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Income Tax Appellate Tribunal, JAIPUR BENCH ‘A’ JAIPUR
Before: SHRI VIJAY PAL RAO, JM & SHRI VIKRAM SINGH YADAV, AM vk;dj vihy la-@ITA No. 942/JP/2017
आयकर अपीलीय अधिकरण] जयपुर न्यायपीठ] जयपुर IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCH ‘A’ JAIPUR Jh fot; iky jko] U;kf;d lnL; ,oa Jh foØe flag ;kno] ys[kk lnL; ds le{k BEFORE: SHRI VIJAY PAL RAO, JM & SHRI VIKRAM SINGH YADAV, AM vk;dj vihy la-@ITA No. 942/JP/2017 fu/kZkj.k o"kZ@Assessment Year :2012-13 cuke M/s Om Shiv Properties Pvt. Ltd., 12 The ITO, Vs. Mill, Tonk Road, Jaipur Ward 6(5), Jaipur LFkk;h ys[kk la-@thvkbZvkj la-@PAN/GIR No.: AAACO7986Q vihykFkhZ@Appellant izR;FkhZ@Respondent fu/kZkfjrh dh vksj ls@ Assessee by : Shri S. K. Gogra (CA) jktLo dh vksj ls@ Revenue by : Shri J. C. Kulhari (JCIT) lquokbZ dh rkjh[k@ Date of Hearing : 21/08/2019 mn?kks"k.kk dh rkjh[k@Date of Pronouncement: 02/09/2019 vkns'k@ ORDER PER: VIKRAM SINGH YADAV, A.M.
This is an appeal filed by the assessee against the order of ld. CIT(A), Ajmer dated 28.09.2017 wherein the assessee has taken the following grounds of appeal:- “1. The addition u/s 40A(3) by Ld. AO at time of passing of assessment by not considering the prevailing circumstances wherein appellant was forced to make payment in cash may please be declared as illegal.
2. That addition u/s 40A(3) by ld. AO and further confirmed by ld. CIT(A) merely on the basis of not falling of cash payment in exception list u/s 6DD is an erroneous action which being illustrative in nature and is not exhaustive in nature despite of having submitted MAP of Khasra purchased in middle of colonization scheme and letters of brokers wherein payment was required to be make in cash only.”
M/s Om Shiv Properties Pvt. Ltd., Jaipur Vs. ITO, Jaipur 2. At the outset, the ld. AR submitted that the assessee has moved an application under Rule 29 of the I.T. Rules for submission of additional evidences in support of its grounds of appeal and the same reads as under:-
“The humble appellant beg to submit application u/rule 29 of Income Tax Appellate Tribunal Rules,1963 whereby requesting to admit Additional Evidence which are substantial in nature and are necessary for deciding the case as below:-
That while passing the impugned assessment order by Ld. AO the disallowance of cash payment of Rs.30,90,841/- is made u/s. 40A(3) and added into total income. That appellant has made the payment of Rs. 30,90,841/- to following agriculturist against sale consideration of their agricultural Land of which details are given below:-
Sr. Name of Seller & Agricultural Land Date of Amount of Position of No. Address Cash Paid Khasra number cash Khasra in Sold payment plotting 1 Daulat Singh S/o. 207, 211,212, 214, 25.8.2011 90,33,41/- Khasra no. 215,216, 244, 245, Dashrath Singh, 244, 247 247, 273, 274, 275, village: Manpur 276,277,278 falling in Bhatawala, Tehsil: between of Sanganer, Jaipur 2 Shri Narain 323 12.7.2011 10,00,00/- Khasra no. 323 falling in part of 3 Shri Ramulal, Shri 328/487 31.10.2011 19,00,00/- Khasra no. Gandi Lal 328 falling in part at entry gate and in green belt of M/s Om Shiv Properties Pvt. Ltd., Jaipur Vs. ITO, Jaipur 4 Shri Narain S/o Pratap, 259,343 13.10.2011 18,97,500/- Khasra no. 259 is falling in middle Laxminarain S/o of plotting scheme Raghunath Total 30,90,841/- Appellant hereby submits the following documents as Additional Evidences which could not be submitted due to not being available at time of passing of assessment order and at time of decide of the appeal case. And further some other counsel were arguing the case and could not lead these essential evidences before the lower authorities.
