ITO, Jaipur V. SMT. REEMA AGARWAL, Jaipur

ITA 108/JPR/2012

• Counselvise Citation: 10823114 RSA 2012
• Duration Of Justice: 2 year(s) 8 month(s) 16 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-10-2014
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2007-2008
• Appeal Filed On: 31-01-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Opportunity of being heard
• Section: 131; 69

Judgement Text

IN THE INCOMETAX APPELLATE TRIBUNAL JAIPUR BENCH: JAIPUR (BEFORE SHRI R.P. TOLANI AND SHRI T.R. MEENA) I.T.A. NO. 108/JP/2012 ASSTT. YEAR- 2007-08 PAN NO. ADHPA 0579 N THE I.T.O. SMT. REEMA AGARWAL, WARD 4(4), JAIPUR. VRS. BAI JI KA KHANDA, MANAK CHOWK CHOPAR, JAIPUR. (APPELLANT) (RESPONDENT) DEPARTMENT BY :- SHRI RAJESH OJHA ASSESSEE BY :- SHRI VIJAY GOYAL. DATE OF HEARING : 11/09/2014 DATE OF PRONOUNCEMENT : 17/10/2014 O R D E R PER: T.R. MEENA, A.M. THIS IS AN APPEAL FILED BY THE REVENUE AGAINST THE ORDER DATED 04/11/2011 OF THE LEARNED C.I.T.(A)-II, JAIPUR FOR T HE A.Y. 2007-08. THE SOLE GROUND OF REVENUES APPEAL IS AGAINST DELETING THE ADDITION OF RS. 20 LACS MADE BY THE ASSESSING OFFICER U/S 69A OF TH E INCOME TAX ACT, 1961 (HEREINAFTER REFERRED AS THE ACT). 2. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE LEARNED ASSESSING OFFICER NOTICED THAT SUM OF RS. 6,67,000/ - ON 29/1/2007, RS. 3,50,000/- ON 31/01/2007, RS. 3,17,000/- ON 01/2/20 07, AND RS. 6,66,000/- ON 02/2/2007 WERE DEPOSITED IN CASH IN TH E BANK ACCOUNT OF ITA 108/JP/2012 ITO VS. REEMA AGARWAL 2 THE ASSESSEE. THE ASSESSING OFFICER GAVE REASONABLE OPPORTUNITY OF BEING HEARD TO THE APPELLANT. IT WAS CLAIMED BY HER THAT THESE AMOUNTS WERE RETURNED BACK FROM SHRI CHHITTAR SHARMA, SHRI K ALYAN SAHAI SHARMA AND SHRI KALU RAM SHARMA, WHICH WAS GIVEN BY HER THROUGH ACCOUNT PAYEE CHEQUE ON 06/9/2005 FOR THE PURPOSE O F LAND AND THIS LAND DEAL HAS BEEN CANCELLED LATER ON. AS PROOF OF THE RECEIPT OF THIS SUM, THE ASSESSEE HAD SUBMITTED THE CONFIRMATIONS F ROM THESE PERSONS. THE LEARNED ASSESSING OFFICER ASKED TO PRODUCE THESE PARTIES FOR VERIFICATION BUT THE APPELLANT HAD EXPRESSED HER IN ABILITY TO PRODUCE THESE PERSONS FOR VERIFICATION. THEREFORE, NOTICE U/ S 131 OF THE ACT WAS ISSUED TO ALL THE THREE PERSONS REQUIRING THEM TO A TTEND THE OFFICE ON 14/12/2009. THE LEARNED ASSESSING OFFICER RECORDED T HE STATEMENT OF THREE ABOVE PERSONS. THEY HAVE ADMITTED BEFORE THE A SSESSING OFFICER THAT THEY DO NOT KNOW THE ASSESSEE I.E. SMT. REEMA A GARWAL AND REFUSED TO ENTER INTO ANY DEAL OF SALE OF LAND WITH HER. THEY FURTHER ADMITTED THAT THEY NEVER PAID ANY SUM TO HER AND AL SO DENIED THE CONFIRMATION SUBMITTED BY THE ASSESSEE, BUT IT HAS BEEN CONFIRMED BY THEM THAT THEY HAVE ENTERED INTO LAND DEAL WITH SHRI RADHA MOHAN AGARWAL, FATHER OF THE ASSESSEE. SHRI KALYAN SAHAI S HARMA STATED TO HAVE