Smt. Renu Singh , Rewa V. Income Tax Officer Ward 1, Rewa

CO 8/JAB/2017

• Counselvise Citation: [2018] 123 COUNSELVISE.COM (IT) 3579 (ITAT-JABALPUR)
• Duration Of Justice: 5 month(s) 3 day(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 16-03-2018
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2009-2010
• Appeal Filed On: 13-10-2017
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: V B SARGAR
• Assessee Lawyers: SA
• Keywords: Unexplained investment; Salary income
• Section: 143(3); 147; 69

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL JABALPUR BENCH, JABALPUR BEFORE SHRI KUL BHARAT, JUDICIAL MEMBER AND SHRI MANISH BORAD, ACCOUNTANT MEMBER ITA NO. 38/JAB/2017 & CO NO. 08/JAB/2017 / ASSESSMENT YEAR : 2009-10 INCOME TAX OFFICER, WARD-1, REWA(MP) VS SMT. RENU SINGH, W/O. DR. ATUL SINGH, GANGEO HOUSE, VENKAT BATTALION, REWA (MP) PAN : AKBPS 2077 C / (APPELLANT) / (RESPONDENT) & CROSS-OBJECTOR REVENUE BY : SHRI V.B. SARGAR, DR ASSESSEE BY : SHRI SAPAN USRETHE, ADV. / DATE OF HEARING : 15/03/2018 / DATE OF PRONOUNCEMENT: 16/03/2018 / O R D E R PER KUL BHARAT, JUDICIAL MEMBER:- THIS APPEAL BY THE REVENUE AND CROSS-OBJECTION THEREOF BY THE ASSESSEE ARE DIRECTED AGAINST THE ORDER OF THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS)-2, JABALPUR DATED 28 TH JUNE 2017 PERTAINING TO ASSESSMENT YEAR 2009-10. 2. REVENUE HAS RAISED FOLLOWING GROUNDS OF APPEAL:- 1. THE LD CIT (A) ERRED IN ACCEPTING THE ADVANCE PAYMENT OF RS 26 LAKHS CLAIMED TO HAVE BEEN MADE OVER 4/5 YEAR BY THE ASSESSEE WITHOU T SUBJECTING THE SAME TO ANY VERIFICATION OR EVEN TO THE TEST OF HUMA N PROBABILITIES AND THUS ,ERRED IN DELETING THE ADDITION MADE BY THE AO FOR THE YE AR UNDER CONSIDERATION U/S 69. 2. THE LD CIT(A) HAS ERRED IN NOT APPRECIATING THE CLEAR POSSIBILITY THAT THE SELLER /HIS WIFE IS MERELY STATING WHAT HAS BEEN REQUESTE D OF HER BY BUYER I.E THE APPELLANT IN ORDER TO ESCAPE THE TAXATION ASPECT FOR THE YEAR UNDER CONSIDERATION. 3. THE LD . CIT (A) HAS ERRED IN ACCEPTING THE CLAIM OF THE ASSESSEE THAT THE SAID INCOME HAS BEEN ACCUMULATED OVER A PERIOD OF YEARS AN D KEPT IN THE FORM ITA NO. 38/JAB/2017 & CO NO. 08/JAB/2017 ITO VS. SMT. RENU SINGH AY : 2009-10 2 OF CASH AS HIS CLAIM IS NOT LOGICAL AND DOES NOT SATISF Y THE TEST OF HUMAN PROBABILITIES ESPECIALLY IN VIEW OF THE FACT THAT THE APPEL LANT AS WELL AS HER HUSBAND ARE EDUCATED PERSONS WITH GOVERNMENT EMPLOYMENT AND HAVE LIBERAL EXPOSURE TO BANKING FACILITIES. 