ITO, JAIPUR vs. SHRI NAV CHITRA DISTRIBUTORS(MALTIPLES)(P)LTD., JAIPUR

PER SHRI KUL BHARAT, JM.

This appeal by the assessee is directed against the order of ld. CIT (A)-I,

Jaipur dated 28/11/2013 pertaining to A.Y. 2005-06. The assessee has raised the

following grounds of appeal :-

(i) “ Whether on the facts and in the circumstances of the case and in law the Ld. CIT(A) has erred in deleting the addition of Rs. 69 lakh on account of unexplained investment in purchase o agriculture land. (ii) Whether on the acts and in the circumstances of the case and in law the ld. CIT(A) has erred in relying upon valuation adopted by Sub-Registrar for the purpose of Stasmp Duty and ignoring the statutory statement recorded u/s 131 and other provisions of I.T. Act of the seller and middlemen apart from the bank accounts and deposits therein?

The appellant craves the indulgence to modify, alter, add any other ground of appeal.”

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scrutiny assessment and the assessment was framed under section 143(3) of the

Income Tax Act, 1961 (hereinafter referred to as the Act) vide order dated

28/11/2013 While framing the assessment, the AO make addition of Rs. 69 lakh

under section 69B of the Act, on account of unrecorded investment. Aggrieved by

this, the assessee preferred an appeal before ld. CIT who after considering the

submissions deleted the addition. Now, the revenue has filed an appeal against the

imposed orders.

on account of unexplained investment in purchases of agriculture land.

3.1 The Ld. Departmental Representative supported the order of the Assessing

Officers and submitted that Ld. CIT(A) has wrongly followed the decision rendered in

the case of Manju Kaushik, he submitted the facts of the Manju Kaushik are

distinguishable .

3.2 On the contrary, the ld. Counsel for the assessee supported the order of the

ld. CIT(A) and submitted that the assessing officer was not justified in making the

addition purely on basis of statement of shri Chhittar jat and shri Ram Narain. He

submitted that the assessee was not confronted with these statements. Further, he

reiterated the submission as made in the written submissions. For the sake of clarity

same are reproduced here and below.

“ It is submitted that Ld. A.O. has proceeded on the issue without any material or evidence on record supporting the allegation leveled against appellant company of undisclosed investment in purchase of agricultural land. The Ld. A.O. simply relied on unsubstantiated information received by him from I.T.O. WD-2(2), Jaipur with copies

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of statements allegedly recorded by him from sellers of agricultural land and some other persons in course of assessment proceedings for A.Y. 2005-06 in case of M/s Okay Plus Land Developers P. Ltd.. The Ld. A.O. in case of appellant company in reassessment proceedings made no enquiries whatsoever. The sale consideration of Rs. 96,00,000/- was truly disclosed in agreement to sale duly executed and signed by sellers in presence of two witnesses and supported with registered power of attorney. Thus the agreement to sale is an legal authenticated evidence which cannot be rejected without any corroborative evidence or concrete material on record.

The Ld. A.O. held in assessment order that the disclosed sale consideration of Rs. 96,00,000/- is not correct and for arriving at the said conclusion relied only on some vague, inconsistent and unreliable statement of sellers of said agricultural land stating the sale consideration @ Rs. 5.90 lacs per bigha and stating total sale consideration of Rs. 1,65,00,000/- for the said sale transaction of purchase of the said agricultural land by appellant. It is settled law that by issue of summons and obtaining statements from the persons summoned cannot and should not be the only basis to charge an assessee for having made unexplained investment unless some other positive material or corroborative evidence is available on record. In the case of B & Brothers Engineering Works Vs. DCIT (2003) 78 TTJ (Anad (TM) 876 it was held that admission by itself could not lead to conclusion that ‘on money’ was received. The recording of confessional statement is not the end of the matter and no assessment can be mechanically concluded on a confessional statement being an uncorroborated testimony such a statement cannot be considered as sacrosanct as held in ACIT Vs. Sushila S. Agarwal (1994) 50 ITD 524. It is thus submitted that the agreement to sale coupled with registered power of attorney are the documents which can be given legal cognizance and the sale/purchase consideration stated there in the correct one. The conclusion of alleged purchase consideration of Rs. 1,65,00,000/- arrived at by Ld. A.O. is without any basis or evidence on record but only based on unreliable statement of sellers and other person which is not legally acceptable in the eyes of law. No addition can justifiably made on the basis of such unreliable and uncorroborated statements of persons. In this connection reliance is placed on the judgement in case of Dr. P.R. Gupta Vs. DCIT (2006) XXXVI - T.W. 44. and on the judgment in case of CIT Vs. K.C. Agtes 128 Taxman 846.

