Smt. Navneet Kaur, Mohali V. JCIT (OSD), Chandigarh

ITA 1159/CHANDI/2012

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 80939 (ITAT-CHANDIGARH)
• Duration Of Justice: 1 year(s) 11 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-10-2014
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 14-10-2014
• Assessment Year: 2009-2010
• Appeal Filed On: 08-11-2012
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: MANJIT SINGH
• Keywords: Opportunity of cross examination; Condonation of delay
• Section: 133(6)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL CHANDIGARH BENCH A, CHANDIGARH BEFORE SHRI BHAVNESH SAINI, JUDICIAL MEMBER AND SHRI T.R.SOOD, ACCOUNTANT MEMBER ITA NO. 1158/CHD/2012 ASSESSMENT YEAR : 2009-10 SMT.BHAVNEET KAUR, VS. THE D.C.I.T., H.NO.1132, SECTOR 70, CIRCLE 6(1), MOHALI. PAN: ABCPK2555K AND ITA NO. 1159/CHD/2012 ASSESSMENT YEAR : 2009-10 SMT.NAVNEET KAUR, VS. THE J.C.I.T.(OSD), H.NO.1132, SECTOR 70, INTERNATIONAL TAXATION, MOHALI. CHANDIGARH. PAN: AHFPK8937N (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI JASPAL SHARMA RESPONDENT BY : SHRI MANJIT SINGH, DR DATE OF HEARING : 15.10.2014 DATE OF PRONOUNCEMENT : 17.10.2014 O R D E R PER BHAVNESH SAINI, J.M. : BOTH THE APPEALS FILED BY DIFFERENT ASSESSEES ARE DIRECTED AGAINST DIFFERENT ORDERS OF THE LEARNED CI T (APPEALS), CHANDIGARH DATED 5.7.2012 AND 4.7.2012 F OR ASSESSMENT YEAR 2009-10. 2. WE HAVE HEARD LEARNED REPRESENTATIVES OF BOTH TH E PARTIES AND PERUSED THE MATERIAL ON RECORD. 2 3. BOTH THE APPEALS OF THE ASSESSEES ARE TIME BARRE D BY 30 DAYS. THE ASSESSEES HAVE FILED APPLICATIONS FOR CONDONATION OF DELAY EXPLAINING THEREIN THAT THE IM PUGNED ORDER WAS DELIVERED IN THE OFFICE OF SHRI RAJIV GUP TA, CHARTERED ACCOUNTANT IN THE LAST WEEK OF AUGUST, 20 12 FOR FURTHER ACTION, WHICH WAS MISSED AND THE ORDER WAS MIXED UP WITH SOME OTHER FILES. THEREFORE, DUE TO HIS N EGLIGENCE THERE WAS DELAY IN FILING THE APPEAL. THE APPLICA TION IS SUPPORTED BY THE AFFIDAVITS OF THE ASSESSEES. THE RE IS NO OBJECTION FROM THE SIDE OF THE REVENUE FOR CONDONAT ION OF DELAY IN THE MATTER. CONSIDERING THE EXPLANATION OF THE ASSESSEE, WE ARE SATISFIED THAT THE DELAY IN FILING OF THE APPEALS WAS DUE TO SUFFICIENT CAUSE. THEREFORE, T HE DELAY IN FILING THE APPEALS IS CONDONED. 