Vikas Kumar, Shamli V. ITO- II, Shamli

ITA 1172/DEL/2017

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 2959 (ITAT-DELHI)
• Duration Of Justice: 3 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-06-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 07-06-2017
• Assessment Year: 2009-2010
• Appeal Filed On: 28-02-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Section: 133(6); 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH : SMC : NEW DELHI BEFORE SHRI R.S. SYAL, VICE PRESIDENT ITA NO.1172/DEL/2017 ASSESSMENT YEAR : 2009-10 VIKAS KUMAR, L/H OF LATE SUREH PAL, VILL. SIMBHALKA, SHAMLI. PAN: BUJPK9584K VS. ITO-II, WARD-I, SHAMLI. (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI V.K. CHADHA, ADVOCATE DEPTT. BY : SHRI AMRIT LAL, SR.DR DATE OF HEARING : 07.06.2017 DATE OF PRONOUNCEMENT: 09.06.2017 ORDER THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER PASSED BY THE CIT(A) ON 30.11.2016 IN RELATION TO THE ASSESSMENT YEAR 2009-10. ITA NO.1172/DEL/2017 2 2. THE ASSESSEE HAS CHALLENGED THE SUSTENANCE OF AD DITION OF RS.17,50,000/- WHICH WAS MADE BY THE ASSESSING OFFI CER ON PROTECTIVE BASIS ON ACCOUNT OF AGRICULTURAL INCOME. 3. BRIEFLY STATED, THE FACTS OF THE CASE ARE THAT T HE AIR INFORMATION WAS RECEIVED THAT THE ASSESSEE HAD DEPOSITED RS.29,50,0 00/- IN HIS SAVINGS BANK ACCOUNT. NOTICE U/S 133(6) DATE 16.10.2012 WAS ISSU ED. A COPY OF BANK ACCOUNT WAS PRODUCED. DUE TO THE DEATH OF SHRI SUR ESH PAL, THE ASSESSMENT PROCEEDINGS WERE SHIFTED TO HIS LEGAL HEIR, NAMELY, SHRI VIKAS KUMAR. LATER ON, STATEMENT OF SHRI VIKAS KUMAR WAS ALSO RE CORDED ON 06.11.2012. DURING THE RECORDING OF SUCH STATEMENTS, THE ASSESS ING OFFICER REQUIRED THE ASSESSEE TO EXPLAIN THE SOURCE OF DEPOSIT IN THE BA NK. THE ASSESSEE CATEGORICALLY SUBMITTED THAT THE DEPOSIT OF RS.29.5 0 LAC WAS OUT OF SALE PROCEEDS OF HIS AGRICULTURAL LAND TO SMT. ARUNA SAN GAL AND SMT. SUMAN SANGAL. LETTERS WERE SENT TO BOTH THESE LADIES ON 20.11.2012. LATER ON, SUMMONS WERE ALSO ISSUED. COMPLIANCE WAS MADE ON 17 .12.2012 WHEN SMT. ARUNA SANGAL AND SMT. SUMAN SANGAL APPEARED BE FORE THE ASSESSING OFFICER WHOSE STATEMENTS WERE RECORDED. IN THE STA TEMENTS, BOTH THE PURCHASERS STATED TO HAVE PURCHASED THE PROPERTY FO R A SUM OF RS.12,50,000/-, OUT OF WHICH A SUM OF RS.10 LAC WAS GIVEN TO LATE SHRI ITA NO.1172/DEL/2017 3 SURESH PAL AS ADVANCE AT THE TIME OF AGREEMENT AND THE REMAINING AMOUNT OF RS.2,50,000/- WAS PAID AT THE TIME OF REGISTRY O F SALE DEED. NOTICE U/S 148 WAS ISSUED IN COMPLIANCE TO WHICH RETURN WAS FI LED ON 20.12.2013. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE AS SESSING OFFICER OBSERVED THAT CASH OF RS.29,50,000/- WAS DEPOSITED ON A SINGLE DAY, I.E., 04.11.2008 AND, AS PER THE REGISTRY OF AGRICULTURAL LAND, THE ASSESSEE RECEIVED ONLY A SUM OF RS.10 LAC AS ADVANCE. THE AS SESSING OFFICER RECORDED THAT THE ASSESSEE COULD NOT BRING ON RECOR D ANY EVIDENCE OF SALE OF TREES, ETC., BEING THE AGRICULTURAL INCOME, AMOUNTI NG TO RS.17,50,000/- WHICH WAS CLAIMED AS SOURCE OF DEPOSIT IN THE BANK ACCOUNT. PROTECTIVE ADDITION WAS MADE FOR THIS SUM. THE LD. CIT(A) CON FIRMED THE PROTECTIVE ADDITION OF RS.17,50,000/- BY TREATING IT AS SUBSTA NTIVE, AGAINST WHICH THE ASSESSEE HAS COME UP IN APPEAL BEFORE THE TRIBUNAL. 4. I HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED T HE RELEVANT MATERIAL ON RECORD. IT IS NOTICED THAT THE ASSESSEE IN HIS STATEMENT RECORDED BY THE ASSESSING OFFICER, COPY PLACED AT PAGE 15 ONWARDS O F THE PAPER BOOK, SUBMITTED IN RESPONSE TO QUESTION NO. 3 THAT A SUM OF RS.29,50,000/- WAS DEPOSITED IN THE BANK ACCOUNT OUT OF THE SALE PROCE EDS OF THE AGRICULTURAL LAND. IN ANSWER TO QUESTION NO. 4, IT WAS STATED T HAT THE LAND WAS, IN FACT, ITA NO.1172/DEL/2017 4 SOLD FOR RS.29,50,000/- AND THE SAME AMOUNT WAS ALS O DEPOSITED IN THE BANK ACCOUNT, BUT, ONLY A SUM OF RS.10 LAC WAS RECORDED IN THE SALE DEED. IN SUPPORT OF THE FACT THAT RS.29,50,000/- WAS DEPOSIT ED IN THE BANK OUT OF SALE PROCEEDS, THE ASSESSEE ALSO FILED A COPY OF PAY-IN -SLIP WHICH SHOWS A SINGLE CASH DEPOSIT OF RS.29,50,000/- IN THE ASSESSEES BA NK ACCOUNT BY SHRI RAJ KAMAL, HUSBAND OF SMT. ARUNA SANGAL, ONE OF THE BUY ERS. WHEN THE ASSESSEE SPECIFICALLY STATED THIS FACT BEFORE THE A SSESSING OFFICER THAT A SUM OF RS.29.50 LAC WAS, IN REALITY, THE SALE PROCEEDS OF THE AGRICULTURAL LAND DULY BACKED BY THE EVIDENCE IN THE FORM OF THE PAY- IN-SLIP, THE ASSESSING OFFICER OUGHT TO HAVE SHIFTED HIS FOCUS ON FURTHER EXAMINING THE SOURCE OF INVESTMENT BY THE BUYERS RATHER THAN MAKING ADDITIO N OF RS.17.50 LAC IN THE HANDS OF THE ASSESSEE BY TREATING IT AS UN-EVIDENCE D SALE PROCEEDS OF TREES. THERE IS NO DISPUTE THAT THE SALE OF LAND BY THE AS SESSEE DID NOT ATTRACT ANY CAPITAL GAINS. IT WOULD NOT HAVE MADE ANY DIFFEREN CE ON THE TAXABILITY OF THE ASESSEE, EVEN IF HE HAD SHOWN THE CORRECT AMOUN T OF RS.29.50 LAC AS SALE PROCEEDS. WHEN I CONSIDER ALL THE FACTS AND CIRCUMS TANCES OF THIS CASE, THE SEQUITUR IS THAT THE ASSESSEE, IN FACT, SOLD LAND F OR RS.29.50 LAC, WHICH AMOUNT WAS DEPOSITED BY THE HUSBAND OF ONE OF THE B UYERS IN THE ASSESSEES BANK ACCOUNT. AS THE SALE CONSIDERATION OF AGRICUL TURAL LAND IS NOT ITA NO.1172/DEL/2017 5 CHARGEABLE TO TAX, I HOLD THAT THE ADDITION OF RS.1 7.50 LAC, BEING A PART OF SALE CONSIDERATION DEPOSITED IN THE BANK ACCOUNT, C ANNOT BE SUSTAINED BY TREATING IT AS AN UNEXPLAINED DEPOSIT. I, ERGO, ORD ER FOR THE DELETION OF ADDITION. 5. IN THE RESULT, THE APPEAL FILED BY THE ASS ESSEE IS ALLOWED. THE DECISION WAS PRONOUNCED IN THE OPEN COURT ON 0 9 TH JUNE, 2017. SD/- (R.S. SYAL) VICE PRESIDENT DATED: 09 TH JUNE, 2017. DK COPY FORWARDED TO 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR DY. REGISTRAR, ITAT, NEW DELHI