Without prejudice to above it is submitted that the statement of sellers Ghasi Lal Chaudhary, Shri Chitar Mal Jat & Shri Ram Narain and of one other person Sheesh Ram Ranwa (as reproduced in assessment order of M/s OK Plus Land Developers P. Ltd. annexed as Ann. A to assessment order and that of Smt. Manju Kaushik) are the statements which were recorded by I.T.O. Wd-2(2), Jaipur in the assessment proceedings of some other concern i.e. Okay Plus Land Developers P. Ltd. which were forwarded to A.O. of appellant in said assessment order Ann. A. The Ld. A.O. in case of appellant has relied upon these statements for making reassessment of appellant. These statements were recorded at the back of appellant company and so these cannot be relied upon by Ld. A.O. without further enquiry or without their examination by him in assessment proceedings of appellant company which resulted

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in denying to appellant company its right of cross examination of the said persons. This has vitiated the entire assessment proceedings

and resultant assessment order deserves to be quashed. Furthur it is submitted by appellant that from reading the statements of said persons from assessment order of Smt. Manju Kaushik wherein statement in full are reproduced lots of contradictions, inconsistencies and falsity discovered in their statements which in brief are as under: -

(a) Discrepancy regarding size of land and land sold: There is contradiction about the size of land and the land sold in the statements of various parties as quoted in the assessment order:

In answer to question 2 on page 6 the farmer Ghasiram has stated that they had 55 bighas of land and in answer to question 3 on the same page he further says that all the three brothers have sold 28 bighas of land and no other land was sold. The same answer is repeated in reply to question 7 at page 7. On prompting he changes his statement and on page 8 in reply to question 12 he says that they had 71 bighas of land and 28 and 16 bighas was sold out of this. On the other hand on page 4 in reply to question 2 the farmer Ramnarayan brother of Ghasilal says that they have sold total 44 bighas of land. Then he says that the registry was done in the name of Navchitra Distributors whereas no such registry was ever done. He has again said on page 5 question 4 that what ever was said by Ghasiram is correct, whereas the same is not the case. Similarly, another farmer Chhitar, another brother of Ghasiram in reply to question 2 at page 5 has only confirmed the statements of his two brothers, whereas the statements of those two brothers are contradictory to each other as mentioned earlier.

(b) Discrepancy regarding price: In reply to question 4 at page 7 the farmer Ghasi Lal has mentioned that 28 bighas of land was sold @ 4.6 lacs per bighas whereas the same person in reply to question 12 at page 8 of AO says that this 28 bighas of land was sold @ 5.90 lacs per bigha. Sheeshram in his reply to question 3 at page 3 has also said that the land was sold @ 5.90 lacs per bigha. The other seller Ramnarain in reply to question 2 at page 4 also mentions that the 28 bighas of land was sold @ 5.90 lacs per bigha.

Shri Ghasi Lal is absolutely illiterate as stated by him in answer to Q. No. 10 and his other two brothers also appears illiterate. It is therefore, clear that what is recorded by the concerned officer in the statement may not the same version which assessee may have stated which is evident from the language of statement itself. The possibility of his statement is coerced or lured or misled by offering immunity from income tax proceedings cannot be ruled out and the same clearly appears from the answer recorded from him in second para of reply to Q. No. 15. Thus his statement without any corroborative evidence cannot be considered as reliable.

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The statement of Sheesh Ram Ranwa reproduced is not relevant in case of appellant. The appellant purchased agricultural land directly from sellers / farmers without the help of Sheesh Ram Ranva and what was nature of relationship or transaction Shri Sheesh Ram Ranwa had with farmers is not known. The cash deposit in farmers account is much before the date of agreement to sale with farmers by appellant company. Without prejudice to above it is submitted that in reply to question 15 at page 9 of AO Shri Ghasi Lal, the farmer has said that Mr. Sheesh Ram had entered into an agreement of sale with them and paid Rs. 33 lacs as advance. Therefore, this was an agreement for sale of land between the farmers and Shri Sheeshram. Whereas, Shri Sheeshram, in his statements has no where stated that he ever entered in any such agreement with the farmers. In reply to Question 4 at page 3, Shri Sheeshram has only stated that he was instrumental in meeting both the sides only. Thus statement of Sheesh Ram is also contradictory and not reliable.

