Income Tax Appellate Tribunal - Jaipur
Shri Sukhveer Yadav, Alwar vs Income Tax Officer, Ward-1-5, Alwar on 21 May, 2018
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IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES, JAIPUR
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BEFORE: SHRI VIJAY PAL RAO, JM & SHRI BHAGCHAND, AM
vk;dj vihy la-@ITA No. 739/JP/2017
fu/kZkj.k o"kZ@Assessment Years : 2009-10.
Sh. Sukhveer Yadav S/o Ram Swaroop, cuke The Income Tax Officer,
Kuriyan Ki Dhani, Tehsil-Bansur Vs. Ward 1(5),
Distt. Alwar. Alwar.
LFkk;h ys[kk la-@thvkbZvkj la-@PAN/GIR No. APBPY 7125 C
vihykFkhZ@Appellant izR;FkhZ@Respondent
fu/kZkfjrh dh vksj ls@Assessee by : Shri R.S. Yadav (CA)
jktLo dh vksj ls@ Revenue by : Smt. Poonam Rai (DCIT)
lquokbZ dh rkjh[k@ Date of Hearing : 17.05.2018.
?kks"k.kk dh rkjh[k@ Date of Pronouncement : 21/05/2018.
vkns'k@ ORDER
PER VIJAY PAL RAO, J.M.
This appeal by the assessee is directed against the order dated 28.07.2017 of ld. CIT (A), Alwar for the assessment year 2009-10.
2. The assessee is an Individual and agriculturist. The assessee is not assessed to tax. The AO received information of NON PAN AIR that the assessee has deposited in his bank account an amount of Rs. 32,50,000/- in cash. Accordingly, the AO reopened the assessment by issuing a notice under section 148 dated 21st March, 2016. During the assessment proceedings the assessee explained the source of cash deposit in the bank account as the sale consideration of agricultural land in which the assessee is having ½ share along with his brother. The AO noted that as per the sale deed the sale consideration was only Rs. 21,60,000/- and assessee's 2 ITA No. 739/JP/2017 Shri Sukhveer, Alwar.
50% share comes to Rs. 10,80,000/-. Thus the AO accepted the source of deposit to the extent of Rs. 10,80,000/-. The assessee produced an Agreement to Sale dated 28th August, 2008 and submitted that the actual sale consideration agreed by the parties and received by the assessee is given in the Agreement to Sale and, therefore, the assessee received the consideration of Rs. 32,50,000/- against the sale of agricultural land as per the agreement to sale. The AO did not accept the contention of the assessee and was of the view that the said agreement to sale is not a registered document and, therefore, the same cannot be accepted as a valid document of transfer. The assessee challenged the action of the AO before the ld. CIT (A) but could not succeed.
3. Before us, the ld. A/R of the assessee has submitted that the actual sale consideration of land in question is stated in the Agreement to Sale dated 28.8.2008. However, thereafter the sale deed dated 15.10.2008 was executed and in order to save the stamp duty, the purchaser of the land has shown the consideration in the sale deed only to the extent of DLC rate of the land in question. Thus the ld. A/R has submitted that when the actual sale consideration is received by the assessee as per the agreement to sale, then the consideration mentioned in the sale deed cannot be a basis for addition made by the AO for deposit in the bank account. The AO has not brought anything on record to show that the assessee is having any other source of income other than agriculture. Therefore, if the said amount is not accepted as sale consideration of agricultural land, then in the absence of other source of income, the agricultural income of the assessee is also not liable to tax. 3 ITA No. 739/JP/2017
Shri Sukhveer, Alwar.
3.1 On the other hand, the ld. D/R has strongly relied on the orders of the authorities below and submitted that as per section 17 of the Registration Act, an agreement for transfer of immovable property must be registered for the purpose of section 53A of the Transfer of Property Act. Thus the ld. D/R has contended that the alleged agreement to sale which is unregistered document cannot be considered a valid evidence in support of the claim of the assessee.
