TMI Blog2018 (8) TMI 1711X X X X Extracts X X X X X X X X Extracts X X X X ..... e order of the Ld. CIT(A) in confirming the addition u/s 68 Addition u/s 69B - Held that:- Most of the properties are merely backed by agreement to sell and therefore there cannot be any document price for sale. However, the argument of the assessee with respect to property which were purchased in the auction from the debt recovery tribunal the valuation of same cannot be different from the value shown by the assessee. However, such facts were not produced by the assessee before the assessing officer. In view of this to the extent of the valuation of property purchased by the assessee in auction cannot have different market value. The addition made by AO for that property is ₹ 5, 15,000/- as assessee has shown the purchase consideration of ₹ 14.85 Lacs whereas the assessing officer has valued at ₹ 20 lakhs cannot be sustained. Therefore we direct AO to delete the addition of ₹ 5, 15, 000/– out of the total addition of ₹ 2 6, 15, 000. For the balance addition of ₹ 21 Lacs, We do not find any infirmity in the order of the Ld. CIT(A). Hence, the addition made by the Ld. Assessing Officer is confirmed to the extent of ₹ 21 lakhs only. - ITA ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4. The Ld. ITO erred in adding ₹ 25.597 on account of purported interest as well as CIT(A) erred in sustaining that addition. 5. The ld. ITO erred in charging interest u/s 234A 234B of the Act and without prejudice the same are excessive as well as C1T(A) erred in sustaining that addition. 6. The ld. ITO erred in relying upon the evidences collected ex- parte, without providing copy of the same and any opportunity of rebuttal to the Assessee. 7. The ld. ITO as well as Ld. CIT(A) failed to consider and appreciate the submissions made and evidences filed by the Assessee and particularly in true perspective. 8. The ld. ITO as well as Ld. CIT(A) failed to provide proper opportunity of hearing to the Appellant. 9. The observations made by the ld. ITO as well as Ld. CIT(A) are against the facts of the case. 10. The order passed by CIT(A) is against the facts of the case as well as law. 02 The brief facts of the case is that the assessee is an agriculturist and has source of income from agricultural activities and interest from savings bank account. The assessment in the case was completed on 22/12/2011 at ₹ 5,47,660/- against the returned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... quiries. He submitted that market value of such property is ₹ 1 Crore. Therefore, the Ld. Assessing Officer made an addition of ₹ 26,15,000/- to the total income of the assessee. 05 Assessee challenged the order of the A.O. before the Ld. CIT(A) who confirmed the addition of ₹ 1,29,15,000/- on account of cash deposit in the bank account. With respect to the addition of ₹ 26,15,000/- on account difference in valuation of properties purchased, He also upheld the addition. Therefore, the assessee is aggrieved with his order, has filed this appeal. 06 The Ground No. 1 is general in nature and therefore, it is dismissed. 07 The Ground No. 2 is against the addition of ₹ 1,29,15,000/- u/s 68 of the Act. The Ld. Authorized Representative reiterated the submissions made before the Ld. Assessing Officer and the CIT(A). He referred to Para No. 6 of the order of the Ld. CIT(A) to show that the assessee submitted the additional evidence before the Ld. CIT(A) for deposit of cash in various bank accounts. He submitted that when the assessee has given the complete details with respect to the various cash deposits received, there is no reason to make an additi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t materialized, money was returned back by these persons to appellant and the same was deposited in his bank accounts. However, as investigated by AO during the remand proceedings and in view of the facts emerged during recording of statements of aforesaid persons, there are many discrepancies in the version of appellant. As reported by AO in his remand report and as emerged from the statements recorded on oath, Shri Devi Dass does not own any land. He has taken land measuring six and half acres from the assessee against the payment of rupees ten thousand per acre per annum from which we earns net income of ₹ 80-90 thousand. In addition to this, he has claimed to have running a dairy and out of selling milk he earns 4-4.50 lacs per annum. He maintains his family of six persons out of this income. However, as claimed by him, he filed return of income disclosing income below taxable limit. it has been further claimed by him during the statements that the cash money of ₹ 41,90,000/- was taken by him from appellant in the year 2007 but did not remember the dates or months and also failed to submit any document/evidence in support of his claim. On enquiry about why the sale ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llant have concocted the story of advancing the money in cash for purchase of non- existing land and receiving back the sale money. All four persons have bank accounts opened in their names but transactions claimed to have been made in cash only which are not verifiable with any documentary evidence. Despite having bank accounts, they have kept amounts of cash in their hands for such a longer period, which is difficult to believe. None of these three persons is having experience of purchase and sale of property but they took advance in cash from appellant for purchase of unidentified land and till the date of recording the statements by A.O., not a single piece of land was purchased by them for appellant. There is no agreement, third party witness or third party evidence wherefrom the cash transactions entered into by appellant with these parties could be verified. All the evidence furnished by appellant is self-serving evidence, which lack all sorts of credibility. Thus, in view of aforesaid discussion, it is held that the appellant has failed to explain the source of cash deposits of Rs. 41,90,000/-, Rs. 50,40,000/- and ₹ 29,00,000/-in the names of Sh. Devi Dass, Sh. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... our expenses, purchase of fertilizers, transport expenses etc. to arrive at the net figure of agricultural income. The item wise details of expenses have also not been furnished by appellant. In absence of all these details, the figure of agricultural income disclosed by appellant cannot be accepted. In my opinion, the estimation by AO of the amount of ₹ 30 lacs would be reasonable as agricultural income taking into consideration the facts and circumstances of the case and submissions given by appellant. The balance amount of ₹ 7,85,000/- is treated as income from undisclosed sources under the head other sources. Thus the additions made by AO are confirmed and ground taken by appellant is dismissed. 10 The Ld. CIT(A) found that the statement recorded of those persons disclosed many discrepancies. One person who received the money from the assessee did not own any land. Further, they also do not remember the dates or months on which they received the money from the assessee, which is now returned. Further, the Bayana Slip was also not produced. Further, the earlier letters written to the Assessing Officer as claimed by the assessee were also not found o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of the non cooperation of the assessee, valuation Officer could not make valuation of the properties and, therefore, ld AO deputed the inspector who on the basis of the local enquiries reported that the market value of the property purchased by the assessee is of ₹ 1 crore and, therefore, the addition of ₹ 26,50,000/- was made to the total income of the assessee. The Ld. CIT(A) also confirmed the addition. In the present case, it is apparent that the Ld. Assessing Officer referred the valuation of the properties to the Ld. Departmental Valuation Officer but due to non-cooperative attitude of the assessee, no reply was given of the letters and queries of the DVO. The A.O. did not have any other option but to conduct the local enquiries through the Inspector for finding out the valuation of those properties. Even before the Ld. CIT(A), the assessee did not furnish any evidence to show that valuation adopted by the A.O. is in correct. He has also not challenged before us also about the valuation of those properties. The procedure adopted by the A.O. was also not controverted. The Ld. CIT(A) has dealt with the whole issue vide Para No. 10 of the order wherein he confir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oes not even allege that the Assessee has paid any consideration for purchase of the properties over and above the declared value. 17. It is submitted that property No. 551, 552 553, Village Dindarpur has been purchased in the auction from the Debt Recovery Tribunal and even for this property the Inspector has given estimated value of ₹ 20,00,000. 18. It is further submitted that during the course of assessment proceedings, the Id. ITO did not utter a single word regarding the said Report by the Inspector, the said Report by the Inspector was never confronted to the Assessee and the Inspector, who submitted the Report was not made available for cross examination by the appellant therefore, the said Report, it is submitted, has to be excluded from consideration or cannot be read into evidence. 19. The case under consideration, it is submitted, is not of construction of property but is of purchase of property and therefore, the estimated market value has no relevance. 20. It is further submitted that there is no material or evidence on record to show much less establish that the appellant has made any further extra payment over and above the declared consi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en if the market value of the property appears to be higher than the consideration declared by the assessee in the sale document, this cannot by itself be a sale ground for treating the difference between the declared consideration and market value as unexplained investment/receipt. The Revenue is saddled with the onus to establish that higher consideration has been paid over and above the consideration indicated ill the sale documents. In support of this contention, we may refer to the judgment of the jurisdictional High Court in the case of CIT v. Ms. Sushila Mittal Ors.(2001)250 ITR 531 (Del) and CIT v. Shri Gulshan Kumar (2002) 175 CTR (Del) 416. In the instant case, the Revenue has not brought anything on record to form an opinion that some higher amount than the consideration declared by the assessee in the sale documents was passed over to the assessee. The AO has simply made reference to the valuation officer, who valued the fair market value of the property on the basis of certain instances of sales of plots in a different Locality. In the light of these facts the fair market value estimated by the AO on the basis of the valuer's report does not appear to us to be co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... respect to property No. 551, 552 and 553 at village Dindarpur which were purchased in the auction from the debt recovery tribunal the valuation of same cannot be different from the value shown by the assessee. However, such facts were not produced by the assessee before the assessing officer. In view of this to the extent of the valuation of property purchased by the assessee in auction cannot have different market value. The addition made by the Ld. assessing officer for that property is Rs., 5, 15,000/- as assessee has shown the purchase consideration of ₹ 14.85 Lacs whereas the assessing officer has valued at ₹ 20 lakhs cannot be sustained. Therefore we direct the Ld. assessing officer to delete the addition of ₹ 5, 15, 000/ out of the total addition of ₹ 2 6, 15, 000. For the balance addition of ₹ 21 Lacs, We do not find any infirmity in the order of the Ld. CIT(A). Hence, the addition made by the Ld. Assessing Officer is confirmed to the extent of ₹ 21 lakhs only. In view of this, Ground NO. Three of the assessee s appeal is partly allowed . 15 For Ground No. 4 to 10, no specific arguments were advanced before us. In view of this, we dis ..... X X X X Extracts X X X X X X X X Extracts X X X X
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