DINKAR MOGRA,UDAIPUR vs. DCIT, CENTRAL CIRCLE-2, UDAIPUR

against the order of the Commissioner of Income Tax (Appeals)-2, Udaipur [hereinafter referred to as (CIT(A))] dated 18.09.2018 for the Assessment Years 2006-07 & 2007-08, which in turn arise out of an order passed by DCIT, Central Circle-02, Udaipur passed u/s. 153A act “Act”] on 26.03.2013.

In the assessee raised following grounds:-

“1. The Ld. CIT(A)-2, Udaipur without providing a meaningful opportunity rejected an appeal as none attendant.

2. The Ld. CITA)-2, Udaipur erred in upholding the assessment order u/s 153A, 143(3)/144 as valid and is not bad in law, illegal and against the principle of natural justice.

3. The Ld. CIT(A)-1, Udaipur further erred in upholding addition of Rs. 14,00,000/- on account of unexplained investment property.

4. The appellant craves leave to add, alter, amend, modify and/or delete all or any of the grounds of the appeal on or before the final hearing, if necessary.”

3.1 Before us in this appeal the assessee has disputed a sum of Rs. 14,00,000 added by the ld. AO and sustained by the ld. CIT(A).

Apropos to this the relevant facts from the assessment order is that from the material found and impounded the assessee Shri Dinkar Rs. 1.95 Cr as his undisclosed income. In the assessment proceeding when confronted about page No. 81-84 of Annexure-AS-1 impounded vide statement dated 10.12.2010 u/s. 132(4) of Shri Dinkar Mogra, he replied in response to question No. 7 that he had purchased a land from Shri Ganga Ram Dangi with four other persons and he had invested Rs. 5 Lacs as his share which was paid out of his undisclosed income and offered the same for taxation. The above disclosure has affirmed by Shri Dinkar Mogra vide statement u/s. 131 dated 13.12.2010. The assessee when confronted about page No. 46- 75 of Annexure-A vide statement dated 10.12.2010 u/s. 132(4) of Shri Dinkar Mogra, he replied in response to question No. 8 that he had invested Rs. 90,00,000/- for purchase of land out of his undisclosed income and offered the same for taxation. The above disclosure has affirmed by Shri Dinkar Mogra vide statement u/s. 131 dated 13.12.2010. The assessee when also confronted about page No. 5,6 & 8 of Annexure-AS-2 impounded which is a register containing details of purchases of property and payments thereof, vide statement dated 10.12.2010 u/s. 132(4) of Shri Dinkar Mogra, he replied in response to question No. 9 that he had invested Rs. 1,00,00,000/- for the same for taxation. The above disclosure has affirmed by Shri Dinkar Mogra vide statement u/s. 131 dated 13.12.2010. Apart from the above, it is found that the page No. 76-80 of Annexure- AS-1 impounded from the office of M/s D-Fairdeal Properties, are agreements. It is clear from this agreement Shri Dinkar Mogra, in association with four other persons entered into an agreement for purchase of some land on 24.02.2006, against which a total advance of Rs. 45 Lacs was made. Dinkar Mogra did not make comments regarding this amount during the course of search as well as post search proceedings. Therefore, considering the equal share of five persons involved, the undisclosed income in the hands of Shri Dinkar Mogra on account of this agreement comes to Rs. 900000/- during F.Y. 2005-06. Similarly, it is also found that the page No. 85-88 of Annexure-AS-1 impounded from the office of M/s D-Fairdeal Properties, is agreement. It is clear from this agreement Shri Dinkar Mogra, in association with Shri Sanjeev Gorawara entered into an agreement for purchase of some land on 11.05.2006, against which a total advance of Rs. 6 Lacs was made. Dinkar Mogra did not make comments regarding this amount during the course of search as well two persons involved, the undisclosed income in the hands of Shri Dinkar Mogra on account of this agreement comes to Rs. 300000/- during F.Y. 2006-07. During the course of search proceedings, incriminating documents indicated the unexplained investments of Rs. 2.07 Cr in property were found. On being confronted about this investment, the assessee reply to question No. 11 of statement dated 10.12.2010, admitted to have unexplained investment in properties at Rs. 1.95 Cr. Further, there has been unexplained investment of Rs. 12 Lacs. Total undisclosed investment comes Rs. 2.07 Cr. As has been mentioned above, the undisclosed income of Rs. 1.95 Cr was offered by the assessee during the course of search proceedings as per statement u/s. 132(4). Subsequently, during the course of post search proceedings also, the assessee honored the above disclosure and affirmed the disclosure of Rs. 1.95 Cr vide statement recorded u/s. 131 on 13.12.2010. During the course of assessment proceedings, the assessee summoned and his statement u/s. 131 was recorded on 09.01.2013. Vide question No. 9 of statement; the assessee was again confronted about this disclosure. In reply, he admitted that he has not filed return yet and in the month of January, he will file return Para.6, as on the date of finalization of assessment proceedings, the assessee has not complied with provisions of section 153A as well as 139 and not filed returns of income for the period covered under search. Further, the impounded documents also speak about the transaction and detailed of unexplained investment made by the assessee. During the course of assessment proceedings, the assessee has completely failed to give any explanation on these documents and failed to declare the same by filing of return of income.

