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2021 (11) TMI 31 - AT - Income TaxUndisclosed investment u/s 69 - co-ownership - addition of 1/3rd amount of the total sale consideration - whether the documentary evidence oral evidence and the circumstantial evidence adduced by the assessee are sufficient to substantiate his contention that no payment was made by him towards sale consideration to Mr. Tejinder and Mr. Prabhu Parmatama and to further rebut the presumption that the sellers transferred the land in question to the assessee and two others for a total consideration as recorded in the sale deed? - HELD THAT:- We hold that the assessee and his co-purchasers had not paid any money towards sale consideration to their uncle Mr. Tejinder Singh or the other co-owners when the land in question was transferred in their names. The circumstantial evidence that the two purchasers transferred back their share to Mr. Tejinder Singh without any consideration further corroborates the contention of the assessee that the purchasers had not paid sale consideration to Mr. Tejinder Singh when the said land was transferred in their names. So far as the legality or permissibility of such transaction is concerned, the same is not the subject matter of this appeal. As per the settled law income tax is levied on the real income of the assessee. In the present case, since the assessee has adducing cogent and convincing evidence to demonstrate that no money was paid towards sale consideration or otherwise to Mr. Tejinder, the action of the Ld. CIT(A) is not sustainable in law. The copies of assessment orders dated 25.12.2019 & 27.09.2019 passed by the concerned AOs u/s 147 read with section 143(3) in the case of the co- purchasers Sh. Gurjit Singh and Sh. Jagdeep Singh respectively, show that the concerned AOs have accepted the identical contention raised by the assessee during assessment proceedings and accepted their nil returns. But in the case of the assessee the AO rejecting the same contention made addition of 1/3rd amount of the total sale consideration. Proceedings u/s 263 of the Act are being contemplated in the cases of Gurjit Singh and Jagdeep Singh is concerned, it is clear from the copies of official correspondences placed on record that the Ld. AICT Patiala Range and the Ld. JCIT Panchkula have sent proposals for initiating proceedings u/s 263 of the Act in the case of Jagdeep Singh and Sh. Gurjit Singh to the concerned Principal Commissioners on 28.12.2020 and 31.12.2020 respectively. As pointed out by the Ld. counsel, these proposals have been moved by the concerned officers during arguments of the present appeal before the Tribunal. Under these circumstances, the action of the Ld. CIT(A) cannot be justified. In the case of Smt. Amarjit Kaur [2019 (6) TMI 1645 - ITAT CHANDIGARH] following the ratio laid down by the Hon’ble Supreme Court in the case of Berger Paints India Ltd.[2004 (2) TMI 4 - SUPREME COURT] and in the case of Leader Valves Ltd. [2007 (1) TMI 70 - HIGH COURT, PUNJAB AND HARYANA] has deleted the addition sustained by the Ld. CIT(A) in violation of the principle of consistency. CIT(A) has passed the impugned order without taking into consideration the direct and circumstantial evidence placed on record by the assessee to substantiate his contention. Further, since the Ld. CIT(A) has passed the impugned order without taking into consideration the view taken by the department in the cases of co-purchasers, the impugned order passed in violation of principle of consistency is also bad in law. Hence, in view of the discussions made on facts, evidence on record and the cases discussed in the foregoing paras, we allow the appeal of the assessee and set aside the impugned order passed by the Ld. CIT(A). Accordingly, we direct the AO to delete the addition. - Decided in favour of assessee.
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