Avani Agarwal, Kolkata V. I.T.O Wd - 37(3),kolkata., Kolkata

CO 4/KOL/2013

• Counselvise Citation: [2013] 122 COUNSELVISE.COM (IT) 8557 (ITAT-KOLKATA)
• Duration Of Justice: 4 month(s) 4 day(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 13-05-2013
• Appeal Filed By: Assessee
• Bench Allotted: A
• Assessment Year: 2009-2010
• Appeal Filed On: 08-01-2013
• Court: TRIBUNAL
• Department Lawyers: L K S DEHIYA
• Assessee Lawyers: V N PUROHIT
• Section: 69

Judgement Text

, , , IN THE INCOME TAX APPELLATE TRIBUNAL, BENCH A , KOLKATA [ () . .. . . .. . , ,, , , !' #! $'# #! $'# #! $'# #! $'#, ,, , ] ]] ] [BEFORE HONBLE SRI K.K.GUPTA, AM & HONBLE SRI MAHAVIR SINGH, JM] '& '& '& '& /ITA NO.1802/KOL/2012 $'( !)*/ ASSESSMENT YEAR : 2009-10 (,- / APPELLANT ) - !' - ( /0,- /RESPONDENT) I.T.O., WARD-37(3), MISS.AVANI AGARWAL KOLKATA . -VERSUS- KOLKATA (PAN : AGCPA 8506 F) 1 23 /C.O.NO.04/KOL/2013 '& '& '& '& /A/O ITA NO.1802/KOL/2012 $'( !)*/ ASSESSMENT YEAR : 2009-10 (1 23 / CROSS OBJECTOR ) - !' - ( /0,- /RESPONDENT) AVANI AGARWAL . I.T.O., WARD-37(3), KOLKATA. -VERSUS- KOLKATA (PAN : AABCP 5150 G) ,- 4 5 / FOR THE DEPARTMENT SHRI L.K.S.DEHIYA, CIT /0,- 4 5 / FOR THE ASSESSEE SHRI V.N.PUROHIT '!6 4 7 /DATE OF HEARING : 13.05.2013 8) 4 7 /DATE OF PRONOUNCEMENT : 13.05.2013. 9 / ORDER PER SHRI K.K.GUPTA, AM THE REVENUE IS IN APPEAL ON THE SOLITARY ISSUE THAT THE LD. CIT(A) ERRED IN LAW AS WELL AS ON FACT IN DELETING THE ADDITION TO THE TUNE OF RS.18,65,190/- ON ACCOUNT OF UNDISCLOSED INVESTMENT. A CROSS OBJECTION HAS BEEN PREFERRED BY THE RESPONDENT INDICATING THAT AFTER HAVING ESTABLISHED THE AMOUNT OF RELIEF TO BE GRANTED WAS NOT TO BE REDIRECTED TO THE AO TO VERIFY IN SO FAR AS THESE F ACTS WERE BROUGHT ON RECORD BY THE AO AND WERE CONSIDERED BY THE LD. CIT(A) AS COULD B E PERUSED IN HIS ORDER. 2. THE BRIEF FACTS AS HAVE BEEN BROUGHT ON RECORD ARE THAT THE ASSESSEE IS AN INDIVIDUAL RENDERING INCOME FROM DIVIDEND ETC. FILE D RETURN OF INCOME OF RS.5,15,550/- ITA NO.1802/KOL/2012& C.O.04/KOL/2013 AVANI AGARWAL A.YR.2009-10 2 THE AO OBSERVED INVESTMENT IN A FLAT CO-OWNED BY TH E ASSESSEES MOTHER. HE ARITHMETICALLY DIVIDED 50% SHARE OF THE ASSESSEE. H E OBSERVED THAT A SUM OF RS.18,65,190/- WAS PAID FOR BY THE ASSESSEE AND REM AINED UNDISCLOSED. IT WAS THE EXPLANATION THAT THE ASSESSEES MOTHER BEING 50% CO -OWNER WAS NOT ABLE TO PAY THE WHOLE AMOUNT WAS PAID BY THE ASSESSEE CANNOT BE TAX ED IN THE HANDS OF THE ASSESSEE, IN SO FAR AS THE MOTHER REFUNDED A SUM OF RS.15 LAK HS WHICH IS ACCEPTED BY THE AO. HOWEVER, THE ADDITION WAS APPEALED BEFORE THE FIRST APPELLATE AUTHORITY WHEN IT WAS SUBMITTED THAT THE LD. AO HAS CONSIDERED THE TOTAL PAYMENT FROM THE ASSESSEE AS RS.66,65,976/- CONSISTING OF RS.RS.33,71,805/- PAID DURING THE EYAR 2008-09 AND RS.33,94,171/- PAID DURING THE YEAR 2009-2010 AND A S THE TOTAL PAYMENT IS MORE THAN THE TOTAL AMOUNT OF INVESTMENTS ACTUALLY MADE AGAIN ST THE FLAT, THE EXCESS AMOUNT OF RS.18,65,190/- HAS BEEN CONSIDERED AS UNDISCLOSED I NVESTMENT. 