Thus, the above undisclosed investment remained undeclared and the same is brought to tax in the hands of the assessee for relevant A.Y. as undisclosed income of the assessee. In addition the ld. AO also made addition of Rs. 84,000/- as unexplained house hold expenses and Rs. 1,00,000 as unexplained bank deposits / insurance payment.

4.5 I have considered the facts of the case, the submissions of the A/R, the remand report of the AO and the comments of the A/R on the said report.

4.5.1 At the outset it may be mentioned that the appellant did not file any explanation before the AO despite sufficient opportunity allowed. I have perused the impugned sale agreement dated 24/02/2006. The first one is on a stamp paper of Rs. 50/-, executed by the seller Shri Ganga Ram Dangi s/o Shri Rakba Dangi, the purchasers are Shri Dingkar Mogra, the appellant and 4 other persons and the land agreed to be sold is 0.9700 Hectare agricultural land at village Bhuwana, Udaipur situated at Khata No. 177, Aaraji no. 45,47,48,52,53,63,64. This contains the thump impression of Shri Ganga Ram and signature of two other persons (name not legible) besides signature of two witnesses Shri Chetram & Shri Bherulal. The consideration agreed upon is Rs. 26 lacs per bigha and it is clearly mentioned that out of the whole sale consideration Rs. 25 lacs have been received by the seller as advance. The said agreement placed at Page 40 to 43 of Paper Book by the appellant.

4.5.2 The plea that the agreement has no signatures of the purchasers is not acceptable because there are several court decisions that a uniliterateral declaration in an agreement by the seller is a document legally valid. Therefore, whatever is mentioned in the impugned agreement cannot be ignored by any authority. Accordingly, the reasonable finding that the appellant along with 4 others have paid advance of Rs. 25 lacs to the seller.

4.5.3 Now coming to the plea that the above said agreement did not materialize and the same land was sold by the seller Shri Ganga Ram Dangi to Shri Govind Agarwal, I have perused the copy of 3 registered sale deeds furnished by the A/R with the paper book. The details of the same are as under :-

All the above deeds are registered on 11/12/2006. From the above it will be seen that the land sold as per the above sale deeds are not exactly the same as per the sale agreement under consideration. This is so because the agreement to sale dated 24.02.2006 includes Araji No. 48 which is missing in above 3 sale deed dated 11.12.2006. Moreover the above sale deeds dated 11.12.206 includes Araji No. 100, 102, 50, 56, 58, 69 and 77 which were not at all under consideration in the agreement to sale dated 24.02.2006. The mention in 9 & 548/Jodh/2018 Sh. Dinkar Mogra, Udaipur the above sale deeds that the seller has not entered into an agreement to sale of his land to any one does not mitigate the sale agreements which have been found and seized/impounded by the department. If the impugned sale agreements were cancelled there should be categorical supporting evidence. In any case, the subsequent development in the form of registered sale deels will not itself nullify the fact stated in the sale agreement that the appellant & 4 others have paid the advance amount of Rs. 25 lacs. Therefore, in my view the, AO was justified in adding the appellant's share of Rs. 5 lacs as unexplained investment. The same stands confirmed. 4.5.4 Coming to the 2nd sale agreement dated 24/02/2006, this is also executed on a stamp paper of Rs. 100/-. The sellers to the agreement are Shri Moti Dangi, s/o Sava Dangi, Kanhaiyalal & others, sons & daughters of Rama Dangi and Purilal Dangi, Keshi (father Deepa) and the purchasers are Shri Dinkar Mogra, the appellant and 4 others. Agricultural land at village Bhuwana admeasuring 3.0750 Hectare (24 Araji no. of Khata no.724) is agreed to be sold for Rs. 26 lacs per bigha and states that advance of Rs. 45 lacs have been received by the sellers from the purchasers. The said agreement placed at Page No. 44 to 48 of Paper Book by the appellant.