AFFIDAVIT OF SELLERS OF AGRICULTURAL LAND REQUIRING SALE PAYMENT IN CASH ONLY
Mr. Daulat Singh S/o. Dashrath Singh, resident of Village: Manpur (a) Bhatawala, Tehsil: Sanganer, Jaipur whereby explaining the prevailing circumstances under which seller required payment from appellant in cash only. (Affidavit dt. 24.12.2018) (Land sold by Mr. Daulat Singh having Khasra no. 207, 211, 212, 214, 215, 216, 244, 245, 247, 273, 274, 275, 276, 277, 278)
Mr. Nathu Sio. Pratap, and Laxminarain s/o. Raghunath, resident of (b) Village: Manpur Bhatawala, Tehsil: Sanganer, Jaipur whereby explaining the prevailing circumstances under which seller required payment from appellant in cash only. (Affidavit dt. 24.12.2018) (Land sold having Khasra no. 259,343)
LAND MAP TO EXPLAIN POSITION OF LAND KHASRAS OF WHICH PAYMENT MADE IN CASH M/s Om Shiv Properties Pvt. Ltd., Jaipur Vs. ITO, Jaipur That the appellant is submitting herewith Lay out plan of plotting scheme of "Shiv Sagar-A" at Village: Manpur Bhatawala, Teh:Sanganer, Distt:Jaipur in which cash payment made to agriculturist of Rs. 30,90,841/-. The details of Khasras which have been purchased by appellant from agriculturist showing therein the position of those khasra in plotting scheme to justify that if these khasra would not have been purchased in accordance with condition of seller, then entire plotting scheme would have been flopped down as in some khasra which are falling at Entry Gate of plotting scheme and without entry it would have been difficult to sell the same.
That above additional evidences could not be submitted due to non availability of Affidavits from seller of agricultural land. And further Lay out Plan is always an integral part of the assessment order and is not absolutely an additional evidence but is substantiation of record file to better understanding of facts of the case. That an Affidavit with regard to application under Rule 29 of ITAT Rules, 1963 is enclosed herewith.
Your honour is requested to kindly allow to admit above Additional Evidences which are forming part of the Ground No. 1 of assessee’s appeal and be considered while deciding the appeal on merits & oblige.”
The ld. DR is heard who has submitted that the assessee has not demonstrated what prevented him from submitting these additional evidences before the lower authorities and therefore, these additional evidences should not be admitted at this stage. It was further submitted that where the Bench so decide to admit the additional so submitted by the assessee, the matter may be remanded back to the file of the Assessing Officer to examine the additional evidences so submitted by the assessee. M/s Om Shiv Properties Pvt. Ltd., Jaipur Vs. ITO, Jaipur 4. We have heard the rival contentions and perused the material available on record. We find that the additional evidences are in the form of the affidavits filed by the persons who have sold their respective land parcels to the assessee. Further, a copy of the map of the housing scheme being developed by the assessee has been submitted. We find that though the affidavits could not be produced before the lower authorities, these are in support of the sale deeds already placed on record and in support of the contentions already raised before the lower authorities and the same goes to the core of the matter in terms of determining the business necessity of making the cash payment by the assessee to these land owners which is subject matter of disallowance. It is settled position of law that the substantial justice should prevail on the procedural or technical aspects. We, therefore, considering the fact that these evidences which are now sought to be admitted would be in the interest of proper adjudication of the issues at hand. Therefore, the request of the assessee is allowed and these additional evidences by way of affidavits and map of the housing project are hereby admitted and the matter is remanded back to the file of the Assessing Officer to examine the same after providing reasonable opportunity to the assessee.
In the result, appeal of the assessee is allowed for statistical purposes.
Order pronounced in the Open Court on 02/09/2019.