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(e) Similarly, payment of compensation for termination of development agreement of Rs.10,61,47,415/- has been paid by your father Shri Jagdishchandra B, Patel on 6/2/2010 to Prerna Infrabuild Limited for termination of development agreement dated 29/3/2007 under the documents prepared in the similar manner as done in ITA no.1116/Ahd/2014 Asstt. Year 2009-10 your case. That payment has also not been declared by Prerna Infrabuild Limited as income for A. Ys. 2009-10 & 2010-11.

11. We have heard the rival contentions and perused the records placed before us and gone through the various judgments and decisions relied by the Ld.Counsel. In this appeal assessee has challenged the order u/s.263 passed by Ld.CIT claiming it to be void and further deserves to be cancelled.

11.1 We notice that assesee in her income tax return for A.Y. 2009-10 has shown short term capital gain of Rs.95,06,960/- from selling one third shares in the land bearing survey no.344 and 355 at Sarkhej, Ahmedabad. This short term capital gain was calculated after claiming transfer expenses of ITA no.1116/Ahd/2014 Asstt. Year 2009-10 Rs.3,81,58,013/- paid to M/s.Prerna Infrbuild Ltd. From perusal of the order of Ld.CIT u/s.263 of the Act we find that the controversy is revolving round the compensation of Rs.3,81,58,013/-. Ld.Counsel has submitted that the assesse owned one third share in its survey no.Mouje, Sarkhej, Ahmedabad, along with other two co-owners Smt.Jankiben Hitendrabhai and Shri Parimalbhai Sureshbhai and this land was acquired in the March 2006 and thereafter on 29/03/2007 assessee entered into an agreement with Prerna Infrabuild Ltd. assigning development rights of her one third share in the land referred above at Sarkhej, Ahmedabad. Further in this development agreement assessee accepted the condition for getting assigned development rights in respect of 2/3 shares of other co-owners in favour of Prerna Infrabuild Ltd. and also to get no objection permission of different survey nos. Thereafter in October, 2007 assessee along with the other two co-owners entered into MOU for the sale of land to other company (other than Prerna Infrabuild Ltd.) because the other two co-owners did not agree to assign the development rights of their 2/3 shares in favour of Prerna Infrabuild Ltd. In order to cope up with this situation and to safeguard herself from possible dispute and litigation with Prerna Infrabuild Ltd. a matter was placed before Arbitrator Mr.Jashbhai Daha bhai Patel, Advocate. Arbitrator gave arbitration award on 29/04/2008 mentioning sum of Rs.3.81 crores as compensation to be paid by assessee to Prerna Infrabuild Ltd. for termination of development agreement. Thereafter termination agreement was signed on 03/05/2008, however, payment of arbitration award i.e compensation of Rs.3,81,58,013/- was paid by account payee cheque during the financial year 2009-10 to the account of Prerna Infrabuild Ltd. Ld.Counsel has placed copies of cheque realization certificates issued by Dena Bank, certifying that sum of Rs.3,81,58,013/- has been received by Prerna Infrabuild Ltd.

18.5 In the case of assesee also the facts are similar and there is a claim of expenditure of transfer expenses incurred in the course of selling agriculture land. Specific query was raised about impugned transaction of short term capital gain by the Assessing Officer. Assessee replied to this query by furnishing all the related documents including development agreement, termination agreement, arbitration agreement, arbitration award, details of payment by account payee cheque. On the basis of these details Ld.AO has completed the assessment proceedings and has also made due observation in the body of assessment order and has accepted the returned income shown by the assessee and accepted the impugned transaction of payment of transfer expenses paid to Prerna Infrabuild Ltd. for termination of development agreement as genuine.

ITA no.1116/Ahd/2014 Asstt. Year 2009-10 18.7 In the case of assessee when there are direct evidences available in the form of sale agreement, development agreement, termination agreement for terminating development agreement, arbitration agreement between assessee and Limited Company, passing of considerations as per arbitration award by account payee cheque from the account of assessee to the account of company which is further certified by the bankers certificate. The fact that payee company i.e M/s.Prerna Infrabuild Ltd. receive revenue from land development rights appears in its financial statement regularly. Ld.CIT has completely ignored all these direct evidences and has given weightage to the oral statement of the Managing Director of the company without placing on record the bank details and financial transactions of the payee company relating to revenue from land development rights. It seems that Ld.CIT wants Assessing Officer to enquire the assessee's case in different manner, which we find not justified as Ld.AO has already conducted sufficient enquiry.