PAID BACK RS. 3,50,000/- AND RS. 3,17,000/- TO SHRI RADHA MOHAN AGARWAL DUE TO LAND DEAL CANCELLATION. SHRI KALU RAM SHARMA AND SHRI ITA 108/JP/2012 ITO VS. REEMA AGARWAL 3 CHHITTAR SHARMA HAD CATEGORICALLY DENIED TO HAVE PA ID BACK ANY SUM TO THE ASSESSEE. THE LEARNED ASSESSING OFFICER OBSERVED THAT THIS IS UNACCOUNTED MONEY OF THE ASSESSEE AS TWO PARTIES HAD DENIED AND ONE PARTY HAD PAID BACK IN INSTALLMENT THEY HAVE BANK A CCOUNT BUT THE ASSESSEE HAD SHOWN RECEIVE BACK THESE AMOUNTS IN CAS H. THE LEARNED ASSESSING OFFICER ALSO GAVE OPPORTUNITY OF CROSS EX AMINATION OF ABOVE THREE PERSONS VIDE ORDERSHEET ENTRY DATED 20/11/200 9 TO THE A.R. OF THE ASSESSEE AND HAD BEEN ASKED TO PRODUCE THESE PERSON S BUT THE A.R. OF THE ASSESSEE HAD SHOWN INABILITY TO PRODUCE THESE PE RSONS. EVEN THEN THEY HAVE AMICABLE RELATION WITH FATHER OF THE ASSES SEE TO WHOM THEY MADE REGISTRY ON 26/2/2006. THUS, HE MADE ADDITION O F RS. 20 LACS U/S 69 OF THE ACT. 3. BEING AGGRIEVED BY THE ORDER OF THE LEARNED ASSE SSING OFFICER, THE ASSESSEE CARRIED THE MATTER TO THE LEARNED CIT(A), W HO HAD ALLOWED THE APPEAL BY OBSERVING THAT SHE HAS RECEIVED BACK AMOU NT ADVANCED TO THESE THREE PERSONS THROUGH HIS FATHER FOR PURCHAS E OF LAND BUT WHICH WAS CANCELLED. SHRI KALYAN SAHAI SHARMA STATED THAT HE HAD RETURNED BACK AN AMOUNT OF RS. 3,50,000/- ON 31/1/2007 AND R S. 3,17,000/- ON 01/2/2007 TO SHRI RADHA MOHAN AGARWAL FATHER OF THE ASSESSEE. IT WAS FURTHER HELD THAT ASSESSEE WAS PHYSICALLY HANDICAPPE D LADY AND HAVE PERMANENT DISABILITY. SHE HAS ALSO CLAIMED DEDUCTIO N U/S 80U OF THE ACT ITA 108/JP/2012 ITO VS. REEMA AGARWAL 4 AT RS. 50,000/-, WHICH WAS ALLOWED BY THE DEPARTMENT. FATHER OF THE APPELLANT BEING AN ORTHODOX AND CONSERVATIVE PERSON WAS HASSLED DUE THE FACT THAT HE WAS UNABLE TO MARRY HIS DAUGHTER OF F AND THOUGHT OF SECURING HER FUTURE AS A SPINSTER. ACCORDINGLY, HE ENTERED INTO THE TRANSACTION FOR PURCHASE OF LAND SO THAT SHE COULD REAP THE BENEFITS IN FUTURE. HER FATHER SHRI RADHA MOHAN AGARWAL ISSUED C HEQUE ON 06/9/2005 FOR RS. 20 LACS TO THREE PERSONS NAMELY S HRI CHHITTAR SHARMA, SHRI KALYAN SAHAI SHARMA AND SHRI KALU RAM SHARMA I N A.Y. 2006-07. THE ENTRIES IN LEDGER ACCOUNT AND FACT OF ADVANCES I N A.Y. 2006-07 AS DULY RECORDED IN THE BALANCE SHEET FILED ALONGWITH T HE RETURN OF INCOME REMAINED UNDISPUTED BY THE DEPARTMENT. LATER ON, TH E DEAL FOR PURCHASE OF LAND DID NOT MATERIALIZE AND THREE SELLERS HAD R ETURNED THE MONEY IN CASH TO THE APPELLANT. THE ALLEGED SELLERS AFTER CA NCELLING THE DEAL WITH THE APPELLANT, ENTERED INTO ANOTHER DEAL OF SAID LA ND WITH A COMPANY M/S PINK CITY BUILD TECH PRIVATE LIMITED AND SALE DEED I N FAVOUR OF THE SAID COMPANY WAS ALSO EXECUTED.. THE APPELLANT HAD ADVANCE D AMOUNT OF RS. 6,67,000/- TO SHRI CHITTAR SHARMA ON 05/09/2005 FOR PURCHASE