4. IN BOTH THE APPEALS, THE LEARNED COUNSEL FOR THE ASSESSEES SUBMITTED THAT THE GROUND NO.1 IS GENERAL IN NATURE AND HE DID NOT PRESS GROUND NOS.2 AND 3 OF B OTH THE APPEALS. THEREFORE, THESE GROUNDS ARE ACCORDINGLY DISMISSED AS NOT PRESSED. WE MAY NOTE HERE THAT O N GROUND NO.2 THE RECORD OF THE LEARNED CIT (APPEALS) WAS CALLED FOR WHICH CLARIFIED THAT THE DATE OF ADJOURN MENT BEFORE HIM WAS 3.7.2012 WHICH IS WRONGLY MENTIONED AS 13.7.2012 IN THE IMPUGNED ORDER. ON CLARIFYING TH ESE FACTS THIS GROUND WAS NOT PRESSED BY THE LEARNED COUNSEL FOR THE ASSESSEES. THE GROUND NOS.1 TO 3 OF THE APPEALS OF BOTH THE ASSESSEES ARE ACCORDINGLY DISMISSED. 3 5. ON GROUND NO.4 IN BOTH THE APPEALS, BOTH THE ASSESSEES HAVE CHALLENGED ADDITION OF RS.10,50,000/ - UNDER THE HEAD LONG TERM CAPITAL GAIN. 6. SINCE THE ISSUE IS SAME IN BOTH THE APPEALS ON G ROUND NO.4, THEREFORE, THE FACTS ARE TAKEN FROM THE APPEA L OF THE ASSESSEE SMT.BHAVNEET KAUR. 7. BRIEF FACTS ON THIS ISSUE ARE THAT THE ASSESSEE AND HER SISTER, (EACH OWNING 50% SHARE) HAD SOLD A PROPERTY FOR RS.1,40,00,000/- TO ONE SHRI SANJAY DAHUJA. SHRI SANJAY DAHUJA HAD PAID RS.41 LACS AS ADVANCE FOR THIS PURP OSE THROUGH COL.R.DAYAL, THE FACILITATOR. AT THE TIME OF MAKING FINAL PAYMENT, SHRI SANJAY DAHUJA PAID RS.1,20,00,0 00/- AND RS.20 LACS WAS ADJUSTED OUT OF THE ADVANCE GIVE N EARLIER OF RS.41 LACS. THUS RS.21 LACS WAS SUPPOSED TO BE REFUNDED TO SHRI SANJAY DAHUJA BUT THAT WAS NOT DON E. THE ASSESSING OFFICER HAD PROPOSED TO ASSESS 50% OF THI S AMOUNT I.E. RS.10,50,000/- OF THE SHARE OF EACH ASS ESSEE WHICH WERE DEPOSITED IN THE JOINT BANK ACCOUNT. T HE ASSESSEE EXPLAINED THAT ONLY RS.20 LACS WAS ADJUSTE D AGAINST THE FINAL PAYMENT AND THE BALANCE AMOUNT OF RS.21 LACS WAS RETURNED TO COL.R.DAYAL. COL.R.DAYAL HAD ALSO REPLIED TO THE ASSESSING OFFICER VIDE E-MAIL DATED 14.12.2011 THAT RS.41 LACS WAS RECEIVED ON BEHALF O F SHRI SANJAY DAHUJA, WHICH WAS GIVEN TO THE ASSESSEE AND HER SISTER FOR SPECIFIC PURPOSES. THE ASSESSING OFFIC ER ALSO RECEIVED COMMUNICATION FROM COL.R.DAYAL THAT HE HAD NOT GIVEN ANY LOAN OR ADVANCE AND THE SAID AMOUNT HAD B EEN 4 RECEIVED BY HIM FROM SHRI SANJAY DAHUJA FOR SALE OF PROPERTY AND THE SAME WAS REMITTED TO THE BANK ACCOUNT OF BO TH THE ASSESSEES. THE ASSESSING OFFICER TAXED THE AMOUNT OF RS.10,50,000/- AS LONG TERM CAPITAL GAIN IN THE CAS E OF EACH OF THE ASSESSEES. 