TMI Blog2022 (5) TMI 1479X X X X Extracts X X X X X X X X Extracts X X X X ..... transfer of the land under consideration has not taken place, as sale deed has not been registered and as per the binding judgment in the case of CIT vs. Ashaland Corporation [ 1981 (7) TMI 57 - GUJARAT HIGH COURT] in which it has been held that the transfer of the immovable property take place on the date, sale deed is registered. The assessee s case is further found covered by the judgment in the case Alapati Venkatararniah vs. CIT [ 1965 (3) TMI 21 - SUPREME COURT] in which it has been held that title to immovable assets could not pass till conveyance was executed and registered. The possession of the land is also with the assessee; hence it is not a case of part performance as covered by section 53A of Transfer of Property Act. In the assessee's case, there is no proof that the assessee has received any consideration on sale of this land. CIT(A) deleted the addition. We have gone through the findings of ld CIT(A) and noted that there is no infirmity in the order of ld CIT(A). That being so, we decline to interfere with the order of Id. CIT(A) in deleting the aforesaid additions. His order on these additions are, therefore, upheld and the grounds of appeal of the Re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d.CIT(A) has failed to appreciate the fact that the Valuation Report of the DVO was mere estimates and sale instances of the locality as per their Jantri Value without taking into consideration the incriminating and corroborative evidences in respect of the very land in question, found and seized during the course of search proceedings and the overall development of the area in which the land in question was situated which includes the Dream City project. (iv) On the facts and circumstances of the case and in law, the Ld.CIT(A) has failed to appreciate that the assessee has not been able to bring on record any cogent explanation in respect of 'Saudha Chitthi' being not a live evidence and therefore, the admission of Shri Manoj C. Patel regarding the entirety of the transaction and involvement of 'on money' in the land transaction in question has to be given full effect to. The Ld.CIT(A) further failed to appreciate that the subsequent retraction of statement was only for the purpose and convenience of the parties involved in the whole land transaction and should not be guiding the appellate authority leading to ignoring of the clinching evidences brought on recor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... C. Patel was taken. During post search enquiries, the ITO (Inv.), Surat has analyzed data retrieved from the said mobile. Page No. 10 of file containing printout of data, has details regarding sale of land situated at Survey No. 203, Khajod, Surat. The assessing officer observed that it is an agreement for sale of land (saudha chithi) containing details of location of land, rate of land, area of land, term and conditions for payment, signatures of seller and purchaser with date. The ITO (Inv.) Surat had confronted Shri Manoj C. Patel regarding the notings found in the said page. Shri Manoj C. Patel as a partner of Hallmark tour had admitted in the statement recorded on oath dated 28.06.2017 that page no. 10 is regarding land situated at Survey No,203, Khajod, Surat admeasuring 9.45 Bigha, which is an agricultural land of Juni Sharat . The decoded rate is written as 8.82 per Bigha which means Rs.8,82,00,000/- per Bigha, Therefore, the entire amount of the land works out at Rs.83,34,90,000/- (8,82,00,000 x 9.45). Though location of the said piece of land, rate and other terms and conditions can be ascertained from plain reading of said saudha chithi, however assessing officer noted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and was recorded on 14.12.2018 in which he has admitted that he has sold 96% of his share to Shri Puranbhai Chandwani, Shri Shankerbhai Uttamani Others but their names have not been registered in the land record yet, which prove that in land transactions, the names of many people who are involved in the transactions are not mentioned and such people exit from the transactions after earning profit. The Assessing Officer further stated that the land under consideration is situated near to Surat Diamond Bourse (SDB), therefore the rates of the land are going to be higher in future. During the course of assessment proceedings, the assessee requested for cross-examination of Shri Manoj C. Patel and Shri Jayantibhai Babariya, whose statements were recorded by the Authorized Officer and Assessing Officer but the Assessing Officer rejected the same by stating that the crossexamination has been sought at the flag end of the year, therefore it is misplaced, hence not allowed. Therefore, Assessing Officer, based on the saudha chithi passed the assessment order on 29.12.2018 and made additions of Rs.13,86,85,279/- to the returned income considering unexplained capital gain in the hands of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sauda chithi is not justified. The ld Counsel further contended that while making the addition, the assessing officer has relied upon the statement of Shri Manoj C. Patel, however, assessee has not been provided with the opportunity of cross examination. Finally, the ld Counsel stated that order passed by the ld CIT(A) is just and proper and does not require interference. 13. We have heard both the parties and carefully gone through the submissions put forth on behalf of the assessee along with the documents furnished and the case laws relied upon, and perused the facts of the case including the findings of the ld. CIT(A) and other material brought on record. Though facts have been discussed in detail in the foregoing paragraphs, however in the succinct manner, the relevant facts and background are reiterated in order to appreciate the controversy and the issue for adjudication. We note that in assessment year 2017-18, the assessing officer worked out the total addition in the hand of the assessee at of Rs.27,78,30,000/- (Rs.83,34,90,000/3) as unaccounted income of the assessee having 1/3rd share. Out of said total addition of Rs. 27,78,30,000/-, the 50% of the same, that is R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d and not the wrong person. We note that sauda chithi does not pertain to the assesseee. The assessing officer made addition based on the said sauda chithi which was found from third party, Shri Manoj C. Papel. The said sauda chithi does not contain the name of the assessee. We note that Shri Manoj C. Patel did not say that said sauda chithi pertains to assessee. No opportunity for cross examination of Shri Manoj C. Patel was provided to the assessee. Therefore, we are of the view that said sauda chithi is not a relevant document to fasten the tax liability on the assessee and to collect tax from the assessee. 