TMI Blog2016 (4) TMI 945X X X X Extracts X X X X X X X X Extracts X X X X ..... atement not supported by any evidence is not sustainable. We deem it appropriate to observe here that the impugned addition is also based on mere statements retracted within two months which nowhere names the assessee or establish any link to the alleged unexplained investments in question. We draw support from the above stated precedents for accepting assessee’s arguments. The Revenue’s submissions supporting the Assessing Officer’s findings stand rejected. We delete entire addition made u/s. 69B of the Act qua lands purchased in villages Bavla and Kerala - Decided in favour of assessee - ITA Nos. 1864 to 1866/Ahd/2012, ITA Nos. 1867 to 1869/Ahd/2012, ITA No. 1885 /Ahd/2012, ITA No. 1884/Ahd/2012, ITA No. 1882/Ahd/2012, ITA No. 1883/Ahd/2012 - - - Dated:- 17-3-2016 - Shri Pramod Kumar, Accountant Member and Shri S. S. Godara, Judicial Member For The Revenue : Shri R.K. Sinha, Sr. D.R. For The Assessee : Shri Ms.Urvashi Shodhan, A.R. ORDER PER : S. S. GODARA, JUDICIAL MEMBER:- This is a batch of ten appeals in case of different assessees namely; Shri Kanubhai Maganlal Patel, Anil Shakarabhai Patel, Smt. Nayana Patel and Shri Suresh Chandulal Patel. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he firms wherein the appellant is a partner. Ld. CIT (A) erred in confirming addition @ 20% of assumed unexplained investment in land in the hands of the partner when the ownership is of the firm that is in clear violation of the principles of Natural Justice. Ld. CIT (A) ought to have deleted addition made by AO on presumptive basis. 2. Ld. CIT (A) erred in law and on the facts in confirming action of AO in making additions relying on the statement of 2 farmers taken post search of sale consideration received @ ₹ 1.5 lac per bigha for land in Bavla from the purchaser accepting that no incriminating material was found during search. This action of Id. CIT (A) confirming addition of unaccounted investment relying on statement of farmers without providing copy of the statement or granting any opportunity to the appellant to confront them is harsh and against the legal principles that deserves to be quashed. 3. Ld. CIT (A) further erred in law and on facts in confirming the view of the AO that retraction affidavit filed by the farmers being an afterthought and after a gap of time is not admissible. Ld. CIT (A) failed to appreciate that the farmers retracted from earl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e purchase consideration of ₹ 58,06,500/- through cheques. The array of vendors include two persons namely; Shri Budhaji and Bhagaji Thakore. Their share in the land purchased measures 21 bighas. Relevant sale price appears to be ₹ 6 lacs as paid by cheques. It emerges from the case file that the Assessing Officer framed a search assessment in assessee s case under section 143(3) r.w.s. 153A of the Act on 14-05-2010 assessing his taxable income as ₹ 7,68,445/- in assessment year 2007-08. 5. We proceed further and find that the department conducted another search in M/s. Adi-Avirat and other group concerns on 23-05- 2008. This brought into light alleged incriminating documents pertaining to above land transactions. They accordingly stood seized. The department conducted a survey thereafter in the very cases. There is no dispute that this assessee Shri Kanubhai Maganlal Patel is a director/partner in the searched entities. The department would summon both the vendors. They recorded their statements before the DDIT/Investigation on 18-06-2006 as follows:- Statement of Shri Budhaji Motiji Thakore. Q.1 Please give your introduction. Ans.: My name is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .. 06.10.06 50000 Cash .. .. .. 09.10.06 40000 Cash 02.12.06 45000 No.362830 .. .. .. .. .. .. 05.12.06 25000 Cash .. .. .. 21.12.06 25000 Cash .. .. .. 15.01.07 25000 Cash .. .. .. 17.02.07 25000 Cash 01.06.07 50000 Cash .. .. .. 14.11.07 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of less than 1 months. The Assessing Officer formed reasons to believe in view of all this material that the assessee had paid on money to the two vendors. This made him to issue section 148 notice dated 24-04-2011. The assessee reiterated the income already assessed. The Assessing Officer took up re-assessment proposing to add the impugned on money based on vendors statements. The assessee filed his reply dated 09-10-2011 as referred in page 2 of Assessing Officer s order dated 28-12-2008 as under:- ....Kindly refer to the above subject and the discussion that had taken place from time 'to time during the bourse of above reassessment proceedings. 