TMI Blog2021 (3) TMI 46X X X X Extracts X X X X X X X X Extracts X X X X ..... The assessee has filed an assessment order in assessee's own case for A.Y. 2011-12 wherein assessee has sold that land at ₹ 1,25,00,000/- in 2020 meaning thereby that assessee earned profit of ₹ 30 lacs in three years and same contention has been accepted by the Ld. A.O. with regard to same land when department has accepted the sale price of the said land at ₹ 1,25,00,000/- how that land could be alleged to have been purchased at ₹ 10,95,58,873/- and department has not brought anything on record to controvert the finding of the Ld. CIT(A). Thus, in view of the above, we are not inclined to interfere in the order passed by the Ld. CIT(A). - Appeal filed by the Revenue is dismissed. - I.T.A. No. 430/AHD/2019 - - - Dated:- 23-2-2021 - Mahavir Prasad, Member (J) And Amarjit Singh, Member (A) For the Appellant : O.P. Sharma, CIT/DR For the Respondents : Vartik Choksi, A.R. ORDER Mahavir Prasad, Member (J) This appeal filed by the Revenue is directed against the order of the Commissioner of Income Tax ('hereinafter called CIT(A)') order No. CIT(A)/GNR/386/2016-17 order dated 12/02/2018 arising out of assessment order dated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ciation, Mehsana'. The firm 'M/s. Akash Developers', Mehsana entered into transaction of purchase of the said land from Sardar(Mehsana) Owners Association, Mehsana vide sale deed dated 20.12.2007. However, before the execution of the sale deed dated 20.12.2007, M/s. Akash Developers, Mehsana have made a sale agreement dated 06.01.2007 with Mr. Rewabhai Shankarbhai Patel Mr. Jitendrakumar Rewabhai Patel of Visnagar to sale the land in question. 3. It is evident from the agreement to sale deed dated 06/01/2007 of the land in question i.e. survey No. 1990/50 of Mehsana, the total sale value of the said land was ₹ 10,95,58,873/-. However, in the sale deed dated 20.12.2007 that was executed between Sardar (Mehsana) Owners association, Mehsana and the M/s. Akash Developers the sale consideration is taken at ₹ 95,00,000/- only. Therefore, it is clear that the sale deed dated 20.12.2007 was executed on undervalue of the said land by ₹ 10,00,58,873/- (₹ 10,95,58,873/- minus ₹ 95,00,000/-), which has escaped in the hands of the assessee. 4. During the course of re-assessment proceedings, it is learnt that in an identical issue of the relat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eller and (ii) Svs Revabhai Shankerbhai Pate I Jitendra Kumar Revabhai Patel as purchaser of the said land. In this document the land was agreed to sale @ ₹ 1381/- Per Sq.Feet. The land is admeasuring to 7373Sq Mts or 79362 Sq Feet, as such the total sales consideration works out at ₹ 10,95,98,922/- (79362 x 1381). The 25% of the same works out at ₹ 2,73,99,730/-, however in order to clarify the amount an estimated 25% of the sales consideration has been shown in the document itself at ₹ 2,54,00,000/- which makes crystal clear that the value of the land was above 10 crores. It was also mentioned in the agreement that advance amounting to ₹ 61,00,000/- has been received by the seller parties from the purchaser parties, Secondly as per the copy of another document titling Sanmati Karar Lekh dated 06/01/2007 received from the Investigation Wing, Mehsana that an agreement was done between (i) Sardar (Mehsana) Owners Association, Mehsana as first party and (ii) Partners of the assessee firm as second party and (iii) Shri Rewabahi Shankarbhai Patel and Shri Jitendra Kumar Revabhai Patel as third party. Through this document the first party has given its ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... partnership firm. Further, assuming but not agreeing to the fact that the calculations mentioned in the order sheet dated 11/03/2016 is taken as correct, and then in that case also, adverse reference cannot be drawn against the assessee because of following reasons: Firstly, the banakhat made between the individuals, Sardar (Mehsana) Owners Association and Svs Revabhai Shankarbhai Patel Jitendrakumar Revabhai Patel. Is on 06/01/2007 and on the very second day i.e. on 07/01/2007 the same and the said parties to the Banakhat cancelled in one day is not relevant. Secondly, it is mentioned that the cash of ₹ 61,00,000/- is paid as per the Banakhat. In that connection we would like to mention that on cancellation of the Banakhat the very next day the amount paid was refunded by the individuals who were the party to the said Banakhat. We are enclosing the copy of said Banakhat which was cancelled on 07/01/2007 in which the party has conformed that the banakhat made on 06/01/2007 stands cancelled and the amount paid is received back by them. So, again in this transaction of cash payment and cash receipt the assessee firm is not concerned as it is not the party to t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... established for the assessees. The relevant following documents are enclosed herewith for your reference and perusal. -Deed of partnership. -The copy of cancelled Banakhat in which the conformation of the money received is mentioned. -The purchase document of ₹ 95.00 lacs. -The sale deed of ₹ 125.00 lacs. -The affidavit of the party for cancellation of banakhat and money received back. -The litigation history and pendency of case till date of the property in question. Sincerely yours, Thanking You, For, Akash Developers (Partner) End: As above 4. I have gone through the submissions and details furnished by the assessee very carefully, and do not found the same to be acceptable. To deal with the objections of assesses that the assessee firm is not a party to the transactions but its partners, it is to be pointed out that as is the matter of fact the land was sold by Sardar (Mehsana) Owners Association, Mehsana to M/s. Akash Developers (the assessee firm) the sale deed is registered with the Sub Registrar Mehsana vide No. 8989 dated 20/12/2007. This makes crystal clear that the investor in the property is fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has made on-money payment as alleged by the A.O. and held that in the absence of any corroborative evidence, the addition made by the A.O. cannot be sustained. 6. Now Revenue has come before us by way of second statutory appeal. 7. We have gone through the relevant record and impugned order. Now question before us is whether assessee has executed sale deed less than Jantri rate or whether assessee has made on-money payment as alleged by the A.O. or not? 8. In this case, addition has been made on the basis of information received from the Investigation Wing of the Department at Mehsana that there has been escapement of income on the ground that actual deed was executed at ₹ 95 lacs whereas the agreement to sell for the same land was entered at ₹ 10,95,58,873/- and hence sale deed was executed at undervalued consideration. 9. Revenue has not given any comparable and moreover matter was not referred to the DVO for ascertaining actual cost of the land. In our considered opinion, the appropriate person was DVO who would have been able to ascertain the actual cost of the land, but Ld. A.O. has not exercised such practice and same is amounting to miscarriage of ju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecuted by original land owners -/Assesses had never executed any sale deeds-There was no tangible material available on record to form a reasonable belief that amount of sale consideration had been received by assesses in cash - Whether it could not be said that any income had accrued to assessee and, therefore, reopening notice was deserved to be set aside - Held, yes [Para 7] [In favour of assessee] 12. The assessee has filed an assessment order in assessee's own case for A.Y. 2011-12 wherein assessee has sold that land at ₹ 1,25,00,000/- in 2020 meaning thereby that assessee earned profit of ₹ 30 lacs in three years and same contention has been accepted by the Ld. A.O. with regard to same land when department has accepted the sale price of the said land at ₹ 1,25,00,000/- how that land could be alleged to have been purchased at ₹ 10,95,58,873/- and department has not brought anything on record to controvert the finding of the Ld. CIT(A). Thus, in view of the above, we are not inclined to interfere in the order passed by the Ld. CIT(A). 13. In the result, appeal filed by the Revenue is dismissed. Order pronounced in Open Court on 23-02-2021. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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