Shri Dilip Singh Sisodia, Ujjain V. The Income Tax Officer 2(1), Ujjain

ITA 122/IND/2013

• Counselvise Citation: [2013] 120 COUNSELVISE.COM (IT) 2977 (ITAT-INDORE)
• Duration Of Justice: 1 month(s) 16 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-05-2013
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 21-06-2016
• Assessment Year: 2008-2009
• Appeal Filed On: 04-04-2013
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: MOHD JAVED
• Assessee Lawyers: N D PATWA
• Section: 142(1)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL INDORE SMC BENCH, INDORE BEFORE SHRI D.T. GARASIA, JUDICIAL MEMBER ITA NO. 122/IND/2013 A.Y. 2008-09 DILIP SINGH SISODIYA, GRAM-CHIKLI, TEHSIL-BARNAGAR, DISTT. UJJAIN PAN CLTPS 8981 C :: APPELLANT VS ITO-2(1), UJJAIN :: RESPONDENT ASSESSEE BY SHRI ASHISH GOYAL AND SHRI N.D. PATWA RESPONDENT BY SHRI MOHD. JAVED DATE OF HEARING 21.6.2016 DATE OF PRONOUNCEMENT 21.6.2016 O R D E R THIS APPEAL IS FILED BY THE ASSESSEE CHALLENGING TH E ORDER OF LD. CIT(A)- UJJAIN DATED 27.12.2012 CHALLENGING THE CONFIRMATIO N OF ADDITION AT RS.25,75,000/- U/S 69A OF THE I.T. ACT. 2. SHORT FACTS OF THE CASE ARE THAT THE ASSESSING O FFICER NOTED THAT THE ASSESSEE IS AN AGRICULTURIST AND HE HAS NO OTHE R SOURCE OF INCOME EXCEPT INCOME FROM HOUSE PROPERTY. AS HIS AGRICULTU RE INCOME IS EXEMPT ITA NO.122 OF 2013 - SMC DILIP SINGH SISODIYA 2 FROM TAX AND OTHER INCOME IS BELOW EXEMPTION LIMIT, HE HAS NOT FILED ANY RETURN OF INCOME. THE ASSESSEE RECEIVED NOTICE U/S 142(1) OF I.T. ACT AND IN RESPONSE, THE ASSESSEE HAS FILED RETURN OF I NCOME DECLARING TOTAL INCOME OF RS.25,586/- (RS.12,600 FROM HOUSE PROPERT Y + RS.12,986 FROM BANK INTEREST) AND AGRICULTURAL INCOME OF RS.1,60,0 00/-. AS PER AIR INFORMATION, THE ASSESSEE HAS DEPOSITED CASH IN SAV ING BANK ACCOUNT WITH BANK OF INDIA, DASHERA MAIDAN, UJJAINUN AT RS. 27,55,000/-. THE ASSESSING OFFICER ASKED THE ASSESSEE TO EXPLAIN THE SAME. THE ASSESSEE SUBMITTED THAT HE RECEIVED RS.15 LACS ON 0 7.4.2007 AND RS.7.50 LACS ON 13.3.2008 FROM HIS BROTHER SHRI SHI V SINGH ON THE CONSIDERATION OF RELINQUISHMENT OF ASSESSEES SHARE IN THE HUF PROPERTY IN FAVOUR OF HIS BROTHER. THE ASSESSEE SUBMITTED TH AT HIS BROTHER SHRI SHIV SINGH HAS SOLD AGRICULTURAL LAND ON 12.6.2006 FOR RS.12,57,000/- AND IN THE MONTH OF NOVEMBER 2006 FOR RS.9,45,000/- , FOR WHICH, PHOTOCOPIES OF THE SALE DEED WERE ALSO FILED BY THE ASSESSEE. HIS FATHER SHRI