2. I have to inform your honor that I along with six other member had purchased land at. village-Bhyala and Kerala of Taluka-Bavla, Dist. Ahmedabad during AY 2007-08 to AY 2009-10. This land was purchased as per registered sale deed in the name of Shri Deepak C. Patel, Shri Jayesh K. Patel, Shri Pranay K. Patel, Shri Prakash C. Patel, Shri Anil S. Patel, Shri Kanubhai M. Patel and Shri Rajesh K. Patel. The fact of the case is that these lands were purchased by the firm M/s. Advance Warehouse Project where I and six oth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of both these farmers cannot be applied to the others who have not been examined. During the course of search no incriminating material and / or any evidence or statement of land owners pertaining to 112 bighas of land has been found or brought on record by the department to show that purchase consideration was made in cash to these land owners other than Bhudhaji M. Thakor and Bhagaji Thakor. I have therefore request your honor not to make any addition u/s.69B of the I.T.Act,1961, with respect to 112 bighas of agricultural land purchased from farmers other than Bhudhaji Thakor and Bhagaji Thakor. 7. I have to further submit that I have not purchased any agricultural land from Bhudhaji Thakor and Bhagaji Thakor in AY 2008-09 or AY 2009-10. I am enclosing herewith details of agricultural land purchased in AY2007-08 to 2009-10 for your kind perusal. Considering the above facts, I have therefore to request your honor not to make any addition u/s. 69B of the I.T. Act, 1961, in my case.... 7. The Assessing Officer treated assessee s various pleas hereinabove to be absurd. He was of the opinion that sellers statements recorded before the DDIT without any duress (supra) as r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ein the very additions was restricted to the land sold by the above stated two vendors. Case records reveal that the Revenue filed appeals in case of assessee s partner Deepak Manilal Patel as against his cross objection. A co-ordinate bench has dismissed the former as preferred in the three assessment years in question for having involved low tax effect as Board s circular 21/2015. Cross objections therein have also been rejected to be not maintainable. We find from the lower appellate order that one of the assessment year involves demand amount of ₹ 15,07,600/- coming to be more than the pecuniary limit of ₹ 10 lacs. We observe in these facts that this issue requires our independence adjudication on merits and legality. 10. We proceed further once again revert to facts of the case. It is an admitted fact that the assessee has not been supplied the relevant incriminating materials nor has he been afforded opportunity of cross examination of his two vendors. Their statements recorded before the DDIT stands reproduced hereinabove. The assessee s name nowhere finds mention therein as a vendee thereof. The Assessing Officer has further not verified them to have invested ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lages Bavla and Kerala (supra). Revenue s appeals ITA 1864 to 1866/Ahd/2012 fail. 12. Now we come to assessee s second substantive ground challenging unexplained investments additions of ₹ 41,56,282/- made u/s. 69B of the Act pertaining to lands purchased in Motibhoya village. His case throughout pleaded that it is his firm M/s. Sopan Industrial Infrastructural Park which is the actual purchaser/owner of the land in question. A perusal of the case records reveals that the Assessing Officer reopened assessment of this firm of the impugned assessment year itself on the basis of the very incriminating evidence i.e. Annexure A-5, pages 72 and 73 for making the entire addition of on money cash payment of ₹ 2,07,81,390/- in its hands vide reassessment order dated 26-02-2014. The same is in fact framed post facto the lower appellate under challenge before us. The Revenue fails to rebut this factual position. We hold in these facts that the impugned addition of unexplained investments pertaining to assessee s land purchased in Moti Bhoyan village is not sustainable so as to avoid double taxation. The same accordingly stands deleted. Rest of the grounds in assessee s appeals ..... X X X X Extracts X X X X X X X X Extracts X X X X
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