SHRI VISHNU KUMAR JOSHI,JAIPUR vs. ITO, WARD-3(5), JAIPUR

ORDER PER: SANDEEP GOSAIN, J.M. The present appeal has been filed by the assessee against the order of the ld. CIT(A)-1, Jaipur dated 19/11/2019 for the A.Y. 2014-15. Following grounds have been taken by the assessee:

2 ITA 22/JP/2020_ Vishu Kr. Joshi Vs ITO 2. The ld. AO made addition U/s 56(2)(vii)(b) of Rs. 1,61,44,679/- ignoring the facts of litigation on the property matter and restriction by the Highway Authority of India on any construction, merely by accepting DLC rate provided the Registrar.

3. The ld. AO made addition U/s 68B of Rs. 46,00,000/- ignoring the fact and by ignoring the well explained sources of investigation made by the assessee.

2. The hearing of the appeal was concluded through video conference in view of the prevailing situation of Covid-19 Pandemic.

3 ITA 22/JP/2020_ Vishu Kr. Joshi Vs ITO but not found acceptable. It is a fact that this provision is a deeming provision and the A.O. is bound to make addition of difference in stamp duty value and consideration of property purchased. After making detailed enquiry and necessary verification, the A.O. completed the assessment U/s 143(3) of the Income Tax Act, 1961 (in short, the Act) on 28/12/2016 determining total income of the assessee at Rs. 2,23,15,860/- by making various additions i.e. addition U/s 56(2)(vii), unexplained investment in property U/s 69B and unexplained expenditure on registration charges U/s 69C of the Act.

4. Being aggrieved by the order of the A.O., the assessee carried the matter before the ld. CIT(A), who after considering the submissions of both the parties and material placed on record, given part relief to the assessee. Against the order of the ld. CIT(A), the assessee has preferred the present appeal before the ITAT on the grounds mentioned above.

4 ITA 22/JP/2020_ Vishu Kr. Joshi Vs ITO “The Learned AO applied section 56(2)(vii)(b) on purchase of Agricultural land against the provision of Act and CIT (Appeals) First, Jaipur erred in upholding the addition made by the AO u/s 56(2)(vii)(b) representing the difference between the stamp duty value and the actual purchase consideration in spite of the FACT the provisions of the said section are not application to the facts of the case in as much as the agricultural land purchased by the appellant not being a Property as per the definition provided in the said section, all four purchase being agricultural lands, not falling in the definition of CAPITAL ASSETS.

As per The A.O.'s order Dated 28.12.2016 Paget and order of the Learned CIT (Appeals) First, Jaipur, Page 10 [Paper Book Page and four purchase deed pages 44 to 120 respectively]' Detail of Purchased Agricultural lands is as follows: S. No. Date Details of the property purchased Consideration Stamp Duty Paid (Rs.) Value (Rs.) 1 24.05.2013 Land in Khasra number 950/2 & 953, 11,00,000/- 27,83,000/- totalling 2 bigha from Sh. Ram Singh S/o Sh. Kanha Ram 2 10.05.2013 Land in Khasra number 950/2 & 953, 4,00,000/- 27,83,000/- totalling 2 bigha from Sh. Nand Singh S/o Sh. Kanha Ram 3 24.05.2013 Land in Khasra number 950/2 & 953, 4,00,000/- 27,83,000/- totalling 2 bigha from Sh. Gopal Singh S/o Sh. Kanha Ram 4 15.07.2013 Land in Khasra number 6447, 6448, 45,00,000/- 1,41,95,679/- 6467, 6469, 7602, 7603, 7604, totalling 2.4016 hectare from Sh. Banna Rain S/o Sh. Dev Karan Gurjar Total Rs. 64,00,000/- Rs. 2,25,44,679/- (A) Thus it is well established FACT that all four purchases were AGRICULTURAL LANDS exhibiting KHASARA NUMBERS as per land Revenue record and, Detail of Seller Farmers including their Father's name etc.

5 ITA 22/JP/2020_ Vishu Kr. Joshi Vs ITO (B) Section 2 (14) of the Act excludes Agricultural Land out of definition of "Capital Assets". Property other than immovable property is not attracted the provisions of Section 56 (2) (vii) (b) by the Act.

