9911796707
TMI Blog2014 (1) TMI 1904X X X X Extracts X X X X X X X X Extracts X X X X ..... his return of income on 18-08-2011 declaring total income of Rs. 5,71,710/-. During the year under consideration, the assessee has declared total income of Rs. 2,00,210/- on account of commission, income from house property, interest and capital gain on sale of shares of private companies. Admittedly, No Incriminating evidences were found during the search either from the assessee's residence or business premises. However, during search, the statement of the assessee u/s 132 (4) of the Act was recorded. It was found that the assessee had purchased total44 bigha 12 biswa land at village Sarsani on 23-04-2007 for a consideration of Rs. 36.00 lacs in his own name. He has purchased 107 bigha 15 biswa land on 29-01-2007 and 30-03-2007 for a consideration of Rs. 9.75 lacs in the name of his wife Smt. Veena Sharma and 22 bigha land in the name of his benami Shri Prakash Chand Vashistha. As per the AO, this benami purchase, in fact, pertains to this very assessee and the resultant profit has been earned by him only. In this regard, the AO has relied on the question and answer given in reply to Question No. 12 of his statement recorded during the course of search. This part of the stat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t was noticed by the AO that at pages 68 to 71 of Annexure AS-2,, which is original sale agreement dated 6-07-2006 signed by the seller Shri Khiv Singh S/o Shri Gopal Singh and Smt. Sajjan Kanwar W/o late Shri Ganga Singh of village Sarsani to the effect that the land at Khasra No. 25 measuring 31 biha 06 biswa had been agreed to be sold / purchased @ Rs. 16000/- per bigha and Rs. 50100/- was received in cash as an advance in the presence of two witnesss. This document is found Notorized on 6-07-2006. However, in this document, apart from seller, no name of the purchaser has been mentioned. This has been treated by the AO as a deliberate act of the parties. It was further noticed that very same land was purchased subsequently by theaa vide Registered Deed dated 23-04-2007. In the sale deed, total sale consideration has been disclosed at Rs. 2.00 lacs only as against DLC rate of Rs. 5,32,100/-. On the basis of copy of sale agreement, although it does not contain the name of the purchaser, the AO has queried the assessee and has proposed to take and adopt DLC rate of this investment. However, the assessee refuted of the above allegation via is reply dated 9-1-2011 which reads as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... per the registered sale deeds executed and that it is the only price which we paid to the seller. In view of the above facts, it would be wrong and bad in law to draw any inference on the basis of said so called agreement at the time of completion of my assessment." But the AO was not satisfied and he insisted upon the production of Shri Khiv Singh, seller of this land, despite the fact that the assessee had reiterated that he was not willing to appear before him. Accordingly by invoking the provisions ff Section 132(4A) of the Act, the has presumed that incomplete sale agreemnt actually belonged to the assessee. Finally, the has relied upon the decision of Hon'ble Jurisdictional High Court in the case of Amar Kumari Surana,226 ITR 344. In this case, it has been held specifically that no addition can be made on the basis of fair market value of a property u/s 69B of the Act, but on the basis of sufficient material on record some reasonable inference can be drawn....... As a result, the AO has calculated the sale consideration of this property as under:- Name Area Value @ 16000 per bigha Registry expenses declared Value declared Value explained Difference considered ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s erred in confirming the action of the ld. AO for framing assessment order u/s 143(3)/ 153A of I.T. Act , 1961 which is void ab-inito deserves to be quashed. 2. Under the facts and circumstances of the case, the ld. CIT(A) has erred in confirming the addition of Rs. 2,61,57,380/- to the income of the appellant u/s 69B of the I.T. Act, 1961 as alleged unexplained investment in connection with purchase of land at Hanumanpura, Distt. Jaipur by working out investment at Rs. 2,92,21,000/- by the appellant as against investment of Rs. 24,79,630/- actually made and declared by the appellant. 3. Under the facts and circumstances of the case, the ld. CIT(A) has erred in upholding that provisions of Section 40A(3) of the I.T. Act, 1961 are applicable to payments allegedly made over and above disclosed payments and therefore, no deduction is available for these payments at the time of sale (No separate addition made in view of addition of whole investment vide Ground No. (2) above. 4. The assessee craves your indulgence to add amend or alter all our any grounds of appeal before or at the time of hearing.'' 