INCOME TAX OFFICER 1(3), RAIPUR (CG) V. SHRI BALWANT SINGH, RAIPUR (CG)

ITA 123/BIL/2011

• Counselvise Citation: 12324714 RSA 2011
• Duration Of Justice: 4 year(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-06-2015
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2007-2008
• Appeal Filed On: 15-06-2011
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: SHEETAL S VERMA
• Assessee Lawyers: SAKSHI GOPAL AGGARWAL
• Keywords: Additional evidence
• Section: 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL RAIPUR BENCH, RAIPUR BEFORE SHRI MUKUL K. SHRAWAT , JUDICIAL MEMBER AND SHRI SHAMIM YAHYA, ACCOUNTANT MEMBER . IT A NO.12 3 / BLPR./2011 ( ASSESSMENT YEAR : 20 0 7 08 ) INCOME TAX OFFICER - 1(3) CENTRAL REVENUE BUILDING CIVIL LINES, RAIPUR (C.G) APPELLANT V/S SHRI BALWANT SINGH NALGAR ROAD, RING ROAD NO.1 BHATAGAON, DIST. RAIPUR (C.G) PAN AVRPS8139C .... RESPONDENT REVENUE BY : SMT. SHEETAL S. VERMA ASSESSEE BY : MS. SAKSHI GOPAL AGGARWAL DATE OF HEARING 10 .06.2015 DATE OF ORDER 19 .06.2015 O R D E R PER SHAMIM YA H YA, A .M. T HIS APPEAL BY THE REVENUE IS DIRECTED AGAINST THE ORDER DATED 31 ST MARCH 2011 , PASSED BY THE LEARNED CIT(A), RAIPUR, FOR THE ASSESSMENT YEAR 20 07 08 . THE GROUND RAISED BY THE REVENUE IS A S UNDER: SHRI BALWANT SINGH 2 WHETHER IN LAW ON FACTS AND CIRCUMSTANCES OF THE CASE, THE CIT(A) WAS JUSTIFIED IN DELETING THE ADDITION OF ` 40,00,548, MADE BY THE A.O. AS LONG TERM CAPITAL GAIN. 2. IN THIS CASE, DURING THE COURSE OF ASSESSMENT, THE ASSESSING OFFICER FOUND TH AT THE ASSESSEE WAS MAINTAINING ACCOUNTS WITH HDFC BANK WHICH WAS NOT DISCLOSED IN THE RETURN OF INCOME. ON SCRUTINY OF THE BANK ACCOUNT AND THE SUBMISSIONS IN THIS REGARD, THE ASSESSING OFFICER FOUND THAT THE ASSESSEE HAS PURCHASED AND SOLD CERTAIN LANDS WHICH WERE SUBJECT TO LONG TERM CAPITAL GAIN. THIS CAPITAL GAIN INCOME WAS NOT ORIGINALLY DECLARED BY THE ASSESSEE IN THE RETURN OF INCOME. THE CONCERNED LAND WAS IN DISTRICT PANIPAT, HARYANA, HENCE, THE ASSESSING OFFICER MADE INVESTIGATION THROUGH THE INV ESTIGATION DEPARTMENT AT FARIDABAD. IT TRANSPIRED THAT THE ASSESSEE HAS RELINQUISHED HIS RIGHT OF OWNERSHIP IN LAND TO HIS TWO BROTHERS AGAINST THE RECEIPT OF SALE CONSIDERATION OF ` 63,42,360 AND ` 25,00,000 RESPECTIVELY. THESE WERE EXIGIBLE TO CAPITAL GA IN TAX. WHEN CONFRONTED, THE ASSESSEE AGREED TO SUCH CAPITAL GAINS AND PAYMENT OF DUE TAX LIABILITY. ACCORDINGLY, THE ASSESSING OFFICER COMPUTED LONG TERM CAPITAL GAIN AT ` 40,00,548. ON THE LAST DAY OF ASSESSMENT, WHEN THE ASSESSMENT WAS GETTING TIME BARR ED, ASSESSEES SON GAVE A STATEMENT TO THE ASSESSING OFFICER THAT THE ASSESSEE HAD GOT THE SHRI BALWANT SINGH 3 MONEY AFTER RELINQUISHMENT OF HIS RIGHTS IN FAVOUR OF HIS BROTHERS PURSUANT TO A FAMILY SETTLEMENT. THE ASSESSING OFFICER HAD NOT GIVEN ANY CREDENCE TO THIS ASPECT. 