(C) Property means the following CAPITAL ASSETS of the Assessee: (i) Immovable property being land or building or both; (ii) Shares and Securities; (iii) Jewellery; (iv) Archaeological collections; (v) Alarming; (vi) Painting; (vii) Sculptures; (viii) Any work of art; [or] (ix) Bullion (D) In the Totality of above definition, AGRICULTURAL LAND purchased by the Assessee is not governed by the provisions of section 56 (2) (vii) (b) of the Act being not CAPITAL ASSET. Hence, It is outside the purview of section 56 (2) (vii) (b) and "NO addition has to be made in the hands of Assessee".

(E) In the Decision of Jaipur Bench of Tribunal in "ITO vs. Trilok Chand Sain", provision of clause (c) of Section 2 (14) was not taken into cognizance. Record para 6 only defines "immovable Property", However, clause (c) very clearly talks of property other than immovable property and word `property' has further been defined under clause (d) of explanation there under.

(F) Thus your honour are prayed, addition of Rs. 1,61,44,679/- being made by the AO and out of these Rs. 1,45,74,660/- Determined by the learned CIT (Appeals), First, Jaipur, Should be DELETED by allowing this ground of the Appeal.

6 ITA 22/JP/2020_ Vishu Kr. Joshi Vs ITO [Ref. (PUNE-ITAT) 2019 ITL 3638, MUBARAK GAFUR KORABU V. INCOME TAX OFFICER, IN THE ITAT PUNE TRIBUNAL, ASS. YEAR 2015-16, DATED- 05.04.2019] (enclo. Page 41 to 43)

(A) Property is in litigation:

The Land purchased by the Assessee is in litigation for its legal title and valid & fair Possession in hand. A suit has been filed against the Assessee in session's court, Sambhar, Jaipur. That suit is pending so far- undecided. By that reason no proper value of property can be availed. Instead of so negative affected, the cost of land, to take at higher value is against the act as well also against the law of social justice. Relevant Paper proving litigation etc., are submitted enclosed here with. (Pages 121 to 138)

(B) Restrictions for construction due to Property situated at highway:

Location of the property is at Mega Highway Mauzmabad, District, Jaipur. Highway authorities of India has imposed restrictions to make construction on this land. Prohibition of any construction is imposed by the highway authority of India. Copy of Papers exhibiting such restrictions are submitted enclosed here with. Due to these reasons, No DLC rate can be availed and there is considerable difference between the DLC and Purchased value. Therefore, the Addition Rs. 1,61,44,679 /- made by the learned

7 ITA 22/JP/2020_ Vishu Kr. Joshi Vs ITO Assessing officer should be deleted having considered the grounds of the Assessee;s Appeal. (pages 139 to 142)

(i) From the facts of the case, it is seen that the appellant has purchased four immovable properties during the year under consideration. The above properties were purchased far below the value determined by the stamp valuation authorities for the purposes of charging stamp duty. The AO invoked the provisions of section 56(2)(vii)(b) of the Act and made the addition of Rs. 1,61,44,679/- being the difference between value shown in the registered document and value determined by stamp valuation authorities. The relevant portion of the assessment order is reproduced as under:

"2. Addition u/s. 56(2) (vii) (b):- During the course of assessment proceedings, the assessee was asked to furnish details of properties purchased during the year alongwith registered purchase deeds. The A/R submitted copies of registered purchase deeds, on perusal of which, it is noticed that the assessee purchased following properties during the year:-

