SHRI SANDEEP NIJHAWAN, JAIPUR V. DEPUTY COMMISSIONER OF INCOME TAX, JAIPUR

ITA 101/JPR/2018

• Counselvise Citation: [2018] 126 COUNSELVISE.COM (IT) 1986 (ITAT-JAIPUR)
• Duration Of Justice: 1 month(s) 30 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-03-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2013-2014
• Appeal Filed On: 29-01-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SEEMA MEENA JCIT DHK
• Keywords: Unexplained investment
• Section: 133A

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHE S, JAIPUR JH FOT; IKY JKO] U;KF;D LNL; ,OA JH FOE FLAG ;KN O] YS[KK LNL; DS LE{K BEFORE: SHRI VIJAY PAL RAO, JM AND SHRI VIKRAM SIN GH YADAV, AM VK;DJ VIHY LA-@ ITA NO. 101/JP/2018 FU/KZKJ.K O'K Z@ ASSESSMENT YEARS : 2013-14 SH. SANDEEP NIJHAWAN, 112, PANCHSHEEL ENCLAVE, DURGAPURA, JAIPUR. CUKE VS. DEPUTY COMMISSIONER OF INCOME TAX, CIRCLE-7, JAIPUR. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN NO. AANPN 4037 B VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY : SHRI P.C. PARWAL (CA) JKTLO DH VKSJ LS@ REVENUE BY : SMT. SEEMA MEENA (JCIT) LQUOKBZ DH RKJH[K@ DATE OF HEARING : 27.03.2018. ?KKS'K .KK DH RKJH[K@ DATE OF PRONOUNCEMENT : 28/03/2018. VKNS'K@ ORDER PER: VIKRAM SINGH YADAV, AM THE APPEAL IS FILED BY THE ASSESSEE AGAINST THE OR DER OF LD. CIT(A)-3, JAIPUR, DATED 11.12.2017 FOR THE A.Y. 2013-14 WHERE IN THE ASSESSEE HAS CHALLENGED THE ACTION OF LD. CIT(A) IN CONFIRMING T HE ADDITION OF RS. 5,89,759/- ON ACCOUNT OF UNEXPLAINED INVESTMENT IN PURCHASE OF PLOT BY NOT ACCEPTING THE CONTENTION OF THE ASSESSEE THAT SOURCE OF SUCH INVE STMENT IS OUT OF THE UNDISCLOSED PROFESSION INCOME DECLARED BY HIM DURIN G THE COURSE OF SURVEY. 2. BRIEFLY THE FACTS OF THE CASE ARE THAT A SURVEY U/S 133A WAS CONDUCTED AT THE BUSINESS PREMISES OF THE ASSESSEE ON 8.8.201 2 AND IN THE STATEMENT OF THE ASSESSEE RECORDED DURING THE COURSE OF SURVEY, THE ASSESSEE HAS SURRENDERED UNDISCLOSED INVESTMENT IN PURCHASED OF PLOT IN NAME OF HIS WIFE 2 ITA NO. 101/JP/2018. SH. SANDEEP NIJHAWAN, JAIPUR. VS. DCIT, JAIPUR. AMOUNTING TO RS. 12,12,030/- AND EXPECTED PROFESSIO NAL RECEIPTS OF RS. 27,84,000/- FOR THE FINANCIAL YEAR 2012-13. IN THE RETURN FILED ON 24.09.13, THE ASSESSEE HAS DISCLOSED PROFESSIONAL RECEIPTS OF RS. 34,06,271/- AS AGAINST RS. 27,84,000 DURING THE COURSE OF SURVEY PROCEEDIN GS ON 08.08.2012. HOWEVER, THE ASSESSEE HAS NOT OFFERED ANY INCOME ON ACCOUNT OF UNDISCLOSED INVESTMENT OF RS. 12,12,030/- MADE IN PLOT PURCHASE D IN THE NAME OF HIS WIFE. A SHOW CAUSE NOTICE WAS ISSUED TO THE ASSESSEE AND IN RESPONSE, THE ASSESSEE SUBMITTED THAT THE TRANSACTION RELATING TO PURCHASE OF PLOT HAS BEEN ENTERED AT THE SAME PRICE AT WHICH THE TRANSACTION HAS TAKEN PLACE. THE ASSESSEE HAS NOT MADE ANY PAYMENT OVER & ABOVE THE