4.5.6 The plea that only two sellers have signed the agreement and none of the purchasers signed the agreement will not make the agreement invalid. Oral agreement by the 3rd co-seller is also valid. It is a bilateral agreement by the sellers. As regards the plea that the agreement is not signed by the purchasers, there are several court decisions that a unilateral declaration in an agreement by the seller is a document legally valid. The sale agreement has the thump impression of Shri Moti and Shri Purilal, heads of two families. Therefore, whatever is mentioned in the impugned agreement cannot be ignored by any authority.

4.5.7 Having regard to the entire facts of the case as discussed above, in my view, the AO was justified in holding that the appellant had paid the impugned advance as agreement by him during search and thereby making addition of Rs. 9 lacs as unexplained investment.

4.5.8 In view of above detailed discussion on facts, the addition of Rs. 14,00,000/- is hereby confirmed.” Finding on the issue of addition of Rs. 84,000/-

5.3.1 The AO has considered the income returned u/s 139(1) at Rs. 3,97,920/- while computing the total income for the year under consideration. For the preceding year i.e. AY 2005-06 the appellant had shown income of Rs. 2,57,831/- from which surplus comes to Rs. 1,46,481/- . Therefore, the household expenses estimated by the AO at Rs. 84,000/- is 10 & 548/Jodh/2018 Sh. Dinkar Mogra, Udaipur very much covered by the above income. In my view, there is no justification for the addition made. Accordingly the addition of Rs. 84,000/- is hereby deleted. Finding on the addition of Rs. 1,00,000/- 7. Ground No. 5 of the appeal is against not allowing the deduction u/s 80C of Rs. 1,00,000/-. This ground is sought to be withdrawn on the ground that the AO has allowed the deduction. Accordingly this ground of appeal is allowed to be withdrawn and will be treated as dismissed, for statistical purposes.”

5. As the ld. CIT(A) has sustained the addition of Rs. 14,00,000/- so made by the ld. AO. The assessee has filed the present appeal challenging the order of the lower authority on merits as well as on legal grounds. The ld. AR appearing on behalf of the assessee has placed their written submission which is reproduced here in below; “The Hon’ble Chairman and his other companion member of Income Tax Appellate Tribunal, Jodhpur MAY IT PLEASE YOUR HONOURS, The appellant, above named, respectfully submits as under- That appellant preferred an appeal before this Hon’ble Tribunal having appeal No. 547/Jodh/2018. The brief facts thereof and appellant‘s written submissions are submitted herewith for kind consideration please. (A) FACTS OF THE CASE 1. A survey and search was conducted on 10-12-2010 & 11-12-2010 and assessments u/s 153A was completed without considering reply.

2. The additions of Rs 14 lac on account of unexplained investments are confirmed by ld. CIT(A)-2, Udaipur based on invalid agreements.

3. So, the appellant is in appeal before this Hon’ble Bench against CIT(A)-2, order dated 18-09-2018. B. WRITTEN SUBMISSION : Ground no. 1 1. The Ld CIT(A)-2, Udaipur without providing a meaningful opportunity rejected an appeal as none attendant.

11 & 548/Jodh/2018 Sh. Dinkar Mogra, Udaipur 1.1 The appellant would like to withdraw this ground of appeal being mistakenly taken, kindly permit to withdraw. Ground no. 2

2. The Ld CIT(A)-2, Udaipur erred in upholding the assessment order u/s 153A, 143(3)/144 as valid and is not bad in law, illegal and against the principle of natural justice. 2.1 The appellant does not want to press this ground of appeal. Ground no. 3

3. The Ld CIT A-2, Udaipur further erred in upholding addition of Rs. 14,00,000/- on account of unexplained investment property. 3.1 The ld. CIT(A) confirmed additions of Rs 5,00,000/- and Rs 9,00,000/- made for unexplained investments treating invalid agreements as unilateral declaration in agreements by sellers. 3.2 The incomplete agreement to sale dt 24-02-2006 was found by survey team containing advance payment of Rs. 25 lac by 5 purchasers one of them was appellant, so, based on that 1/5th share of Rs 25 lac was confirmed as unexplained investment in the hands of appellant. This agreement to sale contains six parties and out of that only one seller has signed it, and not signed by five buyers of property, which renders it as an incomplete / invalid/ void agreement to sale. ( Paper Book No. 18-21) 3.3 Similarly, another incomplete agreement to sale dated 24-02-2006 containing advance payment of Rs. 45 lac to nine sellers of three groups and by five purchasers as mentioned therein. The careful examination reveals that out of cumulatively 14 parties only 2 parties (out of 9 sellers) have made signatures leaving unsigned by 12 persons. This shows that most of the sellers have neither agreed to sale their share of land to proposed buyers nor received any amount against that. ( Paper Book No. 22-26) 3.4 The agreement to sale are govern by the Indian Contract Act, 1872 in the country, wherein section 2(e) defines an agreement as “Every promise and every set of promises, forming the consideration for each other, is an agreement” and Section 13 further defined the Consent as “Two or more persons are said to consent when they agree upon the same thing in the same sense.” Therefore, to have a valid, lawful and complete agreement enforceable in court of law, it requires consent of all the parties named