8 ITA 22/JP/2020_ Vishu Kr. Joshi Vs ITO Details of the property Consideration paid Stamp Duty S.No. Date purchased' Value Land in khasra number 950/2 & 1. 24.05. 2013 953, totaling 2 bigha from Sh. Rs. 11,00,000/- Rs. 27,83,000/- Ram Singh S/o Sh. Kanha Ram Land in khasra number 950/2 & 2. 10.05.2013 953, totaling 2 bigha from Sh. Rs. 4,00,000/- Rs.27,83,000/- Nand Singh S/o Sh. Kanha Ram Land in khasra lumber 950/2 & 3. 24.05.2013 953, totaling 2 bigha from Sh. Rs. 4,00,000/- Rs.27,83,000/- Gopal Singh S/o Sh. Kanha Ram Land in khasra number 4. 6447,6448, 6449, 6467, 15.07.2013 6469,7602, 7603, 7604 totaling Rs. 45,00,000/- Rs.1,41,95,679/- 2.4016 hectare from Sh. Banna Ram S/o Sh. Dev Karan Gurjar Total Rs. 64,00,000/- Rs.2,25,44,679/- 2.1 In this regard, the provisions of sec. 56(2)(vii)(b) of the IT. Act, 1961 applicable from A.Y. 2014-15 are as under.- "Sec. 56(1) (2)In particular and without prejudice to the generality of the provisions of sub- section (1), the following incomes, shall be chargeable to income-tax under the head "Income from Other Sources" namely- (i) …………………. (vii) Where an individual or a Hindu Undivided Family receives, in any previous year, from any person or persons on or after the first day of October, 2009- (a) ........................ (b) any immovable property- (i) without consideration, the stamp duty value of which exceeds fifty thousand rupees, the stamp duty value of such property; (ii) for a consideration which is less than the stamp duty value of the property by an amount exceeding fifty thousand rupees, the stamp duty value of such property as exceeds such consideration. Provided that where the date of agreement fixing the amount of consideration for the transfer of immovable property and the date of registration are not the same, the stamp duty value on the date of the agreement may be taken for the purposes of this sub-clause.

9 ITA 22/JP/2020_ Vishu Kr. Joshi Vs ITO Provided further that the said proviso shall apply only in a case where the amount of consideration referred to therein, or a part thereof, has been paid by any mode other than cash on or before the date of the agreement for the transfer of such immovable property" 2.2. It is clear from the above provision that the assessee received an immovable property for a consideration which is less than the stamp duty value of the property by an amount exceeding Rs. 50,000/-, therefore, the difference between stamp duty value and consideration is liable to be taxed as Income from Other Sources. In this case the difference between stamp duty value and consideration is Rs. 1.61,44,679/- which is chargeable to tax as Income from Other Sources. Accordingly, the assessee was asked to show cause vide order sheet entry dated 22.07.2016 as to why addition should not be made as discussed above. 2.3 The A/R submitted vide reply dated 23.12.2016 that "the land purchased by the assessee currently is in litigation for its legal title and possession. A suit has been filed against the assessee in Session Court of Sambhar, Jaipur. The said land is situated at mega highway, Mauzamabad, Jaipur. Construction on this land is not possible due to prohibition of Highway Authority of India. Due to above two reasons it is possible that difference between purchase value and DLC value. Copy of suit papers is submitted enclosed herewith." 2.4. The reply of the A/R has been considered but not found acceptable. It is a fact that this provision is a deeming provision and the A. O. is bound to make addition of difference in stamp duty value and consideration of property purchased. Therefore, the plea of the assessee cannot be accepted. Accordingly, addition of Rs. 1,61,44,6791- is made under the provisions of section 56(2)(vii)(b) of the IT. Act, 1961 as Income from Other Sources in the hands of the assessee." (ii) During the appellate proceedings, it was submitted that the properties were purchased below the fair market value as litigation was pending regarding legal title in Session's Court, Sambhar, Jaipur. It was also mentioned that as the properties were situated at highway, there was restriction regarding construction on the plots. The appellant also raised an additional ground that the provisions for adopting value as per DLC rate is applicable to seller only and not to the purchaser.

(iii) I have duly considered the submissions of the appellant, assessment order and the material placed on record. The AO has 10 ITA 22/JP/2020_ Vishu Kr. Joshi Vs ITO discussed the provisions of section 56(2)(vii)(b) of the Act in the order itself. The plain reading the section clearly shows that the provision is applicable on purchase of immovable property, if the consideration is less than the stamp duty value of the property by an amount exceeding Rs. 50,000/-. It is also mentioned that in such cases, the difference between stamp duty valuation of the property and actual consideration shown will be treated as 'income from other sources'. The above conditions are squarely applicable in the case of the appellant, therefore, the AO was justified in invoking the provisions of section 56(2)(vii)(b) of the Act. Therefore, the additional ground raised by the appellant that the above provisions do not apply on purchaser of the property is dismissed.

