ASHA SAMARIYA, Jaipur v. ITO, Jaipur

ITA 575/JPR/2016 | 2006-2007
Pronouncement Date: 25-10-2016 | Result: Partly Allowed

Appeal Details

RSA Number 57523114 RSA 2016
Assessee PAN ADDPS7241R
Bench Jaipur
Appeal Number ITA 575/JPR/2016
Duration Of Justice 4 month(s) 25 day(s)
Appellant ASHA SAMARIYA, Jaipur
Respondent ITO, Jaipur
Appeal Type Income Tax Appeal
Pronouncement Date 25-10-2016
Appeal Filed By Assessee
Order Result Partly Allowed
Bench Allotted Not Allotted
Tribunal Order Date 25-10-2016
Assessment Year 2006-2007
Appeal Filed On 31-05-2016
Judgment Text
VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL JAIPUR BENCHES (SMC) JAIPUR JH HKKXPUN] YS[KK LNL; DS LE{K BEFORE: SHRI BHAGCHAND ACCOUNTANT MEMBER VK;DJ VIHY LA-@ ITA NO. 575/JP/2016 FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2006-07 SMT. ASHA SAMARIYA B-151 SAKET COLONY ADARSH NAGAR JAIPUR CUKE VS. THE ITO WARD- 5(2) JAIPUR LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO .: ADDPS 7241 R VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT VK;DJ VIHY LA-@ ITA NO. 590/JP/2016 FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2006-07 SMT. SULOCHANA GUPTA B-137 SAKET COLONY ADARSH NAGAR JAIPUR CUKE VS. THE ITO WARD- 5(2) JAIPUR LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO .: AASPG 5161 C VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT VK;DJ VIHY LA-@ ITA NO. 591/JP/2016 FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2006-07 SMT. URMILA TAMBI B-81 JANTA COLONY JAIPUR CUKE VS. THE ITO WARD- 5(2) JAIPUR LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO .: AAJPT 3486 G VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT VK;DJ VIHY LA-@ ITA NO. 592/JP/2016 FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2006-07 SMT. ABHA AGARWAL 8/138 VIDHYADHAR NAGAR JAIPUR CUKE VS. THE ITO WARD- 1(3) JAIPUR LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO .: ABMPA 6593 M VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT ITA NO. 575/JP/2016 SMT. ASHA SAMARIYA VS. ITO WARD- 5 (2) JAIPUR . 2 VK;DJ VIHY LA-@ ITA NO. 593/JP/2016 FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2006-07 SMT. KRISHNA DEVI KHANDELWAL 873-874 TIKKARMAL KA RASTA KISHANPOLE BAZAR JAIPUR CUKE VS. THE ITO WARD- 1(4) JAIPUR LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO .: ABOPD 2746 B VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY: SHRI P.C. PARWAL CA JKTLO DH VKSJ LS@ REVENUE BY :SHRI R.A. VERMA ADDL CIT-. DR LQUOKBZ DH RKJH[K@ DATE OF HEARING : 06/10/2016 ?KKS'K .KK DH RKJH[K@ DATE OF PRONOUNCEMENT : 25/10/2016 VKNS'K@ ORDER PER BHAGCHAND AM THESE APPEALS HAVE BEEN FILED BY THE ABOVE MENTIONE D ASSESSEE'S AGAINST DIFFERENT ORDERS OF THE LD. CIT (A)S I.E. LD. CIT(A)-2 JAIPUR DATED 30-03-2016 LD. CIT(A)-2 JAIPUR DATED 28-03-2016 LD. CIT(A)-2 JAIPUR DATED 28-03-2016 LD. CIT(A)-1 JAIPUR DATED 9-03-2 016 AND LD. CIT(A)- 1 JAIPUR DATED 9-03-2016 FOR THE COMMON ASSESSMENT YEAR 2006-07. 2.1 THE COMMON GROUNDS OF APPEALS RAISED IN THE ABO VE APPEALS BY THE ASSESSEE'S ARE REPRODUCED AS UNDER:- GROUNDS OF APPEAL 1. THE LD. CIT(A) HAS ERRED ON FACTS AND IN LAW IN UPH OLDING THE VALIDITY OF THE ORDER PASSED BY AO U/S 147 OF THE IT ACT 19 61. ITA NO. 575/JP/2016 SMT. ASHA SAMARIYA VS. ITO WARD- 5 (2) JAIPUR . 3 2. THE LD. CIT(A) HAS ERRED ON FACTS AND IN LAW I N CONFIRMING THE ACTION OF AO IN HOLDING THAT ASSESSEE ALONG WITH OTHER CO- OWNERS HAVE SOLD 14 213 SQ. YD. OF LAND TO SH. RAJESH TAMBI/ MANOJ SONKHIYA FOR RS.1 1 6 72 300/- ON THE BASIS OF THE PAPERS IMPOUNDED FROM THE PREMISES OF VEDANG COLONI ZERS PRIVATE LIMITED BY DRAWING VARIOUS INFERENCES IGNORING THAT PAPER NOWH ERE RECORD THAT THE ASSESSEE AND THE OTHER CO-OWNERS OF THIS LAND HAS SOLD THE SAME TO RAJESH TAMBI/MANOJ SOKHIA. 2.1 THE LD. CIT(A) HAS ERRED ON FACTS AND IN LAW IN UPHOLDING THE ORDER OF THE AO IN WORKING OUT THE ALLEGED PROFIT ON SALE OF THE ABOVE LAND AT RS.1 10 04 005/- AND THEREBY HOLDING THAT 1/5 TH SHARE OF THE ASSESSEE WORKED OUT AT RS.22 00 801/- IS LIABLE TO INCOME TAX. 2.2 THE LD. CIT(A) HAS ERRED ON FACTS AND IN LAW IN HOLDING THAT THE SAID PROFIT IS LIABLE FOR TAX PROPORTIONATELY IN THE YEA RS IN WHICH THE SALE DEED WERE EXECUTED BY THE CO-OWNERS OF LAND. 2.3 THE LD. CIT(A) HAS ERRED ON FACTS AND IN LAW IN HOLDING THAT AS ONE SALE DEED IS EXECUTED IN THE YEAR UNDER CONSIDERATI ON THE PROPORTIONATE PROFIT IS TAXABLE IN THE YEAR UNDER CONSIDERATION IGNORING TH AT SUCH SALE HAS NO CORRELATION WITH THE 14 213 SQ. YD. OF THE LAND ALLEGED TO BE SOLD T O SH. RAJESH TAMBI/ MANOJ SONKHIYA. SHE HAS FURTHER ERRED IN GIVING THE DIREC TION TO REOPEN THE ASSESSMENT OF THE APPELLANT FOR THE YEARS IN WHICH THE SALE DEED OF T HE LAND WAS EXECUTED BY THE APPELLANT. 2.4 THE LD. CIT(A) HAS ERRED ON FACTS AND IN LAW I N IGNORING THAT THE TRANSACTION OF 14 213 SQ. YD. OF LAND AS NOTED IN THE IMPOUNDED PAPERS SEIZED IN THE SURVEY FROM THE PREMISES OF M/S VEDANG COLONIZERS P VT. LTD. WHICH IS THE BASIS FOR MAKING THE ADDITION FALLS IN AY 2005-06 AND THEREFO RE ON THE BASIS OF SUCH PAPER NO ADDITION CAN BE MADE EITHER IN AY 2006-07 OR IN THE YEAR IN WHICH THE SALE DEED IS EXECUTED. 2.5 THE LD. CIT(A) HAS ERRED ON FACTS AND IN LAW I N HOLDING THAT PROFIT ON SALE OF LAND IS TO BE ASSESSED AS INCOME FROM BUSIN ESS AS AGAINST INCOME FROM CAPITAL GAIN DECLARED BY THE ASSESSEE . 2.2 THE COMMON GROUND NO. 3 RAISED IN THE CASE OF S MT. ASHA SAMARIYA (ITA NO. 575/JP/2015) AND IN THE CASE OF S MT. KRISHNA DEVI KHANDELWAL (ITA NO. 593/JP/2016) ARE REPRODUCED AS UNDER:- 3. THE LD. CIT(A) HAS ERRED ON FACTS AND IN LAW I N NOT ALLOWING THE CLAIM OF DEVELOPMENT EXPENDITURE OF RS.3 LACS I NCURRED BY THE ASSESSEE ONLY ON THE GROUND THAT NO DOCUMENTARY EVIDENCE HA S BEEN FURNISHED BY THE ITA NO. 575/JP/2016 SMT. ASHA SAMARIYA VS. ITO WARD- 5 (2) JAIPUR . 4 ASSESSEE THOUGH AT THE SAME TIME ACCEPTING THAT IN THE SALE DEED EXECUTED ON 12.06.2008 IT IS STATED THAT ASSESSEE HAS CONSTRUCT ED FARM HOUSE IN THE NAME OF VASTU ENCLAVE AND THUS DEVELOPMENT EXPENDITURE HAS BEEN INCURRED BY THE ASSESSEE. 3.1 APROPOS GROUND NO. 1 OF THE ASSESSEE BRIEF FACTS O F THE CASE ARE THAT ASSESSEES VIDE TWO SALE DEEDS DATED 22.09.20 04 PURCHASED 71 238.75 SQ. YARDS OF LAND FROM SH. RAJ KUMAR JALA N AND SMT. KUSUM JALAN AT VILLAGE HARDHYANPURA TEHSIL BASSI JAIPU R FOR A CONSIDERATION OF RS. 33.50 LACS (RS.31 LACS + EXPENSES ON REGISTRATI ON OF RS.2.50 LACS). DURING THE YEAR 0.9 BISWA OF THE LAND I.E. 1361 S Q. YARD WAS SOLD TO SH. KAMAL KISHORE VIDE SALE DEED DATED 01.02.2006 FOR A CONSIDERATION OF RS. 1 LACS. ACCORDINGLY INCOME FROM CAPITAL GAI N WAS DECLARED BY THE ASSESSEES IN THEIR RESPECTIVE RETURN OF INCOME (IN CASE OF SMT. ASHA SAMARIYA AND KRISHNA DEVI KHANDELWAL CAPITAL GAIN WAS OFFERED DURING THE COURSE OF ASSESSMENT PROCEEDINGS). A SURVEY WAS CARRIED OUT AT THE BUSINESS PREMISES OF M/S VEDANG COLONIZERS PVT. LTD . ON 14.08.2012 WHERE CERTAIN DOCUMENTS INCLUDING ANNEXURE AA-2 CON TAINING 69 PAGES WERE IMPOUNDED. THE AO OF WARD 6(1) RECORDED THE STATEMENT OF SH. RAJESH TAMBI ONE OF THE DIRECTOR OF THE COMPANY ON 13.03.2013 WHERE HE STATED IN REPLY TO Q.NO. 2 AND 3 THAT HE ALONG W ITH SH. MANOJ SONKHIYA HAS CARRIED OUT DALALI IN PROPERTIES IN F.Y. 04-05 BUT AS THERE WERE SOME ITA NO. 575/JP/2016 SMT. ASHA SAMARIYA VS. ITO WARD- 5 (2) JAIPUR . 