8. THE ASSESSEES DID NOT PUT IN APPEARANCE BEFORE T HE LEARNED CIT (APPEALS) DESPITE SERVICE OF NOTICE. THE LEARNED CIT (APPEALS) ON THE BASIS OF THE MATERIAL ON RECOR D DECIDED THIS ISSUE AND CONFIRMED THE ADDITIONS IN BOTH THE CASES AND DISMISSED THE APPEALS OF THE ASSESSEES. HIS FINDI NGS IN PARAS 5.2 TO 6 OF THE APPELLATE ORDER ARE REPRODUCE D AS UNDER: 5.2 NO SUBMISSION HAS BEEN RECEIVED IN THE APP ELLATE PROCEEDINGS. THE APPELLANT AND HER SISTER HAD RECE IVED EXTRA AMOUNT OF RS. 21,00,000/- OVER AND ABOVE THE SALE C ONSIDERATION, WHICH WAS NOT RETURNED TO COL. R. DAYAL (FACILITATOR) O R THE PURCHASER. COL. R. DAYAL, THE FACILITATOR HAD CONVEYED TO THE ASSES SING OFFICER THAT THE AMOUNT WAS GIVEN FOR A SPECIFIC PURPOSE BUT HAS SUBSEQUENTLY INFORMED HIM THAT THE AMOUNT WAS TOWARD S SALE OF PROPERTY AND WAS REMITTED TO THE BANK ACCOUNT OF TH E APPELLANT AND HER SISTER. 5.2.1 THE APPELLANT HAD TRIED TO MISLEAD THE DEPART MENT INITIALLY THAT THE' IMPUGNED AMOUNT WAS A LOAN/ADVAN CE FROM THE PURCHASER OF THE PROPERTY, BUT COL. R. DAYAL HAD INFO RMED THE ASSESSING OFFICER THAT THE AMOUNT WAS TOWARDS SALE OF PROPERTY. THE APPELLANT HAD SUBMITTED BEFORE THE ASSESSING OF FICER THAT THE AMOUNT OF RS. 21,00,000/- HAD BEEN RETURNED BACK TO COL. R. DAYAL, BUT NO DOCUMENTARY EVIDENCE WAS FILED BY HER. NO EVIDE NCE HAS BEEN FILED IN THE APPELLATE PROCEEDINGS ALSO IN THIS REGAR D. THE APPELLANT AND HER SISTER DO NOT HAVE ANY OTHER TRANSACTION WI TH THE PURCHASER OF THE PROPERTY AND SO THE CONTENTION OF THE APPELLANT 5 THAT IT WAS AN ADVANCE CANNOT BE ACCEPTED. IN NUT S HELL, RS. 2L.OO.OOO/- WAS NOT RETURNED TO THE PURCHASER. THE ASSESSING. OFFICER HAS RIGHTLY TAXED THE CAPITAL GAIN ON SALE OF IMPUGNED PROPERTY IN THE HANDS OF THE APPELLANT BY INCREASING THE TOTAL CONSIDERATION RECEIVED BY RS. 10,50,000/- (THE APPELLANT'S SHARE) AND HIS ACTION IN THIS REGARD IS UPHELD. GROUND OF APPEAL NO. 3 IS DISMIS SED. 5.2.3 IN GROUND OF APPEAL NO. 4, THE APPELLANT HAS SUBMITTED THAT THE ADDITION HAD BEEN MADE WITHOUT A FFORDING OPPORTUNITY TO THE APPELLANT TO CROSS EXAMINE THE FA CILITATOR. IT APPEARS THAT THE APPELLANT NEVER ASKED THE ASSESSING OFFICER FOR CROSS EXAMINATION. IN ANY CASE, THE APPELLANT COULD HAVE BEEN PROVIDED OPPORTUNITY OF CROSS EXAMINATION BY THE UN DERSIGNED, BUT THE PROCEEDINGS BEFORE THE UNDERSIGNED HAVE REMAINE D UN- COMPLIED. GROUND OF APPEAL NO.4 S DISMISSED. 6. IN THE RESULT, THE APPEAL IS DISMISSED. 