TMI Blog2021 (11) TMI 31X X X X Extracts X X X X X X X X Extracts X X X X ..... s. 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 se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ellant/assessee along with Sh. Gurjit Singh and Sh. Jagdeep Singh purchased land measuring 143 Kanal and 5 Marla situated in village Pinjokhara, Tehsil Ambala from Sh. Tajinder Gudian, Smt. Rajinder Gudian and Sh. Prabhu Parmatama co-owners of the said land for a total consideration of ₹ 3,60,00 ,000 vide sale deed dated 02.03.2012 . That the purchasers paid stamp duty of ₹ 18,00, 000/-. As such the assessee paid ₹ 1,26,00 ,000/- as his share to the sellers towards sale consideration. 3. Since the assessee had not filed his return of income for the assessment year under consideration, AO issued notice u/s 148 read with 147 of the Act to the assessee on the basis of the said information. However, the AO did not receive any response from the assessee. Thereafter the AO issued notices u/s 142(1) of the Act on 19.05 .17, 28.06.17, 19. 07 .17 , 18. 09.17, 29.09.17 and 16.10. 17 directing the assessee to furnish the source of investment amounting to 1.28 crore and cash deposit of ₹ 18.35 lacs. However, the assessee either did not appear or sought adjournments. Accordingly, the AO issued show cause notice to the assessee directing him to explain as to why the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ee at ₹ 1,26,00,280/-after making addition of rupees 1,26,00,000/- i. e., 1/3rd. amount of the total consideration for purchase of land in question and agriculture income of ₹ 9,00, 000 /- 4. The assessee challenge assessment order before the Ld. CIT(A). The Ld. CIT (A) after hearing the assessee dismissed the appeal and confirm the action of the AO. Aggrieved by the said order passed by the Ld. CIT (A), the assessee has filed the present appeal. 5. The assessee has challenged the impugned order passed by the Ld. CIT(A) on the following grounds. 1. That the Ld. Assessing Officer has erred in reopening the case u/s 147 and also there was no reason to believe that the income of the assessee has escaped assessment. 2. That no proper service of the notice U/s 148 had been made and also there is mechanical approval by the higher authorities with regard to reopening the case u/s 147and, thus, there being no application of mind, the reopening u/s 148 is bad in law. 3. Notwithstanding the above said grounds of appeal, the Ld. CIT has erred in confirming the action of the Assessing Officer in confirming the addition of ₹ 1,26,00,000/- as undis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eeds they transferred their shares through their father and mother respectively, who further transferred the same to Mr. Tejinder Singh. The Ld. counsel further invited our attention to the copy of plaint available at pages 36 to 44 of the paper book filed on 13.10.2020, in civil suit against Sh. Gurdip Singh to demonstrate that the land in question was transferred by Mr. Tejinder Singh under a family arrangement to keep minimum assets during pendency of divorce petition and to take back after the disposal of the petition. The Ld. counsel further invited our attention to the statements of Sh. Prabhu Parmatama recorded by AO during assessment proceedings and contents of affidavits sworn by Mr. Baljit Singh assessee, Mr. Tejinder Gudian and Mr. Prabhu Parmatama, (copies of which are available on record) to substantiate the contention of the assessee. The Ld. Counsel further invited our attention to the copy of statement of Bank account of Sh. Tejinder Singh Gudian to prove withdrawal entry of ₹ 19,00,00/- on 02.03.2013 for making payment towards stamp duty. The Ld. counsel further contended that the judgment of the Hon ble jurisdictional High court in the case of Pritam Singh v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the basis of blood relation transfer deeds, Mr. Tejinder since has illegally obtained the share of Rajinder Gudian and Shri Prabhu Paramatma. As regards the assessment orders in respect of the co-purchasers Jagdeep Singh and Gurjeet Singh, the Ld. DR submitted that both the orders are erroneous and prejudicial to the interest of the revenue, therefore proceedings under section 263 of the Act, are being contemplated in these cases. The Ld. DR invited our attention to the internal communications of the Department in this regard. 9. In rebuttal, the Ld. counsel for the assessee submitted that the cases relied upon by the Ld. DR are distinguishable on facts and the evidence on record, therefore the same are not applicable to the present appeal. The Ld. counsel submitted that in the case of Paramjit Singh (supra) sale deed was executed by uncle of the assessee in its favour whereby certain ancestral land was transferred to him. Amount of sale consideration was reflected in the sale deed. The assessee claimed that no consideration was paid and sale consideration was mentioned only for stamp duty purpose. The AO treated the amount of sale consideration as unexplained investment and a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t orders u/s 147 read with section 143(3) of the Act and accepted their nil returns. But in the case of the assessee, the AO made addition to the extent of his share in the total sale consideration recorded in the sale deed and the Ld. CIT(A) confirmed the same. Now the question arises as to 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 of ₹ 3,60,00,000/- as recorded in the sale deed? 11. As pointed out by the Ld. counsel in the case of CIT versus Daulat Ram Rawatmull (supra) the Hon ble Supreme Court has held that the onus to prove that the apparent is not real is on the party who claims it to be so. In the present case since the assessee has alleged that sale consideration was not paid to the transferrers, the burden is upon the assessee to establish the alleged facts by adducing cogent and convincing evidence. In order to disch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... These facts further support the contention of the assessee. From the aforesaid facts conclusion can be safely drawn that the entire transactions were made without exchanging any money as consideration either at the time of sale by Mr. Tejinder Singh and another or at the time of taking back the said land from the assessee and two others. Hence, we find merit in the contention of the Ld. counsel that the facts of the case relied upon by the Ld. DR are distinguishable from the facts of the present case, therefore the ratio laid down in the said case is not applicable to the present case. Hence, in view of the peculiar facts of the present case and the direct and circumstantial evidence adduced by the assessee in support of his contention, 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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