(iv) The attention is also invited to the second proviso to section 56(2)(vii)(b) of the Act, which reads as under:

"Provided that where the stamp duty value of immovable property as referred to in sub-clause (b) is disputed by the assessee on grounds mentioned in sub-section (2) of section 50C, the Assessing Officer may refer the valuation of such property to a Valuation Officer. and the provisions of section 50C and sub-section (15) of section 155 shall, as far as may be, apply in relation to the stamp duty value of such property for the purpose of sub-clause (b) as they apply for valuation of capital asset under those sections: Thus, the above provisions allow the AO to refer the property to the DVO in case, the value of the property is disputed by the assessee. As the valuation of the property was relevant in deciding the quantum of addition, the AO was asked to refer the above properties for valuation vide this office letter No. 2298 dated 16.11.2017. The AO submitted the report of DVO in respect of above properties vide letter No. 971 dated 21.10.2019. The detail of valuation is summarized as under:

11 ITA 22/JP/2020_ Vishu Kr. Joshi Vs ITO Value Details of the property Consideration Stamp Duty determined by S.No. Date purchased' paid Value DVO 27,48,220/- Land in khasra number 1. 950/2 & 953, totaling 2 24.05. 2013 11,00,000/- 27,83,000/- bigha from Sh. Ram Singh S/o Sh. Kanha Ram 27,48,220/- Land in khasra number 2. 950/2 & 953, totaling 2 10.05.2013 4,00,000/- 27,83,000/- bigha from Sh. Nand Singh S/o Sh. Kanha Ram 27,48,220/- Land in khasra lumber 3. 950/2 & 953, totaling 2 24.05.2013 4,00,000/- 27,83,000/- bigha from Sh. Gopal Singh S/o Sh. Kanha Ram 1,27,30,000/- Land in khasra number 4. 6447,6448, 6449, 6467, 6469,7602, 7603, 7604 15.07.2013 45,00,000/- 1,41,95,679/- totaling 2.4016 hectare from Sh. Banna Ram S/o Sh. Dev Karan Gurjar 2,09,74,660/- Total 64,00,000/- 2,25,44,679/- (v) Regarding land at Sr. No. 4, the DVO has mentioned as under:

Note: The land is inspected by the team of Valuation Office along with the Assessee on 18.03.2018. During the inspection, it was observed that the land is not located on NH-8 but it is located on SH-02. The land in question is very near to the city and is having a higher potential than it is categorized. It is having a very wide frontage on the road. In view of the above, the prevailing land rates of other damar roads than NH-8 have been considered. The weightage for its higher potential and extra frontage has been taken into account. The claim of the Assessee that the land is under litigation (legal stay) is not valid on the date of his purchase.

(vi) Thus, the DVO has given due consideration for the location of the property and other relevant evidences produced before him by the appellant. The DVO is expert in valuation of the property and as the valuation is based on scientific method, the same cannot be doubted.

12 ITA 22/JP/2020_ Vishu Kr. Joshi Vs ITO Considering, the above valuation, the difference in value recorded in the registered document and the value determined by the DVO amounting to Rs. 1,45,74,660/- is treated as 'income from other sources' u/s 56(2)(vii)(b) of the Act. The addition made by the AO is restricted to Rs. 1,45,74,660/-.”

14 ITA 22/JP/2020_ Vishu Kr. Joshi Vs ITO “(A) The Learned Assessing officer made addition U/s 69B of Rs. 46,00,000/-ignoring the Fact and by ignoring the well explained sources of investment made by the Assessee.

Sources of investment were well explained during the proceedings U/s 143(2) performed by the learned Assessing officer. The Assessee had submitted details of investment as follows:- Sl. Date Details of the property purchased Consideration Paid Source No 1. 24.05.13 Land in khasra number 950/2 & Rs. 11,00,000/- i. Rs.8,00,000 paid in cash 953, totaling 2 bigha from Sh. on 06.04.95 Ram Singh S/o Sh. Kanha Rain ii. Rs. 3,00,000/- paid by cheque from Axix Bank joint account on 3.06.13(Page No. 156) 2. 10.05.13 Land in khasra number 950/2 & Rs. 4,00,000/- Rs. 4,00,000/- paid in cash on 953, totaling 2 bigha from Sh. 06.04.95. Nand Singh S/o Sh. Kanha Ram