9. THE LEARNED COUNSEL FOR THE ASSESSEES CONTENDED THAT THE INFORMATION RECEIVED FROM COL.R.DAYAL ON DATED 14.12.2011 WAS NOT COMMUNICATED TO THE ASSESSEES AN D NO RIGHT OF CROSS EXAMINATION HAS BEEN GIVEN. THEREF ORE, THE MATTER REQUIRES RECONSIDERATION. HE HAS RELIED UP ON THE DECISION OF HON'BLE PUNJAB & HARYANA HIGH COURT IN THE CASE OF CIT VS. SANJEEV KUMAR JAIN [310 ITR 178 (P& H)] IN WHICH IT WAS HELD THAT WHEN THE ASSESSING OFFICER H AD FAILED TO AFFORD AN OPPORTUNITY TO THE ASSESSEE TO CROSS-E XAMINE THE PERSONS WHOSE STATEMENTS WERE RECORDED BY HIM B EFORE PASSING THE ASSESSMENT ORDER UNDER SECTION 143/147 OF THE INCOME TAX ACT, THE ACTION OF THE ASSESSING OFFICER WAS UN- ACCEPTABLE. THE MATTER WAS, THEREFORE, REMANDED T O THE ASSESSING OFFICER. ON THE OTHER HAND, THE LEARNED D.R. FOR THE REVENUE RELIED UPON THE IMPUGNED ORDERS OF THE 6 AUTHORITIES BELOW AND SUBMITTED THAT THE ASSESSEES NEVER ASKED TO CROSS EXAMINATION OF COL.R.DAYAL AT THE AS SESSMENT OR AT THE APPELLATE STAGE. EVEN THE ASSESSEES REM AINED EX- PARTE BEFORE THE LEARNED CIT (APPEALS) DESPITE SERV ICE OF NOTICE. THEREFORE, THERE IS NO INFIRMITY IN THE O RDER OF THE LEARNED CIT (APPEALS) IN CONFIRMING THE ADDITION. 10. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. IT IS NOT IN DISPUTE THAT BOTH THE ASSESSEES HAVE RECEIVED EXTRA AMOUNT OF RS.21 LACS OVER AND ABOVE THE SALE CONSIDERATION WHICH WAS NOT RETURNED TO COL.R.DAYAL (FACILITATOR) OR TO THE PURCHASER. IT IS ALSO NOT IN DISPUTE THAT INITIAL LY THE AMOUNT OF RS.41 LACS WAS RECEIVED AS AN ADVANCE AND AT THE TIME OF MAKING THE FINAL PAYMENT, SHRI SANJAY DAHUJ A, PURCHASER PAID AN AMOUNT OF RS.1,20,00,000/- AS PER SALE DEED AND IT IS STATED IN THE SALE DEED THAT AMOUNT OF RS.20 LACS HAS ALREADY RECEIVED BY THE VENDORS FROM THE V ENDEES. NO EXPLANATION, WHATSOEVER, HAVE BEEN GIVEN ABOUT T HE BALANCE AMOUNT OF RS.21 LACS WHICH IS RECEIVED BY B OTH THE ASSESSEES THROUGH CHEQUE AS AN ADVANCE. THEREFORE , EACH ASSESSEE HAS RECEIVED RS.10,50,000/- WHICH WAS DISP OSITED IN THEIR JOINT BANK ACCOUNT. SINCE BOTH THE ASSES SEES HAVE RECEIVED RS.21 LACS OVER AND ABOVE THE SALE TRANSAC TION AND THE AMOUNT WAS CREDITED IN THEIR BANK ACCOUNT, THER EFORE, THE BURDEN WAS UPON THEM TO EXPLAIN FOR WHAT PURPOS E RS.21 LACS HAVE BEEN RECEIVED OUT OF THE SALE TRANS ACTION. THE ASSESSING OFFICER HAS MENTIONED IN THE ASSESSME NT ORDER THAT HE HAS PROCURED COPY OF THE BANK STATEME NT OF THE ASSESSEES UNDER SECTION 133(6) OF THE INCOME TA X ACT 7 AND ON PERUSAL OF THE STATEMENT IT WAS REVEALED THA T CHEQUE NO.344001 FOR RS.41 LACS WAS CREDITED IN THE BANK A CCOUNT OF THE ASSESSEES. THIS INFORMATION REVEALED THAT THE AMOUNT OF RS.41 LACS HAS PAID BY COL.R.DAYAL TO BOT H THE ASSESSEES AND THIS FACT WAS CONFRONTED TO THE ASSES SEES, THE ASSESSEE STATED BEFORE THE ASSESSING OFFICER THAT T HIS IS BALANCE AMOUNT