AGREEMENT VALUE. THE ASSESSEE BEING A DOCTOR IS NOT MUCH AWARE OF THE TA X PROVISION. IT WAS FURTHER SUBMITTED THAT NO EXTRA AMOUNT WAS PAID BY THE ASSESSEE. HOWEVER TO AVOID LITIGATION AND BUY PEACE, THE ASSESSEE HAS SU RRENDERED THE DIFFERENCE AMOUNT BETWEEN THE DLC PRICE AND AGREEMENT PRICE AS HIS INCOME OF THE CURRENT YEAR. IT WAS FURTHER SUBMITTED THAT DURING THE YEAR, THE ASSESSEE HAS SURRENDERED PROFESSIONAL RECEIPTS OF RS. 27.84 LACS AND THE UNDISCLOSED INVESTMENT IN THE PLOT OF LAND IS MADE OUT OF THE A FORESAID INCOME. IT WAS SUBMITTED THAT THE ASSESSEE HAS SHOWN INCOME OF RS. 34,06,271/- AS AGAINST RS. 27.84 LACS SURRENDERED INCOME DURING THE COURSE OF SURVEY. IT WAS FURTHER SUBMITTED THAT THE ASSESSEE HAS WITHDRAWN AN AMOUNT OF RS. 23,47,853/- WHICH INCLUDES THE AFORESAID AMOUNT OF RS. 12,12,03 0/-. IT WAS FURTHER SUBMITTED THAT THE EXCESSIVE PROFESSIONAL RECEIPT O F RS. 6,22,271/- IS ON 3 ITA NO. 101/JP/2018. SH. SANDEEP NIJHAWAN, JAIPUR. VS. DCIT, JAIPUR. ACCOUNT OF THE AFORESAID ALLEGED INVESTMENT AND THE REFORE NO FURTHER ADDITION IS REQUIRED TO BE MADE ON THIS ACCOUNT. THE SUBMIS SION SO MADE BY THE ASSESSEE WAS NOT FOUND ACCEPTABLE TO THE AO EXCEPT FOR THE CONTENTION THAT THE BENEFITS TO THE EXTENT OF EXCESSIVE PROFESSIONA L RECEIPTS OF RS.6,22,271/- MAY BE GIVEN TO THE ASSESSEE. IT WAS HELD BY THE AO THAT THE ASSESSEES SOURCE OF INCOME IS SALARY & PROFESSIONAL INCOME AN D OBVIOUSLY INVESTMENT IS MADE ANYWHERE WILL BE OUT OF INCOME FROM THESE SOUR CES. IT WAS ACCORDINGLY HELD THAT THE UNDISCLOSED INVESTMENT IN PURCHASE OF PLOT IS MADE BY THE ASSESSEE AND FOR MAKING THIS INVESTMENT, SOURCE OF RS. 6,22,271/- IS HIS PROFESSIONAL RECEIPTS DULY OFFERED BY THE ASSESSEE. IT WAS ACCORDINGLY HELD THAT THE SOURCE OF BALANCE MONEY RS. 5,89,759/- HAS NOT BEEN EXPLAINED BY THE ASSESSEE AND THEREFORE, THE INVESTMENT TO THAT EXTENT IS MADE BY THE ASSESSEE FROM UNDISCLOSED INCOME AND SAME WAS BROUG HT TO TAX IN THE HANDS OF THE ASSESSEE. 3. BEING AGGRIEVED, THE ASSESSEE CARRIED THE MATTER IN APPEAL BEFORE THE LD. CIT(A), WHO HAS CONFIRMED THE SAID ADDITION AND HIS FINDINGS ARE CONTAINED AT PARA 4.3 OF HIS ORDER, WHICH IS REPROD UCED AS UNDER:- 4.3 I HAVE CAREFULLY CONSIDERED THE OBSERVATION MA DE BY THE ASSESSING OFFICER IN ASSESSMENT ORDER, SUBMISSION F ILED BY THE AIR AND CITED CASE LAW. I FIND THAT ASSESSING OFFICER MADE THE AD DITION OF RS.5,89,759/- AS UNEXPLAINED INVESTMENT IN PLOT MAKING DETAIL OBSERV ATION IN ASSESSMENT ORDER. THE A/R OF THE APPELLANT SUBMITTED THAT THERE IS NO DISPUTE AS TO THE 4 ITA NO. 101/JP/2018. SH. SANDEEP NIJHAWAN, JAIPUR. VS. DCIT, JAIPUR. PROFESSIONAL FEES DECLARED AT RS.34,06,271/- AND IN VESTMENT IN PLOT AT RS.12,12,030/-. FURTHER THE A/R OF THE APPELLANT SU BMITTED THAT IN SURVEY ASSESSEE HAS SURRENDERED