Shital Anand Keswad, Pune V. Income-tax Officer, Ward - 12(4), Pune

ITA 117/PUN/2018

• Counselvise Citation: [2021] 107 COUNSELVISE.COM (IT) 9429 (ITAT-PUNE)
• Duration Of Justice: 3 year(s) 6 month(s) 16 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-07-2021
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC
• Assessment Year: 2012-2013
• Appeal Filed On: 12-01-2018
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: MAHADEVAN A M KRISHNAN
• Keywords: Unexplained investment
• Section: 148

Judgement Text

] IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH PUNE (THROUGH VIRTUAL COURT) BEFORE SHRI INTURI RAMA RAO, AM AND SHRI S. S. VISWANETHRA RAVI, JM ITA NO.116/PUN/2018 / ASSESSMENT YEAR : 2012-13 SHALAN VALMIK KESWAD, AT POST WADE BOLAI, TALUKA HAVELI DIST., PUNE 412 207. PAN : BVGPK7472Q. . / APPELLANT V/S THE INCOME TAX OFFICER, WARD 6(5), PUNE. . / RESPONDENT ITA NO.117/PUN/2018 / ASSESSMENT YEAR : 2012-13 SHITAL ANAND KESWAD, AT POST WADE BOLAI, TALUKA HAVELI DIST., PUNE 412 207. PAN : BVGPK7474J. . / APPELLANT V/S THE INCOME TAX OFFI CER, WARD 12(4), PUNE. . / RESPONDENT ASSESSEE BY : SHRI PRAMOD SHINGTE. REVENUE BY : SHRI MAHADEVAN A.M. KRISHNAN. / DATE OF HEARING : 29.07.2021 / DATE OF PRONOUNCEMENT : 29.07.2021 2 / ORDER PER INTURI RAMA RAO, AM: THESE ARE THE APPEALS FILED BY DIFFERENT ASSESSEES DIREC TED AGAINST THE SEPARATE ORDERS OF COMMISSIONER OF INCOME TAX (APPEALS) 4 AND 5 OF PUNE DATED 19.06.2017 AND 25.10.2017, RESPECTIVELY, FOR THE ASS ESSMENT YEAR 2012-13. 2. SINCE THE IDENTICAL FACTS ARE INVOLVED IN BOTH THE APPE ALS, WE DISPOSE OF THE SAME VIDE THIS COMMON ORDER. FOR THE SAKE OF CONV ENIENCE AND CLARITY, THE FACTS RELEVANT TO ITA NO.116/PUN/2018 IN THE CASE OF SHALAN V. KESWAD ARE STATED HEREIN. 3. THE APPELLANT HAS RAISED THE FOLLOWING GROUND OF APPEAL IN ITA NO.116/PUN/2018 : THE LEARNED CIT(APPEALS)-4, PUNE ERRED IN LAW AND ON F ACTS IN CONFIRMING THE ADDITION OF RS.77,08,750/- TO THE TOTAL IN COME OF THE APPELLANT. 4. THE BRIEF FACTS OF THE CASE ARE AS UNDER : THE APPELLANT IS AN INDIVIDUAL. NO RETURN OF INCOME UNDER T HE PROVISIONS OF SEC.139(1) OF THE INCOME TAX ACT (HEREINAFTER REFERRED TO THE ACT) WAS FILED. HOWEVER, BASED ON THE INFORMATION RECEIVE D FROM THE DEPUTY DIRECTOR OF INCOME TAX (INVESTIGATION), UNIT II (1), PUNE T HAT THE ASSESSEE HAS PAID THE CONSIDERATION AT THE TIME OF PURCHASE OF LAND S ADMEASURING 03H & 6R SITUATED AT GAT NO.902, WADEBHOLAI, PUNE VIDE AGREEME NT DATED 20.10.2011 OVER AND ABOVE THE STATED CONSIDERATION I.E., ONE CRORE, THE ASSESSING OFFICER FORMED AN OPINION THAT THE INCOME HAD ES CAPED FROM 3 ASSESSMENT AND ACCORDINGLY ISSUED A NOTICE U/S 148 OF T HE ACT ON 26.03.2015. IN RESPONSE TO NOTICE, NO RETURN OF INCOME HA S BEEN FILED BY THE APPELLANT. THE ASSESSING OFFICER AFTER RECEIPT OF THE STAT EMENTS RECORDED BY THE INVESTIGATION WING, PUNE FROM THE SELLERS STATING THAT THE CASH DEPOSITS MADE BY THE SAID SELLERS IS OUT OF THE SALE CONSIDERATION R ECEIVED ON THE SALE OF THE LANDS TO THE APPELLANT HEREIN, HAD CALLED UPON THE APPELLANT TO SHOW CAUSE WHY THE ADDITION SHOULD NOT BE MADE, DESPITE THE S EVERAL OPPORTUNITIES GRANTED TO THE APPELLANT, HAD NOT FILED ANY INFORMATION BEFO RE THE ASSESSING OFFICER. THEREFORE, THE ASSESSING OFFICER HAD PROCEEDED WITH THE FRAMING OF THE ASSESSMENT ORDER BY MAKING ADDITION OF RS.77,08,750/- BEING THE 50% OF CASH RECEIVED BY THE SELLERS NAMELY, SURESH BABURAO TOP E AND ASHOK BABURAO TOPE OVER AND ABOVE THE STATED CONSIDERATION IN THE SALE DEED. 5. BEING AGGRIEVED BY THE ABOVE ADDITION, THE APPEAL WAS FILE D BEFORE THE LD.CIT(A) CONTENDING THAT THE ASSESSING OFFICER WITHOUT GIVING ANY PROPER OPPORTUNITY HAD PROCEEDED WITH FRAMING OF THE ASSESSMENT ORDER AND ALSO SUBMITTING THAT DURING THE COURSE OF INVESTIGATION BY THE DDIT (INV), UNIT- II (1), OF PUNE, THE ASSESSEE HAD DENIED HAVING PAID ANY MONEY OVER AND ABOVE THE CONSIDERATION STATED IN THE SALE DEED. IT IS FURTHER CONTENDED THAT NO ADDITION CAN BE MADE MERELY BASED ON THE STATEMENT GIV EN BY THE THIRD PARTY. HOWEVER, THE LD.CIT(A) REJECTED THE CONTENTION OF THE APPE LLANT BY RELYING UPON THE EVIDENCE GATHERED BY THE ASSESSING OFFICER DURI NG THE COURSE OF ASSESSMENT PROCEEDINGS. 