3. 24.05.13 Land in khasra number 950/2 & R. 4,00,000/- Rs. 4,00,000/- paid in cash on 953, totaling 2 bigha from Sh. 06.04.95. Gopal Singh S/o Sh. Kanha Ram 4. 15.07.13 Land in khasra number 6447, Rs. 45,00,000/- i. Rs. 20,00,000/- paid by 6448, 6449, 467, 6469,7602, cheque by Narsingh 7603, 7604 totaling 2.4016 construction on behalf of hectare from Sh. Banna Ram Sh. Assessee on 05.06.13. Dev Karan Gurjar (Page No. 144 to 146) ii. Rs. 9,00,000 paid by cheque by Narsingh Construction on behalf of Assessee on 05,06.13. (Page No. 144 to 146) iii. Rs. 10,00,000/- in cash from SB account of Vishnu Joshi on 22.07.13. (Page No. 147) iv. Rs. 5,00,000 in cash from SB account of Vishnu joshi on 16.09.13. (Page No. 147) 5. 10.05.13 Registry charges of all above four Rs. 13,64,865/- Rs. 13,00,000/- in cash by 24.05.13 properties making withdrawals from & partnership firm M/s Shree 15.07.13 PVJ Corporation.(Page No 25 & 26) Total Rs. 77,64,865/- 15 ITA 22/JP/2020_ Vishu Kr. Joshi Vs ITO (A) For Property as per chart no. 1, 2 and 3; There is no reason not to accept the payments made as per notarized Regd. two Agreement dated 06-04-1995 furnished by the Assessee. Only by saying that agreements were not in the name of Shri Vishnu Kumar Joshi, the plea of Assessee cannot be denied when:- (A) Deal is relevant to all those khasara of land which were under consideration, more over (B) Agreement were executed with BABA R.N. Gor GRAH NIRMAN SAHKAR SAMITI LTD; Jaipur only through Shri Vishnu Kumar Joshi by caste Brahman R/o Jaipur The Chairman as well as Authorized Representative of Samiti.

All proceedings were handled by the Assessee and for those same property, should not be denied merely by raising Technical question and avoiding the factual Assessee's true explanation. In fact agreements were executed between seller party and the Assessee. Total Payment of Rs. 19,00,000 should be accepted instead to consider only Rs. 3,00,000 paid by cheque from Axis Bank on 03.06.2013. Valid payment of Rs. 16,00,000 ( Rs. 8,00,000, Rs. 4,00,000 and 4,00,000) as per agreement dated 06.04.95 should also be accepted and same should not be treated as unexplained. The copies of both the agreements are the perfect evidence to establish payments of Rs. 16,00,000 made for purchases of these lands even though Regd. Sale deed were executed during the year 2013-14.

(B) For the property as per chart No. 4:

This is the established principal that payment should be made on or before the date of execution of Regd. Deed. So for Regd. Deed execute on 15.07.2013, Payment on 05.06.2013, cannot be denied but on other hand payment having made thereafter can raise little 16 ITA 22/JP/2020_ Vishu Kr. Joshi Vs ITO bit doubt that without having been made full payment registry was executed. Statement of seller receiving entire payment in cash on 11.12.13 is quite correct. As on that date nothing was pending unpaid. So payment of Rs. 20,00,000 and Rs. 9,00,000 were made by cheques on 05.06.2013 by Narsingh of Assessee were genuine and correct payments. Both the amounts were paid thorough bank should be accepted and Rs. 30,00,000 treated as unexplained should be deleted.

17 ITA 22/JP/2020_ Vishu Kr. Joshi Vs ITO The A/R also submitted a chart explaining the source of investment made as under- Sl. Date Details of the property purchased Consideration Paid Source No 1. 24.05.13 Land in khasra number 950/2 & Rs. 11,00,000/- i. Rs.8,00,000 paid in cash 953, totaling 2 bigha from Sh. on 06.04.95 Ram Singh S/o Sh. Kanha Rain ii. Rs. 3,00,000/- paid by cheque from Axix Bank joint account on 3.06.13 2. 10.05.13 Land in khasra number 950/2 & Rs. 4,00,000/- Rs. 4,00,000/- paid in cash on 953, totaling 2 bigha from Sh. 06.04.95. Nand Singh S/o Sh. Kanha Ram