INCOME AS WELL AS INVESTME NT. THE INCOME SURRENDERED WILL BECOME THE SOURCE OF THE INVESTMEN T. THEREFORE, MAKING SEPARATE ADDITION FOR BOTH OF THEM WILL TANTAMOUNT TO DOUBLE TAXATION. THIS ARGUMENT OF THE A/R OF THE APPELLANT IS NOT TE NABLE BECAUSE THE APPELLANT DURING THE SURVEY STATED THAT HIS EXPECTE D PROFESSIONAL RECEIPTS ARE OF RS.27,84,000/-. THIS IS NOT DISCLOSURE OF UNDISC LOSED INCOME BUT THIS IS THE REGULAR EXPECTED RECEIPT OF THE APPELLANT IN THE YE AR. THEREFORE THERE IS NO CASES OF DOUBLE TAXATION. THE APPELLANT SHOWN RECEI PT OF RS.34,06,271/-. THE ASSESSING OFFICER ALREADY GIVEN THE BENEFIT OF SET OFF TO EXTEND OF RS.6,22,271/- (34,06,271 27,84,000). THEREFORE I AM THE VIEW THAT ADDITION MADE BY THE ASSESSING OFFICER OF RS.5,89,759/- AS U NEXPLAINED INVESTMENT IS AS PER LAW. HENCE I CONFIRM THE ADDITION MADE BY TH E ASSESSING OFFICER OF RS. 5,89,759/- AS UNEXPLAINED INVESTMENT IN PURCHASE OF PLOT. THIS GROUND IS NOT ALLOWED. 4. DURING THE COURSE OF HEARING, THE LD. AR HAS SUB MITTED THAT IN SURVEY ASSESSEE ESTIMATED THE PROFESSIONAL INCOME FOR THE YEAR UNDER CONSIDERATION AT RS.27,84,000/- AND ACCEPTED THAT HE WOULD DECLAR E SUCH INCOME IN THE RETURN FOR AY 2013-14. HE FURTHER STATED THAT PLOT IN THE NAME OF WIFE PURCHASED DURING THE YEAR IS REGISTERED AT RS.6 LAC S THOUGH THE SUB REGISTRAR HAS VALUED IT AT RS.18,12,030/- FOR STAMP DUTY PURP OSE. HE ACCEPTED THAT ACTUAL CONSIDERATION IS RS.18,12,030/- AND THUS, OF FERED RS.12,12,030/- FOR TAX WHICH HE STATED TO BE OUT OF INCOME OTHER THAN THE PROFESSIONAL RECEIPTS. THUS, THE ASSESSEE OFFERED BOTH THE INCOME AS WELL AS INVESTMENT. HOWEVER, WHILE FILING THE RETURN ASSESSEE DECLARED PROFESSIO NAL RECEIPT AT RS.34,06,271/- BUT DID NOT OFFER ANY INCOME ON ACCOUNT OF UNEXPLAI NED INVESTMENT IN THE PLOT FOR THE REASON THAT NO SUCH INVESTMENT IS MADE. 5 ITA NO. 101/JP/2018. SH. SANDEEP NIJHAWAN, JAIPUR. VS. DCIT, JAIPUR. 5. IT WAS SUBMITTED THAT IN COURSE OF ASSESSMENT PR OCEEDINGS, ASSESSEE VIDE LETTER DT. 29.01.2016 EXPLAINED AT POINT NO. 1 4 THAT ACTUAL CONSIDERATION PAID FOR PURCHASE OF PLOT IS ONLY RS.6 LACS. NO EXT RA AMOUNT WAS PAID. NO EVIDENCE FOR SUCH PAYMENT WAS FOUND IN SURVEY ALSO BUT BEING A DOCTOR BY PROFESSION AND TO AVOID LITIGATION & BUY PIECE OF M IND, HE SURRENDER THE DIFFERENCE BETWEEN THE STAMP VALUE AND ACTUAL CONSI DERATION. ALTERNATIVELY, IT WAS STATED THAT HE HAS MADE WITHDRAWAL OF RS.23,47, 853/- FROM HIS CAPITAL ACCOUNT AND THEREFORE, THE ALLEGED PAYMENT OF RS.12 ,12,030/- IS COVERED BY SUCH WITHDRAWAL. IT WAS FURTHER CLAIMED THAT OTHERW ISE ALSO, ASSESSEE HAS DECLARED PROFESSIONAL INCOME OF RS.34,06,271/- AGAI NST THE INCOME ESTIMATED IN SURVEY AT RS.27,84,000/- AND THEREFORE, THE DIFF ERENTIAL AMOUNT OF RS.6,22,271/- SHOULD BE CONSIDERED AGAINST THE ALLE GED INVESTMENT. THE AO ACCEPTED THIS CONTENTION AND THUS, MADE ADDITION OF RS.5,89,759/- WHICH IS ALSO CONFIRMED BY LD. CIT(A). 