WHICH WAS LEFT FROM THE SALE OF THE PROPERTY WHICH IS NOW PAID TO HER OUT OF THE AMOUNT OF RS.20 LACS HAS BEEN ADJUSTED AGAINST THE AMOUNT TO BE RECEIVED FROM SHRI SANJAY DAHUJA AND THE REST OF THE AMOUNT OF RS .21 LACS HAS BEEN RETURNED BACK TO COL.R.DAYAL IN THE NEXT Y EAR. THE ASSESSEES, HOWEVER, FAILED TO PROVIDE ANY PROOF OF RETURN OF RS.21 LACS BUT COL.R.DAYAL LATER ON INTIMATED TH E ASSESSING OFFICER THAT NO AMOUNT HAS BEEN RECEIVED BY HIM. THESE FACTS WOULD CLEARLY REVEAL THAT BOTH THE ASSE SSEES HAVE RECEIVED RS.21 LACS OVER AND ABOVE THE SALE TR ANSACTION BUT THE NATURE OF THE AMOUNT RECEIVED IN THEIR BANK ACCOUNT HAVE NOT BEEN EXPLAINED BY BOTH THE ASSESSEES. S INCE THE AMOUNTS IN QUESTION HAVE BEEN CREDITED IN THE BANK ACCOUNT OF THE ASSESSEE, THEREFORE, THE BURDEN WAS UPON THE M TO PROVE THE NATURE AND SOURCE OF THE DEPOSIT IN THEIR BANK ACCOUNT AND IF THE AMOUNT IS STATED TO HAVE BEEN RE TURNED TO COL.R.DAYAL, THE ASSESSEES WERE REQUIRED TO FURN ISH EVIDENCE OF THE SAME. THE ASSESSEE, HOWEVER, FAIL ED TO PROVE BOTH THE THINGS EITHER BEFORE THE ASSESSING O FFICER OR BEFORE THE LEARNED CIT (APPEALS). EVEN BEFORE US N O EVIDENCE HAVE BEEN PRODUCED TO PROVE THAT THE AMOUN T IN QUESTION HAVE BEEN RETURNED TO COL.R.DAYAL. IN THE ABSENCE 8 OF ANY EVIDENCE ON RECORD IN FAVOUR OF THE ASSESSEE , IT WOULD BE FUTILE TO RESTORE THE MATTER BACK TO THE FILE OF THE ASSESSING OFFICER FOR RECONSIDERATION. FURTHER TH E ASSESSEE HAS NEVER ASKED FOR CROSS EXAMINATION OF COL.R.DAYA L BEFORE THE LEARNED CIT (APPEALS) AND CHOOSE TO REMAIN SILE NT AND EX-PARTE. THEREFORE, CONSIDERING THE FACTS AND CON SIDERATION NOTED ABOVE, WE DO NOT FIND ANY JUSTIFICATION TO RE STORE THE MATTER TO THE FILE OF THE ASSESSING OFFICER. CONS IDERING THE ABOVE DISCUSSION AND PARTICULARLY, WHEN THE ASSESSE ES FAILED TO DISCHARGE THE ONUS UPON THEM TO EXPLAIN THE DEPO SIT OF RS.21 LACS IN THEIR BANK ACCOUNT, NO PURPOSE WOULD SERVE EVEN TO ALLOW THE CROSS EXAMINATION OF COL.R.DAYAL IN THE MATTER. IN VIEW OF THE ABOVE, WE DO NOT FIND ANY MERIT IN BOTH THE APPEALS OF THE ASSESSEE ON GROUND NO.4 AND THE SAME IS ACCORDINGLY DISMISSED. 11. IN THE RESULT, BOTH THE APPEALS FILED BY THE AS SESSEE ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 17 TH DAY OF OCTOBER, 2014. SD/- SD/- (T.R.SOOD) (BHAVNESH SAINI) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 17 TH OCTOBER, 2014 *RATI* COPY TO: THE APPELLANT/THE RESPONDENT/THE CIT(A)/TH E CIT/THE DR. ASSISTANT REGISTRAR, ITAT, CHANDIGARH 9