were recorded at his back, therefore, their cross-examination be facilitated to him. As one of the witness, viz. Shri. Baldev Raj Taneja had expired on 30.05.2015, therefore, the A.O in order to facilitate the cross-exa....
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....neja had expired on 30.05.2015, i.e, in the course of the assessment proceedings, therefore, there could have been no occasion for the A.O to have facilitated his cross-examination. But then, in so far the other witness, viz. Shri. Rishikesh Verma (supra) is concerned, we are of the considered view, that as the as the assessee despite specific requests had had remained divested of an opportunity to cross-examine the said person, all the more for no fault no on her part, therefore, his statement lost its evidentiary value and could not have been pressed into service by the A.O for drawing of adverse inferences in the case of the assessee. We, thus, in the backdrop of our aforesaid deliberations are of the considered view, that the statements of the aforesaid witnesses, viz. S/shri. Baldev Raj Taneja and Rishikesh Verma that were admittedly recorded at the back of the assessee, therein, de hors any opportunity to the assessee to rebut the same, thus, could not have been used for drawing of adverse inferences in his case. 6. We shall now deal with the observations of the lower authorities, that the on-money received by the assessee on the sale of land in question was deposited in t....
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.... accounts of Shri. Kulwant singh (supra) were sourced from the on-money that was received by the assessee, being devoid and bereft of any substance and, being nothing short of an allegation in the thin air, cannot be subscribed on our part. We, thus, in the backdrop of our aforesaid deliberations vacate the observations of the A.O that the alleged on-money received by the assessee on sale of the land in question was deposited by her in the bank accounts of her husband, viz. Shri. Kulwant Singh (supra). 7. We shall now advert to the support that was drawn by the assesses from the circle rate of the land in question that was sold by her, for two fold reasons, viz. to drive home the authenticity of the sale transaction that was executed by her vide registered sale deed, dated 08.10.2008; and to demonstrate that the sale rate as per the alleged "agreement to sell", dated 25.02.2008 being manifold the rates prevailing in the area was beyond comprehension. As observed by us hereinabove, as against the circle rate of the property in question at the time of sale, i.e, Rs. 15 lac per acre, the assessee had executed the sale transaction @ Rs. 38 lac per acre, which in our considered view ....
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....he issue in hand. 8. We shall now deal with the claim of the assesee as was raised before the lower authorities, i.e, now when no adverse inferences had been drawn by the department in the case of the alleged purchaser, viz. Sh. Surjit Singh, and in fact the reassessment proceedings that were initiated in his case for A.Y 2008-09 were dropped by the A.O vide her order passed u/s 147/148(3), dated 23.03.2016, therefore, the said fact supports the falsity of the contents of the "agreement to sell", dated 25.02.2008. Admittedly, as is discernible from the records, the reassessment proceedings that were initiated by the department in the case of the aforementioned alleged purchaser, viz. Shri Surjit Singh (supra), were thereafter dropped by the ITO, Ward 6(8), Ludhiana. In our considered view, the fact that no adverse inferences had been drawn by the A.O in the case of the alleged purchaser, viz. Shri. Surjit Singh, at the first blush lends credence to the assessee's claim that the "agreement to sell", dated 25.02.2008 being a forged/fabricated document, was thus, for the said reason not acted upon by the department in the case of the alleged purchaser; but then, in the absence of t....
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.... Shri. Kulwant Singh. However, as we have already vacated the view taken by the lower authorities that the alleged amount of on-money received by the assessee was parked in the bank accounts of her husband, viz. Shri. Kulwant Singh, therefore, the applicability of Sec. 69 of the Act is ousted on the said count itself. Be that as it may, as we have already vacated the addition made by the A.O on the basis of the contents of the uncertified copy of a "agreement to sell", dated 25.02.2008, which has been held by us as a dumb document that could not have been acted upon by the A.O, therefore, we refrain from adverting any further qua the validity of invocation of Sec. 69 of the Act. 10. In the backdrop of our aforesaid deliberations, we, herein, holding the "agreement to sell", dated 25.02.2008 as a dumb document, thus, setaside the order of the CIT(A) and vacate the addition of Rs. 1.50 crore (supra) made by the A.O. 11. Resultantly, the appeal filed by the assessee is allowed in terms of our observations recorded hereinabove. ITA No. 628/Asr/2017 A.Y 2009-10 12. We shall now take up the assessee's appeal for A.Y 2009-10, wherein the impugned order passed by the CIT(A) ....