OF LAND THROUGH ACCOUNT PAYEE CHEQUE NO. 432062 AND IT WAS S HOWN AS OUTSTANDING IN THE NAME OF SHRI CHITTAR SHARMA ON 3 1/3/2006, WHICH WAS VERIFIABLE FROM BALANCE SHEET OF THE APPELLANT A S ON 31/3/2006. SIMILAR ADVANCES OF RS. 6,67,000/- EACH WERE ALSO AD VANCED TO SHRI ITA 108/JP/2012 ITO VS. REEMA AGARWAL 5 KALYAN SAHAI SHARMA AND SHRI KALU RAM SHARMA ON 05/ 9/2005 FOR THE PURCHASE OF SAME LAND THROUGH ACCOUNT PAYEE CHEQUE NO. 432061 AND 432063 RESPECTIVELY AND THESE ADVANCES WERE DULY REF LECTED IN THE BALANCE SHEET OF THE APPELLANT AS ON 31/3/2006. ON RETURN OF THESE ADVANCES, THE AMOUNT WAS DEPOSITED IN THE BANK ACCOU NT OF THE APPELLANT, THEREFORE, HE CONCLUDED THAT APPELLANT H AD SATISFACTORILY EXPLAINED THE SOURCE OF DEPOSIT IN THE BANK ACCOUNT BEFORE THE ASSESSING OFFICER. HE ALSO CONSIDERED THE STATEMENT OF SHRI K ALYAN SAHAI SHARMA RECORDED BY THE ASSESSING OFFICER, WHO HAD ADMITTED THAT HE HAD PAID BACK AN AMOUNT OF RS. 3,50,000/- ON 31/1/2007 AND R S. 3,17,000/- ON 01/2/2007 TO SHRI RADHA MOHAN SHARMA, FATHER OF THE ASSESSEE, WHO HAD ACTED ON BEHALF OF THE APPELLANT FOR LAND DEAL WITH ABOVE THREE PERSONS. THE STATEMENT OF SHRI KALU RAM SHARMA WAS FO UND CONTRADICTORY TO HIM AND IT SHOULD BE CONSIDERED FU LLY BY THE ASSESSING OFFICER. HE FURTHER RELIED THE FOLLOWING CASE LAWS. (I) GLASS LINES EQUIPMENTS CO. (253 ITR 454 (GUJ). (II) MUNEER KHAN VS. ITO (41 SOT 504). (III) CIT VS. SWASTIK ENTERPRISES 119 TTJ 557. FINALLY, IT HAS BEEN HELD THAT ORAL EVIDENCE WAS NOT ENTITLED TO ANY WEIGHT. IT IS ALSO TRITE LAW THAT WITNESSES MIGHT LIE BUT DOCUMENTS DID NOT. FINALLY, HE ALLOWED THE APPEAL IN FAVOUR OF TH E ASSESSEE. ITA 108/JP/2012 ITO VS. REEMA AGARWAL 6 4. NOW THE REVENUE IS IN APPEAL BEFORE US. 5. THE LEARNED D.R. VEHEMENTLY SUPPORTED THE ORDER O F THE ASSESSING OFFICER AND REITERATED THE ARGUMENTS MADE BY THE AS SESSING OFFICER IN HIS ASSESSMENT ORDER. 6. AT THE OUTSET, THE LEARNED AR FOR THE ASSESSEE S UBMITTED THAT THE ASSESSEE IS A PHYSICAL HANDICAPPED LADY AND HAS PER MANENT DISABILITY AND ALL THE TRANSACTIONS MADE BY HER FATHER SHRI RADHA MOHAN AGARWAL ON HER BEHALF. SHE ENTERED INTO AN AGREEMENT THROUGH HER F ATHER FOR PURCHASE OF LAND AND ISSUED THREE CHEQUES ON 5-6/09/2005 FOR RS . 20,00,000/- TO THREE PERSONS NAMELY SHRI CHHITTAR SHARMA, SHRI KALYAN SA HAI SHARMA AND SHRI KALU RAM SHARMA. LATER ON, THE DEAL OF PURCHASE OF LAND WAS NOT MATERIALIZED AND THREE PERSONS HAVE RETURNED THE MO NEY IN CASH. SINCE THE ASSESSEE WAS HANDICAPPED LADY AND SHE WAS NOT IN POSI TION TO DEAL WITH PERSONALLY BUT DEAL THROUGH HER FATHER SHRI RADHA M OHAN AGARWAL. AFTER CANCELLING THE DEAL WITH THE ASSESSEE, A FRESH DEAL WAS MADE WITH THE COMPANY NAMELY M/S PINK CITY BUILD TECH PRIVATE LIM ITED, IN WHICH THE FATHER OF THE ASSESSEE IS DIRECTOR AND SALE DEED