TMI Blog2013 (5) TMI 946X X X X Extracts X X X X X X X X Extracts X X X X ..... quired the right in the said land from Smt. Manju Yadav is not valid since it is not registered. She has further erred in ignoring the fact that for purchasing the said right Smt. Radha Devi Khatoria paid ₹ 4,11,000/- to Smt. Manju Yadav which is duly reflected in her return for Assessment Year 2007-08 and payment of ₹ 3,00,000/- by cheque out of it is duly credited in bank account of Manju Yadav. c) Relying on the reply given by Shri Bharat Singh and Smt. Manju Yadav in response to notice u/s 131 133(6) respectively ignoring that Shri Bharat Singh has not denied the execution of POA dated 13/11/2006 in favour of assessee and no opportunity to cross examine Manju Yadav against her letter filed on 20/12/2010 is given to assessee. d) Not correctly interpreting and appreciating the various documents in relation to said land available before her. e) Incorrectly applying the provision of sec. 50C ignoring that assessee has not sold any land to his wife Radha Devi Khatoria. 2. The Ld. Commissioner of Income Tax (Appeals) has erred in fact and in law in confirming the disallowance of expenses of ₹ 74,923/- against the income from business declared b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enumbered as Khasra No. 12 (0.02 Hec.), khasra No. 13 (2.48 Hec.) and Khasra No. 15 (0.17 Hec) and the total land area of 2.67 Hec.was recorded in the name of Shri Bharat Singh. (3) Shri Bharat Singh sold the above land of 2.67 hectare to different purchasers as mentioned above, including Miss. Manju Yadav (0.02+0.13=0.15 Hec.). (4) Land measuring 0.30 Hectare was short recorded by the authorities, for which proceedings with the Revenue authorities were taken up. To handle this proceeding, a Power of Attorney was executed in favour of Shri Suraj Narain Khatoria. (5) As per Agreement to Sale execuited in the month of October, 2004, which was attested by Notary Public on 06/11/2004, S/shri Bharat Singh and Vijay Pal Singh agreed to sell land measuring 0.15 Hectares of land to Miss. Manju Yadav (0.02) Hectares out of khasra No. 12 and 0.13 Hectares out of khasra No. 13- Total 0.15 Hectares. (6) In the meanwhile, Shri Suraj Narain purchased the land from Miss Manju yadav (0.02 + 0.13 Hectares covered by Khasra No. 12 and 13 respectively) for a total consideration of ₹ 4,11,000/-. The payment was remitted out of the bank account of Smt. Radha Devi Khatoria. Thi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this transaction Smt. Radha Devi Khatoria made any payment to Shri Bharat Singh. The claim of payment of ₹ 4,11,000/- (Rs. 4 lakhs through two cheques and ₹ 11,000/- in cash) made to Ms. Manju yadav only. The land purchased from Smt. Manju Yadav was got recorded in the land revenue record itself and the Sale Deed under consideration is with regard to land measuring 0.30 Hectare only. (13) Assessee s claim in his reply stated that the land of 0.30 hectare registered in the name of his wife Smt. Radha Devi was the land which he purchased from Miss. Yadav is not born out of any documents and his claim is totally false and incorrect. The land are purchased from Ms. Manju Yadav was only 0.15 hectare, out of which 0.13 stands mutated in the name of Radha Devi in land revenue records. (14) Thus Shri Suraj Narain Khatoria sold land of 0.30 hectares on the strength of Power of Attorney empowering him with the right to transfer the property and receive the sale consideration. Either Shri Suraj Narain or his wife has not made any payment to Shri Bharat Singh/Shri Vijay Pal Singh. Thus, he transferred property worth ₹ 42 lakhs, as per valuation done for the purpose ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ad been sold by Shri Bharat Singh and Shri Vijay Pal Singh to Smt. Manju Yadav. This is obviously false in view of the Ikrarnama registered on 20.10.2004 between them wherein it has clearly been mentioned that only 0.15 hect. of land was transferred by them to Manju Yadav. Thus, the registered Ikrarnama for sale by POA, has precedence over the un-registered Ikrarnama which is being relied on by the AR. As per this registered document only 0.15 hect. of land was transferred to Smt. Manju Yadav and not 0.30 hect. The second reason for holding this Ikrarnama invlaid is that all the details of the total land holding of Shri Bharat Singh and Shri V.P. Singh in village Shrirampura have been given alongwith chronological details of historical transfer of land in this Ikrarnama. It is not clear how Smt. Manju Yadav had access to such detailed information viz. the entire property transactions of Shri Bharat Singh and Shri V.P. Singh which were not related to her. It is pertinent to note that when it comes to mentioning the details by way of khasra No. etc. of the 0.30 hect. of land alleged to be in possession of Ms. Manju Yadav the document is strangely silent (please refer to last para ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ttorney