5 DISPUTE BETWEEN HIM AND SH. MANOJ SONKHIYA THESE PA PERS WERE MADE OUT FOR SETTLEMENT OF THE DISPUTE BETWEEN THEM AND WERE GIVEN TO SH. NARESH AGARWAL AND SH. RAKESH GOYAL FOR ACTING AS ARBITRATOR WHICH ARE LYING WITH THEM FOR LAST 4-5 YEARS. IN THIS STA TEMENT SH. RAJESH TAMBI IN Q. NO. 9 STATED THAT PAGE 53 OF THE ANNEXURE RE LATE TO DALALI TRANSACTION OF VASTU FARM WHICH IS DEVELOPED BY THE ABOVE FIVE ASSESSEES. ON THE BASIS OF THIS STATEMENT THE RESPECTIVE AOS RECORD ED THE REASONS STATING THAT PAGE 53 OF ANNEXURE AA-2 RELATE TO TRANSACTION OF PURCHASE AND SALE OF LAND AT NAYALA EXECUTED BY ASSESSEE ALONG WITH F OUR OTHER PERSONS. THE NET PROFIT ON THE TRANSACTION IS RS.36 04 654/- ON INVESTMENT OF RS.1 16 72 300/-. THE INVESTMENT AND NET PROFIT OF THE ASSESSEE BEING 1/5 TH AMOUNTS TO RS.30 55 390/- WHICH IS NOT DISCLOSED AN D THEREFORE INCOME TO THIS EXTENT HAS ESCAPED ASSESSMENT. ACCORDINGLY NO TICE U/S 148 WAS ISSUED IN CASE OF ALL THE FIVE ASSESSEES. THE ASSE SSEE OBJECTED THE ISSUANCE OF NOTICE U/S 148 ON THE GROUND THAT ASSES SMENT IS REOPENED ONLY ON THE BASIS OF DOCUMENT IMPOUNDED FROM THE PREMISE S OF VEDANG COLONIZERS PVT. LTD. AND THE STATEMENT OF RAJESH TA MBI RECORDED ON 13.03.2013. THE AO HOWEVER HELD THAT REOPENING OF THE ASSESSMENT ON THE BASIS OF THE PAPERS SEIZED FROM THIRD PARTY CAN BE MADE FOR WHICH HE ITA NO. 575/JP/2016 SMT. ASHA SAMARIYA VS. ITO WARD- 5 (2) JAIPUR . 6 RELIED ON DECISION OF HON'BLE APEX COURT IN THE CAS E OF ITO VS. PURSHOTTAM DAS BANGUR AND ANOTHER 224 ITR 362 (SC). 3.2 IN FIRST APPEAL BEFORE THE LD. CIT(A) ASSESSE E FILED DETAILED EXPLANATION CHALLENGING THE VALIDITY OF REOPENING. THE LD. CIT(A) CALLED A REMAND REPORT. IN THE REMAND REPORT AO ACCEPTED T HAT THE ASSESSMENT WAS REOPENED TO TAX THE UNDISCLOSED INVESTMENT AND THE NET PROFIT OF RS.30 55 390/- BUT FINALLY THE ADDITION IS MADE ON ACCOUNT OF INCOME FROM PURCHASE AND SALE OF LAND AT RS.22 00 801/- WH ICH IS ALSO BASED ON PAGE 53 OF ANNEXURE AA-2. THE LD. CIT(A) ACCORDINGL Y HELD THAT AO HAS PRIMA FACIE REASON TO BELIEVE THAT SOME INCOME HAS ESCAPED ASSESSMENT AND THEREFORE HE UPHELD THE VALIDITY OF ASSESSMENT U/S 147 BY RELYING ON THE DECISION OF SUPREME COURT IN CASE OF RAYMOND WO LLEN MILLS LTD. VS. ITO 236 ITR 34 AND RAJESH JHAVERI STOCK BROKERS PVT . LTD. 291 ITR 500. THUS THE LD. CIT(A) CONFIRMED THE ACTION OF THE AO. 3.3 DURING THE COURSE OF HEARING THE LD. AR OF THE PRAYED THAT THE AUTHORITIES BELOW HAVE WRONGLY APPLIED THE PROVISIO NS OF SECTION 147 OF THE ACT FOR WHICH THE LD. AR OF THE ASSESSEE FILED HIS WRITTEN SUBMISSION AS UNDER:- 1. IT IS SUBMITTED THAT ONLY BASIS FOR REOPENING THE A SSESSMENT IS THE STATEMENT OF SH. RAJESH TAMBI RECORDED ON 13.03 .2013. IN THIS STATEMENT SH. RAJESH TAMBI HAS CATEGORICALLY STATED IN REPLY TO Q. NO. 2 AND 3 THAT ANNEXURE AA-2 PERTAIN TO THE DALALI ACTIVITY FOR F. Y. 04-05 WHICH HE CARRIED ITA NO. 575/JP/2016 SMT. ASHA SAMARIYA VS. ITO WARD- 5 (2) JAIPUR . 7 OUT ALONG WITH SH. MANOJ SONKHIYA WHERE SOME DISPUT E HAS ARISEN BETWEEN THEM REGARDING THE ACCOUNT. AGAIN IN Q. NO. 4 HE W ITH REFERENCE TO 69 PAGES OF ANNEXURE AA-2 STATED THAT THESE PAPERS RELATE TO THE LAND DALALI WHICH THEY STARTED IN F.Y. 2004. THUS SH. RAJESH TAMBI HAS CA TEGORICALLY STATED THAT THE PAPERS IN ANNEXURE AA-2 PERTAIN TO F.Y. 04-05. THER E IS NO PERIOD/ DATE MENTIONED ON PAGE 53 OF THIS ANNEXURE. THEREFORE T HERE IS NO BASIS TO ASSUME AT THE TIME OF REOPENING OF THE ASSESSMENT THAT PAG E 53 OF THIS ANNEXURE PERTAIN TO A.Y. 06-07. HENCE REOPENING FOR A.Y. 06 -07 IS ILLEGAL AND BAD IN LAW AND THE SAME BE QUASHED. 2. IT MAY ALSO BE STATED THAT THE AO REOPENED THE A SSESSMENT FOR THE REASON THAT AS PER PAGE 53 OF ANNEXURE AA-2 ASSESS EE MADE INVESTMENT IN PURCHASE OF LAND AT RS.1 16 72 300/- AND SOLD THE S AME FOR RS.1 52 76 954/- AND THUS EARNED PROFIT OF RS.36 04 654/-. ACCORDING LY THE SHARE OF EACH OF THE ASSESSEE IN THE INVESTMENT AND PROFIT IN THE LAND I S RS.30 55 390/- (1/5 TH OF 1 16 72 300 + 36 04 654). THEREAFTER IN COURSE OF ASSESSMENT PROCEEDINGS AO HIMSELF ACCEPTED THAT THE PAPER DO NOT RELATE TO THE INVESTMENT AND PROFIT IN LAND BY THE ASSESSEE BUT THE PAPER IS IN RESPECT OF PART OF THE LAND SOLD BY THE ASSESSEE TO SH. RAJESH TAMBI. THIS PROVES THAT THE AO HAS NOT APPLIED HIS MIND AT THE TIME OF RECORDING OF REASONS BUT HAS ON LY REPRODUCED THE INFORMATION COMMUNICATED TO HIM BY ITO WARD 6(1) J AIPUR. IT IS A SETTLED LAW THAT REOPENING OF AN ASSESSMENT CAN BE MADE ONLY WH EN THE AO HIMSELF HAS A REASON TO BELIEVE FROM THE INFORMATION RECEIVED FRO M OTHERS THAT INCOME OF A PARTICULAR ASSESSMENT YEAR HAS ESCAPED ASSESSMENT. HE CANNOT REOPEN THE ASSESSMENT SOLELY ON THE BASIS OF WHAT HAS BEEN COM MUNICATED TO HIM FROM THIRD PARTY. HENCE ON THIS GROUND ALSO THE REOPEN ING OF THE ASSESSMENT IS BAD IN LAW. 3. IT IS ALSO SUBMITTED THAT SH. RAJESH TAMBI HAS N OT STATED THAT HE PURCHASED ANY LAND FROM THE ASSESSEE. THE PAPER ALS O DOES NOT INDICATE THAT ASSESSEE HAS SOLD ANY LAND TO SH. RAJESH TAMBI. THE REFORE THE REASONS RECORDED BY THE AO FOR REOPENING OF THE ASSESSMENT THAT ASSESSEE MADE PURCHASE OF LAND AND SOLD THEM IN A.Y. 06-07 RESULT ING INTO PROFIT AND THEREFORE THE INVESTMENT AND PROFIT HAS ESCAPED ASS ESSMENT IS INCORRECT. THIS FACT IS ALSO ACCEPTED BY THE AO IN MAKING THE ASSES SMENT. THUS THE REASON FOR WHICH THE ASSESSMENT WAS REOPENED HAS NOT SURVIVED. ONCE THE VERY BASIS ON WHICH THE REASSESSMENT IS REOPENED DO NOT SURVIVE NO ADDITION CAN BE MADE ON SOME OTHER GROUND OR REASON WHICH IS NOT THE BAS IS OF REOPENING THE ASSESSMENT. FOR THIS PROPOSITION RELIANCE IS PLACE D IN CASE OF CIT VS. JET AIRWAYS INDIA LTD 52 DTR 71 (BOM.) ACIT VS. MAJOR DEEPAK MEHTA 65 DTR 237 (CHATTISGARH) CIT VS. DEVENDRA GUPTA 220 C TR 629 (RAJ.) AND CIT VS. SH. RAM SINGH 306 ITR 343 (RAJ.). THE GIST OF T HESE CASES ARE AT PAGE 7-9 OF THE CIT(A) ORDER OF SMT. ABHA AGARWAL. 4. THE LD. CIT(A) WITHOUT COUNTERING THE ABOVE SUBM ISSION MADE BEFORE HIM HAS SIMPLY STATED THAT TRANSACTION FOR WHICH TH E CASE WAS REOPENED RELATE ITA NO. 575/JP/2016 SMT. ASHA SAMARIYA VS. ITO WARD- 5 (2) JAIPUR . 