Smt. Usha Popli, Shimla V. ACIT, Chandigarh

ITA 1068/CHANDI/2016

• Counselvise Citation: [2018] 126 COUNSELVISE.COM (IT) 5213 (ITAT-CHANDIGARH)
• Duration Of Justice: 1 year(s) 4 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-02-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: Not Allotted
• Assessment Year: 2007-2008
• Appeal Filed On: 07-10-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ASHISH ABROL
• Keywords: Unexplained cash credit; Income from undisclosed sources; Cost of acquisition
• Section: 68

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL CHANDIGARH BENCHES B, CHANDIGARH BEFORE SHRI SANJAY GARG, JUDICIAL MEMBER & MS. ANNAPURNA GUPTA, ACCOUNTANT MEMBER ITA NO. 1068/CHD/2016 ASSESSMENT YEAR: 2007-08 SMT. USHA POPLI, VS. THE ACIT, CENTRAL CIRCLE-I I, HEMANT LODGE, MURRAY FIELD ESTATE, CHANDIGARH SHIMLA PAN NO. ABMPP4763A (APPELLANT) (RESPONDENT) APPELLANT BY : SH. VISHAL MOHAN, ADV. RESPONDENT BY : SH. ASHISH ABROL, CIT DR DATE OF HEARING : 08.02.2018 DATE OF PRONOUNCEMENT : 22.02.2018 ORDER PER SANJAY GARG, JUDICIAL MEMBER: THE PRESENT APPEAL HAS BEEN PREFERRED BY THE ASSESS EE AGAINST THE ORDER DATED 25.07.2016 OF THE COMMISSIONER OF I NCOME TAX (APPEALS), [HEREINAFTER REFERRED TO AS CIT(A)]-3, G URGAON. 2. THE ASSESSEE IN THIS APPEAL HAS AGITATED THE ACT ION OF THE LD. CIT(A) IN UPHOLDING THE ADDITION OF RS. 3 LACS ON A CCOUNT OF UNEXPLAINED CREDIT INTO THE BANK ACCOUNT OF THE ASS ESSEE. THE ASSESSING OFFICER NOTED THAT THE ASSESSEE HAD RECEI VED A SUM OF RS. 3 2 LACS ON 13.9.2006. THE ASSESSEE CLAIMED THAT THE SA ID SUM WAS RECEIVED FROM SALE OF LAND IN THE YEAR UNDER CONSID ERATION. 3. ON BEING ASKED TO FURNISH THE RELEVANT EVIDENCES IN THIS RESPECT, THE ASSESSEE EXPLAINED THAT THE PROPERTY WAS NOT SO LD THROUGH REGISTERED SALE DEED BUT WAS SOLD ON THE BASIS OF P OWER OF ATTORNEY. THE ASSESSEE ALSO FURNISHED THE AFFIDAVIT OF THE PU RCHASER NAMELY ONE SHRI GAGAN KUMAR WHO ACKNOWLEDGED THE PAYMENT OF RS . 3 LACS PAID TO THE ASSESSEE. THE ASSESSING OFFICER, HOWEVER, DI SBELIEVED THE SALE OF PROPERTY AND ADDED THE SAID AMOUNT OF RS. 3 LACS INTO THE INCOME OF THE ASSESSEE AS INCOME FROM UNEXPLAINED SOURCES . THE LD. CIT(A) CONFIRMED THE ADDITION SO MADE BY THE ASSESS ING OFFICER. THE ASSESSEE HAS COME IN APPEAL BEFORE US. 4. WE HAVE HEARD THE RIVAL CONTENTIONS. IN OUR VIE W, THOUGH THE ASSESSEE COULD NOT PROVE WITH CONVINCING EVIDENCE T HE FACT REGARDING THE SALE OF PROPERTY TO SHRI GAGAN KUMAR, HOWEVER, IT IS A FACT ON THE FILED THAT THE ASSESSEE FILED THE AFFIDAVIT OF THE PURCHASAER SHRI GAGAN KUMAR, WHO CONFIRMED THAT HE HAD MADE A PAYME NT FOR RS. 3 LACS TO THE ASSESSEE. THE ASSESSING OFFICER IN HIS OWN WISDOM DID NOT CHOOSE TO EXAMINE OR CROSS-EXAMINE SAID SHRI GAGAN KUMAR. SO FAR AS THE ASSESSEE IS CONCERNED, THE ASSESSEE HAS PROVED THE SOURCE OF