4. THE LD .CIT(A) ERRED IN APPRECIATION THE VERY IMPORTAN T FACT THAT DURING ASSESSMENT PROCEEDING; IN RESPONSE TO NOTICE U/S 148, T HE ASSESSEE HAD STATED THAT THE SOURCE OF INVESTMENT IN THE PURCHASE OF LAND WAS RECEIPT OF RS.8 LAKHS FROM HER BROTHER JITENDRA SINGH BISEN, HOWEVER, THE RE PLY OF THE ASSESSEE DURING APPELLATE PROCEEDINGS HAS CHANGED IN THE SENSE THAT THE SAID SOURCE HAD BEEN OMITTED AND SALE PROCEEDING OF LAND SOLD BY HUSBAND OF THE ASSESSEE TO THE TUNE OF RS. 14,82,343/-HAS BEEN SUBSTITUTED WHICH CLEA RLY SHOWS THAT THE ASSESSEE HAS BEEN TRYING TO MAKE UP STORIES REGARDIN G SOURCE OF INVESTMENT WHEREAS FACTUAL AMOUNT REPRESENTS UNACCOUN TED FUND AVAILABLE WITH HER . 5. THE LD. CIT(A) ERRED IN APPRECIATING THE FACT THAT DURI NG THE APPELLATE PROCEEDINGS, THE ASSESSEE HAS STATED THAT THE TOTAL FUND AVAILABLE WITH HER WERE RS.58.58 LAKHS AS ALSO WAS SHOWN TO BE AVAILABLE AT THE TIME OF ASSESSMENT PROCEEDINGS, BUT THE TOTAL HAS BEEN WRONGLY MA DE WHICH IS ACTUALLY RS.6540343/-. THIS ASPECT ALSO CONFIRMS THE ADHOC EXP LANATION GIVEN WHICH HAS NO RELATIONSHIP TO THE REALITY OF FUNDS AVAILABLE WITH THE ASSESSEE TO MAKE IMPUGNED INVESTMENT IN PURCHASE OF LAND . 3. BRIEFLY STATED FACTS, AS CULLED OUT FROM THE RECORDS , ARE THAT ASSESSEE IS A GOVT. TEACHER, DERIVING INCOME FROM SALARY. THE CASE OF THE ASSESSEE WAS REOPENED AND ASSESSMENT UNDER SECTION 147 R.W.S. 143(3) OF THE INCOME-TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT) WAS FRAMED V IDE ORDER DATED 04.01.2016. WHILE FRAMING THE ASSESSMENT, THE ASSESSING OFFICE R MADE ADDITION OF RS.53,95,000/- ON ACCOUNT OF UNEXPLAINED INVESTME NT AND RS.1,32,299/- AS INCOME AS PER FORM NO.16. AGAINST THE ORDER OF THE ASSESSING OFFICER, ASSESSEE PREFERRED APPEAL BEFORE TH E LEARNED CIT(A) WHO SOUGHT REMAND REPORT FROM THE ASSESSING OFFICER. AF TER CONSIDERING THE MATERIAL AVAILABLE ON RECORD AND THE REMAND REPORT OBTAINED FROM THE ASSESSING OFFICER, LD. CIT(A) DELETED THE ADDITIONS IN QUESTION. AGGRIEVED BY THE RELIEF SO GRANTED BY THE LD. CIT(A), THE REVE NUE IS NOW IN APPEAL BEFORE THE TRIBUNAL. ITA NO. 38/JAB/2017 & CO NO. 08/JAB/2017 ITO VS. SMT. RENU SINGH AY : 2009-10 3 4. FIRST WE TAKE UP REVENUES APPEAL IN ITA NO.38/JAB/2017, W HEREIN THE ONLY SUBSTANTIVE GROUND RAISED BY THE REVENUE IS AGAINST THE DELETION OF ADDITION OF RS.53,95,000/-. LEARNED DEPARTMENTAL REPRESENTATIV E SUPPORTED THE ORDER OF THE ASSESSING OFFICER. ON THE OTHER H AND, LEARNED COUNSEL FOR THE ASSESSEE SUPPORTED THE ORDER OF THE LD. CIT(A) A ND POINTED OUT THAT THE ASSESSING OFFICER HAS ADMITTED IN THE REMAND REPORT TH AT THE SOURCE OF INVESTMENT WAS EXPLAINED. HE DREW OUR ATTENTION TO TH E PAPER-BOOK PAGE NO.97 TO 103, WHERE COPY OF REMAND REPORT HAS BEEN ENCLOS ED. 5. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MAT ERIAL AVAILABLE ON RECORD. WE FIND THAT LD. DEPARTMENTAL REPRES ENTATIVE COULD NOT CONTROVERT THE FACT THAT IN THE REMAND REPORT THE ASSESSING OFFICER HAS ACCEPTED THE FACTUM OF SOURCE OF INVESTMENT. WE ALSO F IND THAT LD. CIT(A) HAS REPRODUCED THE RELEVANT PORTION OF THE REMAND REP ORT IN HIS ORDER AT PARAGRAPH 4.3 AND HAS GIVEN A FINDING OF FACT THAT AS UNDER:- 6.2.12 I HAVE CAREFULLY CONSIDERED THE FACTS OF THE CASE AND THE OBSERVATIONS OF THE ASSESSING OFFICER, WRITTEN SUBMISSIONS ON BEHAL F OF THE APPELLANT, THE REMAND REPORT AND THE REJOINDER THEREON AS WELL AS THE MA TERIAL- PLACED ON RECORD. WHILE COMPLETING THE ASSESSMENT, THE ASSESSING OFFICER DID NOT MAKE ANY INDEPENDENT ENQUIRY TO ASCERTAIN THE AGRICULTURAL HOL DINGS AND AGRICULTURAL ACTIVITIES OF THE APPELLANT OR HER HUSBAND, DR. ATUL SINGH. HE MADE THE IMPUGNED ADDITION UNDER SEC. 69 HOLDING THAT THE APPELL ANT HAD NOT PRODUCED ANY ADMISSIBLE EVIDENCE IN SUPPORT OF HER CLA IM. NOW, THE APPELLANT HAS FILED COPY OF RIN PUSTIKA, AND KHASRA PANCHS ALA IN RESPECT OF THE AGRICULTURAL HOLDING OF DR. ATUL SINGH, HER HUSBAND OF 10.157 HECT. OR ABOUT 23 ACRES. COPY OF AN AGREEMENT DATED 01/05/1996 BETWEEN DR. SI NGH AND ONE RAMNIVAS KUSWAHA REGARDING SHARE-CROPPING OF THE SAID LAN D FOR THE PERIOD FROM 01/05/1996 TO 31/03/1999 HAS BEEN FILED. FURTHER, THE FOLLOWIN G DOCUMENTS HAVE BEEN FILED IN SUPPORT OF THE CLAIM OF AGRIC ULTURAL INCOME: (I) A CERTIFICATE IN RESPECT OF AGRICULTURAL INCOME OF ABOUT RS. 10 LACS FROM TWO CROPS DURING FYR. 2015-16 OBTAINED FROM THE TAHSILDAR; ITA NO. 38/JAB/2017 & CO NO. 08/JAB/2017 ITO VS. SMT. RENU SINGH AY : 2009-10 4 (II) COPIES OF BILLS/VOUCHERS OF SEED AND FERTILIZERS PU RCHASE AS WELL AS PURCHASE MEMO ISSUED BY THE LOCAL VENDORS TO WHOM THE CROPS HAVE BEEN SOLD BY THE HUSBAND OF THE APPELLANT HAVE ALSO BEEN FILED; AND (III) AGRICULTURE P&L ACCOUNT SHOWING THE SURPLUS FROM AGRICULTURE OPERATIONS SINCE A.Y.2001-02 TO 2009-10. NOW, ON PERUSAL OF THE SAID PROFIT AND LOSS ACCOUNT, THE SURPLUS INCOME IN THE DIFFERENT YEARS IS SHOWN AS UNDER: F.YR. SURPLUS INCOME FROM AGRICULTURE 2000-01 RS.1,86,342 2001-02 RS.2,77,116 2002-03 RS.2,76,200 2003-04 RS.3,33,740 2004-05 RS.2,99,317 2005-06 RS. 3,91,186 2006-07 RS. 3,47,083 2007-08 RS. 