8 TO THE SALE OF LAND AT NAYALA AND THE AO HAS MADE A DDITION ON ACCOUNT OF PROFIT EARNED BY IT IN THE SAID TRANSACTION IS SUFF ICIENT TO REOPEN THE ASSESSMENT AS AT THE STAGE OF REOPENING THE CASE ONLY PRIMA FA CIE REASON TO BELIEVE IS TO BE RECORDED. IN HOLDING SO HE IGNORED THAT THE AO HIM SELF ACCEPTED THAT NO ADDITION CAN BE MADE FOR THE REASON FOR WHICH THE A SSESSMENT IS REOPENED. FURTHER THE LD. CIT(A) ACCEPTED THAT EVEN IN RESPE CT OF THE PROFIT NO ADDITION CAN BE MADE IN THE YEAR UNDER CONSIDERATION AS ASSE SSEE HAS SOLD THE LAND IN THE SUBSEQUENT YEARS. THIS ITSELF PROVES THAT REOPE NING IS BAD IN LAW. IN VIEW OF ABOVE THE ORDER PASSED BY AO U/S 147 IS BAD IN LAW AND THE SAME BE QUASHED. 3.4 THE LD. DR RELIED ON THE ORDERS OF THE AUTHORITIES BELOW 3.5 I HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIALS AVAILABLE ON RECORD. IT IS NOTICED THAT THE ASSESSE E HAS NOT ADVANCED ANY SPECIFIC ARGUMENTS EXCEPT REPEATING THE SAME AS MAD E BEFORE THE LD. CIT(A). THE LD. CIT(A) HAS RELIED ON THE DECISION O F HON'BLE APEX COURT IN THE CASE OF ACIT VS. RAJESH JHAVERI STOCK BROKER S (P) LTD. IN WHICH IT IS HELD IF THE AO FOR WHATSOEVER REASON HAS REASO N TO BELIEVE THAT INCOME HAS ESCAPED ASSESSMENT AND IT CONFERS JURISD ICTION TO REOPEN THE ASSESSMENT. HENCE TAKING INTO CONSIDERATION ALL TH E FACTUAL ASPECTS OF THE CASE AND CASE LAWS RELIED ON BY THE LD. CIT(A) I C ONCUR WITH THE FINDINGS OF THE LD. CIT(A) AND THUS GROUND NO. 1 OF THE ABOV E ASSESSEES IN ALL THE APPEALS ARE DISMISSED. 4.1 APROPOS GROUND NO. 2 TO 2.5 OF THE ASSESSEES B RIEF FACTS OF THE CASE ARE THAT THE ABOVE ASSESSEES JOINTLY PURCHASE D 71 238.75 SQ. YARDS OF ITA NO. 575/JP/2016 SMT. ASHA SAMARIYA VS. ITO WARD- 5 (2) JAIPUR . 9 LAND ON 22.09.2004. THE COST INCURRED ON PURCHASE O F LAND WAS RS.33.50 LACS. THE AO ON THE BASIS OF PAGE 53 OF ANNEXURE AA -2 (PB 65) AND ALSO ON THE BASIS OF STATEMENT OF SH. RAJESH TAMBI AND S H. MANOJ SONKHIYA (EXTRACT RECORDED AT PAGE 4-5 OF THE ASSESSMENT ORD ER OF SH. ABHA AGARWAL) WHERE HE STATED THAT THIS PAPER RELATE TO THEIR DALALI BUSINESS WHEREBY HE HAD ARRANGED THE SALE OF THE PLOTS IN TH E ABOVE SCHEME THROUGH DALAL R.K. GUPTA AND KOTHARI AND RAJESH TAM BI HAD SOLD THE LAND TO TRILOK GEETA AND RAWAT DALAL. THE AO CONC LUDED THAT THE PAPER RELATED TO THE LAND PURCHASED BY THE ASSESSEE WHICH WAS DEVELOPED INTO FARM HOUSE. THEREAFTER THE AO ASSUMED THAT ASSESSE E HAD SOLD 14 213 SQ. YARD OF LAND TO SH. RAJESH TAMBI AND MANOJ SONKHIYA FOR RS.1 16 72 300/-. THE COST OF THE LAND TO THE ASSES SEE IS 47.02 SQ. YARD AND THEREFORE HE COMPUTED THE COST OF 14 213 SQ. YA RD AT RS.6 68 295/- AND THEREBY DETERMINED THE PROFIT IN THE HANDS OF T HE FIVE CO-OWNERS AT RS.1 10 04 005/-. ACCORDINGLY HE MADE ADDITION OF RS.22 00 801/- IN THE HANDS OF EACH ASSESSEE. 4.2 IN APPELLATE PROCEEDINGS THE LD. CIT(A) BY REF ERRING TO THE VARIOUS PAPERS OF ANNEXURE AA-2 PARTICULARLY PAGE 24 27 3 4 35 36 42 43 47 48 53 AND 62 MADE THE FOLLOWING OBSERVATIONS:- ITA NO. 575/JP/2016 SMT. ASHA SAMARIYA VS. ITO WARD- 5 (2) JAIPUR . 10 (I) THESE ASSESSEES HAVE SOLD 14 213 SQ. YARD LAND TO RAJESH TAMBI/MANOJ SONKHIYA FOR RS.1 16 72 300/- AS MENTIONED AT PAGE 53 OF ANNEXURE AA-2 (PARA IV PAGE 19 OF THE ORDER OF SMT. ABHA AGARWAL) (II) FROM PAGE 53 OF ANNEXURE AA-2 IT IS SEEN THAT 10 9 62 SQ. YARD LAND WAS SOLD TO 5 PERSONS FOR RS.1 15 38 304/- (PARA V PAGE 19 O F THE ORDER OF SMT. ABHA AGARWAL) (III) SH. RAJESH TAMBI AND MANOJ SONKHIYA IN THEIR STATEM ENT STATED THAT THEY RECEIVED BROKERAGE ONLY AND THE PAYMENTS WERE MADE BY BUYERS TO THE SELLERS I.E. THE FIVE CO-OWNERS BUT THE PAPER NOWHERE SHOWS THAT THEY RELATE TO BROKERAGE. RATHER PAGE 42 OF THE IMPOUNDED DOCUMEN TS SHOWS THAT BROKERAGE WAS PAID BY RAJESH TAMBI AND ASSOCIATES. FURTHER P AGE 34 SHOWS THAT CASH IS RECEIVED FROM THE PERSONS MENTIONED AT PAGE NO. 53 OF RS.77.02 LACS AND THAT CASH PAYMENT OF RS. 89.18 LACS WAS MADE TO SH. VED AND SH. DINESH ON 01.04.05 THROUGH JOURNAL ENTRY WHO ARE THE HUSBAND OF ASHA SAMARIYA AND URMILA TAMBI THE TWO CO-OWNERS [REFER PARA IX TO X III AT PAGE 25 TO 32 OF THE CIT(A) ORDER OF SMT. ABHA AGARWAL]. THEREFORE THE CONTENTION OF THE ASSESSEE THAT THEY HAVE NOT SOLD ANY LAND TO SH. RA JESH TAMBI/MANOJ SONKHIYA DESERVES TO BE REJECTED. (IV) THE SALE DEED OF THE FARM HOUSE HAS BEEN EXECUTED I N F.Y. 05-06 TO 08-09 (REFER PARA XIV PAGE 35 OF THE ORDER OF SMT. ABHA A GARWAL ) AND THERE IS CORRELATION OF THE AREAS MENTIONED ON THE PAPER WIT H THE SALE DEED AS TABULATED IN PARA NO. XV OF PAGE 35-37 OF THE ORDER. THIS SHOWS THAT THE ACTUAL SALE CONSIDERATION MENTIONED IN THE IMPOUNDED PAPER IS M ORE THAN THAT SHOWN IN THE SALE DEED WHICH ESTABLISHES THAT THERE IS HUGE SUPPRESSION OF AMOUNT IN THE SALES AS PER THE IMPOUNDED MATERIAL AND THE SALE DE ED. ACCORDINGLY IT WAS DIRECTED THAT THE PROFIT ON SALE OF LAND AS WORKED OUT BY THE AO BE TAXED IN THE YEAR IN WHICH THE SALE DEED IS EXECUTED AS BUSINESS INCOME AS AGAINST CAPITAL DECLARED BY THE ASSESSEE. CONCLUSIVELY THE LD. C IT(A) HELD THAT THE INCOME ASSESSED BY THE AO SHOULD BE TAXED IN THE YEAR IN W HICH THE SALE DEEDS WERE EXECUTED. 4.3 IT IS ALSO RELEVANT TO PLACE ON RECORD THAT DIT TO OBSERVATION OF THE LD. CIT(A) WAS MADE IN THE CASE OF SMT. ASHA SAMARIYA A LSO IN ITA NO. 575/JP/2016. THE RELEVANT EXTRACT OF PARAS RELATIN G TO THE CASE OF SMT. ASHA SAMARIYA IS ALSO BEING REPRODUCED AS THE LD. C IT(A) HAS ADOPTED ITA NO. 575/JP/2016 SMT. ASHA SAMARIYA VS. ITO WARD- 5 (2) JAIPUR . 11 THE SIMILAR ANALOGY WHICH INDICATES THAT THE OBSERV ATIONS OF THE LD. CIT(A) IN ALL THE APPEALS ARE SAME. 3.3 I HAVE PERUSED THE FACTS OF THE CASE THE ASSESSMENT ORDER AD SUBMISSIONS OF THE APPELLANT. (I) THE BRIEF FACTS OF THE CASE ARE THAT THE FIVE L ADIS INCLUDING THE APPELLANT NAMES AS SMT. ASHA SAMARIA W/O SHRI VED PRAKASH SAMARIA SMT. SULOCHANA GUPTA W/O SHRI KAML ESH KUMAR GUPTA SMT. URMILA TAMBI W/O SHRI DINESH KUMAR TAMB I SMT. ABHA AGARWA W/O SHRI RAJENDRA AGARWAL SMT. KRISHNA KHANDELWAL W/O SHRI KRISHAN PRAKASH KHANDELWAL PURC HASED 14 BIGHA AND 5 BISWA OF AGRICULTURE LAND FROM SHRI RAJ KUMAR JALAN FOR A CONSIDERATION OF RS. 17.50 LACS ON WHCH STAMP DUTY AND REGISTRATION CHARGES OF RS. 1 11 211/- WERE INCURRE D. THEY ALSO PURACHSED AGRICULTURE LAND OF 9 BIGHA AND 6 BISWA F ROM SMT. KUSUM JALAN FOR A CONSIDERATION OF RS. 13.50 LACS O N WHICH STAMP DUTY AND REGISTRATION CHARGES OF RS. 75 921/- WERE ALSO INCURRED. BOTH OF THESE AGRICULTURE LANDS WERE PURCHASED DURI NG THE F.Y. 2004-05 FOR A TOTAL CONSIDERATION OF RS. 31 LAC ON WHICH TOTAL STAMP DUTY AND REGISTRATION CHARGES OF RS. 1 87 132/- (1 11 211+75 921/-) WERE INCURRED BY THE SAID FIVE CO-OWNERS. THUS THE AGRICULTURE LAND WAS ACQUIRED BY THE FIVE CO-OWNERS FOR A TOTAL CONS IDERATION OF RS. 32 87132/- INCLUDING