3. 24.05.13 Land in khasra number 950/2 & R. 4,00,000/- Rs. 4,00,000/- paid in cash on 953, totaling 2 bigha from Sh. 06.04.95. Gopal Singh S/o Sh. Kanha Ram 4. 15.07.13 Land in khasra number 6447, Rs. 45,00,000/- i. Rs. 20,00,000/- paid by 6448, 6449, 467, 6469,7602, cheque by Narsingh 7603, 7604 totaling 2.4016 construction on behalf of hectare from Sh. Banna Ram Sh. Assessee on 05.06.13. Dev Karan Gurjar ii. Rs. 9,00,000 paid by cheque by Narsingh Construction on behalf of Assessee on 05,06.13. iii. Rs. 10,00,000/- in cash from SB account of Vishnu Joshi on 22.07.13. iv. Rs. 5,00,000 in cash from SB account of Vishnu joshi on 16.09.13. (Page No. 147) 5. 10.05.13 Registry charges of all above four Rs. 13,64,865/- Rs. 13,00,000/- in cash by 24.05.13 properties making withdrawals from & partnership firm M/s Shree 15.07.13 PVJ Corporation.) Total Rs. 77,64,865/- 3.1 The contention of the assessee was perused in the light of document submitted. It is observed that the source stated by the assessee is not found fully explained. Therefore, the A/R was asked to show cause vide order sheet entry dated 22.7.2016 as to why addition should not be made regarding part of investment made in property as the source of same has not been explained fully. The A/R submitted reply on 23.12.2016 in which, it was submitted that the source of payment is as per the chart reproduced above.

18 ITA 22/JP/2020_ Vishu Kr. Joshi Vs ITO The reply of the A/R has been considered but not found acceptable for the following reasons discussed as under:- a) Regarding properties at S.No. 1,2 & 3, the A/R as submitted that the payment of Rs. 8,00,000/-, Rs. 4,00,000/- and Rs. 4,00,000/- was made respectively long back on 6.4.95 but the registry was made in F.Y. 2013-14. The plea is not acceptable. It is nowhere mentioned in the registered sale deeds that the purchasers received cash payments on 06.04.1995, long back before the registration of the document. The assessee has not been able to submit any documentary evidence that payments were not made in F. Y. 2013-14 but were made on 6.4.95 as claimed. The A/R submitted vide reply dated 23.12.2016 that "although registry of land is executed in Year 2013-14 but originally it was entered by an agreement in year 1995. Copy of agreement made between both the parties is submitted enclosed herewith." The agreements submitted by the NR were perused but it is found that agreements are not between the seller party and assessee. The agreements are between seller party and M/s Baba R.N. Gaur Grih Nirman Sahakari Samiti Ltd., Jaipur through assessee Shri Vishnu Kumar Joshi as President/Mantri/A/R of the Society. According to these agreements, the lands mentioned therein were sold by the sellers to M/s Baba R.N. Gaur Grih Ninnan Sahakari Samiti Ltd. and not to assessee Sh. Vishnu Kumar Joshi. Further, these agreements are unregistered and not signed by the assessee Sh. Vishnu Kumar Joshi. Therefore, there is no legal sanctity of these agreements. Moreover, these agreements do not prove in any way that these lands were purchased by assessee on 06.4.95 and cash payments of Rs. 8,00,000/-, Rs. 4,00,000/- and Rs. 4,00,000/- were made by the assessee on 06.04.95 to the seller of the land. Therefore, these agreements are of no help to the assessee. There is no evidence with the assessee that the payments of Rs. 16.00.000/-made for purchases of these lands were not made during the F. Y. 2013-14, when the sale deeds of these properties were executed and registered. Since, the assessee did not explain the source of cash payments totaling to Rs. 16,00,000/- made during the year 2013-14, the same is treated as unexplained investment in the property and is added to the income of the assessee u/s. 69B of the 1.T. Act, 1961 as the assessee could explain source of payment of Rs. 3,00,000/- only out of total payment of Rs. 19.00.000/- made for purchase of these properties.