AMAR SINGH HAS ALSO GIVEN MONEY TO HIM OUT OF SALE PROCEEDS OF AGRICULTURAL LAND AT RS.1,25,000/- ON 28.6.2007 AND RS.2 LACS ON 13.3.2008. FURTHER, REMAINING AMOUNT OF CASH DEPOSI T IS OUT OF AGRICULTURAL INCOME. HOWEVER, THE ASSESSING OFFICER REQUIRED FURTHER EVIDENCES AND HELD THAT THE ASSESSEE FAILED TO EXPL AIN THE SOURCE OF CASH DEPOSIT IN THE SAID SAVING BANK ACCOUNT AND AD DED THE SAME U/S ITA NO.122 OF 2013 - SMC DILIP SINGH SISODIYA 3 69A OF THE I.T. ACT AS UNEXPLAINED MONEY TO THE TAX ABLE INCOME OF THE ASSESSEE. 3. MATTER CARRIED TO LD. CIT(A), WHO DELETED THE RE MAINING AMOUNT CONSIDERING THE RETURN OF INCOME AND AGRICULTURAL I NCOME SHOWN BY THE ASSESSEE BUT SUSTAINED THE ADDITION TO THE EXTENT O F RS.25,75,000/- (RS.22,50,000 RECEIVED FROM ASSESSEES BROTHER SHRI SHIV SINGH + RS.3,25,000 RECEIVED FROM ASSESSEES FATHER). STILL AGGRIEVED, THE ASSESSEE IS BEFORE THE TRIBUNAL. 4. BEFORE ME, LEARNED COUNSEL FOR THE ASSESSEE HAS REITERATED THE SUBMISSION MADE BEFORE REVENUE AUTHORITIES AND CONT ENDED THAT THE ASSESSEE HAS PROVED THE SOURCE OF FAMILY MEMBERS AN D HIMSELF BY BRINGING SALE DEEDS DATED 07.11.2006 (PAPER BOOK 20 -23), 12.6.2006 (PAPER BOOK 25-29), 12.6.2006 (PAPER BOOK 30-34) AN D 07.11.2006 (PAPER BOOK 35-39) ON RECORD. THE SALE CONSIDERATIO N OF THE SAME COMES TO RS.35,66,500/- AND THE ASSESSEE HAS RECEIV ED RS.15 LACS ON 07.4.2007 AND RS.7.50 LACS ON 13.3.2008 FROM HIS BR OTHER SHRI SHIV SINGH ON THE CONSIDERATION OF RELINQUISHMENT OF ASS ESSEES SHARE IN THE HUF PROPERTY IN FAVOUR OF HIS BROTHER, WHO HAD SOLD AGRICULTURAL LAND ON 12.6.2006 FOR RS.12,57,000/- AND IN THE MONTH OF 07 .11.2006 FOR RS.9,45,000/- (PAPER BOOK 25-29 AND 35-39). HIS FAT HER SHRI AMAR SINGH HAS ALSO GIVEN MONEY TO HIM OUT OF SALE PROCEEDS OF AGRICULTURAL LAND AT ITA NO.122 OF 2013 - SMC DILIP SINGH SISODIYA 4 RS.1,25,000/- ON 28.6.2007 AND RS.2 LACS ON 13.3.20 08 AS HIS FATHER HAD RECEIVED 1/4 TH SHARE ON SALE OF 2.75 HECTARE LAND ON 07.11.2006 (PAPER BOOK 20-23). ASSESSEE HIMSELF HAD 1/4 TH SHARE. THUS, THE SHARE OF ASSESSEE AND FATHER BEING 50% COMES TO RS.3,09,5 00/-. ANOTHER LAND OF ASSESSEE 2.13 HECTARES WAS SOLD FOR RS. 7,45,500 /- ON 12.6.2006 (PAPER BOOK 30-34). THUS, THE ASSESSEE HAD RS.10,55 ,000/- AVAILABLE WITH HIM FROM SALE OF LAND AND AS SUCH, RS.3,25,000 /- WAS DEPOSITED OUT OF THESE TRANSACTIONS. AFFIDAVITS OF BROTHER AND FA THER WERE SUBMITTED, WHICH CANNOT BE REJECTED