6. BEING AGGRIEVED WITH THE ORDER OF LD.CIT(A), THE APPELLAN T IS BEFORE US IN THE PRESENT APPEAL. 4 7. THE LEARNED COUNSEL FOR THE ASSESSEE CONTENDED THAT THE LD.CIT(A) OUGHT NOT HAVE CONFIRMED THE ADDITION MERELY BASING ON THE STA TEMENT OF THE THIRD PARTIES. 8. ON THE OTHER HAND, LD.D.R. PLACED RELIANCE ON THE ORDER S OF LOWER AUTHORITIES. 9. WE HEARD THE RIVAL CONTENTIONS OF BOTH THE PARTIES AND PERUSED THE MATERIAL ON RECORD. THE ISSUE IN THE PRESENT APPEAL RELAT ES TO ADDITION OF RS.77,08,750/- AS UNEXPLAINED INVESTMENT ON PURCHASE OF LA NDS SITUATED AT GAT NO.902, WADEBHOLAI, PUNE. ON READING OF THE ASSESSMEN T ORDER, IT WOULD SUGGEST THAT THE ASSESSING OFFICER MADE ADDITION BA SED ON THE STATEMENT GIVEN BY THE SELLERS BEFORE THE INVESTIGATION W ING OF THE DEPARTMENT. NO DOUBT, THE ASSESSING OFFICER HAD GIVEN OPPORTUNITY TO THE APPELLANT TO REBUT THE SAID EVIDENCE WHICH WAS NOT AVAILED OF BY THE APPELLANT FOR WHATSOEVER REASONS. BUT, DURING THE COURSE OF PROCE EDINGS BEFORE LD.CIT(A), THE APPELLANT HAD CONTESTED THE ADDITION ON THE GROUND THAT NO REASONABLE OPPORTUNITY WAS GRANTED AND NO ADDITION CAN BE MADE MERELY BASED ON THE STATEMENT OF THIRD PARTIES. THE LD.CIT(A) CON FIRMED THE ADDITION RELYING UPON THE EVIDENCE GATHERED BY THE ASSESSING OFFIC ER I.E., IN THE FORM OF STATEMENT GIVEN BY THE SELLERS BEFORE THE INVESTIGATION D EPARTMENT. IN OUR CONSIDERED OPINION, THE APPROACH OF THE LD.CIT(A) DOES NOT S TAND THE JUDICIAL SCRUTINY AS IT IS SETTLED POSITION OF LAW THAT NO ADDITION CA N BE MADE MERELY BASED ON THE STATEMENT OF THIRD PARTIES AND THE LD.CIT(A) WITHOUT GIVING AN OPPORTUNITY TO CROSS-EXAMINE THE SELLERS, WHOSE STATEMEN TS FORMED THE BASIS OF MAKING ADDITION, OUGHT NOT HAVE CONFIRMED THE ADDITION. IN THE ABOVE CIRCUMSTANCES, IN ORDER TO MEET THE ENDS OF JUSTICE, WE R EMAND THE MATTER 5 BACK TO THE FILE OF ASSESSING OFFICER TO RE DO THE ASSESSM ENT AFRESH IN ACCORDANCE WITH THE LAW. 10. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IN ITA NO.116/PUN/2018 IS PARTLY ALLOWED FOR STATISTICAL PURPOSES. 11. ITA NO.117/PUN/2018 WE HAVE ALREADY DECIDED THE ISSUE UNDER IDENTICAL FACTS IN FAVOUR OF THE ASSESSEE IN ITA NO.116/PUN/2018 AND PARTLY ALLOWED THE APPEAL OF THE ASSESSEE FOR STATISTICAL PURPOSES BY REMANDING THE MATT ER TO THE FILE OF ASSESSING OFFICER. THEREFORE, OUR DECISION IN ITA NO.116/PUN /2018 SHALL APPLY, MUTATIS MUTANDIS, TO THIS APPEAL ALSO AND ACCORDING LY THIS APPEAL IS ALSO PARTLY ALLOWED FOR STATISTICAL PURPOSES. 12. IN THE RESULT, THE APPEAL OF ASSESSEE IN ITA NO.117/PU N/2018 IS PARTLY ALLOWED FOR STATISTICAL PURPOSES. 13. IN THE COMBINED RESULT, BOTH THE APPEALS OF ASSESSE E ARE PARTLY ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED ON 29 TH DAY OF JULY, 2021. SD/- SD/- (S. S. VISWANETHRA RAVI) (IN TURI RAMA RAO) / JUDICIAL MEMBER / ACCOUNTANT MEMBER / PUNE; / DATED : 29 TH JULY, 2021. YAMINI 6 / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT. 2. / THE RESPONDENT. 3. THE CIT(A)-4 AND 5, PUNE. 4. THE PR.CIT-3 AND 4, PUNE. 5. , , , / DR, ITAT, B BENCH, PUNE. 6. / GUARD FILE. / BY ORDER, // TRUE COPY // SENIOR PRIVATE SECRETARY , / ITAT, PUNE.