THE AMOUNT OF RS. 3 LACS. HOWEVER, THE ASSESSING OFFICE R RESTRICTED THE BASIS OF THE FINDING TO THE EXTENT THAT THE SALE OF THE HOUSE WAS NOT PROVED AS THE ASSESSEE HAS NOT FURNISHED THE COPY O F THE DEED. IN OUR VIEW, ONCE THE ASSESSEE HAS FILED THE NAMES, DETAIL S AND AFFIDAVITS OF THE PERSONS FROM WHOM THE SAID AMOUNT WAS RECEIVED BY THE ASSESSEE, THE SAME CANNOT BE SAID TO BE THE INCOME OF THE ASS ESSEE FROM 3 UNDISCLOSED SOURCES. SO FAR AS THE NATURE OF THE AM OUNT RECEIVED IS CONCERNED, THE ASSESSEE DURING THE APPELLATE PROCEE DINGS BEFORE THE CIT(A) HAS PRODUCED COPY OF THE SALE DEED VIDE WHIC H THE PROPERTY WAS SOLD TO ONE SMT. ADITI GARG FOR A CONSIDERATION OF RS. 5,50,000/-. THE ASSESSEE EXPLAINED THAT THE ASSESSEE HAD SOLD T HE SAID PROPERTY AT RS. 3 LACS TO ONE SHRI GAGAN KUMAR ON THE BASIS OF POWER OF ATTORNEY, WHO INSTEAD OF GETTING IT REGISTERED IN HIS NAME, FURTHER SOLD THE PROPERTY TO SMT. ADITI GARG FOR A CONSIDER ATION OF RS. 5.50 LACS. THE LD. CIT(A) CALLED UPON THE REMAND REPORT FROM THE ASSESSING OFFICER FOR THE AFORESAID EVIDENCES. HOWE VER, THE ASSESSING OFFICER REPORTED THAT THE ASSESSEE, THOUG H HAD CLAIMED THAT THERE WAS A CAPITAL LOSS OF RS. 13,595/- ON THE SAL E OF PROPERTY, BUT THE SALE OF THE PROPERTY AS PER DEED WAS CLAIMED AT RS. 5,50,000/- HENCE, THERE WAS A POSITIVE CAPITAL GAIN ON THE SA LE. EVEN, THAT THE ASSESSEE DID NOT FURNISH THE EVIDENCE RELATING TO T HE COST OF ACQUISITION WHICH ALLEGEDLY WAS CLAIMED BY THE ASSE SSEE AT RS. 2 LACS. THE LD. CIT(A) BASED ON THE SAID REPORT OF THE ASSE SSING OFFICER HAS DECIDED THE CASE AGAINST THE ASSESSEE. 5 HOWEVER, WE FIND THAT THE ASSESSING OFFICER DID N OT TRY TO EXAMINE THE CONTENTION OF THE ASSESSEE. THE ASSESSE E HAD CLAIMED THAT HE HAD RECEIVED THE AMOUNT OF RS. 3 LACS ON SALE OF PROPERTY AND ALSO FILED THE AFFIDAVIT OF SHRI GAGAN KUMAR. SHRI GAGAN KUMAR HAS FURTHER CLAIMED THAT HE HAS SOLD THE PROPERTY AT EN HANCED CONSIDERATION OF RS. 5.50 LACS. THE FACT THAT THE P ROPERTY HAS BEEN PURCHASED BY ONE ADITI GARG AT RS. 5.50 LACS HAS BE EN ESTABLISHED ON FILE. IN VIEW OF THIS, THE EVIDENCE FURNISHED BY TH E ASSESSEE IN THE 4 SHAPE OF AFFIDAVIT, STATEMENT OF SHRI GAGAN KUMAR H AS REMAIN UNREBUTTED. IN VIEW OF THIS, WE DO NOT FIND JUSTIFI CATION ON THE PART OF THE LOWER AUTHORITIES IN TREATING THE AFORESAID AMO UNT OF RS. 3 LACS AS INCOME FROM UNDISCLOSED SOURCES. IN VIEW OF THIS, T HE ADDITION MADE BY THE LOWER AUTHORITIES U/S 68 OF THE ACT IS NOT S USTAINABLE, HENCE, THE SAME IS ORDERED TO BE DELETED. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS HER EBY ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 22.02.2018 SD/- SD/- (ANNAPURNA GUPTA) (SANJAY GARG) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 22.02.2018 RKK COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT 4. THE CIT(A) 5. THE DR