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2023 (3) TMI 347 - ITAT CHANDIGARHUnexplained Cash deposited by the assessee jointly with his father - whether CIT(A) is correct in holding that the AO erred in observing that there was no reference of the cash deposits issue in the assessment order passed for A.Y. 2011-12, in the case of the Assessee's father? - HELD THAT:- CIT(A) has taken due cognizance of this Office Note while deleting the addition made by the Assessing Officer. CIT(A) has, observed that the principal deposit has already been examined (by the AO) in the case of Shri Gurdev Singh, father of the assessee, for A.Y. 2011-12; that the Office Note concerning that Assessment clearly refers to the same amount of Rs. 1.95 cores, which was the basis of reopening of the assessment; and that in those assessment proceedings, the proposed buyer of the land, the agreement relating to which land was cancelled (i.e., Shri Inderjit Singh) himself certified the source of the said cash. DR has not been able to successfully challenge the aforesaid well versed findings of the Ld. CIT(A). Accordingly, these findings are hereby confirmed. CIT(A) is also correct in observing that the other issues raised by the AO in the assessment order, i.e., the issue pertaining to the recipient having been alone at the time of the receipt of the amount, or the amount having been received on behalf of Shri Gurdev Singh, father of the assessee, and the issue of Circle rate of the property, are, at best, marginal issues, having no bearing on the decision of the issues at hand, i.e., the deposit of cash. Otherwise too, the response of the assessee with regard to these issues has not been at all rebutted before us, much less, successfully. The plausibility of the assessee's stand has been examined by us and it has been found to be in order, being self-evident there from. The assessee had explained the source of the cash deposited, to be refund of advance given for purchase of property in the earlier years. This source of cash could have been examined by the AO, in case of any doubt, by reopening the earlier year assessment. This was not done. Moreover, Sh. Inderjit Singh, the intending seller of the agricultural land, in his statement before the AO, confirmed the return of the advance amount. Shri Inderjit Singh had stated that when the payment was received by him, he received it alone and from his side, there was nobody present. The paper of the assessee would show his presence and the presence of his father and witnesses - The name of the purchaser of the stamp papers is immaterial in the case of Real Estate, such stamp papers being normally purchased in the name of the seller. So far as regards the AO's observation that NRIs cannot purchase agricultural land in India without RBI permission and as per FEMA, whereas no RBI permission was taken for purchase of land in the present case, it has been stated that since no land was purchased and only agreement to sell was entered into, which agreement was cancelled later on, no RBI or FEMA permission was applicable or required and, therefore, permission was not applied for. Concerning the AO's doubt that Shri Inderjit Singh stated that no Member of any Panchayat intervened in the cancellation agreement, once again, it has been stated that when the parties to the agreement to sell agree to the cancellation of the agreement, no intervention of Panchayat is required, there being no dispute between the parties. None of the above elaborate categoric point-wise rebuttals of the assessee, as made before and considered by the Ld. CIT(A), has, to reiterate, even been challenged before us, much less successfully, on behalf of the Department. It has not been established as to how the doubts raised by the AO (termed as evidence brought on record by the AO) go to prove that the explanation and evidence given by the Assessee was created evidence, produced as an afterthought, not representing reality. Further, the Department has also failed to show as to how the Ld. CIT(A) erred in relying on the Assessee's explanation, particularly when the contents of the documents were not proved to be in-genuine or false. - Decided in favour of assessee.
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