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.... Smt. K. Shobha Rani dated 19.04.2007 SLP (C) No. 12625 of 2005 wherein it has been held that photocopy of a document is not admissible evidence in terms of Indian Evidence Act, 1872. b)Hon'ble Punjab and Haryana High Court Judgment in the case of Paramjit Singh vs. ITO (2010) 323 ITR 588: 236 CTR 466 (P&H) wherein it has been held "There is well known principle that no oral evidence is admissible once the document contains all the terms and conditions. Sections 91 and 92 of the Indian Evidence Act, 1872 (for brevity 'the 1872 Act) incorporate the aforesaid principle. According to Section 91 of the Act when terms of a contracts, grants or other dispositions of property has been reduced to the form of a documents then no evidence is permissible to be given in proof of any such terms of such grant or disposition of the property except the document itself or the secondary evidence thereof'. 6. That while confirming addition, learned CIT(A) in para 4.7 & 4.11 of appellate order has relied upon cash deposits made in bank account of husband of the assessee in A.Y. 2008-09. Reliance placed on cash deposits in the account of husband of the assessee is illegal....
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....s. 4,31,880/- a/w agriculture income of Rs. 8,83,880. Information was received by the A.O from the Dy. Director of Income-tax (Investigation), Ludhiana, that the assessee had executed an "agreement to sell", dated 25.02.2008 with one Shri. Surjit Singh S/o. Sh. Mohan Singh, R/o. 1548-D, Model Town (Extension), Ludhiana, wherein she had agreed to sell her land admeasuring 09 Kanal - 03 Marla (i.e 5535 sq. yards) situated at Village : Daad, Pakhowal Road, Ludhiana for a consideration of Rs. 7,19,55,000/- i.e 5,535 sq. yards @ Rs. 13,000/- per sq. yard, and had out of the aforesaid sale consideration received an amount of Rs. 1.5 crore as earnest money on 25.02.2008 from Shr. Surjit Singh (supra). As per the aforesaid information shared by the Dy. DIT (Inv.), Ludhiana, the balance sale consideration was to be received by the assessee in tranches, viz. (i). amount of Rs. 1.5 crore was to be paid by 16.05.2008; while for the sale deed was to be executed latest by 03.12.2008. Further, as per the information, a registered sale deed for part of the land in question was executed on 08.10.2008 in favor of certain third parties, viz. (i). Sh. Vipan Kumar Goyal, 101A, Agar Nagar, Ludhiana (30%....
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....r; (v). A/c No. 0165201900016 with Canara Bank, Branch : BMC Chowk, Jalandhar. In order to fortify his conviction that the funds of the assessee were being managed by her husband, viz. Sh. Kulwant Singh, the A.O had tried to draw support from the fact that a FDR drawn in the name of the assessee was sourced out of the amount that was transferred from his bank account. Backed by his aforesaid observations, the A.O acting upon the contents of the "agreement to sell", as well as drawing support from his observations that were recorded by him while framing the assessment in the case of the assessee for the immediately preceding year i.e A.Y 2008-09, therein, held that the assessee had sold the land in question for a consideration of Rs. 7,19,55,000/-. Observing, that the assessee had executed the registered sale deed, dated 08.10.2008, i.e, during the year under consideration, the A.O adopting the aforesaid amount of sale consideration assessed the LTCG of Rs. 6,83,21,705/- as the undisclosed capital gains in her hands. 14. Aggrieved, the assessee carried the matter in appeal before the CIT(A). Although the CIT(A) principally concurred with the A.O, however, taking cognizance of the....