THE STAMP DUTY AND REGISTRATIO N EXPENSES. IT WAS CLAIMED BY THE APPELLANT THAT THE SAID AGRICULT URE LAND WAS SUBSEQUENTLY DEVELOPED BY LEVELLING FILLING AND ST ONE DEMARCATION OF THE LAND INTO PLOTS OF LAND (30 FARMS HOUSES)BY THE OWNERS WHEREIN THEY INCURRED AN EXPENDITURE IF RS. 3 LAC T HEREOF. IN THE BRIEF FACTS AND HISTORY THE CASE AS ANNEXED WITH TH E APPEAL FILED BY THE APPELLANT IT WAS STATED THAT THE TOTAL COST PE R SQUARE YARD CONSISTING OF AREA OF 71239 SQ. YARD HAS BEEN TAKEN AT RS. 47 02 ONLY BY THE AO AND HE OVERLOOKED THE DEVELOPMENT EX PENSES OF AGRICULTURE LAND. IF THE CORRECT CALCULATION IS DON E AS PER THE APPELLANT THEN AFTER INCLUDING THE REGISTRATION CH ARGES AND DEVELOPMENT EXPENSES THE COST AS PER SQUARE YARDS COMES TO RS. 53/-. THUS IT IS CLAIMED BY THE APPELLANT THAT AFTE R PURCHASING THE AGRICULTURE LAND DEVELOPMENT ACTIVITIES WERE CONDU CTED AND IN FACT 30 SMALL FARM HOUSES ON THE SAID LAND WERE DE MARCATED. ITA NO. 575/JP/2016 SMT. ASHA SAMARIYA VS. ITO WARD- 5 (2) JAIPUR . 12 (II) IT IS PERTINENT TO MENTION HERE THAT IN THE CA SE OF ANOTHER CO- OWNER SMT. URMILA TAMBI IN ITA NO. 600/13-14 IT WA S STATED THAT NO DEVELOPMENT WORK WAS DONE BY THE OWNERS WHEREAS IN THE INSTANT CASE UNDER CONSIDERATION IT WAS CLAIMED TH AT A SUM OF RS. 3 LAC WAS INCURRED FOR THE DEVELOPMENT OF FARM HOUSES ON THE SAID AGRICULTURE LAND. HOWEVER NO EVIDENCES WERE SUBMIT TED EITHER DURING ASSESSMENT PROCEEDINGS OR IN APPELLATE PROCE EDINGS IN THIS REGARD. IT IS PERTINENT TO MENTION HERE THAT SHRI R AJESH TAMBI IN HIS STATEMENT RECORDED ON OATH STATED THAT THE LAND UND ER CONSIDERATION WAS DEVELOPED BY THE CO-OWNERS. (III) . (IV) IT WOULD BE SEEN FROM PG NO. 53 OF ANNEXURE A A IMPOUNDED DURING THE COURSE OF SURVEY THAT ON THAT PAGE FARM HOUSE OF NAYLA ACCOUNT IS APPEARING. SHRI TAMBI AN D OTHERS PURCHASED 14213 SQ. YARDS OF LAND FOR RS. 1 16 72 3 00/- AS PER FOLLOWING DETAILS. SQ. YARD RATE AMOUNT IN RS. 6000 800/- 2 48 00 000 4468 850/- 37 93 550 3750 821/- 30 78 750 TOTAL AREA: 14213 1 16 72 300 (V) IT IS ALSO SEEN FROM THE SAME PAGE THAT 10962 S Q. YARDS OF LAND WAS SOLD THROUGH / TO FIVE PERSONS FO R A SUM OF RS. 1 15 38 304/- AS PER FOLLOWING DETAILS. NAME SQ. YARDS RATE AMOUNT RKG 2083 900/- 18 74 700 TRILOK 2352 1000/- 23 52 000 GEETA 1000 1075/- 10 75 000 KOTHARI 2486 1100/- 27 34 600 RAWAT 3124 1121/- 35 02 004 TOTAL 10962 1 15 38 304 ITA NO. 575/JP/2016 SMT. ASHA SAMARIYA VS. ITO WARD- 5 (2) JAIPUR . 13 (VI) FURTHER THE REMAINING 3251 SQ. YARDS OF LAND WAS VALUED @ RS. 1150/- PER SQ. YARD AT RS. 37 38 650/- WITH THE NARRATION MANOJ KE NAM IN THE SAID PAGE IT WAS ALSO MENTIONED RS. 36 04 654/- WITH THE NARRATION MANO J KE NAM JAMIN PER BAKI RAHE. IT MAY BE MENTIONED THAT THE AMOUNT OF RS. 36 04 654/- AS APPEARING ON IMPOU NDED PAGE NO. 53 AS DISCUSSED EARLIER IS ALSO APPEARING ON IMPOUNDED PAGE NO. 62 WHICH IS THE CORRECT ACCOUNT OF MANOJ SONKHIA WITH THE NARRATION NAYLA ROAD. (VII) IT IS EVIDENT FROM THIS PAGE THAT SHRI RAJESH TAMBI & OTHERS PURCHASED 14213 SQ. YARDS OF DEVELOPED LAND FROM THE FIVE CO-OWNERS OF AGRICULTURE LAND AT NA YLA OUT OF WHICH 10962 SQ. YARDS WERE SOLD TO DIFFERENT PERSON S. THIS TYPE OF VERSION OF THIS PAPER IS ALSO APPEARING AT PAGE 47 AND 48 OF THE IMPOUNDED MATERIAL WHEREIN THE PROFIT FRO M NAYLA ACCOUNT WAS SHOWN AT RS. 22 13 700/-. THE SCANNED C OPIES OF THESE PAGES I.E. 62 48 AND 47 ARE REPRODUCED AT LD. CIT(A)S ORDER. (VIII) . (IX) IT IS STATEMENT RECORDED ON OATH U/S 131 OF TH E ACT IT WAS STATED BY SHRI RAJESH TAMBI WHICH WAS ALSO CON FIRMED BY SHRI MANOJ SONKHIA THAT IN THE SALE PURCHASE OF FARM HOUSE AT NAYLA THEY JUST RECEIVED THE BROKERAGE ON LY AND THE PAYMENTS WERE MADE BY THE BUYERS TO THE SELLERS I.E . THE FIVE CO-OWNERS IN THE INSTANT CASE UNDER CONSIDERATION. IT IS PERTINENT TO MENTION THAT NONE OF THESE DOCUMENTS A S DISCUSSED ABOVE CONTAIN ANY FIGURES/ NARRATION RELA TING TO BROKERAGE OR RATE OF BROKERAGE PAID TO SHRI RAJESH TAMBI AND ASSOCIATES. IN FACT THE IMPOUNDED DOCUMENTS (PA GE NO.42) SHOWS AMOUNT OF BROKERAGE PAID BY SHRI RAJES H TAMBI AND ASSOCIATES. IT IS NOTED FROM PAGE 42 AND 34 OF THE IMPOUNDED MATERIAL THAT LARGE AMOUNTS IN CASH (FOR THE PERIOD 01-04-2005 TO 31-03-2008 WERE RECEIVED AS PE R THE FOLLOWING DETAILS. ITA NO. 575/JP/2016 SMT. ASHA SAMARIYA VS. ITO WARD- 5 (2) JAIPUR . 14 NAME AMOUNT (IN RS.) RK GUPTA RS. 18 75 000/- KOTHARI JI RS. 27 34 000/- TRILOK RS. 11 52 000/- RS. 71 000/- RS. 1 75 000/- RAWAT RS. 16 95 000/- TOTAL RS. 77 02 000/- (X) IT IS PERTINENT TO MENTION HERE THAT THE NAMES OF RKG TRIOLOK KOTHARI JI RAWAT ARE APPEARING AT PAGE NO . 53 AND 47 OF THE IMPOUNDED MATERIAL TO WHOM PARTS OF THE L AND UNDER CONSIDERATION WERE SOLD BY SHRI RAJESH TAMBI AND ASSOCIATES. A SCANNED COPY OF THESE PAGE 42 AND 34 ARE REPRODUCED AT LD. CIT(A)S ORDER. (XI) FURTHER IT IS EVIDENT FROM PAGE NO.43 OF THE IMPOUNDED MATERIAL THAT CASH PAYMENTS WERE ALSO MAD E TO THE FOLLOWING PERSONS AS PER DETAILS AS UNDER:- NAME OF THE PERSON AMOUNT IN RS. VED RS. 58 25 000/- DINESH RS. 30 93 750/- TOTAL RS. 89 18 750/- (XII) IT MAY BE MENTIONED THAT SHRI VED PRAKASH SAM ARIA AND SHRI DINESH TAMBI ARE THE HUSBANDS OF SMT. ASHA SAMARIA AND SMT. URMILA DEVI TAMBI RESPECTIVELY AN D THESE LADIES ARE AMONGST THE CO-OWNERS OF THE LAND UNDER CONSIDERATION. FURTHER THE ABOVE CASH WAS RECEIVED IN THE MONTH OF MAY 2005. IT IS PERTINENT TO MENTION HERE THAT ON PAGE NO. 35 OF THE IMPOUNDED MATERIAL PURCHASE OF R S. 59 25 000/- AND RS. 30 93 750/- WAS SHOWN TO BE MAD E FROM VED AND DINESH ON 01-04-2005 THROUGH JOURNAL ENTRIE S. THE ABOVE DETAILS CLEARLY REVEAL THAT THE CONSIDERATION WAS ALSO RECEIVED IN CASH BY THE APPELLANT AND OTHER CO-OWNE RS. A ITA NO. 575/JP/2016 SMT. ASHA SAMARIYA VS. ITO WARD- 5 (2) JAIPUR . 