19 ITA 22/JP/2020_ Vishu Kr. Joshi Vs ITO b) Regarding property at S.No. 4, the A/R submitted vide reply dated 23.12.16 as under:- "a cheque was issued of Rs. 45,00,000/- by assessee in consideration of land (khasra No. 6447-69) and the same was dishonoured. After that part payment of Rs. 29,00,000/- is made from current account of M/s Narsingh Construction which was given by assessee to Narsingh Construction on earlier dates. In this regard, copy of PAN card of proprietor of M/s Narsingh Construction, bank statemen1 and confirmation letter given by proprietor on his letter head is submitted enclosed herewith. Balance amount of Rs. 16,00,000/- was paid by assessee in cash from self sources." The reply of the A/R has been considered but not found fully acceptable. It is observed that assessee purchased a property for Rs. 45,00,000/- and issued a cheque to the purchaser which got dishonored. Therefore, on 11.12.13, the assessee made cash payment of Rs. 45,00,000/- to Shri Banna S/o Sh. Dev Karan Gurjar in lieu of purchase consideration in the presence of the witnesses. This is evidenced by the "ikrarnama cheque ke rupye prapt bawat" i.e. agreement for having received money in lieu of cheque duly signed and executed by Shri Banna Ram in the presence of witnesses and attested by the Notary Public. This document clearly proves that cash payment of Rs. 45,00,000/- was made to the seller by assessee on 11.12.13. Therefore, the claim of the assessee that payment of Rs. 20,00,000/-and Rs. 9,00,000/- was made by cheque by Narsingh Construction on 05.06.13 on behalf of assessee is apparently incorrect. When registry was made on 15.7.13 then how Narsingh Construction could make payment of Rs. 29,00,000/- to the seller on 05.6.2013, long before the date of purchase made by the assessee. Further, when the seller has stated in the agreement that he received entire payment in cash on 11.12.13 then how M/s Narsingh Construction could have made payment to seller by cheque on 05.06.13. These facts proved that the claim of assessee regarding payment of Rs. 29,00,000/- made by M/s Narsingh Construction is wrong and non acceptable. The claim of assessee regarding payment of Rs. 15,00,000/- by making cash withdrawal from the saving bank account is accepted and accordingly, out of total payment of Rs. 45,00,000/-. source of payment of Rs. 15,00,000/- is found explained and balance payment of Rs. 30,00,000/- is treated as unexplained investment in the property and added to the income of the assessee u/s. 698 of I. T. Act, 1961." (ii) During the appellate proceedings, the appellant again reiterated the same argument that in respect of property No. 1, 2 and 3, cash of Rs.

20 ITA 22/JP/2020_ Vishu Kr. Joshi Vs ITO 16,00,000/- was paid much before the actual registry of the above properties. It was claimed that Rs. 16,00,000/- was paid on 06.04.1995 to the seller in cash while the registry of the above property was done during FY 2013-14. The AO has examined the above contention of the appellant in detail and no new fact/ evidence has been brought on record. Therefore, no interference is called for in the order of the AO as far as addition to the extent of Rs. 16,00,000/- in respect of first three properties.

(iii) As far as property No. 4 is concerned, it was submitted that the cheque issued for Rs. 45,00,000/- was dishonored and later on, cheques were issued from the bank account of M/s Narsingh Construction amounting to Rs. 20,00,000/- on 05.06.2013 and Rs. 9,00,000/- on 10.06.2013. It was also contended before the AO and during appellate proceedings that the above amount was given by the appellant to M/s Narsingh Construction on earlier dates. However, no details regarding earlier payments given to M/s Narsing Construction was provided either during assessment proceeding or appellate proceedings. The nature and source of earlier payment to M/s Narsingh Constructions remained unexplained. In the assessment order, the AO has specifically pointed out that an agreement was executed between the parties under the name 'agreement for receiving payment in lieu of cheque', which indicates that cash was received by Shri Banna Ram, the seller of the property, when the cheque issued was dishonored. As per this agreement, cash of Rs. 45,00,000/- was paid to the seller by the appellant on 11.12.2013. The relevant portion of the agreement reads as under:

21 ITA 22/JP/2020_ Vishu Kr. Joshi Vs ITO Thus, there is no doubt that the payment in lieu of dishonored cheque was made in cash by the appellant on 12.11.2013. Hence, the claim of the appellant regarding payment through M/s Narsingh Constructions is not established. Therefore, the AO was justified in treating payment of Rs. 29,00.000/- as undisclosed investment in the property. As far as remaining cash payment of Rs. 16,00,000/- is concerned, the AO himself granted benefit to the extent of Rs. 15,00,000/- on the basis of withdrawal from bank account. Thus, the AO was justified in treating Rs. 30,00,000/- as undisclosed investment in respect of property No. 4.

