TMI Blog2020 (4) TMI 219X X X X Extracts X X X X X X X X Extracts X X X X ..... Except the statement of Shri Madan Mohan Gupta recorded during the course of search and post search enquiry, the alleged seized documents do not reveal any such transaction except the entries of the amounts under the head RPS and that too not related to the period or the transaction in question. The statement of Shri Madan Mohan Gupta as recorded during the search and seizure action cannot be the basis of the addition in the hands of the assessees when in his examination during the course of assessment proceedings he has denied the alleged payment of cash to the assessee. AO has not brought on record any material or facts to show that the land in question carries a value of more than ₹ 12 crores as alleged and thereby the assessees have suppressed the sale consideration as reported in the Sale Deeds. On the other hand, the assessees have brought on record a sale instance whereby M/s. Shri Kalyan Buildmart Pvt. Ltd. through its Director Shri Madan Mohan Gupta purchased adjoining land bearing Khasra nos. 403 404/148 measuring 0.58 hectare vide Sale Deed dated 04.04.2007 for a consideration of ₹ 72,00,000/-. This subsequent sale instance and sale consideration a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... herein the appellant s share (1/8th) at ₹ 1,53,85,500/- was rightly assessed in his hands of appellant on account of long term capital gain are most arbitrary, whimsical, imaginary and without any basis and liable to be cancelled. 3. That the finding recorded by the learned CIT (A) in last lines of para 6.2.3 reading, in contravention of his own statements, he admitted in submissions that he had received ₹ 12 lac through cheque of Allahabad Bank bearing number 296156. Therefore, the appellant s contention of not having received money is found to be incorrect is false and far away from truth. 4. That on the facts and circumstances of the case the learned CIT (A) erred in sustaining assessee s share in the sold agricultural land at 1/8 part as against correct share of assessee at 1/16 part, which sustenance of assessee s share as 1/8 part against correct share of 1/16th part is unjustified and not maintainable in law. 5. That the alternative ground of appeal is that the learned CIT (A) failed to take into consideration the fact that additions on account of alleged cash payment of ₹ 11,34,84,000/- by Madan Mohan Gupta, Director of Shri Kalyan Buildmart Pv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... art Pvt. Ltd. is made twice once in the hands of all the six co-owners proportionately and again the hands of the power of attorney holder Shri Radhey Shyam Sharma. 2. The brief facts leading to the controversy are that the assessees are illiterate persons and by occupation agriculturists. These two assessees along with their two real brothers and two cousin brothers total 6 co-owners sold their agricultural land measuring 0.99 hectare in village Chainpura, Tehsil Sanganer, Malviya Nagar, Jaipur vide Sale Deeds dated 24.08.2006. This land was an ancestral property, therefore, each of the brothers of the assessees was having 1/8th share and their counterpart cousins was having 1/4th share each in the total land in question. Though the assessees were not the exclusive co-owners but the other legal heirs were also having their shares in the said land. Since the mutation in the revenue record was in the names of these brothers and their cousin brothers, therefore, the sale deeds were executed by these persons. The land was sold to M/s. Shri Kalyan Buildmart Pvt. Ltd. through its Directors Shri Madan Mohan Gupta and his wife Smt. Shashikala Gupta. The total sale consideration as p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... income filed in response to notice under section 148, the assessees shown the capital gain after reducing indexed cost of acquisition from the sale consideration of ₹ 6,00,000/- each. The said sale consideration was received by the assessees by way of account payee cheque. The ld. A/R has submitted that though the assessees received the sale consideration of ₹ 12,00,000/- as per the Sale Deeds, however, there are other co-owners, namely, Chunilal, Kanhaiyalal and Suresh and the assessees have paid share of the sale consideration to these co-owners. These other co-owners are also de-facto co-owners since the year 1977 in compliance to the Nagar Bhumi (Adhiktam Seema Viniyaman) Adhiniyam, 1976. He has referred to the relevant record with Nagar Sankulan Vibhag, Jaipur to show that all these other co-owners were having their rights over the land and, therefore, the assessees have shared the sale consideration with them. The ld. A/R has further contended that there was no documentary evidence either found during the course of search or otherwise brought on record by the AO to show that the assessees have received any consideration in cash. The AO has made the addition b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o establish that the seized material reveals the payment of sale consideration in cash over and above the sale consideration recorded in the sale deeds. The sale deeds executed by the parties and registered are documentary proof of sale consideration in respect of the land in question which was paid by way of account payee cheques at the time of execution of sale deeds. Even the entries in the loose papers Exhibit A-1 pertain to different dates of financial years 2007-08 to 09-10 and none of these entries are relevant for the assessment year under consideration. Therefore, these entries cannot be regarded as in respect of the purchase and sale transaction of land in question. The addition has been made by the AO merely on the basis of suspicion and presuming that the entries in the loose papers seized during the course of search from the residence of Shri Madan Mohan Gupta relate to the cash payment in respect of the sale of the agricultural land in question by these assessees to M/s. Shri Kalyan Buildmart Pvt. Ltd. Once Shri Madan Mohan Gupta has categorically denied in his statement recorded by the AO on 10th February, 2015 any such cash payment, then in the absence of any docume ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... /JP/2017. 