4,93,124 2008-09 RS. 6.08,092 TOTAL RS.32,12,200 THE ASSESSING OFFICER HAS CONDUCTED LOCAL ENQUIRIES FOR VERIFICATION OF THE BILLS AND VOUCHERS FOR THE LOCAL SALE OF AGRICULTURAL PRODUCE AS ALSO FOR THE PURCHASE OF SEEDS AND FERTILIZER, ETC. THE INSPECTOR'S REPORT IS PLACED ON RECORD. THE VERACITY OF THE SAID BILLS AND VOUCHERS HAS NOT BE EN DOUBTED. AS REGARDS ADVANCE PAYMENT TO THE SELLER OF LAND IN THE YEAR S 2004 TO 2007 TO THE TUNE OF RS.26,00,000/-, THE ASSESSING OFFICER CONDUCTE D ENQUIRIES THROUGH THE INSPECTOR REVEALED THAT THE SELLER SHRI MOHD. SHAF EEQ HAS SINCE DIED AND THE WIDOW OF THE DECEASED, SMT. JAMEELUNISSA KHAN, IN HER WRITTEN STATEMENT, CONFIRMED TO HAVE RECEIVED THE ADVANCES AND ALSO CASH PAYMENT OF RS.24,00,000 PRIOR TO THE SALE OF LAND DURING THE FINANCIAL YEAR UNDER CONSIDERATION. NOW, KEEPING IN VIEW THE EXTENT OF AGRIC ULTURAL HOLDINGS, THE NATURE OF CROPS GROWN, THE BILLS AND VOUCHERS FURNISHED FOR THE SALE OF AGRICULTURAL PRODUCE TO LOCAL TRADERS AND ALSO PURCHAS E OF SEED AND FERTILIZER, THE TAHSILDAR'S CERTIFICATE FOR THE F.YR. 2015-16 AND THE KRISHI UPAJ MANDI RECEIPTS PRODUCED FOR THE SUBSEQUENT PERIOD, IT IS CLEAR THAT THE FAMILY OF APPELLANT HAD SUBSTANTIAL AGRICULTURAL INCOME FOR THE LA ST SEVERAL YEARS, AT LEAST RIGHT FROM THE FINANCIAL YEAR 1996-97. 6.2.13 IN THE CASE OF ADDL. C1T V. BED KRISHNA PATEL (2013) 21 1TJ 90 (TRIB.JABALPUR), WHERE ASSESSEE OWNED AGRICULTURAL LAND , AND ASSESSEE HAD SUFFICIENT EVIDENCE TO SHOW AGRICULTURAL INCOME, THE AG RICULTURAL INCOME HAS BEEN ACCEPTED. SIMILARLY, IN THE CASE OF ANIL KUMAR PA CHORI V. 1TO (2011) 18 ITJ (TRIB.-JABALPUR), WHERE THE AGRICULTURAL HOLDINGS AN D AGRICULTURAL ITA NO. 38/JAB/2017 & CO NO. 08/JAB/2017 ITO VS. SMT. RENU SINGH AY : 2009-10 5 PRODUCE HAD NOT BEEN DOUBTED, THE AGRICULTURAL INCOME AS S HOWN BY THE APPELLANT HAS BEEN ACCEPTED. 6.2.14. IN VIEW OF THE FOREGOING DISCUSSION OF FACTS AND AL SO IN VIEW OF THE DECISION OF THE HON'BLE TRIBUNAL IN SIMILAR CASES, THE C LAIM OF THE APPELLANT THAT THE SAVINGS FROM THE AGRICULTURAL INCOME OF THE PAS T ASSESSMENT YEARS FROM THE AGRICULTURAL LAND OF THE FAMILY IN THE NAME OF DR. ATUL SINGH COVERED THE INVESTMENT TO THE EXTENT OF RS. 30,95,657/- IS JU STIFIED AND IS ACCEPTABLE. THERE IS NO MATERIAL BROUGHT ON RECORD TO PR OVE THE CONTRARY. 