3.7 The Revenue has taken following ground:- ''On the facts and in the cir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s executed between MTPDPL and M/s. Bhargavi Infrastructure (P) Ltd. in which the assessee is also a director and then this fact stands proved by the copies of the agreement placed at assessee's paper book 56- 64. From the records, it is established that for acquiring the land in question, the money was arranged by MTPDPL and the assessee got only brokerage/ commission as some part of the profit. From the record, it is very well established that no investment whatsoever has been made by the assessee for purchasing the lands in the name of Shri Prakash Chand Vasitha. The action of the AO in estimating the investment by the assessee is uncalled for and base no evidence. During the year, the assessee made purchases of land 54 Bigha an 16 Biswa in the name of Shri Prakash Chand Vasitha from various agriculturist. It is wrong to conclude that entire investment has been made by this assessee and the resultant profit has been earned by him. Therefore, the estimation made by the AO for the purchase price of the land @ Rs. 5,45,000/- per bigha which comes to Rs. 2,92,21,000/- as against Rs. 24,79,620/- disclosed by the assessee in the sale deeds. As against this facts of this case, we do ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the company in the name of Shri Prakash Chand Vasitha has been sold to Shri Pappu Lal (for the assessment year 2008-09 and 2009-10.Shri Pappu Lal is a person of Shri R.K. Tripurari whose company is MTPDPL. As a broker the assessee can be charged only on brokerage earned on the supply of land. The money got from Shri R.K.Tripurari have to be transferred to Shri Surender Singh Rajawat in connection with purchase of land. Therefore, the source of investment is also from Shri R.K.Tripurari. At best, the assessee can be held as a mediator holding the land temporarily in the name of Shri Prakash Chand Vasitha and thereafter transfer in the name of Shri Pappu Lal, a nominee of Shri R.K.Tripurari. However, the adoption of the value of consideration at a flat rate of Rs. 5.45 lacs per bigha on the entire purchase of 53 bigha 16 biswa land is not justified. When such lands are located at different places and has been purchased from different persons on different dates then the land will be of different nomenclature, different nature, different type and different quality. The ld. CIT(A) has also committed the error in confirming the impugned addition. 5.3 The documents seized from Shri Su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n in question deserves to be deleted. Moreover, the provision of Section 40A(3) of the Act are not applicable to payments allegedly made over and above disclosed payments. Accordingly, Ground No. 2 and 3 of the assessee appeal are allowed. 6.1 The Ground No. 1 of the Revenue appeal pertains to deletion of addition of Rs. 12.71 lacs made by the AO u/s 69B of the Act on account of undisclosed/unexplained investment in agricultural land at Sarsani (Distt. Nagaur) 6.2 The facts of this issue can further elaborated that the assessee purchased the agricultural land at village Sarsani in the name of his wife Smt. Veena and in the name of one Shri Prakash Vasitha. The facts of this aspect has been discussed by the at AO at pages 2 to 7 of his assessment order. In fact, the sale registration documents are self speaking in this regard. The rates adopted by the AO to value this land @ Rs. 16,000/- per bigha is not correct because the has not brought on record the proof of DLC rate. The documents which is not signed by both the parties cannot be treated as proof of agreement between the parties as there is no other party which is discerned from the alleged agreement. The decision of Ama ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e action of the ld. AO for framing assessment order u/s 143(3)/ 153A of I.T. Act , 1961 which is void ab-inito deserves to be quashed. 2. Under the facts and circumstances of the case, the ld. CIT(A) has erred in confirming the addition of Rs. 41.20 lacs earned on the transaction in connection with the land at Hanumanpura is not agricultural income as these transactions are adventure in nature of trade and as such profits from these transactions are business profit u/s 28 of the I.T. Act, 1961. 3. The assessee craves your indulgence to add amend or alter all our any grounds of appeal before or at the time of hearing.'' 8.2 We have heard the rival submissions and have carefully perused the entire record. The ld. AR has relied on his written submission apart from making oral submissions. On the other hand, the ld. DR has reiterated the arguments and reasons given before the ld. CIT(A). He has also relied on the findings of the AO and the ld. CIT(A). 8.3 After considering the written submissions, we have found that the Ground No. 1 of the assessee appeal was not pressed during hearing and therefore, the Ground No. 1 of the assessee stands dismissed. 9.1 The Ground No. 2 of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... settled that no addition can be made by relying on a statement on selective basis. The statement has to be read in its entirety. In our considered opinion, the AO has wrongly held that this transaction is an adventure in the nature of trade only because this purchase and sale was within short interval. The assessee has not been doing any trade or business as we have discussed in assessment year 2007-08 except in these solitary transaction of purchase and sale of land. There is no history of the assessee for carrying out trading activity in plots, land or agricultural land. The assessee has been held only as a broker only. Accordingly, this appeal of the assessee is allowed on merits. 10.0 In the result, the appeal of the assessee is partly allowed. ITA No. 368/JP/2013 for the assessment year 2009-10 - Assessee 11.1 This appeal of the assessee is directed against the order of the ld. CIT(A) , Central Jaipur dated 26-03-2013 for the assessment year 2009-10 wherein the assessee has raised following grounds. ''1. Under the facts and circumstances of the case, the ld. CIT(A) has erred in confirming the action of the ld. AO for framing assessment order u/s 143(3)/ 153A of I.T. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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