K.S.JHAVERI,J. - (1.) By way of this appeal, the appellant has assailed the judgment and order of the Tribunal whereby the Tribunal has dismissed the appeal preferred by the department.
(2.) This Court while admitting the matter framed the following question of law:- "Whether on the facts and circumstances of the case and in law the ITAT was justified in deleting the addition of Rs. 5.13 crore made by the AO on account of unexplained investment in purchase of agricultural land on the basis of sale agreement and other documents found and impounded during the course of survey under section 133 in which the sale consideration was Rs. 7.00 crores.?"
(3.) Counsel for the appellant has taken us to the order of AO and contended that the AO after considering the evidence on record has come to the conclusion as under:- "Hence, it is established that the sellers were agreed to sale his land of 4.47 + 5.74 hqtrs. for Rs. 7.00 crores because of the market value of land was Rs. 7.00 crores in that case. It is also stated that no prudent businessman or seller would like to sale the land costing of Rs. 7.00 crores or more in only Rs. 1.87 crore. It is also not believable looking to the circumstances of the case. Sequence of events clearly establishes that the sellers have back out from earlier agreement because new purchasers might have been offered consideration over Rs. 7.00 crores for the impugned land. Consequently, the sellers changed the attitude due to greediness. It is well known fact that no body ready to sell his property less than the market value. But in the instant case, it is surprised to note that sellers have agreed to sell their property in 1.87 crores only instead of Rs. 7.00 crores. This mean that sellers have to bear the loss of Rs. 5.13 crores (7.00-1.87 crore)." In the light of facts and circumstances of the case, I am of the opinion that it is not possible that a person who has sold his land in Rs. 7.00 crores and after breaking the contract sold to another persons in a very lower cost i.e. 1.87 crores only. The contention of the assessee firm is not acceptable that it has made a further agreement to share the profit earned from developing/plotting/selling of plots/constructing and selling of row house and buildings etc. I therefore, reject the plea treating as an afterthought story of the firm to evade the tax and make the addition to the total income of the assessee firm which comes at Rs. 5.13 crores and assume that the assessee firm invested the same from its undisclosed sources/income during the year under consideration which has not been shown by the assessee firm in its return of total income. Therefore, penalty proceedings under section 274 r.w.s.271(1)(c) are also being initiated separately for furnishing of inaccurate particulars of income/concealing particulars of income on this account.;