SHRI MUKESH BABUBHAI PATEL,,VADODARA vs. THE INCOME TAX OFFICER, WARD-1(2)(1),, VADODARA

The brief fact leading to the case is this that the assessee has purchased the land located at Moje Manjalpur, Vadodara on 26.12.2012 for consideration of Rs. 37,00,000/-.

The assessee was asked to explain the same by the Learned AO upon which the assessee furnished further details of payment of Rs.2,50,000/- made on 15.11.2013 vide cheque no 60201. The balance amount of Rs.8,00,000/- remained unpaid. The assessee’s case is this that certain documents relating to the property which were supposed to be handed over by the vender namely Mr. Paresh Shah was not given to the assessee at the time of execution of sale deed and thus the amount has been remained due to be paid to the vender till the documents are made available to the assessee. He, however, could not produce any confirmation to that effect from the said Paresh Shah because of the particular reason that the said Mr. Paresh Shah was out of country in USA during the relevant period of time. The assessee further added that it was a mutual understanding between the parties that as and when the documents would be made available to the assessee by the vender, the balance amount of Rs.8,00,000/- would be paid to the said vender. However, the contention made by the assessee was though taken into consideration but not accepted by the Learned Assessing Officer. According to the Learned Assessing Officer when the transaction have been completed the said sum could not have been kept due and thus according to him the said amount has already been paid by the assessee which remained undisclosed before him. Though, in the absence of any conclusive evidence on the basis of presumption and personal belief addition of the said amount has been made as unexplained investment.

In appeal, the Learned CIT(A) reiterated the same view taken by the Learned AO and confirmed the same under the instant appeal.

At the time of hearing of the instant appeal, the Learned Representative of the assessee contended before us that the assessee could obtain the confirmation of Mr.

We have heard the Learned counsel appearing for the parties, we have perused the relevant materials available on record. We find from the order passed by the Learned AO that the plea taken by the assessee that the balance amount of Rs.8,00,000/- was not paid to the vender since the documents relating to the property was not handed over to him at the time of acquisition of sale deed and the same would be made available at the time delivery of those documents to the assessee was though taken into consideration by the Learned Assessing Officer, the same was rejected in the absence of cogent document being confirmation of such fact by the vender. As a resultant effect the addition has been made. We find that the said confirmation has not been taken into consideration in its proper prospective and the Learned CIT(A) reiterated the stand taken by the Learned AO and confirmed the said addition without any basis whatsoever. It is needless to mention that it is the duty of Learned CIT(A) to take into consideration of the additional evidence so placed by the assessee in terms of the specific provision u/s 46A of the Act. In this particular case, the assessee sought to justify his stand that the said document being the confirmation was not made available with him since the vender was out of the country and he therefore, was prevented by sufficient cause from producing the same before the Learned Assessing Officer as asked for. It is the duty incumbent upon the authorities below to take into consideration additional evidences so placed before it if it satisfies the

We, therefore, find no reason to make such addition of Rs.8,00,000/- by the authorities below in the facts and circumstances of the case and find it fit and proper to meet the ends of the justice to set aside the order to the file of the Learned Assessing Officer to take into consideration the confirmation made by the vender namely Mr. Paresh Shah for adjudication of the matter afresh in the light of the observation made hereinabove. We, however, make it clear that at the time of adjudication of the matter the assessee must be given opportunity of hearing by the Learned Assessing Officer and further that the Learned Assessing Officer will also take into consideration any further document which the assessee may rely upon at the time of hearing of the matter.

In the result, the assessee’s appeal is hereby allowed for statistical purposes. This Order pronounced in Open Court on 12/11/2018