Thus it is submitted that the statement of above persons cannot be relied upon in law being contradictory & inconsistent and so to be treated as false. Shri Ghasi Lal states that he has received Rs. 33 lacs cash in respect to sale of 28 bighas land but has not stated anything from whom the cash was received though at earlier point as stated above he said to have received Rs. 33 lacs from Sheesh Ram Ranwa. Thus no payment of cash by assessee company to sellers has been proved. Shri Narain Das Mukhija, Director of assessee company in his statement recorded correctly stated having purchased the 28 bighas land for Rs. 96,00,000/-.

The Ld. A.O. while reassessing the company for alleging undisclosed investment relied only on assessment order in case of OK Plus Land Developers P. Ltd. Jaipur for A.Y. 2005-06 and appeal order passed by CIT (A) against assessment order. In case of OK Plus Land Developers P. Ltd. Jaipur the A.O. is determining purchase consideration of 28 bigha land from assessee company. The Ld. A.O. determined purchase consideration at Rs. 10 lac per bigha i.e. Rs. 2,80,00,000/- which was reduced by CIT (A) to Rs. 5.90 lac per bigha i.e. Rs. 1,65,00,000/- and ITAT deleted the entire addition on the ground as stated by Ld. A.O. in 4.9 of assessment order “that no cognizance can be taken against the appellant (O.K. Plus Land Developers P. Ltd.) as the company did not exist at the time of transaction between Shri Mukhija and three co-owners of land”. Thereafter there is no proceedings against any person to establish who paid alleged on money. It is pertinent to mention that the case of A.O. was different than what was decided by Hon’ble ITAT. The A.O. in assessment order of said company held that O.K. Plus Land Developers P. Ltd. purchased the 28 bigha agricultural land from Shri Navchitra Distributors (Multiplex) P. Ltd. for Rs. 2,80,00,000/- (@ Rs. 10 lac per bigha) which was reduced by CIT (A) in appeal order to Rs. 1,65,00,000/- (Rs. 5.90 lac per bigha) and the same was not held having purchased from three co-owners of land on said consideration. There had been no proceedings against farmers to whom allegation of receiving on money is levied. However it is quite evident that whatever has been held in assessment order or appeal order for A.Y. 2005-06 in case of Okay Plus Land Developes P. Ltd. Jaipur is in

6 ITA No. 74/JP/2014 M/s. Shri Nav Chitra respect to purchase consideration of purchase of 28 bigha land from assessee company and not in respect to purchase of said 28 bigha land by assessee company from said farmers. The Ld. A.O. himself has accepted the sale consideration of Rs. 1,25,00,000/- (which is purchase consideration by OK Plus Land Developers P. Ltd.) even in reassessment of appellant company and assessed the capital gain of Rs. 23,03,840/- calculated with said sale consideration and purchase cost of Rs. 96,00,000/- and therefore his finding that appellant company should have purchased the agricultural land for Rs. 1,65,00,000/- by paying on money of Rs. 69,00,000/- is contradictory. The purchase price fixed by CIT (A) in case of OK Plus Land Developers P. Ltd. can only be sale price of assessee company of 28 bigha agricultural land and not the purchase price of assessee company for said land. If assessee company having purchased land for Rs. 1,65,00,000/- as held by Ld. A.O. and sale price of which is Rs. 1,25,00,000/- remain as accepted by Ld. A.O. it will result in short term capital loss of Rs. (-) 45,96,160/-. The A.O. having not assessed the assessee company determining short term capital loss of Rs. (-) 45,96,160/- the addition of Rs. 69,00,000/- u/s 69B is unsustainable.

In view of above facts and submissions made the addition of Rs. 69,00,000/- made in the hands of appellant company u/s 69B as unexplained investment in purchase of agricultural land is wrong and bad in law. There is not an iota of evidence in possession of the AO from which it can be stated that the assessee paid anything over and above the declared sale consideration of Rs. 96,00,000/- as mentioned in the agreement to Sale dt. 1-10- 2004. Since no incriminating document was available with the learned AO to hold that any consideration over and above the declared consideration was paid, no addition can be made in the income of the assessee u/s 69B of I. T. Act, 1961 as undisclosed investment.

Reliance is placed on the following decision in favour of assessee. a) Ashwani Kumar Bhardwaj V/s DCIT 21 TW 358. b) CIT V/s S.M.S. Investment Corporation (P) Ltd. 207 ITR 364 (Raj.) c) Chander Mohan Mehta V/s ACIT 1 ITD 245 (Pune) d) Jayantilal Patel and Dr. B.S. Tomar & Others V/s ACIT 233 ITR 588 (Raj.) e) CIT V.K.K. Enterprises (2009) 178 Taxman 187 (Raj.)

