TMI Blog2018 (10) TMI 1842X X X X Extracts X X X X X X X X Extracts X X X X ..... report from the Assessing Officer after allowing the opportunity of cross examination. Despite various opportunities given by the Assessing Officer, both the parties kept on seeking deferment of remand proceedings and finally the statements on behalf of the sellers were made that they stand by their statements made on the earlier occasions. Assessing Officer made sincere efforts for granting the opportunity to cross examine to the assessee, however, it appears that both the parties in collusion avoided the cross examination. Thus, the blame cannot be shifted on the Assessing Officer for non-cross examination if any. Addition made by the Assessing Officer in the hand of seller U/s 68 instead of capital gain would not affect the merits of the addition made in the hand of the assessee. Having analysed the entire facts, the relevant record including the evidence brought on record by the Assessing Officer, we do not find any error or illegality in the orders of the authorities below, hence uphold the order of the ld. CIT(A) qua this issue.- Decided against assessee. - ITA No. 1047/JP/2017 - - - Dated:- 9-10-2018 - Shri Vijay Pal Rao, JM And Shri Vikram Singh Yadav, AM ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the addition made by the Assessing Officer on this account. 4. Before us, the ld AR of the assessee has submitted that the Assessing Officer has made addition on the basis of cash deposits in the bank accounts of the sellers and their relatives in the month of May and August, 2005. Whereas the assessee has purchased the lands in question vide two sale deeds dated 11/8/2005. The consideration thereof is clearly stated in the registered sale deeds, which was duly authenticated by the parties before the Sub-Registrar. The assessee has paid the consideration only in cheque as stated in the registered deed and no amount has been paid in cash. The Assessing Officer for making the addition, has relied upon a copy of the agreement for sale of land with Shri Bhagwata Meena in which the rate of sale of agricultural land is mentioned at ₹ 28,25,000/- per bigha and accordingly calculated the consideration over and above the amount shown in the sale deed and the differential amount of ₹ 2,23,10,000/- was added to the income of the assessee as unexplained investment U/s 69 of the Act. The alleged agreement is only a photo copy and does not bear the signature of the assessee. The a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hall and therefore, a discretion is conferred on the Assessing Officer in the matter of treating the source of investment which has not been satisfactory explained by the assessee as income of the assessee. The ITO is not obliged to treat such source of investment as income in every case where explanation offered by the assessee is not found to be satisfactory. The ld AR has thus, contended that when the assessee is having no source of income in the year under consideration then the addition U/s 68 of the Act cannot be made in the hands of the assessee. The ld AR has also relied upon the decision of the Coordinate Bench of this Tribunal in the case of M/s Kamakshi Hospitality Pvt. Ltd. Vs. DCIT in ITA No. 481/JP/2016 order dated 20/12/2017. 5. On the other hand, the ld DR has submitted that it is a full proof case made out by the Assessing Officer that on money of ₹ 2,23,10,000/- was paid by the assessee over and above the consideration shown in the sale deed for purchase of the lands. Even the statement of the Branch Manager of Jaipur Thar Gramin Bank was recorded wherein the cash deposited in the account of the owner of the land was confirmed as sale consideration recei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nkrota, Jaipur vide two sale deeds both dated 11/8/2005 for a total consideration mentioned in the sale deeds at ₹ 1,76,34,000/-. However, the Assessing Officer received the report of the DDIT(Inv) alongwith the details of the cash deposits in the bank accounts of the sellers and their relatives and further an agreement to sell dated 11/5/2005 wherein the consideration @ ₹ 28,25,000/- per bigha was agreed upon between the parties and part consideration was stated to have been paid at the time of agreement in cash as well as in cheque. The Assessing Officer has computed the total purchase consideration by adopting the rate of ₹ 28,25,000/- per bigha as stated in the agreement to sell dated 11/5/2005. Though the said agreement is not signed by both the parties and it was signed only by the seller, however, we find that the details given in the agreement regarding the agricultural lands, its khasaras numbers as well as the part consideration of ₹ 15,50,000/- through a cheque No. 582863/- dated 10/6/2005 is not in dispute. The deailsof the said cheque also find place in the registered sale deed dated 11/8/2005. Thus, the contents of the agreement to the extent o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... son of Sh Bagwataram, Seller 10. Sh. Jagdish Pd. Meena 100131 7,50,000/- 12/08/2005 Son of Smt. Dhapu Devi Meena, Seller 11. Sh. Manna Lal Meena 1008064 7,15,800/- 12/08/2005 Son of Smt. Dhapu Devi Meena, Seller 12. Sh. Nemi Chand Meena 1005293 7,50,000/- 12/08/2005 Son of Smt. Dhapu Devi Meena, Seller 13. Smt. Sushila Meena W/o Prabhu Dayal Meena 21050100007726 7,50,000/- 12/08/2005 W/o- Sh. Prabhu Dayal Meena, S/o- Smt. Dhapu Devi Meena, Seller The dates of deposit of cash as well as cheques in the bank accounts of the sellers, their sons, grandsons and wife are clearly matching to the dates of agreement to sell and sale deed i.e. 11/5/2005 and 11/8/2005. All the deposits of cash in the bank accounts of these persons were made on the very next day of execution of agreement and s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urt cannot be applied in the facts of the present case. Moreover, it is not the case of the explanation of source of investment was not found to be satisfactory but the assessee has denied the payment of the cash against the purchase of the land and hence there was no explanation on the part of the assessee for the source of such cash payment. Once the fact of payment of cash is established and there is no explanation of such investment by the assessee then the decision of the Hon'ble Supreme Court has no role in the case of the assessee. The ld AR has also relied upon the decision of the Coordinate Bench in the case of M/s Kamakshi Hospitality Pvt. Ltd. Vs DCIT (supra) wherein the Coordinate Bench has deleted the addition made by the Assessing Officer on the ground that the said addition was made on the basis of statement of a third person without giving a opportunity of cross examination and in absence of any documentary and independent evidence, such addition based on the statement of third party without cross examination is not sustainable. In the case in hand, we find that the addition is not based merely on the statement but the documentary evidence in the shape of agreem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his issue in para 4.3 as under: 4.3 I have gone through the assessment order, statement of facts, grounds of appeal, written submission, remand report and rejoinder carefully. It is seen that the AO has made the addition in respect of the unaccounted cash of Rs. ₹ 2,23,10,000/- paid by the appellant towards purchase of land situated at Bhankrota, Jaipur. The cash paid by the appellant over and above the sales consideration recorded in the sale deed was deposited by the sellers in their bank account. The bank manager in his statement recorded by the DDIT, Jaipur has confirmed that it was explained by the depositors that the cash being deposited by them was received by them on sale of the land (Page No. 2 3 of the assessment order). The statements of the sellers of property were also recorded u/s 131 and they also confirmed that the cash deposited by them in the bank accounts was received by them from M/s Om Plantation on sale of their land to M/s Om Plantation (Page No. 5 to 9 of the assessment order). The ITO, Ward - 7(2) was in possession of the copy of agreement to sale made by the assessee with the seller Shri Bhagwat Meena on 11.05.2005. In the agreement, there is m ..... X X X X Extracts X X X X X X X X Extracts X X X X
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