12 & 548/Jodh/2018 Sh. Dinkar Mogra, Udaipur therein by putting their signatures / thump impressions. Herein the case, most of the persons has not put their signature on such documents. Thus, these agreements to sale were invalid, void and also not enforceable in the court of law to honour the promises made therein by agreed parties To form an agreement, the following ingredients are required: Parties: In order to make an agreement, there must be two or more parties. Offer/ Proposal : When a person expresses his or her desire to do or refrain from doing something in order to get the approval of another. Acceptance : When the individual to whom the proposition is made expresses his agreement to the same thing proposed by the offer or in the same sense. When a proposition is accepted, it turns into a promise. Consideration : It’s the cost of keeping a commitment. It is the reward for one’s deeds or omissions. Herein the case, there was no acceptance of the offer by the counter parties, so, the prime and utmost required condition is absent in the agreement to sale, so, this cannot be treated a valid contractual agreement. 3.5 Agreements are contracts and it specifies terms and has the purpose of holding each party accountable, it requires to be signed by all parties to accept the terms of the contract and make it valid. An agreement must be signed by the party against whom the agreement is being enforced if it is in writing. If there is no signature, it proved that the offer was not accepted, and hence no agreement exists. 3.6 The Ld CIT(A) at para 4.5.2 / 4.5.6 of impugned appeal order has treated these agreement to sale as Unilateral declaration in an agreement and also mentioned that several courts have held that such unilateral declaration in agreement is legally valid. Unfortunately, none of the several court decisions is cited therein on which he relied upon. This proves that there were no such decisions existed, so, none of them are cited and relied upon to making sole basis for confirming the additions. [Page No. 17 & 22 of CIT (A) order] 3.7 Therefore, the sole basis for confirmation of addition suffered from lack of backing of judgments, under the circumstances, such relying upon material is non existed, so, the basis will also ceased to make foundation for confirming additions. 3.8 On the contrary, the appellant respectfully proves that such incomplete agreement to sales are invalid and void in the governing law being the 13 & 548/Jodh/2018 Sh. Dinkar Mogra, Udaipur Indian Contract Act, 1872. So, such invalid and void agreements cannot be basis for making additions and confirmations thereof by Ld CIT (A). 3.9 It is pertinent to submit here that an agreement to sale dt 24-02-2006 containing advance amount of Rs. 45 lac to 9 sellers of three groups, and out of 9 sellers only 2 of them has put signatures, still the Ld CIT(A) has presumed that remaining 7 sellers have also signed and agreed to the contents of the agreement to sale. ( Paper Book No. 22-26) 3.10 It is also found that Ld CIT(A) has presumed that third o seller has entered into an oral agreement to sale, surprisingly, the AO has never claimed to have existence of oral agreement, but, CIT(A) has baselessly presumed about that. Needless to mention here that the burden to prove of existence of an oral agreement have not discharged by the CIT(A). 3.11 Whereas the section 7 of Indian Contract Act, 1872 says that acceptance must be absolute. In order to convert a proposal into a promise, the acceptance must— (1) be absolute and unqualified; (2) be expressed in some usual and reasonable manner, unless the proposal prescribes the manner in which it is to be accepted. If the proposal prescribes a manner in which it is to be accepted, and the acceptance is not made in such manner, the proposer may, within a reasonable time after the acceptance is communicated to him, insist that his proposal shall be accepted in the prescribed manner, and not otherwise; but if he fails to do so, he accepts the acceptance. 3.12 This establishes that Ld CITA) has made vague presumption for confirming an arbitrary addition. Since, none of the law permits such presumption that mere mentioning name of the sellers in an agreement to sale is treated as their valid consent for sale of land and receipt of advance. 3.13 At the most the calculation of receipt of advance money by the signed parties can be made by the authorities, which gives the 1/5th share of the appellant at Rs.3.75 lac only in-place of an addition of Rs. 9 lac made in the hands of appellant. The detail calculation is as under : 1/3rd Share of Sole person of 1st Seller Group who signed 15 lac 1/3rd Share of 4 persons of 2nd seller group, none signed 00 1/3rd Share of 4 persons of 3rd seller group, 1 out of 4 signed 3.75 lac ( 15 lac divided by 4 seller = 3.75 lac ) The total advance could be 18.75 lac