It is settled law that onus was on the AO to prove that the apparent is not real and the learned AO has totally failed to discharge this onus. There is no signed document, agreement, or hand written note of the appellant that it paid

7 ITA No. 74/JP/2014 M/s. Shri Nav Chitra

any sum of money to the seller over and above the declared sale consideration. Therefore addition made by the learned AO can not be sustained. Reliance is placed on the following decisions:

CIT V/s Daulatram Ravatmull 87 ITR 349 (SC) Anil Kumar Mahipal V/s ITO 35 Tax World 33 ITAT, Jodhpur

The assessee thus submits that the addition of Rs. 69,00,000/- made in the income of appellant company was wrong and bad in law which CIT (A) has rightly on facts and correctly in law has not sustained. The Ld. CIT (A) as per ratio of judgement in case of Smt. Manju Kaushik by CIT (A) – III which judgement has been confirmed by ITAT sustained an addition of Rs. 2,18,000/- allowing consequential adjustment in reduction of declared short term capital gain by that amount (in total effect NIL addition in declared income). The appeal order is thus detailed reasoned and being just and correct in law deserves to be confirmed. The appeal filed by department has no merit which deserves to be dismissed.”

3.3 We have heard the rival contentions, perused the material available record

and gone through the orders of the authorities below. The ld. CIT(A) deleted the

addition on the ground that there were inconsistency in the statement of Shri Ghasi

Lal, Shri Chhittar Jat and Shri Ram Narain. The ld. CIT (A) observed that under the

identical fact of Smt. Manju kaushik, addition was deleted and this order was

confirmed by the Tribunal in ITA No. 35/JP/ 2011. This fact is not the controverted

by the revenue.

Kaushik the ld. CIT(A) had observed that there were inconsistency into the

statement of the farmers. But in the present , this is not the case.

parties on the facts of the present case. It is not in dispute that the additions have

been made on the basis that the original owner of the land stated that the land was

8 ITA No. 74/JP/2014 M/s. Shri Nav Chitra

sold @ Rs. 4.60 lacs per Bigha. Thus, on this basis, the assessing officer computed

the sale consideration at Rs. 1,65,00,000/- in place of 96,00,000/-as declared by the

assessee. The ld. CIT (A) deleted the addition on the basis that under the identical

facts in the case of Smt. Manju Kaushik, statement of the owner of the land was not

found correct. The land in question is adjacent to the land of Smt. Manju Kaushik is

not disputed by the Revenue. The statement of the original owner is the basis for

addition. There is no material in the form of agreement to suggest that the payment

was made @ 4,60,000/- per bigha as claimed by revenue. It is also noted that the

statement was recorded during the assessment proceedings u/s 131 of the Act. The

only argument of the revenue is that the contents of the statement corroborates

with the bank statement of the original land owners which reflects deposit. In our

considered view deposits in accounts of original owners would not be sufficient to

make addition unless similar withdrawal is from bank accounts of the assessee.

There is a missing which is apparent from the fact that the original owner or the

revenue has not brought on record any agreement between the parties suggesting

that land was sold @ 4,60,00/- per bigha. It is also not stated by the original

owners that there was any draft agreement to this effect. We are unable to accede

to insistence of Ld. DR that statement of original owner is duly corroborated. In the

case of Smt. Manju Kaushik the CIT(A) has not trusted the veracity of statement of

the land owners.

5.1 Therefore we do not see any reason to interfere in the finding of the Ld.

CIT(A) same is hereby affirm the ground raised by the revenue is rejected.

9 ITA No. 74/JP/2014 M/s. Shri Nav Chitra

6 In the result, appeal of the revenue is dismissed.

Order is pronounced in the open court on 08.03.2017.

Sd/- Sd/- ( HkkxpUn ½ ( dqy Hkkjr) ( BHAGCHAND) ( KUL BHARAT ) ys[kk lnL;@Accountant Member U;kf;d lnL;@Judicial Member Jaipur Dated: 08/03/2017 POOJA आदेश की प्रतिलिपि अग्रेषित@ब्वचल वf जीम वतकमत वितूंतकमक जवरू

vkns'kkuqlkj@ By order,

सहायक पंजीकार@ Aेेपेजंदज. त्महपेजतंत