4. Having considered the rival submissions as well as the relevant material on record, we note that the assessee along with his brother entered into an agreement dated 28.8.2008 with Shri Shabudeen, Jamshed S/o Jagdev resident of village Mundana Meo, Tehsil- Tijara, District Alwar (Rajasthan) for sale of agricultural land for a consideration of Rs. 68,37,600/-. The assessee is having 50% share in the said land and accordingly the share of the assessee comes to Rs. 34,18,800/-. We further note that the agreement to sale was duly signed by the seller as well as by the purchaser and was also signed by the attesting witnesses and Notary Public. The attestation of Notary Public also has given the details of the serial number, date as per its register maintained for the purpose of attestation of documents. Thus it is clear that though the said agreement to sale is not a registered document but the assessee has not claimed the transfer of the agricultural land through the said agreement to sale but the transfer was finally completed vide two sale deeds dated 15th October, 2008. The only dispute is the sale consideration which is shown in the agreement to sale which is much higher than the consideration shown in the sale deeds. The assessee explained that the actual consideration for the agricultural land in question was received by the assessee and his brother as per the agreement to 4 ITA No. 739/JP/2017 Shri Sukhveer, Alwar.
sale. However, the consideration shown in the sale deed was purposefully shown equivalent to the DLC rate so that the stamp duty expenditure could have been kept minimized by the purchaser. Though the ld. D/R has raised an objection of unregistered agreement to sale, however, we find that the execution of agreement to sale and the signatures of the parties has not been disputed by the AO and even if the AO was having any doubt about the genuineness of the agreement, then it could have been verified and examined by calling all the parties to the agreement. The AO instead of conducting enquiry to verify the agreement to sale, has proceeded only on the basis of the sale deed for the purpose of the sale consideration of agricultural land in question. The AO has not disputed the land in question being agricultural land and not subjected to capital gains tax and, therefore, when the assessee is not having any other source of income and the only income is agricultural income, then the said explanation of the assessee cannot be rejected without bringing any evidence to contradict the facts recorded in the agreement to sale. Once the assessee has explained the source of deposit in the bank as sale consideration of agricultural land and also produced the agreement to sale in support of the said claim, the AO ought to have verified the genuineness of the agreement to sale and the consideration as agreed upon by the parties as per the agreement to sale. In the absence of any contrary facts or material brought by the AO, the rejection of evidence produced by the assessee is not justified. Accordingly having regard to the facts and circumstances of the case, we find that the assessee has explained the source of deposit in bank by producing the 5 ITA No. 739/JP/2017 Shri Sukhveer, Alwar.
supporting evidence and, therefore, the addition made by the AO is not justified. Accordingly, we delete the addition made by the AO.
5. In the result, appeal of the assessee is allowed.
Order pronounced in the open court on 21/05/2018.
Sd/- Sd/-
¼ HkkxpUn½ ¼ fot; iky jkWo ½
(BHAGCHAND) ( VIJAY PAL RAO )
ys[kk lnL;@Accountant Member U;kf;d lnL;@Judicial Member
Tk;iqj@Jaipur
fnukad@Dated:- 21/05/2018.
das/
vkns'k dh izfrfyfi vxzfs 'kr@Copy of the order forwarded to:
1. vihykFkhZ@The Appellant- Shri Sukhveer Yadav, Alwar.
2. izR;FkhZ@ The Respondent-The ITO Ward 1(5), Alwar.
3. vk;dj vk;qDr@ CIT
4. vk;dj vk;qDr@ CIT(A)
5. foHkkxh; izfrfuf/k] vk;dj vihyh; vf/kdj.k] t;iqj@DR, ITAT, Jaipur
6. xkMZ QkbZy@ Guard File {ITA No. 739/JP/2017} vkns'kkuqlkj@ By order, lgk;d iathdkj@Asst. Registrar