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2017 (2) TMI 733 - ITAT AHMEDABAD

2017 (2) TMI 733 - ITAT AHMEDABAD - TMI - Onus of proving genuineness of the banakhat in question - income from other sources OR capital gains - Held that:- MOU stating the assessee to be in cultivating possession is neither supported by the banakhat in question dated 16.12.1986 nor the sale deed dated 10.09.2008. There is further no evidence in the case file in the nature of form 7/12 that the assessee ever remained in cultivating possession of the lands sold. We observe in these peculiar facts .....

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concur because of the fact that the very banakhat itself is in dispute between the parties. Once we have held the same to be not supported by any evidence, the relevant terms therein cannot be relied upon. We accordingly reject assessee’s contention. - Assessee's next argument that AO ought to have summoned the vendors in question in case he had any doubt about the banakhat in question finds no merit in this plea as well as the said vendors had already paid the amount in question to the asse .....

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ispute but the issue herein is about genuineness of assessee’s claim to have entered into the above stated banakhat dated 16.12.1986. - Assessee contention that AO had erred in rejecting assessee’s explanation on the ground that the above stated banakhat was not a registered document is rendered academic as we have already held on merits that he has failed in proving veracity of the banakhat in question dated 16.12.1986. We accordingly conclude that the Assessing Officer had rightly acted i .....

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ed 14.06.2013 in appeal no. CAB/II-309/11-12, allowing assessee s claim of having received the sum in question of ₹ 1,32,42,418/- in furtherance to an MOU dated 14.09.2009 executed with vendors of the capital asset in question as capital gains thereby reversing Assessing Officer s action treating the same as income from other sources in assessment order dated 27.12.2011, in proceedings u/s.143(3) of the Income Tax Act, 1961; in short the Act . 2. We straightway come to the relevant facts. .....

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above vendors. The said vendors paid him the sum in question of ₹ 1,32,42,418/-. The assessee declared the same as capital gains. The Assessing Officer proceeded to examine details thereof in the course of scrutiny. The assessee quoted a banakhat dated 16.12.1986 between original land owners of the very land. His case was that this banakhat stated sale consideration of ₹ 10lacs involving advance money of ₹ 5lacs. He highlighted the fact that the above vendors and himself had a .....

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had not filed any details of advance payment of ₹ 5lacs so as to prove transfer of title, any right or interest thereupon. He also came across contents of the abovestated sale deed not stating any amount to have been paid to him for his role as a confirming party. All this made the Assessing Officer to treat the abovestated sum of ₹ 1,32,42,418/- as income from other sources instead of assessee s capital gains. 4. The assessee preferred appeal. The CIT(A) summarises Assessing Office .....

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properties. The first one i.e., land at Kelanpur S.No. 450 ABC was never owned by the assessee but he was treated as "Confirming Party" both by the land owners as well as by the purchasers. There is no dispute of taxation of land at Sayajipura which was also sold during the year. 3.3.2. The objection raised by the A.O. is that the assessee was not the owner of the land at Kelanpur and, therefore, he cannot claim Capital Gain on the said of that land. The A.O. treated the amount of S .....

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l, Ashokbhai B. Patel, Dinesh B. Patel, Ansuyaben B. Patel & Arunaben B. Patel. The Assessing Officer has doubted the genuineness of this very documents by observing that this is an afterthought of the assessee. Two grounds have been cited by him for reaching this conclusion. First observation is that the banakhat is not registered and is not even notarized. Secondly, according to the A.O., there is no proof of payment of Rs,5,00,000/- by the assessee to the land owners as claimed in the ban .....

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the assessee. This banakhat is recognized by the purchasers of the land also, who in the sale deed dated 10.09.2008 have acknowledged the same. lf there was any doubt in the mind of the A.O. about the genuineness of the banakhat, several options were open before him. He could have summoned the signatories of the documents i.e., the land owners and verified from them. Alternatively, the enquiry could have been made by deputing the inspector and recording the statements of the stamp vendor. In ext .....

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stated above, the A.O. preferred not to make any enquiry from the signatories of banakhat, i.e., the landowners who had claimed to have received cash payment of ₹ 5,00,000/- from time to time. Under these circumstances, it is held that the banakhat dated 16.12.1986 between the assessee and the land owners i.e., Kalavatiben B. Patel, Shri Mahendra B. Patel, Anirudh B. Patel, Ashokbhai B. Patel, Dinesh B. Patel, Ansuyaben B. Patel & Arunaben B. Patel was a genuine documents and A.O's .....

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to be lacking any cogent evidence. Shri Soparkar (learned senior counsel) draws strong support from the CIT(A) s twin reasoning extracted hereinabove. He seeks to place vehement emphasize to assessee s plea that the assessing authority never summoned the above stated vendors so as to express any doubt over genuineness of his claim of having entered into the banakhat in question. 6. We have given our thoughtful consideration to rival contentions. The sole dispute between the parties is qua onus o .....

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sion of the said agricultural land agreed to be sold to the assessee/vendee for a sum of ₹ 10lacs out of which ₹ 5lacs had already been received till the said date i.e. 16.12.1986 as advance money. There is no quarrel that the parties did not quote any evidence of advance payment of ₹ 5lacs till the above stated MOU. Nor did they execute any sale deed for a time span of almost of 22 years. It is only in the relevant previous year i.e. 10.09.2011 wherein the very vendors sold th .....

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s thus clear that this MOU stating the assessee to be in cultivating possession is neither supported by the banakhat in question dated 16.12.1986 nor the sale deed dated 10.09.2008. There is further no evidence in the case file in the nature of form 7/12 that the assessee ever remained in cultivating possession of the lands sold. We observe in these peculiar facts that the assessee has failed to prove veracity/genuineness of the banakhat in question dated 16.12.1986. We thus find force in Assess .....

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nce we have held the same to be not supported by any evidence, the relevant terms therein cannot be relied upon. We accordingly reject assessee s contention. 8. Shri Soparkar s next argument is that the Assessing Officer ought to have summoned the vendors in question in case he had any doubt about the banakhat in question. We find no merit in this plea as well as the said vendors had already paid the amount in question to the assessee. They hardly had any further explanation to make in view of t .....

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