WITHOUT CROSS-EXAMINATION. THE ASSESSEE FURNISHED SUFFICIENT EVIDENCES TO PROVE THE DEPOSIT S IN THE BANK ACCOUNT. THE DETAILS OF LAND SOLD WAS GIVEN, WHICH IS A REGI STERED DOCUMENT AND THUS CANNOT BE FABRICATED. NO OTHER USAGE OF MONEY ESTABLISHED BY THE REVENUE AUTHORITIES EXCEPT AS EXPLAINED BY ASSESSEE . ALTERNATIVELY, IT WAS ALSO SUBMITTED BY THE LEARNED COUNSEL FOR THE A SSESSEE THAT THE RETURNED INCOMES SHOWN BY THE ASSESSEE FROM HOUSE P ROPERTY AT RS.12,600/- AND BANK INTEREST AT RS.12,986/- HAVE B EEN ACCEPTED BY THE AO AND LD. CIT(A). THE INCOMES FROM THESE SOURCES ARE SPECIFIC AND ASCERTAINABLE. THUS, WHAT REMAINS IS THE AGRICULTURAL INCOME. IF A PERSON HAS ONLY AGRICULTURAL INCOME AN D NO OTHER INCOME, THEN NO ADDITION CAN BE MADE TO TOTAL INCOME UNLESS AND UNTIL THE ASSESSING OFFICER PROVES THAT THE ASSESSEE HAS ANY OTHER SOURCE OF INCOME, WHICH IS TAXABLE UNDER THE INCOME TAX ACT. BESIDES AGRICULTURAL ITA NO.122 OF 2013 - SMC DILIP SINGH SISODIYA 5 INCOME, THE ASSESSEE HAD HOUSE PROPERTY INCOME AND INTEREST FROM ORDER DATED BANK. IN SUCH CASES, AN UNEXPLAINED INC OME/EXPENDITURE HAS TO BE TREATED AS OUT OF AGRICULTURAL INCOME. LE ARNED COUNSEL FOR THE ASSESSEE RELIED ON THE FOLLOWING DECISIONS: 1. ITA 537/IND/06 DATED 14-11-2006 (INDORE TRIB). 2. LAKHMICHAND BAIJNATH V. CIT 35 ITR 416 (SC). 3. CIT V. MARGARETS TEA CO. LTD. 201 ITR 747(CAL.). 4. KRISHNA KUMAR PALLIWAL V. ITO 9 ITJ 348 (INDORE TRIB.). 5. ITO V. SMT. SHANAJ BANO ITA NO. 443/IND/2004 (IN DORE TRIB.). 6. NARENDRA BADJATIA V. ITO ITA NO. 537/IND/ 2006 ( INDORE TRIB.). ON THE OTHER HAND, LD. DR RELIED ON THE ORDERS OF T HE REVENUE AUTHORITIES. 5. I HAVE HEARD RIVAL CONTENTIONS OF BOTH THE PARTI ES AND PERUSED THE MATERIAL AVAILABLE ON RECORD. I FIND THAT BROTHER O F ASSESSEE SHIV SINGH HAD EARNED RS.22,02,000/- FROM SALE OF LAND. HE HAS DEPOSITED RS. 22,50,000/- IN BANK ACCOUNT OF THE ASSESSEE. HE WAS AN AGRICULTURIST AND HAD HIS OWN SOURCE OF INCOME. THE AMOUNT WAS DE POSITED IN VIEW OF FAMILY SETTLEMENT. HE CONFIRMED THIS FACT IN HIS AF FIDAVIT. HIS SOURCE OF INCOME IS SUBSTANTIATED FROM THE SALE CONSIDERATION OF AGRICULTURAL LAND ON 12.6.2006 FOR RS.12,57,000/- AND IN THE MONTH OF 07.11.2006 FOR RS.9,45,000/- (PAPER BOOK 25-29 AND 35-39). HOWEVER , REVENUE AUTHORITIES DID NOT CONSIDER THE SAME. FURTHER, REV ENUE AUTHORITIES CHOSE NOT TO CROSS-EXAMINE HIM. EVEN IN THE REMAND REPORT, THE ITA NO.122 OF 2013 - SMC DILIP SINGH SISODIYA 6 ASSESSING OFFICER CHOSE NOT TO CROSS-EXAMINE HIM. S HRI AMAR SINGH (FATHER OF ASSESSE) HAD RECEIVED 1/4 TH SHARE ON SALE OF 2.75 HECTARE LAND. ASSESSEE HIMSELF HAD 1/4 TH SHARE. THUS, THE SHARE OF ASSESSEE AND FATHER COMES TO 3,09,500/- (BEING 50%). ANOTHER LAN D OF ASSESSEE 2.13 HECTARES WAS SOLD FOR RS. 7,45,500/-. THUS THE ASSE SSEE HAD RS.10,55,000/- AVAILABLE WITH HIM FROM SALE OF LAND . THEREFORE, RS.3,25,000/- IS EXPLAINED BEING DEPOSITED OUT OF T HESE TRANSACTIONS. IN THE REMAND REPORT DATED 30.3.2012, THE AO OBSERVED THAT THERE WAS NO NEXUS BETWEEN THE WITHDRAWALS FROM BROTHER SHRI SHIV SINGH BANK ACCOUNT AND THE DEPOSITS IN ASSESSEES ACCOUNTS. HO WEVER, FROM THE PERUSAL OF COPIES OF BANK STATEMENTS, IT IS SEEN TH AT IN THE BANK ACCOUNT OF BROTHER SHRI SHIV SINGH, THE WITHDRAWALS ARE IN INSTALMENTS BUT THE TOTAL WITHDRAWALS ARE SUFFICIENT TO EXPLAIN THE DEP OSITS IN ASSESSEES BANK ACCOUNT. SHRI SHIV SINGH FILED AN AFFIDAVIT CO NFIRMING THAT HE GAVE THE AMOUNTS TO THE ASSESSEE. SHRI AMAR SINGH FATHER OF THE ASSESSEE ALSO CONFIRMS THE GIVING OF THE AMOUNTS BY FILING A FFIDAVIT. LD. CIT(A) NOTED THAT THE ASSESSEE WAS GIVEN TIME TO GIVE FURT HER EVIDENCES REGARDING THE SOURCE OF DEPOSITS. HOWEVER, I FIND T HAT EVIDENCES, AS DISCUSSED HEREINABOVE, WERE SUFFICIENT TO PROVE THE DEPOSITS IN THE BANK ACCOUNT. THE DETAILS OF LAND SOLD WAS GIVEN, WHICH IS A REGISTERED DOCUMENT AND THUS CANNOT BE RULED OUT WITHOUT BRING ING ANY COGENT MATERIAL ON RECORD AND ALSO IN VIEW OF THE FACT THA T NO OTHER USAGE OF ITA NO.122 OF 2013 - SMC DILIP SINGH SISODIYA 7 MONEY WAS ESTABLISHED BY THE REVENUE AUTHORITIES EX CEPT AS EXPLAINED BY ASSESSEE. EVEN BEFORE ME, LD. DR COULD NOT CONTR OVERT THE SUBMISSIONS OF THE ASSESSEE BY BRINGING ANY CONTRAR Y MATERIAL ON RECORD. THEREFORE, LOOKING TO THE FACTS AND SUBMISS IONS THEREOF IN THE LIGHT OF JUDICIAL PRONOUNCEMENTS, I FIND THAT THE A SSESSEE HAS EXPLAINED THE MONEY TAKEN BY HIM BY BRINGING POSITIVE MATERIA L ON RECORD. THUS, I DO NOT FIND ANY REASON TO CONFIRM THE ORDERS OF THE REVENUE AUTHORITIES ON THE PRESENT ISSUE. ACCORDINGLY, I SET ASIDE THE ORDERS OF THE REVENUE AUTHORITIES AND DELETE THE ADDITION. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED. ORDER WAS PRONOUNCED IN THE OPEN COURT ON 21.6.2016 . SD/- ( D.T. GARASIA) JUDICIAL MEMBER DATED : 21.6.2016 !VYS! COPY TO: APPELLANT/RESPONDENT/CIT(A)/CIT/DR, INDORE