6. IT WAS SUBMITTED THAT IT IS SETTLED LAW THAT THE STATEMENT RECORDED IN SURVEY HAS NO EVIDENTIARY VALUE. THE HONBLE SUPRE ME COURT IN CASE OF CIT VS. S. KHADER KHAN SON 352 ITR 480 HAS HELD THAT SE CTION 133A DOES NOT EMPOWER ANY INCOME TAX AUTHORITY TO EXAMINE ANY PER SON ON OATH AND THUS ANY SUCH STATEMENT HAS NO EVIDENTIARY VALUE. IN THE PRESENT CASE, THERE IS NO EVIDENCE THAT ANY EXTRA CONSIDERATION IS PAID BY TH E ASSESSEE IN RESPECT OF THE PLOT PURCHASED BY HIS WIFE. HENCE, SOLELY ON THE BA SIS OF STATEMENT RECORDED IN SURVEY, THE PART ADDITION MADE BY THE AO AND CON FIRMED BY LD. CIT(A) IS BAD IN LAW AND THE SAME BE DELETED. IN VIEW OF ABOV E, THE ADDITION CONFIRMED BY LD. CIT(A) BE DELETED. 7. THE LD DR IS HEARD WHO HAS VEHEMENTLY ARGUED THE MATTER AND RELIED ON THE ORDER OF THE LOWER AUTHORITIES. 6 ITA NO. 101/JP/2018. SH. SANDEEP NIJHAWAN, JAIPUR. VS. DCIT, JAIPUR. 8. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PURSUED THE MATERIAL AVAILABLE ON RECORD. FIRSTLY, WE FIND THAT THERE IS NO MATERIAL ON RECORD EXCEPT STATEMENT OF THE ASSESSEE RECORDED DURING THE SURVEY WHICH PR OVES THAT THE ASSESSEE HAS INVESTED THE SAID AMOUNT OVER AND ABOVE THE DEC LARED VALUE IN THE SALE AGREEMENT. THE AMOUNT HAS BEEN WORKED OUT BASED ON DIFFERENCE BETWEEN THE DLC VALUE AND ACTUAL SALE CONSIDERATION. FURTH ER, THE AO HAS GIVEN A FINDING THAT ASSESSEES SOURCE OF INCOME IS SALARY AND PROFESSIONAL INCOME AND THE INVESTMENT HAS BEEN MADE OUT OF THESE SOURCES I TSELF. DURING THE YEAR UNDER CONSIDERATION, THE ASSESSEE HAS DISCLOSED PRO FESSIONAL RECEIPTS OF RS 34,06,271 AND HAS SUBMITTED THAT OUT OF SAID PROFES SIONAL RECEIPTS, HE HAS WITHDRAWN AN AMOUNT OF RS 23,47,853 FROM HIS BANK A CCOUNT WHICH AGAIN IS NOT IN DISPUTE. GIVEN THAT THE ASSESSEES CONTENTI ON THAT THE INVESTMENT OF RS 12,12,030 IS OUT OF SUCH WITHDRAWALS CANNOT BE DISP UTED IN ABSENCE OF ANYTHING CONTRARY ON RECORD. IN LIGHT OF THE SAME, THE ADDITION OF RS 5,89,759 IS HEREBY DELETED. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 28/03/2018 . SD/- SD/- ( JH FOT; IKY JKO ) ( FOE FLAG ;KNO ( VIJAY PAL RAO) (VIKRAM SINGH YADAV) U;KF;D LNL; / JUDICIAL MEMBER YS[KK LNL; /ACCOUNTANT MEMBER JAIPUR DATED:- 28/03/2018. POOJA/ VKNS'K DH IZFRFYFI VXZSF'KR@ COPY OF THE ORDER FORWARDED TO: 1. THE APPELLANT - SH. SANDEEP NIJHAWAN, 112, PANC HSHEEL ENCLAVE, DURGAPURA, JAIPUR. 2. THE RESPONDENT DCIT, CIRCLE- 7, JAIPUR. 3. THE CIT. 4. THE CIT (4), 5. THE DR, ITAT, JAIPUR 7 ITA NO. 101/JP/2018. SH. SANDEEP NIJHAWAN, JAIPUR. VS. DCIT, JAIPUR. 6. GUARD FILE (ITA NO. 101/JP/2018) VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASSISTANT. REGISTRAR