on dated 13/11/2006 the value of land was determined at ₹ 13,80,000/- by the stamp authority. She also left it open to the assessing officer to examine the actual payment made from the books of account of the appellant and Shri Bharat Singh and determine the loss of acquisition before allowing such set off. 7. Assailing the impugned order, the Ld. Counsel for the assessee contends that Shri Bharat Singh and Shri Vijay Pal Singh, the original owner on the land comprised in khasra No. 1/48, later changed into khasra No. 12, 13 and 15 had executed power of attorney in favour of Smt. Manju Yadav for land measuring 0.15 acre in khasra No. 12 and 13 at village Bhakrota. Said Smt. Manju Yadav sold this land to Shri Ramnath Choudhary through a registered sale deed dated 30/6/2005 for a consideration of ₹ 7.45 lacs, who in turn, sold the said land to Smt. Radha Devi Khatoria vide sale deed dated 18/11/2006 for a sale consideration of ₹ 8.11 lacs as per copy of sale deed and documents placed at assessee s paper book at pages 32 to 40. After noticing that the land in khasra No.13 is recorded in revenue record less by 0.30 hect., she persuaded Smt. Manju Yadav to g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of land from Shri Ram Nath Chaudhary vide registered sale deed dated 18/11/2006 and not from Miss Manju Yadav. The payment of ₹ 4,11,000/- to Miss Manju Yadav is towards acquiring the right in disputed 0.30 hectare land through agreement to sale dated 17/11/2006. 8.2 The lower authorities have also referred to the statement of Shri Bharat Sikngh and the reply filed by Miss Manju Yadav in response to the enquiry by the Assessing Officer. So far as statement of Shri Bharat Singh is concerned, he has rightly stated that he has not received any money in respect of the sale deed executed in favour of Smt. Radha Devi Khatoria for disputed land of 0.30 hectare. (Assessing Officer Page 6). So far as letter dated 18/12/2010 sent by Smt. Manju Yadav to Assessing Officer (PB 55) is concerned her contention that the evidence produced by the assessee are false, bogus and fabricated, is totally incorrect and misconceived inasmuch as her signature on the sale deed dated 30/6/2005 executed in favour of Shri Ramnath Choudhary and in the sale agreement dated 17/11/2006 entered with Smt. Radha Devi Khatoria are same. The draft of ₹ 3,00,000/- was credited in her account which is not di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction could be made only in their name. On the basis of this POA, assessee could get a court order dated 06/12/2007 for incorporating 0.320 hectare land in khasra No. 13 and on that basis executed the sale deed dated 19/12/2007 in favour of Smt. Radha Devi Khatoria so that her title in the said khasra no. 13 become perfect. (iv) In these circumstances, only because the Ikrarnama of sale dated 17/11/2006 is not registered would not make it inadmissible evidence under the IT Act more particularly when IT Act recognize that there is a transfer u/e 2(47) when there is a transaction by way of any agreement which has the effect of transferring or enabling the enjoyment of any immovable property. The fact that assessee has made payment of ₹ 4.11 lacs to Manju Yadav for acquiring the right in .30 hectare land in khasra No. 13 is also evidenced from the credit of same in the bank account of Manju Yadav. These facts has been brushed by the lower authorities for flimsy reasons. 9. It has, thus been submitted that the assessee has no independent right in the 0.30 hectare of land for which he executed the sale deed as a power of attorney holder of Shri Bharat Singh and Shri Vijay Pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd for stamp duty purposes and charged stamp duty of ₹ 27,600/- thereon. The said power of attorney is found laid on record at assessee s paper book pages 22-23. 12. The admitted fact is that the appellant after correction of revenue record and recording the said land measuring 0.30 hect. in the name of Shri Bharat Singh and Shri Vijay Pal Singh, sold the same to Smt. Radha Devi Khatoria vide sale deed dated 19/12/2007 placed at assessee s paper book pages 49 to 54. The said sale deed has been executed by the appellant in his capacity as a power of attorney of Shri Bharat Singh and Shri Vijay Pal Singh for a sale consideration of ₹ 4.11 lacs. Smt. Radha Devi Khatoria happens to be wife of the appellant. The enquiries conducted by the Assessing Officer reveals that Shri Suraj Narain Khatoria, the appellant has not returned or made payment of the aforesaid sale consideration of ₹ 4.11 lacs to Shri Bharat Singh and Shri Vijay Pal Singh as the same is stated to have been denied categorically by them, but appellant s case is that the said payment stood made to Smt. Manju Yadav as is evidenced by the sale deed executed by the appellant. For such a controversy, the re ..... X X X X Extracts X X X X X X X X Extracts X X X X
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