15 SCANNED COPY OF THE ABOVE PAGE NO. 43 AND 35 ARE REPRODUCED AT LD. CIT(A)S ORDER. (XIII) DURING THE APPELLATE PROCEEDINGS IT WAS CON TENTION OF THE APPELLANT THAT IT HAS NOT SOLD EVEN A SINGLE FA RM HOUSE TO SHRI RAJESH TAMBI OR TO SHRI MANOJ SONKHIA AND THUS THE QUESTION OF ALLEGED PURCHASE OF FARM HOUSES AND SAL E THEREOF BY SHRI RAJESH TAMBI AND SHRI MANOJ SONKHIA DOES NO T ARISE AT ALL. THIS CONTENTION HAS NO WEIGHT AND DESERVES TO BE REJECTED IN VIEW OF THE IMPOUNDED DOCUMENTS AS DISC USSED ABOVE. IT IS NOTED FROM PAGE NO. 24 OF THE IMPOUNDE D MATERIAL THAT FARM HOUSE WAS SHOWN AS AN ASSET AND 3166 SQ. YARDS VALUED AT RS. 800/- PER SQ. YARD AND THE TOTA L ASSET VALUE WAS SHOWN AT RS. 25 32 000/-. FURTHER PAGE 27 OF THE IMPOUNDED MATERIAL REVEALS THAT ENTRY OF RS. 1 16 7 2 300/- IS APPEARING THEREIN AS PURCHASE. THIS IS THE SAME AMO UNT WHICH IS APPEARING AT PAGE NO. 53 ON ACCOUNT OF PU RCHASES MADE BY RAJESH TAMBI AND ASSOCIATES FROM THE APPELL ANT AND OTHER CO-OWNERS. THE SCANNED COPIES OF PAGE NO. 24 AND 27 ARE REPRODUCED AT LD. CIT(A)S ORDER. (XIV) FROM THE MATERIAL PLACED ON RECORD INCLUDING SALE DEEDS OF FARM HOUSES SOLD BY THE APPELLANT AND OTHE R CO- OWNERS IT IS OBSERVED THAT THESE WERE SOLD AS PER FOLLOWING DETAILS AS INDICATED AT PAGE 33 OF THE LD. CIT(A)S ORDER. (XV) IT IS EVIDENT FROM THE ABOVE DETAILS THAT 1000 SQ. YARDS OF LAND WAS CLAIMED TO BE SOLD THROUGH REGIST ERED SALE DEED DATED 12-06-2008 FOR A SUM OF RS. 1 25 000/- W HEREAS AS PER IMPOUNDED PAGE NO. 53 47 AND 48 1000 SQ. YAR DS OF LAND WAS SOLD TO SMT. GEETA @ 1075/-PER SQ. YARD I. E. FOR A TOTAL CONSIDERATION OF RS. 10.75 LACS. FURTHER ON 2 1-08-2007 AND 08-01-2008 THE FARM HOUSES ADMEASURING 1736.11 SQ. YARD AND 1388.88 SQ. YARD WERE SOLD TO SHRI KRISHNA KHANDELWAL AND SMT. SEEMA RAWAT W/O SHRI RAKESH RAW AT FOR RS. 1.50 LACS EACH I.E. 3124 SQ. YARDS OF LAND WAS SOLD FOR RS. 3 LAC ONLY. IT MAY BE MENTIONED THAT AS PER THE ABOVE REFERRED IMPOUNDED DOCUMENTS 3124 SQ. YARD OF LAND WAS SOLD TO / THROUGH RAWAT FOR A CONSIDERATION OF RS. ITA NO. 575/JP/2016 SMT. ASHA SAMARIYA VS. ITO WARD- 5 (2) JAIPUR . 16 35 02 004/-. IT IS ALSO NOTED THAT THE LAND ADMEASU RING 2083 SQ. YARDS WAS SOLD TO SMT. SUSHILA DEVI W/O SHRI RA DHA KRISHAN GUPTA FOR A SUM OF RS. 2.50 LAC WHREAS AS P ER ABOVE REFERRED IMPOUNDED MATERIAL 2083 SQ. YARD OF LAND @ 900 PER SQ. YARD WAS SOLD TO / THROUGH RKG. IT IS ALSO NOTED FROM PAGE NO. 47 OF THE IMPOUNDED MATERIAL THAT LAN D WAS ALSO SOLD TO SHRI SUBHASH SAINI FOR A SUM OF RS. 7 LAC FOR WHICH COST WAS STATED AT RS. 6 LAC AND THE PROFIT E ARNED THEREOF AT RS. 1 LAC. IT IS PERTINENT TO MENTION TH AT IT WAS STATED BY SHRI RAJESH TAMBI IN HIS STATEMENT THAT RKG STANDS FOR RADHA KRISHAN GUPTA I.E. THE HUSBAND OF BUYER OF EXACTLY 2083 SQ.YARD OF LAND AS WRITTEN ON THE IMPO UNDED MATERIAL AS DISCUSSED EARLIER. IT WOULD BE APPROPRI ATE TO COMPARE THE SALE DEEDS EXECUTED BY THE APPELLANT AN D THE DETAILS STATED ON THE IMPOUNDED MATERIAL AS INDICAT ED AT PAGE 34 OF THE LD. CIT(A)S ORDER. (XVI).. (XVII) (XVIII). (XIX). (XX) IT COULD BE SEEN FROM THE ABOVE DECISION THA T IT WAS HELD BY THE HON'BLE ITAT AHEMDABAD THAT THE C ASH/ CHEQUE RECEIVED IN EARLIER YEARS IS TO BE TREATED A S ADVANCE AND THE SALE WOULD BE COMPLETE IN THE YEAR IN WHICH SALE DEED WAS EXECUTED THEREFORE IN VIEW OF THE ABOVE R EFERRED DECISION OF HON'BLE ITAT AHEMDABAD THE PROPORTION ATE PROFIT EARNED BY THE APPELLANT IN THE YEARS IN WHIC H SALE DEEDS WERE EXECUTED IS TO BE TAXED. IT IS NOTED THA T THE APPELLANT HAD EXECUTED SALE DEED BY ONLY ONE FARM H OUSE DURING THE YEAR UNDER CONSIDERATION. HENCE THE ASS ESSING OFFICER IS DIRECTED TO RESTRICT THE ADDITION IN THE INSTANT YEAR UNDER CONSIDERATION IN RESPECT OF THE FARM HOUSE F OR WICH THE SALE DEED WAS EXECUTED IN THE YEAR UNDER CONSID ERATION. ITA NO. 575/JP/2016 SMT. ASHA SAMARIYA VS. ITO WARD- 5 (2) JAIPUR . 17 THE ASSESSING OFFICER IS ALSO DIRECTED TO REOPEN TH E ASSESSMENT OF THE APPELLANT FOR THE YEAR IN WHICH T HE SALE DEEDS OF FARM HOUSES WERE EXECUTED BY THE APPELLANT . IT WOULD BE APPROPRIATE TO MENTION HERE THAT THE APPEL LANT CLAIMED TO INCUR A SUM OF RS. 3 LAC ON ACCOUNT OF THE DEVELOPMENT OF THE LAND UNDER CONSIDERATION HOWEVE R THE ASSESSING OFFICER DID NOT ALLOW THE SAME AS NO DOCU MENTARY EVIDENCE WAS FURNISHED IN THIS REGARD. DURING THE APPELLATE PROCEEDINGS ALSO NO DOCUMENTARY EVIDENCE WAS SUBMIT TED BY THE APPELLANT. HOWEVER IN THE SALE DEEDS EXECUTED ON 12-06- 2008 BY THE APPELLANT AND OTHER CO-OWNERS IT WAS S TATED THAT YEH HAI KI PRATHAM PAKSH NE UPROKT BHUMI MEIN VASTU ENCLAVE NAMAK FRAM HOUSE VIKSIT KIYE HAI. IN VIEW OF THE ABOVE IT IS HELD THAT THE APPELLANT HAVE INCURRED EXPENDITURE FOR THE DEVELOP MENT OF THE LAND HOWEVER SINCE NO DOCUMENTARY EVIDENCE WA S SUBMITTED EVEN DURING THE APPELLATE PROCEEDINGS NO BENEFIT ON ACCOUNT OF DEVELOPMENT EXPENSES COULD BE GIVEN TO THE APPELLANT. (XXI) IT MAY BE MENTIONED THAT IN THE CASE OF RAJA J RAMESHWAR RAO VS. CIT (1961) 42 ITR 179 (SC) IT W AS HELD BY THE HON'BLE APEX COURT THAT :- NO DOUBT THIS WAS ONLY A SINGLE VENTURE; BUT EVE N A SINGLE VENTURE MAY BE REGARDED AS IN THE NATURE OF TRADE OR BUSINESS. WHEN A PERSON ACQUIRES LAND WITH A VIEW T O SELLING IT LATER AFTER DEVELOPING IT HE IS CARRYING ON AN ACTIVITY RESULTING IN PROFIT AND THE ACTIVITY CAN ONLY BE DE SCRIBED AS A BUSINESS NATURE. WHERE THE PERSON GOES FURTHER AND DIVIDES THE LAND INTO PLOTS DEVELOPS THE AREA TO MAKE IT M ORE ATTRACTIVE AND SELLS THE LAND NOT AS A SINGLE UNIT AND AS HE BOUGHT IT BUT IN PARCELS HE IS DEALING WITH LAND A S HIS STOCK IN TRADE; HE IS CARRYING ON BUSINESS AND MAKING A P ROFIT. THIS IS EXACTLY WHAT HAD HAPPENDED IN THE ASSESSEE'S CAS E. (XXII) THE ABOVE DECISION OF THE HON'BLE APEX COURT IS SQUARELY APPLICABLE TO THE FACTS OF THE INSTANT CAS E UNDER ITA NO. 575/JP/2016 SMT. ASHA SAMARIYA VS. ITO WARD- 5 (2) JAIPUR . 18 CONSIDERATION AS THE APPELLANT ALONGWITH OTHER CO-O WNERS DEVELOPED THE LAND AND DEMARCATED THE PLOT AND SOLD THEM ON PIECEMEAL BASIS AND THUS THE INCOME EARNED TO BE TR EATED AS INCOME FROM BUSINESS. 4.4 BEING AGGRIEVED THE ASSESSEE CARRIED THE MATTE R BEFORE THE ITAT AND THE LD. AR OF THE ASSESSEE PRAYED FOR QUASHING THE ORDER OF THE LD. CIT(A) FOR WHICH THE LD. AR OF THE ASSESSEE FILED T HE FOLLOWING WRITTEN SUBMISSION. .1 THE FIRST ISSUE WHICH ARISE FOR CONSIDERATION IS WHETHER ASSESSEE HAS SOLD 14 213 SQ. YARD LAND AS NOTED ON PAGE 53 O F ANNEXURE AA-2 TO SH. RAJESH TAMBI/MANOJ SONKHIYA. IN THIS CONNECT ION IT IS SUBMITTED THAT NEITHER SH. RAJESH TAMBI NOR SH. MAN OJ SONKHIYA EVER STATED THAT THEY PURCHASED ANY LAND FROM THE ASSESS EE. THE LD. CIT(A) HAS ONLY DRAWN INFERENCES FROM THE VARIOUS PAPERS O F THIS ANNEXURE TO PRESUME THAT ASSESSEE HAS SOLD 14 213 SQ. YARD LAND FOR RS.1 16 72 300/- TO SH. RAJESH TAMBI/MANOJ SONKHIYA . NOWHERE IN THE PAPER THE NAME OF ANY OF THE CO-OWNER IS MENTIO NED. ONLY BECAUSE NAME OF SH. VED AND DINESH ARE MENTIONED ON PAGE 43 AND 35 OF THIS ANNEXURE AGAINST WHOM SOME PAYMENT IS SHOWN TO HAVE BEEN MADE IT CANNOT BE PRESUMED THAT SUCH PAYMENT IS MADE IN RES PECT OF NAYALA FARM HOUSE TO THE HUSBAND OF SMT. ASHA SAMARIYA AND URMILA DEVI TAMBI. NO ENQUIRY IS MADE FROM RAJESH TAMBI AND MAN OJ SANKHIYA AS TO THE NATURE OF PAYMENT MADE TO SH. VED AND DINESH . THERE IS NO SALE DEED REGISTERED IN THE NAME OF RAJESH TAMBI/MANOJ S ONHKIYA. HENCE THE LD. CIT(A) IS NOT CORRECT IN HOLDING THAT ASSES SEE HAS SOLD ANY LAND TO RAJESH TAMBI/MANOJ SONHKIYA. 