IN FAVOUR OF THE SAID COMPANY WAS EXECUTED. THE ASSESSEE RECEIVED BACK WITH THE ADVANCE MONEY GIVEN TO THE ABOVE SAID PERSONS AGAINST THE L AND DEAL, IN CASH, WHICH SHE DEPOSITED IN HER BANK ACCOUNT. THE ASSESSEE EXPLAINED THE SOURCE OF DEPOSIT IN BANK ACCOUNT BEFORE THE ASSESS ING OFFICER THAT ON ITA 108/JP/2012 ITO VS. REEMA AGARWAL 7 26/12/2006 RS. 33,000/- WERE DEPOSITED OUT OF CASH WI THDRAWALS OF RS. 2,00,000/- FROM BANK ON 20/10/2006. ON 29/1/2007, R S. 6,67,000/- WERE DEPOSITED IN BANK ACCOUNT, WHICH WAS RECEIVED BACK FR OM SHRI CHITTAR SHARMA ON 31/1/2007, RS. 3,50,000/- WERE DEPOSITED I N BANK ACCOUNT OUT OF MONEY RECEIVED BACK FROM SHRI KALYAN SAHAI SHARM A, ON 01/2/2007, RS. 3,17,000/- WAS DEPOSITED IN BANK OUT OF MONEY RECEIV ED BACK FROM SHRI KALYAN SAHAI SHARMA AND ON 02/2/2007 RS. 6,66,000/- WAS DEPOSITED IN BANK, WHICH WAS RECEIVED BACK OUT OF ADVANCE MADE TO SHRI KALU RAM SHARMA. THE LEARNED AR RELIED UPON THE FOLLOWING CASE LAWS. (I) FOR CROSS EXAMINATION- GARGI DIN JAWALA PRASAD V S. CIT 96 ITR 97 (ALL.) (II) OPPORTUNITY TO EXAMINE EVIDENCE- CIT VS. CHANDR AVILAS HOTEL 164 ITR 102 (GUJ). (III) STATEMENT OF THIRD PARTIES- ALOK AGARWAL VS. D CIT 67 TTJ 109 (ITAT DELHI). (IV) STATEMENT OF THIRD PARTIES AND CROSS EXAMINATI ON- MONGA METALS P LTD. VS. ACIT 67 TTJ 247 ALL. (V) STATEMENT- CIT VS. G. KRISHNAN (1994) 201 ITR 70 7 (MAD.) (VI) OPPORTUNITY TO CROSS EXAMINATION- STRAPTEX IND IA (P) LTD. VS. DCIT (2003) 84 ITD 320 (MUM). HE ALSO GAVE EXPLANATION ON STATEMENT RECORDED BY T HE ASSESSING OFFICER OF SHRI KALYAN SAHAI SHARMA, SHRI CHITTAR SHARMA AN D SHRI KALU RAM SHARMA AND PRAYED TO CONFIRM THE ORDER OF THE LEARN ED CIT(A). 7. WE HAVE HEARD THE RIVAL CONTENTIONS OF BOTH THE PARTIES AND PERUSED THE MATERIAL AVAILABLE ON THE RECORD. THE AS SESSEE BEING A ITA 108/JP/2012 ITO VS. REEMA AGARWAL 8 HANDICAPPED LADY HAD INVESTED MONEY IN LAND TRANSAC TION THROUGH HER FATHER. THE ADVANCE MADE BY THE ASSESSEE THROUGH BAN KING CHANNEL AND ALSO HAS SHOWN DEBTORS IN THE BALANCE SHEET. THE LA ND TRANSACTION WAS NOT REALIZED IN THE NAME OF ASSESSEE BUT IN THE NAM E OF COMPANY WHEREIN FATHER OF THE ASSESSEE IS THE DIRECTOR. THE L EARNED DR HAD NOT CONTROVERTED THE FINDING GIVEN BY THE LEARNED CIT(A) . THEREFORE, SOURCE OF CASH DEPOSITED IN THE BANK ACCOUNT HAS BEEN SATI SFACTORILY EXPLAINED BY THE APPELLANT. ACCORDINGLY WE CONFIRM THE ORDER O F THE LEARNED CIT(A). 8. IN THE RESULT, APPEAL OF THE REVENUE IS DISMISSE D. ORDER PRONOUNCED IN THE OPEN COURT ON 17/10/2014. SD/- SD/- (R.P. TOLANI) (T.R. MEENA) JUDICIAL MEMBER ACCOUNTANT MEMBER JAIPUR, DATED : 17 TH OCTOBER, 2014 * RANJAN COPY FORWARDED TO :- 1. THE ITO, WARD 4(4), JAIPUR. 2. SMT. REEMA AGARWAL, JAIPUR. 3. THE CIT (A) 4. THE CIT 5. THE D/R GUARD FILE (I.T.A. NO. 108/JP/2012) BY ORDER, AR ITAT JAIPUR.