3. HOWEVER, THE PAYMENT MADE DURING THE YEAR 2008-0 9 OF RRS.33,71,805/- MADE BY THE ASSESSEE CONSISTS OF RS.14,90,295/- TOWARDS THE PURCHASE OF THE FLAT AND RS.18,65,190/- WAS PAID ON A/C OF HER MOTHER, MRS. MANISHA AGARWAL. THIS PAYMENT MADE BY THE ASSESSEE ON BEHALF OF HER MOTHER SEEMS TO HAVE CREATED ALL THE CONFUSION IN THE MIND OF THE ASSESSING OFFICER AND THAT HAS L EAD TO THE ADDITION IN THE HANDS OF THE ASSESSEE AS UNDISCLOSED INVESTMENT, WHEREAS THE FACTS REMAINS THAT : A) THIS AMOUNT OF RS.18,65,190/- WAS MADE BY THE AS SESSEE ON BEHALF OF HER MOTHER IS DULY REFLECTED IN THE BOOKS OF ACCOUNTS OF ASSESSEE AS WELL AS HER MOTHER, MANISHA AGARWAL. B) THIS PAYMENT MADE ON BEHALF OF HER MOTHER HAS BE EN DULY REFUNDED BY HER MOTHER TO THE ASSESSEE. C) THE ABOVE FACTS WERE BROUGHT ON RECORD BOTH AT T HE TIME OF ASSESSMENT AND ALSO BEFORE THE LD. CIT(A) VIDE HER SUBMISSION MADE ON 1 1.09.2012. 4. THE LD. CIT(A) FOUND THIS FACTUAL MATRIX JUSTIFI ED AFTER VERIFICATION AND THEREFORE HELD THE AMOUNT DIRECTLY PAID BY THE ASSE SSEE TO M/S. KALPATARU LTD. ON BEHALF OF HER MOTHER SMT. MANISHA AGARWAL DURING TH E FINANCIAL YEAR 2008-09. IT WAS ITA NO.1802/KOL/2012& C.O.04/KOL/2013 AVANI AGARWAL A.YR.2009-10 3 REFUNDED TO HER CANNOT BE TAXED IN THE HANDS OF THE ASSESSEE IN THE IMPUGNED ASSESSMENT YEAR AND DELETED THE SAID ADDITION. 5. WE HAVE HEARD THE RIVAL CONTENTIONS AND CAREFULL Y PERUSED THE MATERIALS AVAILABLE ON RECORD. ON CAREFUL CONSIDERATION OF TH E FACTS AND CIRCUMSTANCES OF THE CASE, WE DO NOT FIND ANY INFIRMITY IN THE ORDER OF THE LD. CIT(A). 5.1. DURING THE YEAR UNDER REFERENCE THE ASSESSEE, MS.AVANI AGARWAL (ASSESSEE) HAD PURCHASED A FLAT JOINTLY WITH HER MOTHER, SMT.MANIS HA AGARWAL. TOTAL COST OF FLAT WAS RS.98,01,572/-. APPELLANTS 50% SHARE WAS RS.49,00, 786/- WHICH WAS PAID BY HER AND REFLECTED IN BALANCE SHEET AS AT 31-03-09 (PAGE NO. 4 OF PAPER BOOK). AS HER MOTHER HAD NO REQUISITE FUNDS TO PAY FULL RS.49,00,786/- T OWARDS HER 50% SHARE, APPELLANT PAID RS.18,65,190/- ON HER MOTHERS BEHALF AND ALSO PAID REGISTRATION CHARGES RS.32640/- ON HER MOTHERS BEHALF. OUT OF THIS TOTA L AMOUNT OF RS.397830/- APPELLANT PAID ON HER MOTHERS BEHALF SMT. MANISHA AGARWAL HA D REFUNDED RS.15.00 LAKHS ON 28-03-2009 TO AVANI AGARWAL. THUS A BALANCE SUM OF RS.3,97,830/- REMAINED TO BE RECEIVED FROM HER MOTHER ON 31.03.09 (RS.365190/- O UT OF ADVANCE AND RS.32640/- TOWARDS REGISTRATION CHARGES) AND IS REFLECTED IN A SSESSEES BALANCE SHEET (PAGE NO.4) ON ASSET SIDE AND IN HER MOTHERS BALANCE SHEET ON LIABILITY SIDE (PAGE NO.18). 5.2. THE AO DID NOT APPRECIATE THE ABOVE SIMPLE FAC T AND ADDED RS.18,65,190/-. AS THE ASSESSEE PAID RS.49,00,786/- TOWARD HER 50% SHA RE AND RS.1865190/- ON BEHALF OF HER MOTHER AS ADVANCE DETAILED ABOVE, AO PRESUMED T HAT REAL COST OF HER SHARE WAS RS.67,65,976/- (RS.4900786 + 1865190) AND IN APPELL ANTS BALANCE SHEET, COST OF FLAT IS APPEARING ONLY AT RS.4900786/-. AO THERE FROM AD DED RS.1865190/- TO HER INCOME WHICH IN FACT WAS AN ADVANCE TO HER MOTHER AS DETAI LED ABOVE. 