2. THE LOWER AUTHORITIES HAVE OBSERVED THAT PAGE 53 OF ANNEXURE AA-2 INDICATE THAT CERTAIN LAND IS SOLD TO FIVE PER SONS NAMELY R.K. GUPTA TRILOK GEETA KOTHARI AND RAWAT AND PAGE 47 INDICATE SALE OF LAND TO ONE SH. SUBASH JI. WHEN THE SAME IS COMPARE D WITH THE REGISTERED SALE DEED IN 5 CASES THE AREA AS PER TH E SALE DEED MATCHES WITH THE AREA MENTIONED IN THE PAPER WHICH SHOWS TH AT ACTUAL CONSIDERATION IS MORE THAN THE CONSIDERATION MENTIO NED IN THE SALE DEED. IN THIS CONNECTION IT IS SUBMITTED THAT THE SALE DEED IS IN DIFFERENT NAMES AND NOT IN THE NAME MENTIONED IN THE IMPOUNDE D PAPER EXCEPT THAT IN ONE CASE I.E. GEETA THE NAME AS PER THE IMP OUNDED DOCUMENT AND THE SALE DEED MATCHES. IN ANY CASE IN THE ABSE NCE OF ANY CONTRARY EVIDENCE THAT THE ASSESSEE HAS RECEIVED MORE THAN T HE AMOUNT ITA NO. 575/JP/2016 SMT. ASHA SAMARIYA VS. ITO WARD- 5 (2) JAIPUR . 19 MENTIONED IN THE REGISTERED DOCUMENT IT CANNOT BE PRESUMED ON THE BASIS OF PAPERS IMPOUNDED FROM A THIRD PARTY THAT A CTUAL CONSIDERATION IS MORE THAN THAT MENTIONED IN THE REGISTERED DOCUM ENT PARTICULARLY WHEN NO ENQUIRY IS MADE FROM THE BUYERS OF THE LAND ABOUT THE CONSIDERATION ACTUALLY PAID BY THEM. IN THIS CONNEC TION RELIANCE IS PLACED ON THE FOLLOWING CASES:- CIT VS. SMT. K. C. AGNES 128 TAXMAN 848 (KER.): IN THIS CASE THE SALE DEED SHOWED THAT THE PRICE WA S RS. 8 000 PER CENT WHILE THE AGREEMENT SHOWED THAT THE PARTIE S AGREED PURCHASE THE PROPERTY AT RS. 12 951 PER CENT. A RECEIPT WAS ALSO RELIED IN THE FORM OF A LETTER TO SHOW THAT THE PROPERTY WAS AGRE ED TO BE PURCHASED AT RS. 12 951 PER CENT. ON THESE FACTS THE COURT HELD AS UNDER: WHEN A DOCUMENT SHOWS A FIXED PRICE THERE WOULD BE A PRESUMPTION THAT IT IS THE CORRECT PRICE AGREED U PON BY THE PARTIES. IT IS TRUE THAT ON THE BASIS OF THE AGREEM ENT THE SALE DEED IS EXECUTED. BUT IT IS NOT NECESSARY THAT PRIC E STATED IN THE AGREEMENT WILL BE THE PRICE SHOWN IN THE SALE DEED. SOMETIMES IT MAY BE HIGHER AND SOMETIMES IT MAY BE LOWER. SOM ETIMES INTENTIONALLY A LESSER VALUE MAY BE SHOWN IN THE SA LES DEED. EVEN IF IT IS ASSUMED TO BE SO UNLESS IT IS PROVED THAT THE AGREEMENT WAS ACTED UPON AND UNLESS THE AMOUNT STAT ED IN THE AGREEMENT WAS PAID FOR THE SALE WE CANNOT COME TO THE CONCLUSION THAT THE PRICE MENTIONED IN THE SALE DEE D IS NOT CORRECT . IN THIS CASE FURTHER IT IS FOUND THAT IN THE ASSES SMENT OF PASHA IT WAS FINALLY FOUND THAT THE AMOUNT WAS REC EIVED ONLY AT RS. 8 000 PER CENT. IT IS TAKING INTO ALL THESE MATTERS INTO CONSIDERATION THAT THE TRIBUNAL HELD THAT THE PROPE RTY WAS SOLD AT THE RATE OF RS. 8 000 PER CENT. THUS THE TRIBUN AL ON THE BASIS OF THE FACTS AND CIRCUMSTANCES OF THE CASE AN D ON THE APPRECIATION OF EVIDENCE CAME TO THE CONCLUSION TH AT RS. 12 951 WAS NOT THE AMOUNT FOR WHICH THE PROPERTY WA S SOLD. ACCORDING TO US THERE IS NO RULE THAT THE AMOUNT S HOWN IN THE RECEIPT WAS THE ACTUAL AMOUNT PAID. SO FAR AS THE O THER QUESTIONS ARE CONCERNED WE DO NOT FIND THAT ANY SU BSTANTIAL QUESTIONS OF LAW ARISE BECAUSE AS ALREADY STATED T HE ONLY QUESTION IN THIS CASE IS WHETHER THE AMOUNT STATED IN THE SALE DEED IS CORRECT OR NOT. ACCORDING TO US THE AMOUNT STATED IN THE SALE DEED IS THE CORRECT AMOUNT UNLESS THERE ARE CI RCUMSTANCES TO IGNORE THE SAME . RAJENDRA KUMAR GARG VS. DCIT 67 TTJ 347 (DEL.): THE DOCUMENTS IN THE PRESENT CASE ARE AGREEMENT TO SALE AND REGISTERED SALE DEEDS. AS PER AGREEMENT TO SALE THE CONSIDERATION IS ITA NO. 575/JP/2016 SMT. ASHA SAMARIYA VS. ITO WARD- 5 (2) JAIPUR . 20 STATED AT RS. 1.10 CRORES WHEREAS REGISTERED SALE D EEDS CONTAINED THE FIGURE OF SALE CONSIDERATION AT RS. 9.30 LACS AND F URTHER THE ASSESSEE AT THE TIME OF SEARCH STATED THAT THE PROPERTY IN QUES TION WAS SOLD FOR RS. 38 LACS. THUS THE THREE FIGURES THAT EMERGE FROM TH IS ARE RS. 1.10 CRORES RS. 9.30 LACS AND RS. 38 LACS. THE AGREEMEN T OF SALE WAS NOT SIGNED BY ANY OF THE BUYERS. NO VALUATION WAS GOT D ONE BY THE DEPARTMENT TO ESTABLISH THAT CONSIDERATION AS STATE D IN THE AGREEMENT REPRESENTS THE REAL VALUE OF PROPERTY. IN THESE CIR CUMSTANCES THE CONSIDERATION WAS TAKEN AT RS. 38 LACS AS STATED IN THE STATEMENT. 3. IT IS ALSO SUBMITTED THAT LD. CIT(A) BASED ON TH E REGISTERED SALE DEED HAS DIRECTED THE AO TO TAX THE INCOME IN THE ASSESS MENT YEAR IN WHICH THE SAME IS EXECUTED AS AGAINST AY 2006-07 IN WHICH AO HAS TAXED THE SAME. THIS FINDING IS ACCEPTED BY THE DEPARTMENT. ONCE TH E YEAR OF TAXABILITY IS CONSIDERED ON THE BASIS OF THE REGISTERED SALE DEED THE AMOUNT AS PER THE SALE DEED CANNOT BE VARIED UNLESS THERE IS EVIDENCE TO PROVE THAT ACTUAL CONSIDERATION RECEIVED IS MORE. THE ASSESSEE CANNOT BE TAXED ON THE BASIS OF THE AMOUNT RECORDED IN THE DOCUMENTS OF THE THIRD P ARTY AS HELD BY SUPREME COURT IN CASE OF CBI VS. V.C. SHUKLA & ORS. 3 SSC 4 10 WHERE IT WAS HELD THAT ON THE BASIS OF ENTRIES FOUND IN THE DOCUMENT OF THE THIRD PARTY NO ADDITION CAN BE MADE IN THE HANDS OF ASSESSEE WHEN HE HAS DENIED THE ALLEGATION PUT FORTH BY THE AO AND HAVE BROUGHT ON RECORD SUBSTANTIAL EVIDENCE TO PROVE HIS CLAIM. IN THE PRESENT CASE AL SO SH. RAJESH TAMBI/MANOJ SONHKIYA FROM WHOSE POSSESSION THE DOCU MENTS WERE IMPOUNDED NOWHERE STATED THAT THEY HAVE PURCHASED A NY LAND FROM THE ASSESSEE AND THEREFORE ON THE BASIS OF THE SALE AMO UNT RECORDED IN THEIR DOCUMENT IT CANNOT BE PRESUMED THAT ASSESSEE HAS S OLD THE LAND AT THE VALUE MENTIONED IN THAT DOCUMENT IGNORING THE PRICE MENTI ONED IN THE REGISTERED SALE DEED. THEREFORE THE DIRECTION OF THE CIT TO T AX THE INCOME FROM THE SALE OF LAND IN THE YEAR IN WHICH THE SALE DEED IS REGISTERED ON THE BASIS OF AMOUNT MENTIONED IN THAT DOCUMENT IS ILLEGAL AND BA D IN LAW. 4. IT IS SUBMITTED THAT IN THE YEAR UNDER CONSIDERA TION THE ASSESSEE HAS EXECUTED ONLY ONE SALE DEED ON 01.02.2006 TO SH. KA MAL KISHORE FOR 9 BISWA LAND (1350 SQ. YARD) FOR RS.1 00 000/- [PB 109-116] THE CAPITAL GAIN OF WHICH IS DULY DECLARED IN THE RETURNS. THIS SALE DEED HAS NO CORRELATION WITH PAGE 53 OF ANNEXURE AA-2. THEREFORE NO ADDITI ON ON THE BASIS OF THE IMPOUNDED PAPERS CAN BE MADE IN THE YEAR UNDER CONS IDERATION. 5. THE LD. CIT(A) AT PARA (XX) PG 41 OF ITS ORDER HAS DIRECTED THE AO TO REOPEN THE ASSESSMENT OF THE APPELLANT FOR THE YEAR S IN WHICH THE SALE DEED OF THE FARM HOUSE WERE EXECUTED. AT PARA (XXIII) P G 42 SHE HAS STATED THAT THESE DIRECTIONS ARE ISSUED UNDER THE POWERS CONFER RED U/S 150(1) OF THE ACT. IT IS SUBMITTED THAT U/S 147 ONLY THE AO CAN ISSUED NOTICE U/S 148 IF HE HAS REASON TO BELIEVE THAT ANY INCOME CHARGEABLE TO TAX HAS ESCAPED ASSESSMENT. SECTION 150 ONLY OVERRIDES THE TIME LIM IT FOR ISSUE OF NOTICE U/S 149 BY PROVIDING THAT A NOTICE U/S 148 MAY BE ISSUE D AT ANY TIME TO GIVE ITA NO. 575/JP/2016 SMT. ASHA SAMARIYA VS. ITO WARD- 5 (2) JAIPUR . 