AI Drafter 
TaxTMI 
TaxTMI 
TaxTMI 
2022 (9) TMI 471
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....A) has erred in deleting the addition of Rs.2,00,70,257/- out of total addition of Rs.2,40,31,757/- on account of unexplained investment in spite of the fact that addition was made on the basis of the seized Banakhat which clearly portray the schedule of payment to be made through cheque & cash to the seller. The said banakhat was signed & duly notarized and made after T.P. Scheme announcement and the assessee had also taken part possession of the land. Since, the T.P. Scheme announcement was also there, hence the price of land had also increased. It is also to be noted that the notarized banakhat had not been cancelled. The banakhat has the legal force unless the same is cancelled. Hence, details of cash payment as per the Banakhat were erroneously been deleted by the order of Ld.CIT(A}- 12, Ahmedabad which was also rectified vide order u/s.154 of the I. T. Act, 1961 received on 08.05.2017 . [2] On the facts and in the circumstances of the case, the Ld. CIT (A) ought to have upheld the order of the Assessing Officer. [3] It is, therefore, prayed that the order of the CIT (A) may be set aside and that of Assessing Officer may be restored to the above extent. ....
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....see, Shri Bankim Pandya along with his brother Ketan Pandya had purchased a land at Tandalja Village, Atladara. As per the copy of Banakhat obtained during search, the purchase price was finalised at Rs. 9,52,54,515/-, out of which Rs. 4,00,31,000/-was to be paid by way of cheque and the remaining amount of Rs. 5,52,23,515/- was to be paid in cash as per the schedule mentioned in the Banakhat. The AO observed that as per the revenue records, the assessee Bankim Pandya and his brother Ketan Pandya purchased the above land by way of registered Banakhat dated 24-07-2012 for Rs. 4,00,31,000/-. Subsequently, registered sale deed was entered between the assessee and the seller on 05-08-2012. The AO observed that it has not been disputed by the assessee that the possession of the land has been transferred in favour of the assessee at time of registration of sale deed. Thus, it is a reasonable presumption that the entire amount as mentioned in the registered sale deed (coupled with the fact that the assessee has not disputed that possession of the land was transferred to him and his brother at the time of registration of sale deed) supports the fact that the entire amount as mentioned in t....
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.... assessee for the reason that date of passing of resolution of TP scheme for Tandalja village was 31-07-2012. The assessee, Bankim Pandya and his brother Ketan Pandya entered into a registered sale deed with the buyer on 05-08-2012 and possession of the land was transferred to the buyers. This means that at the time of signing of registered sale deed on 05-08-2012, both the assessee and the seller were well aware about the TP scheme and conditions of registered sale deed were drafted taking into consideration that the TP scheme would be implemented. The search operation was conducted at the premises of the assessee on 09-01-2013 in which the evidences regarding unexplained investment of the assessee were found. In the statement recorded on oath of the assessee dated 10-01-2013, during the post search proceedings, there was no mention of cancellation of sale deed or revising the terms of the agreement. The assessee thereafter entered into "return deed" with the seller on 24-06-2013, in terms of which land of 2090 square metres was retained by the assessee and his brother and the remainder land of 7420 square metres was returned back to the seller. Accordingly, the subsequent return ....
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....e Ld. AR, therefore, is absolutely right that the conclusion of the Ld. AO in para 6 on page 22 of the assessment order that the purchasers of the land including the appellant "was in possession of cash of Rs. 5.52 crores" is simply conjectural and obviously not based on any sound and credible evidence. As such the very Banakhat dated 5/8/2012 is giving a detailed schedule both of payments by cheque and payments by cash and even as per that schedule, and also in the absence of categorical evidence of actual cash payments beyond that required to be paid till the date of the search as per banakhat, it is impossible to conclude in law that "the purchasers were in possession of or made payment of amounts scheduled to be paid after the date of the search". In other words, the most adverse conclusion that can be drawn on the basis of all the evidences which have been relied upon by the AO would still essentially and necessarily need to be based on Banakhat dated 5/8/2012. As per this Banakhat, up to the date of the search, total cash payment of Rs. 60.51 lakhs + Rs.79.72 lakhs totalling to Rs.140.23 lakhs is prima facie reasonable to be inferred to have been made, though it is the A.R's ....
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.... the firm opinion that the action of cancellation of Banakhat dated 5/8/2012 and substitution thereof (deed dated 28/6/2013) is indeed an escape route which was validly available in law to the appellant and has been chosen by him as an abundant caution to avoid the adverse conclusion of total unaccounted cash payment of Rs. 5.42 crores if at all the deal as per Banakhat were fully carried out. xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx The fact that the Banakhat was cancelled after the search would not take away or negate the contemporaneously evidenced fact that the appellant and co-investors had "paid" a total cash of Rs. 140 lakhs till the date of the search. In my considered opinion, this fact, through rates, is also indirectly and independently, established by cancellation deed dated 28/6/2013. The story of notification of TP scheme :or justifying reduced rate is indeed an unbelievable afterthought which is also contrary to evidence on record. Moreover, the notification of inclusion of l....