TMI Blog2003 (10) TMI 247X X X X Extracts X X X X X X X X Extracts X X X X ..... ir books of accounts. In response to the above query, assessee attended on 22nd Feb., 1996, with Shri Valjibhai Fakirbhai and submitted the evidences with regard to land bearing survey Nos. 337 and 338 sold by Valjibhai Fakirbhai. It is stated by the Valjibhai that he had sold the land survey Nos. 337 and 338 through Shri Umakant Contractor to 14 persons as stated by him, though the plotting work of the land 337 and 338 was done by Shri Umakant Contractor and same was sold by him to 14 persons, technically he is the seller in the said document deeds. On the details provided by the assessee and Shri Valjibhai Fakirbhai, it is seen that Shri Valjibhai sold land survey Nos. 337 and 338 after plotting to 14 persons in the month of June, 1991, July, 1991 and December, 1991, for a consideration Rs. 3,31,497. On being asked to Shri Valjibhai when the 3 gala houses were constructed, he could not give the dates of the contractor (sic-construction). Therefore, Shri Valjibhai was asked in the presence of the assessee to produce the details of the construction expenses of 3 gala house properties and the date of construction of the said properties. Shri Maneklal B. Reshamwala had promised to pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts are that the appellant purchased a plot of land from one lady called Paniben Fakirbhai, who was a widow and was the owner of the land comprising of plot Nos. 337, 338 and 339 in village Sultanabad, Distt. Surat, Plot No. 339 was purchased by the appellant and as per the deed of document, the total price was Rs. 1,95,000. It appears that because of certain difficulties with regard to the transfer of land, the assessee contention was that he sold the land to Smt. Paniben Fakirbhai for the same consideration. The AO made inquiries and deputed an Inspector, who came across one Shri Valjibhai Fakirbhai, who was one of the three sons of Smt. Paniben Fakirbhai. Shri Valjibhai informed the Inspector that his mother has sold a piece of land for Rs. 4,75,000 to one of his relatives Shri Umakant D. Contractor, who in turn had construed three gala type houses. Subsequently, on 2nd March, 1993, Shri Fakirbhai was summoned and his statement on oath was recorded in which he gave a statement that plot No. 339 had been sold to Shri Umakant Contractor, his relative and sale consideration was Rs. 4,75,000, but the documents price stated was only Rs. 1,97,000. He once again confirmed that Shri Umak ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , in the original inquiry made by the Inspector. This is evident by the fact that on the date of the inquiry made by the Inspector, Shri Valjibhai stated first of all that he did not know any person by the name of Shri M.B. Reshamwala and he was only aware that the plot was sold to his relative and is called Shri Umakant Contractor. Thus, it appear that he was referring to plot No. 338 at the time of inquiry made by the Inspector. From the statement given by the appellant it is also clear that the deal was done between the appellant and the land (landlady) and the sons were not in the picture. And probably it is for that reason that sons were not aware about the actual facts of the deal, as far as the appellant is concerned. This is confirmed by the fact that in the cross-examination Shri Valijibhai has clearly stated that as far as the appellant is concerned, he was not aware if a document existed, when in effect, the fact is that a purchase deed did exist between the appellant and the landlady. In the cross-examination Shri Valjibhai has confirmed the same facts as were stated by the appellant with regard to the deal made by him and the lady Paniben. Thus, the earlier statement o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the learned authorised representative relied on the order of CIT(A) and reiterated the following submission: "The assessment order which is the subject-matter of the present appeal, is a fresh assessment order passed on 29th March, 1996, in consequence of the directions given by the CIT(A) in his order quoted above. The CIT(A) may kindly note that this reassessment was also passed at the fag end of the limitation period prescribed for framing set aside orders and was rushed through without complying with the specific directions given by the Jt. CIT(A). It may kindly be noted that the main objection of the CIT(A) was that the most important persons whose evidence could have been material in deciding the issue had not been examined at all. That most important person was Shri Umakant Contractor who had acted as middleman and who also constructed the houses for Shri Valjibhai and his brothers. Sir, I humbly want to bring to your kind notice that the remade assessment order has also been passed without examining the most important person. Hence, the specific directions of the CIT(A) have been ignored in the reassessment order dt. 29th March, 1996. The decisions arrived at in this re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ks of account. The AOs have also got no objection regarding this. However, after the sale when the appellant went to Government land records office for registering it in his name he was told that the said plot was of less than 2 acres' dimensions and as such under the Land Ceilings Act, it could not be transferred in his name. Therefore, subsequently, Shri Maneklal returned the said land to Smt. Paniben and got back the amount of Rs. 1,95,000 which was earlier paid by him to her. It may kindly be noted that the sale/purchase transaction was between Smt. Paniben and Shri Maneklal and the deed witnessing it was also signed by that lady. She was staying in Surat and if at all the AO had any doubt about the sale/purchase transaction, the Asstt. CIT (sic-AO) ought to have called and examined that lady. None of the two AOs who framed the assessments had called and examined that lady. Instead, the AO deputed an Inspector to make oral enquiries. That Inspector came across one of the 3 sons of that lady viz., Shri Valjibhai Fakirbhai. That Inspector made enquiries with Shri Valjibhai and orally gathered that they had got 3 gala houses and some small amount of cash in consideration of sale ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... whose evidence could have been material for deciding the case has not been examined by the AO. Therefore, the matter is restored to the AO for re-examination of the case after recording the statement of Shr. Umakant Contractor, brother-in-law of Valjibhai Fakirbhai who was a middleman in the deal and who is also reported to have constructed the three gala type houses for Valjibhai and his two brothers. The AO is also directed to take into consideration the statement of witnesses who were present at the time of execution of sale and purchase documents of the land in question. Therefore, the case is set aside with a direction to the AO to reframe the assessment afresh after giving the appellant an adequate opportunity of being heard in the matter." On perusal of above direction we find that the CIT(A) has restored back the issue to the file of AO for re-examination of the case after recording the statement of Shri Umakant Contractor, brother-in-law of Valjibhai who was middleman in the deal and who is also reported to have constructed the three gala houses for Valjibhai and his two brothers. It has been further directed to AO to take into consideration the statements of witnesses w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1,97,500 and that amount was given in cash. Q. No. 3 On which date you have given a sign in this document? Ans. 3 In 1990, month is not remembered. After considering the totality of the facts of the case we are inclined to uphold the order of CIT(A) as AO has failed to examine Shri Umakant Contractor merely on the reasons that Shri Umakant Contractor has not complied with notice under s. 131. It is pertinent to mention that IT Act has provided sufficient powers under which the AO could have examined Shri Umakant Contractor. But the AO has not examined Shri Umakant Contractor and it is not fair and reasonable after considering the totality of the facts of the case to send back again the matter to the file of AO for re-examining Shri Umakant Contractor. It is admitted fact that the parties who were witnesses to the documents have been examined and their statements on oath have been taken wherein it has been admitted that the sale consideration of the property survey No. 339 was Rs. 1,95,000. It appears from the fact of the case that the AO failed to appreciate the fact that Paniben Fakirbhai was owner of land comprising plot S. Nos. 337, 338 and 339 in Sultanabad Village, Distt ..... X X X X Extracts X X X X X X X X Extracts X X X X
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