14 & 548/Jodh/2018 Sh. Dinkar Mogra, Udaipur 1/5 share of appellant therein could be Rs. 18.75/ 5 buyers) 3.75 lac Thus, if the AO / CIT (A) would have carefully examined the agreement to sale and submissions made before them, they would have restricted their addition to the extent of Rs 3.75 lac only 3.14 The appellant and it co purchasers have not accepted the offer for sale of land due to important issue that the land under proposal was falling under acquisition by the UIT, State Government. This is proved from the Note put by the registration authority in subsequent registered sale deeds. ( Paper book page no. 30,35,39) 3.15 It is further proved that due to lack of validity of existence of agreement to sale, subsequently, the seller Mr Ganga Ram Dangi has sold his land out of alleged agreement to sale, directly to another purchaser Shri Govind Agarwal vide enclosed registered sale deeds dated 06-12-2006. 3.16 Thus, the additions of Rs. 14 lac made on account of unexplained investment and confirmation thereof are based on admitted fact that there was no valid and legal enforceable agreement to sale existed. 3.17 In view of foregoing cogent material and evidences the appellant humbly prays to delete baseless, unlawful and arbitrary additions and allow this ground of appeal. We pray that the appeal may kindly be allowed. The letter of authority in favour of under signed is enclosed herewith. Pleader for the humble appellant.” 5.1 At the outset of the hearing the ld. AR of the assessee submitted that he did not want to press ground no. 1 & 2 and therefore, the same are dismissed. As regards the ground no. 3 disputing the addition on merit the ld. AR of the assessee submitted that the land in question was disputed land. The agreement is not complete and enforceable as the same is not signed by the parties to it. The seller subsequently sold the property to the other parties and therefore, the alleged the addition is required to be deleted based on these set of facts.

6. Per contra, the ld DR representing the revenue is heard who has relied on the findings of the lower authorities. The ld. DR vehemently argued that the addition was made based on the information unearth during the search and the assesee in the search submitted that he has paid advance for purchase of this property. The assessee has not co- operated with the assessing officer and has not filed the required return in response to notice u/s. 153A of the Act. The ground no. 1 & 2 taken by the assessee are not correct the ld. CIT(A) has given the sufficient opportunity and the given the justice to the assessee and for the sustained addition the ld. DR supported the findings recorded in the order of the ld. CIT(A). The ld. DR relying on page 21 para 6 of the agreement which is under dispute wherein even the possession of the property is given by the parties to this agreement and therefore, there is no merits in the arguments advanced by the ld. AR of the assessee and not only that the seller have placed their signature itself proves that the assessee has made the investment in the property and therefore, there is no merits in the grounds of the appeal. placed on record. The appeal of the discord in this case is the addition made by the ld. AO for an amount of Rs. 14,00,000/- and was sustained by the ld. CIT(A). On perusal of the order of the ld. AO the bench noted that the addition proposed was for an amount of Rs. 12,00,000/- as unexplained investment [ para 7.10 of the assessment order ] and in fact the same is made at Rs. 14,00,000/-. Going through the argument on both the part, the bench feels that not to fuss in the incorrect appreciation of the facts and none of the parties argued as to the apparent is error or correct. We also note that even the assessee has not brought any arguments before us on the issue. But argued that the seller of the property for which the addition made in the hands of the assessee has sold the property to the subsequent buyer and there is a finding that the deed are not same and there is no remand report sought on the issue. Therefore, tribunal being the final and correct fact finding authority so far as to the dispute is concerned and considering the conspectus on the issue we are of the considered view that the assessing officer should hear the assessee’s submission on merits after affording proper opportunity of being heard and pass speaking order in the matter. Therefore, we set a side to the issue to merits of the case again in the light of the arguments placed and record hereinabove after affording a reasonable opportunity of being head to the assessee. At the same time assessee is directed to represent and present all the facts before the assessing officer and should not ask for the adjournment on frivols grounds. At this stage we remand back the issues raised without commenting upon the merits of the case and the ld. AO is directed to complete the assessment in accordance with the law.

Order pronounced under rule 34(4) of the Appellate Tribunal Rules, 1963, by placing the details on the notice board.