21 EFFECT TO ANY FINDING OR DIRECTION CONTAINED BY ANY APPELLATE AUTHORITIES BUT THIS IS ALSO SUBJECT TO SUN CLAUSE 2 OF THIS SECTIO N. THEREFORE CIT(A) HAS NO POWER TO ISSUE DIRECTION TO THE AO U/S 150 TO REOPE N THE ASSESSMENT. ON THE BASIS OF A DIRECTION GIVEN IN THE ORDER OF APPELLAT E AUTHORITIES THE AO IF HE HAS REASON TO BELIEVE CAN REOPEN THE ASSESSMENT BUT THE CIT(A) AS SUCH CANNOT GIVE DIRECTION TO AO TO REOPEN THE ASSESSMEN T. THE POWER OF CIT(A) IS PROVIDED U/S 251 ACCORDING TO WHICH HE MAY CONFI RM/REDUCE/ENHANCE OR ANNUL THE ASSESSMENT ONLY. HENCE THE DIRECTION SO GIVEN BY THE CIT(A) TO REOPEN THE ASSESSMENT OF THE YEAR IN WHICH SALE DEE D IS EXECUTED IS BAD IN LAW. 6. IT IS FURTHER SUBMITTED THAT SH. RAJESH TAMBI IN HIS STATEMENT HAS CATEGORICALLY STATED THAT THE PAPERS IMPOUNDED AS P ER ANNEXURE AA2 PERTAIN TO FY 2004-05. IT IS SPECIFICALLY STATED TH AT BY HIM IN COURSE OF HIS ASSESSMENT PROCEEDINGS THAT THESE PAPER PERTAIN TO THE YEAR 2004-05 OR EARLIER YEAR BUT IN THE PAPERS COMPLIED BY THE COMP UTER OPERATOR THE PERIOD OF 01.04.2005 TO 30.04.2005/ 01.05.2005 TO 31.05.20 05/01.04.2005 TO 31.03.2008 IS MENTIONED THOUGH ALL THESE ENTRIES SH OWS THE DATE OF 01.04.2005 OR 01.05.2005 WHICH DOES NOT REPRESENT T HE DATE OF TRANSACTION BUT REPRESENT THE DATE OF COMPILATION OF INFORMATIO N. AS THE DETAILS ARE PREPARED IN TALLY SOFTWARE IT AUTOMATICALLY PICKS THE STORED DATE IF NO DATE IS FED IN THE SYSTEM. FROM PAGE 34 AND 35 OF THIS A NNEXURE (PB 46-47) IT CAN BE NOTED THAT ALL PURCHASE/SALE ARE ENTERED IN JOURNAL ENTRY WITH DATE 01.04.2005 WHICH SHOWS THAT THESE TRANSACTIONS ARE PRIOR TO 01.04.2005. THEREFORE THE VARIOUS ACCOUNT MADE IN THIS CONNECT ION PERTAIN TO THE FY 2004-05 AND PRIOR TO THAT. HENCE ON THE BASIS OF T HESE PAPERS IT CANNOT BE PRESUMED THAT ASSESSEE HAS RECEIVED ANY CONSIDERATI ON OVER AND ABOVE THAT STATED IN THE REGISTERED SALE DEED IN AY 2006-07 OR ANY SUBSEQUENT A.Y. THEREFORE THE FINDING OF CIT(A) TO ASSESS THE INCO ME FROM SALE OF LAND IN THE YEAR IN WHICH THE SALE DEED IS REGISTERED ON TH E AMOUNT MENTIONED IN THE SEIZED PAPER IS INCORRECT. 7. THE LOWER AUTHORITIES HAVE ASSESSED/DIRECTED TO ASSESS THE INCOME FROM SALE OF THE PROPERTY AS BUSINESS INCOME AS AGAINST CAPITAL GAIN INCOME DECLARED BY THE ASSESSEE. IT IS SUBMITTED THAT 5 CO-OWNERS O F LAND PURCHASE THE LAND WITH THE OBJECT OF DEVELOPING INTO FARM HOUSE AND TO HOL D THE SAME FOR BETTER REALIZATION. THE ASSESSEE HAS NOT CARRIED OUT ANY S YSTEMATIC ACTIVITY OF TRADING IN LAND. THERE IS NO OFFICE STAFF BORROWINGS OR A NY OTHER INFRASTRUCTURE FOR CARRYING OUT THE ACTIVITY IN ANY ORGANIZED MANNER. TILL DATE ONLY 9 PLOTS HAVING AREA OF 16852 SQ. YD HAS BEEN SOLD. THEREFORE SUCH ACTIVITY CANNOT BE HELD TO BE WITH AN INTENTION OF TRADING IN LAND. HENCE THE AO BE DIRECTED TO ASSESS THE INCOME FROM SALE OF THE LAND UNDER THE HEAD CAPITAL AGAIN INSTEAD OF BUSINESS INCOME ASSESSED BY HIM. IN VIEW OF ABOVE THE DIRECTION OF CIT(A) TO TAX TH E PROFIT ON SALE OF LAND ON THE BASIS OF THE AMOUNT RECORDED IN THE IMP OUNDED DOCUMENT IS BAD IN ITA NO. 575/JP/2016 SMT. ASHA SAMARIYA VS. ITO WARD- 5 (2) JAIPUR . 22 LAW AND THE AO BE DIRECTED TO ASSESS THE PROFIT ON THE BASIS OF THE AMOUNT RECORDED IN THE SALE DEED. 4.5 THE LD. DR RELIED ON THE ORDERS OF THE AUTHORIT IES BELOW. 4.6 I HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIALS AVAILABLE ON RECORD IN WHICH THE FOLLOWING ISSUES E MERGES FOR CONSIDERATION:- (I) WHETHER ON THE BASIS OF PAGE 53 OF ANNEXURE AA- 2 IT CAN BE INFERRED THAT ASSESSEE AND OTHER CO-OWNERS HAVE SOLD 14 213 SQ. YARD OF LAND TO SH. RAJESH TAMBI/MANOJ SONKHIYA ON WHICH THEY EARNED PR OFIT OF RS.22 00 801/- EACH AND WHETHER PROPORTIONATE PROFIT IS TO BE TAXE D IN THE YEAR IN WHICH THE SALE DEED IS EXECUTED. (II) WHETHER ONE SALE DEED EXECUTED DURING THE YEAR HAS ANY CORRELATION WITH PAGE 53 OF ANNEXURE AA-2 (III) WHETHER LD CIT(A) HAS POWER TO DIRECT THE AO TO REOPEN THE ASSESSMENT OF THE APPELLANT FOR THE YEARS IN WHICH THE SALE DEEDS OF THE FARM HOUSES WERE EXECUTED AND WHETHER THE SALE DEED SO E XECUTED HAS ANY CORRELATION WITH PAGE 53 OF ANNEXURE AA-3 (IV) WHETHER INCOME IS TO BE TAXED UNDER THE HEAD C APITAL GAIN OR BUSINESS INCOME IT IS OBSERVED THAT PAGE 53 OF ANNEXURE AA-2 ADMITT EDLY IS WRITTEN BY SH. RAJESH TAMBI. SH. RAJESH TAMBI IN REPLY TO Q. N O. 2 3 4 AND 9 OF HIS STATEMENT DATED 13.03.2013 HAS STATED THAT ANNE XURE AA-2 PERTAINS TO DALALI ACTIVITY CARRIED OUT BY HIM AND SH. MANOJ SO NKHIYA IN F.Y. 04-05. NOWHERE IN THE STATEMENT HE STATED THAT HE PURCHASE D 14 213 SQ. YARD LAND FROM THE ASSESSEE AND OTHER CO-OWNERS NOR IN THE SE IZED PAPER THERE IS ANY EVIDENCE OF PAYMENT MADE BY THESE PERSONS TO THE AS SESSEE AND OTHER CO- ITA NO. 575/JP/2016 SMT. ASHA SAMARIYA VS. ITO WARD- 5 (2) JAIPUR . 23 OWNERS FOR RS.1 16 72 300/- STATED TO BE THE VALUE AT WHICH THE LAND IS SOLD BY ASSESSEE AND OTHER CO-OWNERS TO RAJESH TAMB I/MANOJ SONHKIYA. THE LD. CIT(A) HAD REFERRED TO THE PAYMENT OF RS.59 25 000/- TO SH. VED STATED TO BE HUSBAND OF SMT. ASHA SAMARIYA CO-OWNE R AND PAYMENT OF RS.30 93 750/- TO SH. DINESH STATED TO BE HUSBAND O F SMT. URMILA TAMBI ANOTHER CO-OWNER BUT WHETHER THIS PAYMENT IS IN RE SPECT OF THE ABOVE LAND OR FOR SOME OTHER TRANSACTION IS NEITHER ENQUI RED NOR BORN OUT FROM THE IMPOUNDED ANNEXURE. IT IS ALSO NOTED THAT THE D ATE AGAINST THIS AMOUNT IS 01.04.2005 AND THE TRANSACTION IS THROUGH JOURNA L ENTRY WHICH INDICATE THAT SUCH TRANSACTION FALL IN THE PREVIOUS YEAR IN AS MUCH AS RAJESH TAMBI IN HIS STATEMENT HAS SPECIFICALLY STATED THAT THIS ANNEXURE PERTAIN TO HIS DALAI BUSINESS FOR F.Y. 04-05. ALSO BECAUSE OUT OF THE NINE SALE DEED IN FOUR SALE DEED EXECUTED ON 12.06.2008 SH. MANOJ SO NKHIYA IS A WITNESS LEAD TO NO INFERENCE THAT THE CO-OWNERS HAVE SOLD L AND TO RAJESH TAMBI/MANOJ SONKHIYA. THEREFORE IN THE ABSENCE OF ANY EVIDENCE I AM OF THE VIEW THAT ON THE BASIS OF PAPERS IN ANNEXURE AA-2 IT CANNOT BE INFERRED THAT ASSESSEE AND OTHER CO-OWNERS HAVE SOL D LAND TO RAJESH TAMBI/MANOJ SONKHIYA MORE PARTICULARLY WHEN NONE OF THE SALE DEED IS EXECUTED IN THE NAME OF RAJESH TAMBI/MANOJ SONKHIYA AND THEREFORE THE PROFIT OF RS.22 00 801/- WORKED OUT IN THE HANDS OF EACH CO-OWNER CANNOT ITA NO. 575/JP/2016 SMT. ASHA SAMARIYA VS. ITO WARD- 5 (2) JAIPUR . 