15. We note that capital gain arises in the hands of assessee, provided there is transfer of capital asset during the previous year relevant to assessment year under consideration, that is, assessment year 2017-18. During the assessment year 2017- 18, the assessee was owner of land, it was not sold. That is, the land has not been transferred to any one by registering the sale deed and it is in the name of the assessee and other two co-owners which is seen even from the report of DVO submitted on 29.12.2018. These facts prove that the transfer of the land under co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hitthi found from the third party premises. The DVO, Surat has submitted his report dated 29.12.2018 which was received by the Assessing Officer on 31.12.2019, in which the total value of the land under consideration has been determined at Rs.6,57,36,000/- and the assessee's share i.e. 1/3rd in the above mentioned property was determined by the DVO at Rs.2,19,12,000/-. The Assessing Officer while passing the assessment order of the assessee for A.Y.2018-19, immediate subsequent year vide order dated 07.05.2021, has accepted the value determined by the DVO and made the additions of Rs.1,07,19,318/- only i.e. 50% in the assessment order instead of Rs.13,86,85,279/- as made for the year consideration. This addition was after allowing cost of acquisition and indexation. From these facts, it is clear that Assessing Officer himself has accepted the valuation report which determined value of the total land at Rs.6,57,36,000/- instead of Rs.83,34,90,000/-. The assessee's 1/3rd share has been accepted by the Assessing Officer A.Y.2018-19 at Rs.2,19,12,000/- instead of Rs.27,78,30,000/- while passing the assessment order for assessment year 2018-19. The ld Counsel pleaded that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ote that ld Counsel also contended that cross-examination of Shri Manoj C. Patel and Shri Jayantibhai Babariya whose statements were recorded by the Investigation Wing and also by the Assessing Officer, was requested from the Assessing Officer. However, the same has been denied by the Assessing Officer stating that the request for cross-examination has been submitted at the flag end of the year. The assessee stated that the assessment under consideration was not getting barred by limitation of time on 31st December, 2018 and the Assessing Officer had one more year to complete the assessment u/s 143(3) of the Act. Therefore, the contention of the Assessing Officer that request has been submitted at the flag end of the year is factually incorrect. Thus, we note that assessee has requested for cross examination of Shri Manoj C. Patel and Shri Jayantibhai Babariya as mentioned in the para 8.9 of the assessment order, that is, Statement of these two persons were recorded by the Authorized Officer and the Assessing Officer, during the course of search and during the course of assessment proceedings respectively. The Assessing Officer has relied upon the statement of Shri Manoj C. Patel f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... undisputed fact that additions have been made by the Assessing Officer on the basis of sauda chithi found during the course of search on 18.03.2017 at the premises of M/s, Hallmark Tour after taking mirror images of Samsung mobile phone of Shri Manoj C. Patel. This mirror image was taken after few months of search and statement of Shri Manoj C. Patel was recorded on this issue first time on 28.06.2017. In the statement, Shri Manoj C, Patel stated that the said sauda chithi has been sent to him on whatsapp by one Shri Jayantibhai Babariya of Avadh Group. In the above sauda chithi , signature of buyers and sellers are there but these are not legible and from the sauda chithi itself, it cannot be ascertained that who is the buyer and who is the seller of land. Therefore, the Assessing Officer made enquiries from Dy. Marnlatdar Officer, Surat about the ownership of land i.e. plot no. 203 Khajod, Surat and found that land is in the name of the assessee and two other persons namely Apurva Vikrambhai Pal HUF and Pravinchandra Dahyabhai Umrigar. The assessee has 1/3rd share in the above mentioned land. Shri Manoj C. Patel also did not mention the name of the assessee, while recordin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ar as the assessee is concerned. Hence, the additions cannot be made on the basis of such dumb documents. The ld CIT(A) relied on the judgment of Hon'ble Supreme Court of India in the case of Common Cause (A Registered Society) Others Vs. Union of India Others (2017) 98 CCH 0028 (SC) and CBI Vs. V.C. Shiukla AIR 1998 SC 1406. As the additions has been made by the Assessing Officer on the basis of dumb documents, these additions deserves to be deleted. 20. The ld CIT(A) observed that land has not been transferred to any one by registering the sale deed and it is in the name of the assessee and other two coowners which is seen even from the report of DVO submitted on 29.12.2018. These facts prove that the transfer of the land under consideration has not taken place, as sale deed has not been registered and as per the binding judgment of Hon'ble High Court of Gujarat in the case of CIT vs. Ashaland Corporation (1992) 133 ITR 55 (Guj.) in which it has been held that the transfer of the immovable property take place on the date, sale deed is registered. The assessee s case is further found covered by the judgment of Hon'ble Supreme Court of India in the case Alapati V ..... X X X X Extracts X X X X X X X X Extracts X X X X
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