TMI Blog2017 (9) TMI 1624X X X X Extracts X X X X X X X X Extracts X X X X ..... ly. It is also established position of law that an addition cannot be made solely on the basis of surrender made during the course of search or survey in absence of corroborative evidence in support. - Decided in favour of assessee. - Income Tax Appeal No. 140,141,143,144,148,150,151,157, & 230 / 2014 - - - Dated:- 19-9-2017 - K.S. JHAVERI VIJAY KUMAR VYAS For the Appellant(s): Mr. Anil Mehta with Mr. Sameer Sharma Mr. Gaurav Gaur Mr. Anuroop Singhi with Mr. Aditiya Vijay For the Respondent(s) : Mr. R. P. Garg, Mr. Gunjan Pathak with Mr. Aditiya Bohra Ms. Ishita Rawat Judgment 1. In all these appeals since identical questions of law and facts are involved, they are decided by this common judgment. For the convenience of the court, we have taken facts from Income Tax Appeal No. 140/2014. 2. By way of these appeals, the appellant has challenged the judgment and order of the Tribunal whereby the Tribunal has allowed the appeal of the assessee. 3. This court while admitting the appeals framed the following question of law:- 1. D.B. Income Tax Appeal No. 140/2014 Whether ITAT is perverse in deleting the addition of ₹ 67,49,680/- on account of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was received on sale of land by the assessee? (ii) Whether on the facts and circumstances of the case and in law the Hon ble Tribunal has not acted perversely in not deciding the ground relating to deletion of addition of ₹ 30,00,000/- made by the A.O. u/s 68 of the Act on account of unexplained cash credits? 7. D.B. Income Tax Appeal No. 151/ 2014 Whether ITAT is perverse in deleting the addition of ₹ 67,26,150/- on account of Capital gains, ignoring the incriminating documents seized from the residence of the assessee and other persons, admission of key persons of the Group u/s 132(4) and the valuation report of the DVO proving that on-money was received on sale of land by the assessee. 8. D.B. Income Tax Appeal No.157/2014 Whether on the facts and circumstances of the case and in law the Hon ble Tribunal has not acted perversely in deleting the addition of ₹ 1,28,26,725/on account of long term capital gain, ignoring the incriminating documents seized from the residence of assessee and other persons, admission of key persons of the Group u/s 132(4) and the valuation report of the DVO proving that on-money was received on sale of land by th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sideration the evidence on record, the Tribunal held as under:- 8. We have gone through the order 31.10.2011 [P.B 33 to dated 47] passed by the settlement commission. From this order it is apparent that while considering the case of settlement of the 'Mangalam Group' who had purchased this land from the Saini Group, that the rate or ₹ 10.68 lakhs per bigha is the maximum rate and cannot be made a basis for valuing the entire land of this group. The farmers of that area have stated that the orders ranging between ₹ 2 lakhs to ₹ 10.68 lakhs per bigha are prevalent in the area. The Settlement Commission has clearly observed that the rates adopted by the department cannot be accepted. We value the submission of the ld. CIT (DR) that other than Shri Narang Ram and Shri Bodu Ram Saini, all other persons had their undivided share in 97.90 bighas of land comprised in Khasra Nos 438 to 445 and 447;then the rates given cannot be different. He has supported the above contention with the submission that in the cases of this group evidence supporting rates adopted by the department have been found apart from the statement of one of them recorded u/s 132(4) of the Ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the judgment of the Hon'ble Rajasthan High Court rendered in the case of CIT Vs. Raja Narendra reported as 210 ITR 250 [Raj] and that of the Hon'ble Supreme Court in the case of CIT vs. Sivakami P ). Ltd. 159 ITR 71 [SC] is not justified, de hors and proof [direct evidence] found during search. Regarding cash payment allegedly made by the assessee to Smt. Badami Devi and Shri Gangaram for purchasing their land is found to be not supported. In fact, the assessee purchased land from one Shri Birdichand on 31.7.2004 for a consideration of ₹ 3 lakhs for which there is a withdrawal from the bank on the same date. We cannot ignore the contention that in the purchase deed from Shri Ganga Ram and smt. Badami Devi dated 2.8.2004 for ₹ 11 lakhs where it is mentioned that cash was given on the date of registration but the cash could not be withdrawn and the document was registered as the parties were know and had faith in each other. In agricultural community, this is not an unusual thing. This version stands fortified by the affidavits of Smt. Badami Devi and Shri Ganga Ram which remained uncontroverted. In the case of Shri Sunda Ram Saini - HUF [one of the assessee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng, cannot be relied upon. Addition not supported by material on record, deserve to be deleted. 9. In the case of Shri Luna Ram Saini, the followingobservations have been made by the ld. CIT (A) Here the main issue is determination of actual receipts of sale value of agricultural land on sale other than registered value by the registering authority shown by the assessee. The AO determined the sale value on the basis of rates following the unsigned agreement paper, calculation notings and various statements of various persons. On the other hand no material could be brought on the record by the A o the amount of actual receipts by the assessee overhand above the value shown in the registration by the registering authority. The material discussed by the A.O in his order is undoubtedly good for presumption of rate of price of sale of land but it is not the material for the evidence of actual receipts other than the value shown in the registered deed which is vital necessity for validly presumption of sale value receipts is other than the registered value in sale deed. No material could be brought to substantiate the actual receipts of sale value more than registered value in search ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ions of section 54B of the income-tax Act, 196 so there is no point to have such presumption also. 9.1 The above observations of the ld. CIT(A), in fact, help the case of this assessee. In this case also no concrete evidence that the assessee has received any on-money has been found. The following observations made by the ITAT in the case of Shri Rajendra Prasad Saini vs. ITO in ITA No 821/JP/2005 order dated 27.7.2007 is also relevant: Considering the arguments advanced by the parties, we fully agree with the submission of the Id. DIR that it is common practice in the case of transaction of the property that undisclosed amount is paid in advance and remaining amount shown as consideration of the property is paid at the time of registration of sale deed of the property. But addition cannot be made solely on the presumption of this practice in absence of corroborative evidence in support. There is no doubt that there was some narration about receipt of ₹ 13.25 lacs against the sale of house property in question on the paper seized during the course of survey operation but while relying upon the same, to justify an addition in income of the assessee the other factors ..... X X X X Extracts X X X X X X X X Extracts X X X X
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