3.1. On the other hand, the ld. D/R has submitted that it is a case of no return of income filed by the assessee and reopening of the assessment based on the information received from Investigation Wing about the receipt of On Money for sale of land by the assessees. Further there was no compliance to the notice issued by the AO. The ld. D/R has referred to the seized material and submitted that the entries in these documents reveal cash payment by Shri Madan Mohan Gupta as a consideration paid towards the purchase of agricultural land from the assessees. She has further contended that the loose papers clearly show that the payment was made through one Shri Rameshwar Prasad Sharma (RPS). The said person was a Power of Attorney holder of the assessees for sale of the land and, therefore, the payment was received by the assessees through Shri Rameshwar Prasad Sharma. The retraction of the statement by Shri Madan Mohan Gupta is not valid and acceptable after such a long period. In support of her contention, she has relied upon the decision of Hon ble Jurisdictional High Court dated 30th October, 2018 in case of PCIT vs. Roshan Lal Sancheti in DBIT Appeal No. 47/2018. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f land in question from the assessees and other co-owners vide sale deeds dated 24.08.2006 and the sale consideration was paid in cheques as well as in cash. The AO has copied two of the seized documents at pages 4 5 of the assessment order as under :- It is clear from the entries recorded in these seized documents that the first entry is shown on 31st December, 2007 and thereafter the entries are shown from 15.08.2008 to 23.09.2009. All these entries are against the names of the persons written in short being RPS, G. Ram, RP and so on. The alleged cash payments are the entries against RPS and Shri Madan Mohan Gupta in his statement has stated that these payments were made to Shri Rameshwar Prasad Sharma. Thus it is clear that none of the entries recorded in the seized documents against RPS are contemporaneous to the sale deeds dated 24.08.2006 but all these entries are on subsequent dates and there is a gap of about 1 year to 3 years 3 months. Therefore, prima facie these entries in the seized material have no nexus with the transaction of sale by the assessees vide sale deeds dated 24.08.2006 but all these alleged payments are made on subsequent dates and that to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... zed from his house relate to one Shri Rajendra Kumar Jain and the name of Shri Rameshwar Prasad Sharma is mentioned as per the instruction of Shri Rajendra Kumar Jain. Therefore, when the AO has examined Shri Madan Mohan Gupta during the assessment proceedings, he has denied to have paid any cash in respect of the transaction of land in question to the assessees and other co-owners. There is no dispute that the retraction of statement by a person cannot be accepted in his own defence if there is a substantial time gap. However, when the said statement was to be used against the third person, then the witness is required to be cross examined by the person against whom the statement was intended to be used by the AO and, therefore, when the AO called Shri Madan Mohan Gupta for his examination, then the statement recorded by the AO during the assessment proceedings would not fall in the category of retraction of the statement by the said person but this is a statement recorded in the proceedings of the assessee and not in the proceedings of Shri Madan Mohan Gupta. Therefore, the decision relied upon by the ld. D/R shall have no application in the facts of the present case when Shri Ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Sharma has denied to the said alleged involvement of cash payment and an addition was also made in his hand by the department. The AO has also examined the assessees by recording their statements during the assessment proceedings and nothing incriminating was found from the statements of the assessees. They have clearly stated that except the sale considerations as recorded in the sale deeds and received through cheques, no other payment was received. Therefore, when the transactions recorded in the seized material has no connection and particularly has no contemporaneous relation with the transaction of sale through sale deeds dated 24.08.2006 then the assumption of the AO that these transactions are pertaining to the sale consideration received by the assessees is without any basis. Even otherwise, once Shri Madan Mohan Gupta during his statement recorded by the AO has clearly denied having paid any cash to the assessees, then there is no basis for coming to the conclusion that the assessees have received the alleged cash against the sale of agricultural land in question. Except the statement of Shri Madan Mohan Gupta recorded during the course of search and post search enquiry, ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
