ITo, Gwalior V. Shri Yogesh Kalra, Gwalior

ITA 12/AGR/2009

• Counselvise Citation: [2010] 136 COUNSELVISE.COM (IT) 6922 (ITAT-AGRA)
• Duration Of Justice: 1 year(s) 3 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-04-2010
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 22-04-2010
• Assessment Year: 2005-2006
• Appeal Filed On: 22-01-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Unexplained investment

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AGRA BENCH, AGRA BEFORE SHRI R.K. GUPTA, JUDICIAL MEMBER AND SHRI P.K. BANSAL, ACCOUNTANT MEMBER ITA NO.12/AGR/2009 ASST. YEAR: 2005-06 THE INCOME-TAX OFFICER 1 (2), VS. SHRI YOGESH KALRA, GWALIOR. PROP. KALRA TYRES, SINDE KI CHHAWANI, LASHKAR, GWALIOR. (PAN : ADKPK 7944 A) (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI R.C. SHARMA, JR. D.R. RESPONDENT : SHRI NAVIN GARGH, ADVOCATE ORDER PER P.K. BANSAL, A.M.: THIS APPEAL HAS BEEN FILED BY THE REVENUE AGAINST T HE ORDER OF THE CIT(A) DATED 13.10.2008 DELETING THE ADDITION OF RS.8,48,000/- O N ACCOUNT OF UNEXPLAINED INVESTMENT IN CONSTRUCTION OF BUILDING MADE BY THE A.O. 2. THE BRIEF FACTS OF THE CASE ARE THAT DURING THE ASSESSMENT PROCEEDINGS THE A.O. OBSERVED THAT THE ASSESSEE HAD INVESTED A SUM OF RS.10,06,00 0/- (RS.8,48,000/- IN CONSTRUCTION AND RS.1,58,000/- FOR PURCHASE OF STAMPS) DURING THE YE AR UNDER CONSIDERATION AND ACCORDINGLY MADE AN ADDITION OF RS.10,06,000/- ON THE GROUND THAT TH E ASSESSEE RECEIVED PROPERTY BY FAMILY PARTITION DATED 08.04.2004 RELEVANT TO THE IMPUGNED A.Y. WHEN THE MATTER WENT BEFORE THE CIT(A), THE CIT(A) DELETED THE ADDITION OF RS.10,06 ,000/- BY OBSERVING AS UNDER :- 2 I HAVE PERUSED THE WRITTEN SUBMISSION, ASSESSMENT ORDER AND RELEVANT DOCUMENTS SUBMITTED BEFORE ME AND FIND THAT THE MAI N ISSUE INVOLVED IN THIS CASE, THE EXISTENCE AND POSSESSION OF THE PROPERTY BEFORE MAKING INVESTMENT IN CONSTRUCTION OF THE PROPERTY. THERE WAS JOINT FAMI LY BUSINESS OF THE APPELLANT AND VARIOUS PROPERTIES WERE PURCHASED IN THE NAME OF ME MBERS OF THE FAMILY, WHICH WERE OWNED AND OCCUPIED BY THE MEMBERS EITHER JOINT LY OR INDEPENDENTLY WITH THE MUTUAL CONSENT AND UNDERSTANDING OF ALL MEMBERS OF THE FAMILY. THE ADDITION/RENOVATION OF THE PROPERTIES WAS DONE BY T HE MEMBERS OCCUPYING THE PROPERTY. THERE WAS UNDERSTANDING OF PARTITION AMO NGST THE FAMILY MEMBERS VIDE MEMORANDUM OF PARTITION DATED 22.01.04. THEREAFTER THE PARTITION DEED WAS EXECUTED ON 31.03.04, WHICH WAS REGISTERED ON 08.04 .08. A COPY OF ALL THESE ARE SUBMITTED BEFORE ME. COPY OF PROPERTY ACCOUNT FOR TWO YEARS I.E. FINANCIAL YEAR 2003-04 & 2004-05 RELEVANT TO ASSESSMENT YEAR 2004- 05 & 2005-06 ARE ALSO SUBMITTED BEFORE ME. THE ASSESSING OFFICER HAD MAD E ADDITION OF RS.10,06,000/- COMPRISING INVESTMENT IN CONSTRUCTION RS.8,48,000/- AND RS.1,58,000/- AS COST OF STAMPS ETC. AS PER THE SUBMISSION MADE BY THE LD. A.R., THE AMOUNT OF RS.8,48,000/- INCLUDES RS.1,58,000/-. THEREFORE, T HE ASSESSING OFFICER HAS CONSIDERED THE AMOUNT OF RS.1,58,000/- TWICE. THE APPELLANT WAS IN POSSESSION OF THE PROPERTY AT JHANSI ROAD, MAHALGAON, GWALIOR (M. P.). HE INVESTED RS.6,90,000/- IN CONSTRUCTION AND INCURRED EXPENDIT URE