24 BE APPROVED. IT IS FURTHER NOTED THAT IN THE YEAR UNDER CONSIDERATION ONLY ONE SALE DEED IS EXECUTED ON 01.02.2006 IN FAVOUR O F SH. KAMAL KISHORE FOR RS. 1 LACS IN RESPECT OF 9 BISWA OF AGRICULTURA L LAND. HIS NAME IS NOT APPEARING AT PAGE 53 OF ANNEXURE AA-2 OR IN ANY OTH ER PAPER OF THIS ANNEXURE. THE LD. CIT(A) IN THE TABLE PRODUCED AT P AGE 34 HAS ALSO STATED THAT THERE IS NO IMPOUNDED MATERIAL WITH REFERENCE TO THIS SALE DEED. THEREFORE NO PROPORTIONATE PROFIT ON SALE OF THIS LAND AS DIRECTED BY CIT(A) CAN BE ASSESSED IN THE YEAR UNDER CONSIDERAT ION. IT IS NOTED THAT THE LD. CIT(A) HAS DIRECTED THE AO TO REOPEN THE AS SESSMENT OF THE ASSESSEE FOR THE YEARS IN WHICH THE SALE DEED OF F ARM HOUSE WERE EXECUTED BY THE ASSESSEE. THIS DIRECTION IS STATED TO BE GIVEN U/S 150(1) OF THE ACT. IT IS OBSERVED THAT UNDER THE ACT THE ASSE SSMENT CAN BE REOPENED ONLY BY THE AO WITHIN THE TIME LIMIT PROVIDED U/S 1 49 WITH THE SANCTION OF AUTHORITIES U/S 151 IF HE HAS A REASON TO BELIEF THAT INCOME CHARGEABLE TO TAX HAD ESCAPED ASSESSMENT. SECTION 150 DOES NOT GIVE ANY POWER TO LD. CIT(A) TO DIRECT THE AO TO REOPEN THE ASSESSMENT. E VEN SECTION 251 WHICH DEALS WITH THE POWER OF CIT(A) IN DISPOSING O F AN APPEAL DOES NOT GIVES ANY POWER TO CIT(A) TO DIRECT THE AO TO REOPE N THE ASSESSMENT. UNDER SECTION 251(1) OF THE ACT THE LD. CIT(A) HAS POWER IN DISPOSING APPEAL TO CONFIRM REDUCE ENHANCE OR AMEND THE ASS ESSMENT ONLY. THIS IS ITA NO. 575/JP/2016 SMT. ASHA SAMARIYA VS. ITO WARD- 5 (2) JAIPUR . 25 ALSO SUPPORTED BY THE DECISION OF SUPREME COURT IN CASE OF CIT VS. GREENWORLD CORPORATION 314 ITR 81 AND DELHI HIGH CO URT IN CASE OF CIT VS. SPLS SIDDHARTHA LTD. 345 ITR 223. THEREFORE T HE DIRECTION SO GIVEN BY CIT(A) IS BAD IN LAW AND THE SAME IS EXPUNGED. F URTHER THERE IS NO EVIDENCE THAT ASSESSEE HAD RECEIVED MORE THAN THE A MOUNT MENTIONED IN THE REGISTERED DOCUMENT. NO ENQUIRY IS MADE FROM TH E BUYERS OF THE LAND. HENCE IN VIEW OF THE DECISION OF KERALA HIGH COURT IN CASE OF CIT VS. SMT. K.C. AGNES 128 TAXMAN 848 NO ADDITION IN RESP ECT OF ALLEGED PROFIT WORKED OUT BY THE AO CAN BE TAXED IN THE YEAR IN WH ICH THE SALE DEED IS EXECUTED BY IGNORING THE ACTUAL CONSIDERATION STATE D IN THE SALE DEED. THEREFORE THE FINDING OF LD. CIT(A) ON THIS ISSUE CANNOT BE UPHELD. IT IS ALSO SEEN THAT THE FIVE CO-OWNERS PURCHASED THE LAN D AND PART OF THE SAME WAS SOLD. THESE CO-OWNERS NEVER CARRIED OUT ANY BUS INESS ACTIVITY IN PAST. THESE CO-OWNERS ARE LADIES. THERE IS NO SYSTEMATIC ACTIVITY OF DEVELOPING AND TRADING OF LAND. THERE IS NO OFFICE STAFF BOR ROWINGS OR ANY OTHER INFRASTRUCTURE TO INFER THAT THERE WAS ANY INTENTIO N OF THESE CO-OWNERS TO CARRY ON THE BUSINESS OF REAL ESTATE. THE HON'BLE RAJASTHAN HIGH COURT IN CASE OF CIT VS. SOHAN KHAN (2008) 304 ITR 194 HAS HELD THAT IN ORDER TO ARRIVE AT A CONCLUSION AS TO WHETHER A TRANSACTION IS TO BE TAXED AS CAPITAL GAIN OR THE TRANSACTION IS TO BE TREATED TO BE AN ' ADVENTURE IN THE NATURE OF ITA NO. 575/JP/2016 SMT. ASHA SAMARIYA VS. ITO WARD- 5 (2) JAIPUR . 26 TRADE' THINGS CANNOT BE PUT IN ANY STRAIGHT JACKET FORMULA AND IT IS DEPENDENT UPON THE FACTS AND CIRCUMSTANCES OF EACH CASE TO BE DECIDED ON THE BASIS OF RELEVANT CONSIDERATIONS. MERE FACT THAT THERE WAS A SERIES OF TRANSACTIONS OF SALE ONLY BY SELLING OF THE PAR T OF THE WHOLE LAND PURCHASED IN ONE GO OR PURCHASED ONCE UPON A TIME IN PIECEMEAL WOULD NOT RENDER THE ACTIVITY OF SALE TO BE AN 'ADVENTURE IN THE NATURE OF TRADE'. IN THE PRESENT CASE THERE IS NOTHING TO SHOW THAT THE LAND WAS PURCHASED WITH INTENTION TO SELL IT AT A PROFIT OR WITH REQU ISITE INTENTION TO BRING IT WITHIN THE PARAMETERS OF 'STOCK-IN-TRADE'. IT IS NO T ESTABLISHED THAT THESE ASSESSEES ARE IN A REGULAR DEAL IN REAL ESTATE. IN VIEW OF ABOVE FACTS AND CIRCUMSTANCES OF THE CASE AND THE CASE LAWS RELIED ON THE INCOME FROM SALE OF LAND CAN ONLY BE ASSESSED UNDER THE HEAD CA PITAL GAIN AND NOT AS BUSINESS INCOME. THUS THE GROUND NO. 2 TO 2.5 OF TH E APPEALS OF THE ABOVE ASSESSEE'S ARE ALLOWED. 5.1 THE COMMON GROUND NO. 3 RAISED IN THE CASE OF S MT. ASHA SAMARIYA (ITA NO. 575/JP/2015) AND IN THE CASE OF S MT. KRISHNA DEVI KHANDELWAL (ITA NO. 593/JP/2016) ARE REPRODUCED AS UNDER:- 3. THE LD. CIT(A) HAS ERRED ON FACTS AND IN LAW I N NOT ALLOWING THE CLAIM OF DEVELOPMENT EXPENDITURE OF RS.3 LACS I NCURRED BY THE ASSESSEE ONLY ON THE GROUND THAT NO DOCUMENTARY EVIDENCE HA S BEEN FURNISHED BY THE ASSESSEE THOUGH AT THE SAME TIME ACCEPTING THAT IN THE SALE DEED EXECUTED ON 12.06.2008 IT IS STATED THAT ASSESSEE HAS CONSTRUCT ED FARM HOUSE IN THE NAME OF ITA NO. 575/JP/2016 SMT. ASHA SAMARIYA VS. ITO WARD- 5 (2) JAIPUR . 27 VASTU ENCLAVE AND THUS DEVELOPMENT EXPENDITURE HAS BEEN INCURRED BY THE ASSESSEE. 5.2 I HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIALS AVAILABLE ON RECORD. AS TO THE DEVELOPMENT EXPENSES INCURRED BY THE ASSESSEE ON CONSTRUCTION OF FARM HOUSE THE OBSERV ATION OF THE LD. CIT(A) IN THE CASE OF SMT. ASHA SAMARIYA IS AS UNDER:- PAGE 16 (II) IT IS PERTINENT TO MENTION HERE THAT I N THE CASE OF ANOTHER OWNER SMT.URMILA TAMBI IN ITA NO. 600/13-14 IT WASD STATED THAT NO DEVELOPMENT WORK WAS DONE BY THE OWNERS WHEREAS IN THE INSTANT CASE UNDE R CONSIDERATION IT WAS CLAIMED THAT A SUM OF RS. 3 L AC WAS INCURRED FOR THE DEVELOPMENT OF THE FARM HOUSE ON T HE SAID AGRICULTURE LAND. HOWEVER NO EVIDENCES WERE SUBMIT TED EITHER DURING THE ASSESSMENT PROCEEDINGS OR IN APPE LLATE PROCEEDINGS IN THIS REGARD. IT IS PERTINENT TO MENT ION HERE THAT SHRI RAJESH TAMBI IN HIS STATEMENT RECORDED ON OATH STATED THAT THE LAND UNDER CONSIDERATION WAS DEVELOPED BY THE CO- OWNERS. (III) . THUS IT IS CLEAR THAT THE LAND UNDER CONSIDERATION WAS DEVELOPED BY THE APPELLANT ALONGWITH OTHER FOUR CO- OWNERS. IN VIEW OF THE TOTALITY OF THE FACTS AND CIRCUMSTAN CES OF THE ASSESSEE IT IS THEREFORE HELD THAT THE LAND UNDER CONSIDERATION WAS DEVELOPED BY THE APPELLANTS. HOWE VER SINCE NO DOCUMENTARY EVIDENCE RELATING TO DEVELOPME NT WORK ALONGWITH THE SOURCE OF SUCH EXPENDITURE WAS SUBMITTED THE BENEFIT OF DEVELOPMENT EXPENDITURE I NCURRED BY THE CO-OWNERS CANNOT BE GIVEN TO THE APPELLANT. ITA NO. 575/JP/2016 SMT. ASHA SAMARIYA VS. ITO WARD- 5 (2) JAIPUR . 28 THE SIMILAR OBSERVATION WAS ALSO MADE BY THE LD. CI T(A) IN HIS ORDER IN THE CASE OF SMT. KRISHNA DEVI KHANDELWAL. HENCE TA KING INTO CONSIDERATION THE ORDERS OF THE LOWER AUTHORITIES A ND FACTS OF THE CASE IT IS OBSERVED THAT NO DOCUMENTARY EVIDENCES WERE PRODUCE D BY THE ASSESSEE BEFORE THE LOWER AUTHORITIES AND EVEN THE SAME WERE ALSO NOT PRODUCED BEFORE THE BENCH AT THE TIME OF HEARING. HENCE I F IND NO MERIT IN THE GROUND NO. 3 OF THE RESPECTIVE ASSESSEE'S. THEREFOR E THE SAME IS DISMISSED. 6.0 IN THE RESULT THE APPEALS OF THE ABOVE ASSESSE ES ARE PARTLY ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 25/10/2016 SD/- HKKXPUN ( BHAGCHAND) YS[KK LNL;@ ACCOUNTANT MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 25 /10/ 2016 *MISHRA VKNS'K DH IZFRFYFI VXZSF'KR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT- RESPECTIVE ASSESSEES JAIPUR 2. IZR;FKHZ@ THE RESPONDENT- RESPECTIVE ITOS JAIPUR 3. VK;DJ VK;QDRVIHY@ CIT(A). 4. VK;DJ VK;QDR@ CIT 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ@ DR ITAT JAIPUR 6. XKMZ QKBZY@ GUARD FILE (ITA NO. 575/JP/2016 AND OTHERS) VKNS'KKUQLKJ@ BY ORDER LGK;D IATHDKJ @ ASSISTANT. REGISTRAR