(iv) To sum up, the addition made by the AO u/s 69B of the Act amounting to Rs. 46,00,000/-, is upheld.”

24 ITA 22/JP/2020_ Vishu Kr. Joshi Vs ITO This is quite correct that payment of Rs.13,00,000 /- was received from PVJ Corporation on 06.12.2013 through ICICI Bank Ltd, but on the time of registry to meet out the Regn. Exp. Etc. Rs. 13,74,865/-, he accumulated funds within family members telling about the due payment from PVJ Corporation of Rs.13,00,000 /- which was in fact received on 06.12.2013. The Assessee who is dealing in considerable higher deals, is well capable to arrange ten fifteen lacs of rupees particularly when question of regn. etc. takes place. The own arrangement even based on the receivable payment from PVJ Corporation of Rs. 13,00,000/-, should be accepted and additions made for Rs. 13,74,865/- should be deleted.

(i) The appellant paid registration charges for Rs. 13,64,865/- in respect of above properties. The AO verified the source of above expenditure and held that there is no explained source for the above expenditure. The relevant portion of the assessment order is reproduced as under: "4. Addition u/s. 69C of I. T. Act 1961:-

25 ITA 22/JP/2020_ Vishu Kr. Joshi Vs ITO The assessee made payment of registry charges of above properties amounting to Rs. 13,74,865/- in cash. The A/R submitted vide reply dated 23.12.16 that source of payment is Rs. 13,00,000/- received in cash from Shri PVJ Corporation on 06.12.2013. The reply of the AIR is considered but not found acceptable. It is observed rat registration of these properties was made on 10.05.2013, 24.05.2013 & 5 17.2013. It is apparent that payment of registration charges was made on before the date of registration but the A/R has claimed that payment was made out of Rs. 13,00,000/-received in cash from Shree PVJ Corporation on 06.12.2013. When the assessee made payment of registration charges on 10.05.13, 24.05.13 & 15.07.13 then how the source of same could be out of cash payment received from Shree PVJ Corporation on 06.12.2013. Thus, the claim of assessee is apparently wrong. Therefore, it is clear that the A/R has failed to explain the source of cash payment of Rs. 13,74,865A made for registration charges. Therefore, the same is treated as unexplained expenditure us. 69C of the IT. Act, 1961 and added to the income of the assesse. " (ii) During the appellate proceedings, the appellant admitted that payment of Rs. 13,00,000/- was received in cash from M/s Shree PVJ Corporation only on 06.12.2013 while the registration of property was made in the month of May and July 2013. However, it was submitted that he is man of standing and capable of arranging Rs. 10 to 15 Lac for registration. No evidences were produced.

(iii) I have duly considered the submissions of the appellant, assessment order and the material placed on record. The AO examined the claim regarding source for payment of registration charges and correctly pointed out that the claim regarding cash received from M/s Shree PVJ Corporation is not correct. The appellant also accepted the above fact during the appellate proceedings. The appellant also failed to bring any explanation regarding source of making expenditure for registration expenses. In view of the above facts, no interference is called for and the addition made by the AO amounting to R.s 13,74,865/- is upheld.”

26 ITA 22/JP/2020_ Vishu Kr. Joshi Vs ITO 18. From perusal of the record, we observed that the assessee paid registration charges of Rs. 13,64,865/- in respect of properties mentioned in the earlier paragraphs. The AO verified the source of expenditure and held that there was no explained source for the above expenditure. During the course of appellate proceedings, the assessee admitted that payment of Rs. 13,00,000/- was received in cash from M/s Shree PVJ Corporation only on 06.12.2013 while the registration of property was made in the month of May and July 2013. However, it was submitted that he is man of standing and capable of arranging Rs. 10 to 15 Lacs for registration. No evidences were produced in this regard by the assessee.