OF RS.1,58,000/- FOR STAMPS PURCHASE ETC. FOR PARTITION DEED DURING FINA NCIAL YEAR 2003-04 RELEVANT TO ASSESSMENT YEAR 2004-05. ALTHOUGH, STAMPS WERE PUR CHASE ON TWO DIFFERENT DATES I.E. 31.03.04 AND 05.06.04 AND REGISTRATION FEES WA S DEPOSITED ON 08.04.04, THE DATE OF REGISTRATION OF PARTITION DEED. BUT SINCE THE ASSESSEE HAD PAID THE AMOUNT TO THE PERSONS CONCERNED ON 31.03.04, HENCE IT WAS ACCOUNTED FOR ACCORDINGLY. HOWEVER, IT DOES NOT HAVE ANY IMPACT UPON TAXABILIT Y BECAUSE THE ASSESSEE HAD NOT CLAIMED ANY DEDUCTION OF THIS AMOUNT WHILE COMP UTING TAXABLE INCOME AND IT WAS DULY ACCOUNTED FOR WHEN IT WAS PAID. THE APPEL LANT ALSO DEBITED RS.24,00,000/- AS VALUE OF THE PLOT TO THIS PROPERT Y ACCOUNT AS ON 31.03.04 AS PER FAMILY PARTITION DEED EXECUTED ON 31.03.04. THE AS SESSING OFFICER HAD PRESUMED THAT THE APPELLANT HAD INVESTED IN CONSTRUCTION AND INCURRED EXPENDITURE FOR PURCHASE OF STAMPS DURING THE YEAR UNDER CONSIDERAT ION BUT SHOWN DURING PRECEDING YEAR. THE ASSESSING OFFICER COULD NOT PL ACE ANY IOTA OF EVIDENCE TO SUBSTANTIATE HIS STAND THAT THE APPELLANT HAD INVES TED IN CONSTRUCTION AND PURCHASE OF STAMPS DURING THE YEAR UNDER CONSIDERAT ION AND NOT DURING THE PRECEDING YEAR. THEREFORE, IN VIEW OF ALL THESE, I AM OF THE CONSIDERED OPINION THAT THE ASSESSING OFFICER IS NOT JUSTIFIED IN MAKI NG THE ADDITION OF RS.10,06,000/- FOR THE YEAR UNDER CONSIDERATION AND ACCORDINGLY TH E ADDITION IS HEREBY DELETED. 3. WE HAVE HEARD THE RIVAL SUBMISSIONS AND CAREFULL Y CONSIDERED THE SAME ALONGWITH ORDER OF THE TAX AUTHORITIES BELOW. FROM THE COPY OF ACC OUNTS WHICH IS AVAILABLE AT PAGE 57 OF THE PAPER BOOK IT IS APPARENT THAT A SUM OF RS.8,48,000 /- HAS BEEN SHOWN AND INVESTED IN THE PROPERTY AT JHANSI ROAD DURING THE PERIOD 01.04.200 3 TO 31.03.2004 IN THE BOOKS OF KALRA TYRES. 3 THE SUM OF RS.1,58,000/- HAS BEEN SHOWN AS WITHDRAW N FOR THE REGISTRY EXPENSES ON 31.3.2004 BUT ACTUALLY THE EXPENDITURE HAS BEEN INCURRED BY T HE ASSESSEE ON 08.04.2004 AS THE PARTITION DEED WAS REGISTERED ON 08.04.2004. WHILE IN FACT, IT WAS EXECUTED ON 31.03.2004. IT CLEARLY DENOTES THAT THE ASSESSEE HAS NOT MADE ANY INVESTME NT AMOUNTING TO RS.8,48,000/- DURING THE YEAR UNDER CONSIDERATION. EVEN THE SUM OF RS.1,58, 000/- TOWARDS THE STAMP PAPER WAS SPENT ON 31.03.2004 WHICH WAS AGAIN ADDED AS THE PARTITION D EED WAS REGISTERED ON 08.04.2004. THUS, THE SUM OF RS.1,58,000/- STANDS DOUBLE ADDED. UNDER TH ESE FACTS AND CIRCUMSTANCES, WE ARE OF THE OPINION THAT THE CIT(A) HAS RIGHTLY DELETED THE ADD ITION MADE BY THE A.O. AS THERE IS NO UNEXPLAINED INVESTMENT BEING MADE BY THE ASSESSEE D URING THE YEAR UNDER CONSIDERATION. WE, ACCORDINGLY, CONFIRM THE FINDING OF FACTS GIVEN BY THE CIT(A). 4. IN THE RESULT, APPEAL FILED BY THE REVENUE STAND S DISMISSED. (ORDER PRONOUNCED IN THE OPEN COURT ON 22.04.2010) . SD/- SD/- (R.K. GUPTA) (P.K. BANSAL) JUDICIAL MEMBER ACCOUNTANT MEMBER PLACE: AGRA DATE: 11 TH MAY, 2010. PBN/* COPY OF THE ORDER FORWARDED TO: 1. APPELLANT 2. RESPONDENT BY ORDER 3. CIT CONCERNED 4. CIT (APPEALS) CONCERNED 5. DR, ITAT, AGRA BENCH, AGRA 6. GUARD FILE ASSIST ANT REGISTRAR INCOME-TAX APPELLATE TRIBUNAL, AGRA TRUE COPY