5.3. THE AO HAS GIVEN EFFECT TO CIT(A)S ORDER OF R S.15.00 LAKHS ONLY ON THE GROUND THAT HER MOTHER REFUNDED DURING THE YEAR RS. 15.00 LAKHS ONLY AND HAS NOT ALLOWED RELIEF OF THE BALANCE AMOUNT RS.3,65,190/-. EVEN APPELLANTS RECTIFICATION PETITION TO ALLOW THE BALANCE AMOUNT HAS BEEN REJEC TED ON THE ABOVE GROUND THOUGH IN PRESENT APPEAL AO ADMITS THAT CIT(A) GAVE RELIEF OF RS.18,65,190/- AS PER HIS GROUND. ITA NO.1802/KOL/2012& C.O.04/KOL/2013 AVANI AGARWAL A.YR.2009-10 4 5.4. IN THIS VIEW OF THE MATTER, THE LD COUNSEL FOR THE ASSESEE IN HIS WISDOM HAS AGREED TO THE PROPOSITION THAT THE CROSS OBJECTION FOR CONSIDERING A PART PORTION ON THE AOS ORDER U/S 251 OF THE ACT REMAINS A QUESTION TO BE ADDRESSED BY THE LD. CIT(A) IN SO FAR AS THE WHOLE OF THE AMOUNT ON RS.18,65,190/- STOOD EXPLAINED CANNOT BE TAXED IN THE HANDS OF THE ASSESSEE ALONE. THE LD. COUNSEL THEREFORE HAS RIGHTLY POINTED OUT THAT THE DIRECTION WAS NOT PROPER IN SO FAR AS THE FACTUAL FACTS AS BROUGHT ON RECORD BY THE AO WAS DEALT WITH IN DETAIL AND NOT TO BE SPLIT FOR CONSIDERING OTHERWISE THE AMOUNT OF INTEREST AS NOT SHOWN BUT THIS HAS BEEN A CCEPTED BY THE AO. IN THE RESULT THE APPEAL OF THE REVENUE IS DISMISSED AND THE CROSS OB JECTION BY THE ASSESSEE WITH RESPECT TO THE DIRECTION TO THE AO BY THE LD. CIT(A ) IS FUTILE EXERCISE TO BE CONDUCTED FOR THE AO IN VIEW OF THE ASSESSMENT OF 50% SHARE O F THE CO-OWNERS HAS NOT BEEN BROUGHT ON RECORD IN THE SPECIFIC ACCOUNTING THEREI N WAS SUBMITTED BY THE ASSESSEE AT THE TIME OF ASSESSMENT. IN OTHER WORDS, THE AMOUNTS SHOWN AS INVESTMENT ON BEHALF OF THE MOTHER HAS BEEN TAXED IN THE HANDS OF THE ASSES EE WOULD HAVE RESULTED IN DOUBLE TAXATION IN THE IMPUGNED ASSESSMENT IN SO FAR AS TH E DISALLOWANCE OR ADDITION MADE U/S 69 OF THE ACT WAS NOT EXISTING. THE AMOUNT OF INVES TMENT WHETHER IN THE FLAT OR WITH THE MOTHER, WHO IS CO OWNER HAD BEEN CORRELATED BY THE LD. CIT(A), THEREFORE WAS RIGHTLY CONSIDERED FOR DELETION BY THE LD. CIT(A). THE SAME DID NOT REQUIRE FURTHER VERIFICATION AS DIRECTED BY HIM TO THE AO IN VIEW O F THE PROVISION OF THE INCOME TAX ACT IN RESPECT OF A.YR.2001-02. THE CROSS OBJECTION STANDS ALLOWED TO THE EXTENT THAT THE AO IS DIRECTED TO DELETE RS.18,65,190/- AND GIV E EFFECT ACCORDINGLY. 6. IN THE RESULT THE APPEAL OF THE REVENUE IS DISMI SSED AND THE CROSS OBJECTION OF THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE COURT ON 13.05.2013. SD/- SD/- [ .#! $'# , ] [ .., ,, , ] [MAHAVIR SINGH ] [K.K.GUPTA] JUDICIAL MEMBER ACCOUNTANT MEMBER ( (( (7 7 7 7) )) ) DATE: 13.05.2013. R.G.(.P.S.) ITA NO.1802/KOL/2012& C.O.04/KOL/2013 AVANI AGARWAL A.YR.2009-10 5 9 4 /$$2 :2);- COPY OF THE ORDER FORWARDED TO: 1. MISS AVANI AGARWAL, C/O AGARWAL KEJRIWAL & CO., 1, GANESH CHANDRA AVENUE, 4 TH FLOOR, KOLKATA-700013. 2 I.T.O., WARD-37(3), KOLKATA. 3 . CIT KOLKATA 4 . CIT(A)-CENTRALXXIV, KOLKATA. 5. CIT(DR), KOLKATA BENCHES, KOLKATA. 02 /$/ TRUE COPY, 9'/ BY ORDER, DEPUTY /ASST. REGISTRAR , ITAT, KOLKATA BENCHES