6.2.15. HAVING REGARD TO THE TOTALITY OF FACTS AND CIRCUMSTA NCES OF THE CASE, THE ADDITION OF RS. 53,95,000/- MADE BY THE ASSESSING OFFICER AS UNEXPLAINED INVESTMENT UNDER SEC. 69 OF THE IT ACT, 1961 IS DELETED. THESE FINDINGS OF FACTS HAVE NOT BEEN CONTROVERTED BY THE REVENUE BY PLACING ANY CONTRARY MATERIAL ON RECORD. WE, THEREFORE, SEE NO REASON TO INTERFERE IN THE FINDINGS OF THE LD. CIT(A) WHICH I S CONFIRMED. APPEAL FILED BY THE REVENUE IS THUS DISMISSED. 6. NOW WE TAKE UP CROSS OBJECTION OF THE ASSESSEE. THE ASSESSEE HAS RAISED FOLLOWING GROUNDS IN ITS CROSS-OBJECTION:- 1. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E, THE LEARNED CIT(A) WAS JUSTIFIED IN ACCEPTING THE ADVANCE PAYMENT OF RS.26,00,000 AS THE SELLER HIMSELF HAS ACCEPTED AND ALSO FILED THE AFFIDAVIT IN THIS REGARD AND SAME WAS ALSO ACCEPTED BY THE ASSESSING OFFICER HIMSELF IN REMAND REPORT. 2. THIS GROUND OF APPEAL IS ONLY THE PRESUMPTION AND HA VE NO MEANING IN THE EYES OF LAW AS WIFE OF THE SELLER HAS GIVEN AFFIDAVIT ON OATH AND VERIFIED BY THE ASSESSING OFFICER. 3. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE, THE LEARNED CIT(A) WAS JUSTIFIED IN ACCEPTING THE ACCUMULATED INCOME AS THERE IS NO BAR IN INCOME TAX LAW AND THEREFORE, GROUND RAISED BY THE REVENUE I S ON PRESUMPTION AND DESERVES TO BE REJECTED. 4. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE, LEARNED CIT(A) WAS JUSTIFIED IN ACCEPTING THE SALE PROCEEDS OF LAND BY HE R HUSBAND OF RS.14,82,343 AS IT WAS BASED ON MATERIAL EVIDENCE AS SALE DEE DS WERE FILED ITA NO. 38/JAB/2017 & CO NO. 08/JAB/2017 ITO VS. SMT. RENU SINGH AY : 2009-10 6 BEFORE THE ASSESSING OFFICER AND SAME WERE ALSO ACCEPT ED BY THE ASSESSING OFFICER HIMSELF IN REMAND REPORT. 5. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE C ASE, THE AVAILABILITY OF FUND SHOWN IS BASED ON DOCUMENTARY EVIDENCE AND IT WAS ALSO VERIFIED BY THE ASSESSING OFFICER AFTER DEEP ENQUIRY AND SAME WAS ACCE PTED IN THE REMAND REPORT. 7. WE FIND THAT ALL THESE GROUNDS ARE IN SUPPORT OF THE ORDER OF THE LD. CIT(A). AS WE HAVE ALREADY UPHELD THE ORDER OF THE LD . CIT(A) (SUPRA), THESE GROUNDS RAISED BY THE ASSESSEE HAVE BEEN RENDER ED INFRUCTUOUS; HENCE, THE CROSS-OBJECTION FILED BY THE ASSESSEE IS ALSO DISMISSED. 8. IN THE RESULT, REVENUES APPEAL AND ASSESSEES CROSS- OBJECTION, BOTH ARE DISMISSED. ORDER PRONOUNCED IN THE COURT ON 16 TH MARCH, 2018 AT JABALPUR. SD/- SD/- (MANISH BORAD) ACCOUNTANT MEMBER (KUL BHARAT) JUDICIAL MEMBER JABALPUR; DATED 16/03/ 2018 *BIT / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. / CONCERNED CIT 4. ( ) / THE CIT(A) 5. , , / DR, ITAT, JABALPUR 6. / GUARD FILE . / BY ORDER, TRUE COPY / ( DY./ASSTT.REGISTRAR) , / ITAT, JABALPUR