3. UPON ASSESSEES APPEAL, THE LEARNED CIT(A) TOOK NOTE OF THIS ASPECT. BEFORE THE LEARNED CIT(A), THE ASSESSEE ALSO SUBMITTED A CERTIFICATE FROM SARPANCH, GRAM PANCHAYAT EVIDENCING SETTLEMENT OF FAMILY DISPUTE. THE ASSESSEE ALSO SUBMITTED DOCUMENTARY EVIDEN CE IN THE FORM OF AFFIDAVIT FROM BROTHER S OF THE ASSESSEE. REFERRING TO THESE DOCUMENTS, THE LEARNED CIT(A), BY TAKING INTO ACCOUNT SEVERAL CASE LAWS, HELD THAT THE TRAN SFER ON ACCOUNT OF FAMILY SETTLEMENT DO NOT GIVE RISE TO GAIN EXIGIBLE TO CAPITAL GAINS AND HENCE GRANTED RELIEF TO THE ASSESSEE. NOW, AGAINST THE ABOVE ORDER, THE REVENUE IS IN APPEAL BEFORE US. 4. THE LEARNED DEPARTMENTAL REPRESENTATIVE SUBMITTED THAT THE SUBMISSION OF FAMILY SETTLEMENT DEED WAS NOT BEFORE THE ASSESSING OFFICER. SHE SUBMITTE D THAT THE LEARNED CIT(A) HAS REFERRED TO LETTER TO THE ASSESSEE SUBMITTED BY THE ASSESSING OFFICER DURING THE REMAND PROCEEDINGS TO PRODUCE THE CONCERNED PARTIES. SHE SUBMITTED THAT THIS WAS NOT COMPLIED WITH. SHE SHRI BALWANT SINGH 4 FURTHER SUBMITTED THAT FAMILY SETTLEMENT CERTIFICATE FILED IS NOT A REGISTERED DEED. SHE SUBMITTED THAT THERE WAS NO AUTHENTICATION OF THE SAME BY SURPANCH / PANCHAYAT. SHE FURTHER CLAIMED THAT THE SUBMISSIONS MADE BEFORE THE LEARNED CIT(A) WAS AN AFTER THOUGHT BASED ON HALF BAKED EVIDENCE. SHE C LAIMED THAT THE LEARNED CIT(A) HAS GIVEN GREAT IMPORTANCE TO THE AFFIDAVIT SUBMITTED BY THE BROTHERS OF THE ASSESSEE BUT SHE POINTED OUT THAT THESE AFFIDAVITS WERE NEVER SHOWN TO THE ASSESSING OFFICER. SHE FURTHER SUBMITTED THAT NO PROOF OF TRANSFER OF LAN D / DEED WAS PRODUCED, HENCE, HE SUBMITTED THAT THE AMOUNT RECEIVED SHOULD BE ADDED UNDER SECTION 68 OF THE ACT. HOWEVER, SHE SUBMITTED THAT SINCE THE ASSESSING OFFICER HAS TAXED THE AMOUNT AS CAPITAL GAIN, THE ISSUE MAY BE RESTORED TO THE FILE OF THE ASSE SSING OFFICER SO THAT THE ADDITIONAL EVIDENCE WHICH ARE THE BASIS OF LEARNED CIT(A)S ORDER WHICH WERE NOT PRODUCED BEFORE THE ASSESSING OFFICER MAY BE EXAMINED BY THE ASSESSING OFFICER AND THE ASSESSING OFFICER COULD COMMENT UPON THE VERACITY OF THE SAME. 5. PER CONTRA, THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE ASSESSEE IS AN OLD PERSON AND HE WAS NOT AWARE OF THE SHRI BALWANT SINGH 5 LEGAL PROVISIONS PERTAINING TO HIS RIGHTS ARISING OUT OF FAMILY SETTLEMENT, HENCE, HE HAS ERRONEOUSLY AGREED FOR CAPITAL GAIN TAX BE FORE THE ASSESSING OFFICER. HE SUBMITTED THAT ALL THE DOCUMENTS SUBMITTED BEFORE THE LEARNED CIT(A) WERE ALSO SUBMITTED TO THE ASSESSING OFFICER AND THE LEARNED CIT(A) HAS ALSO OBTAINED REMAND REPORT FROM THE ASSESSING OFFICER. HENCE, HE SUBMITTED THAT SIN CE ALL THE DOCUMENTS WERE SUBMITTED BEFORE THE ASSESSING OFFICER, THERE IS NO NEED OF REMANDING THE MATTER TO THE ASSESSING OFFICER. HE SUBMITTED THAT AFTER APPRECIATING ALL THE EVIDENCE AND CASE LAWS, THE LEARNED CIT(A) HAS GIVEN A CORRECT ORDER AND THE S AME SHOULD BE UPHELD. 6. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. WE NOTE THAT IT IS AN ADMITTED FACT THAT IT WAS UPON SCRUTINY OF UNDISCLOSED BANK ACCOUNT THAT THE ASSESSING OFFICER CAME TO THE KNOWLEDGE THAT THE ASS ESSEE HAS RECEIVED HUGE AMOUNTS IN THOSE BANK ACCOUNTS. WHEN CONFRONTED IN THIS REGARD, THE ASSESSEE CLAIMED THAT HE HAS RECEIVED THOSE AMOUNTS FROM HIS BROTHERS UPON RELINQUISHMENT OF HIS RIGHTS IN LANDS. THE ASSESSEE AGREED FOR PAYMENT OF CAPITAL GAIN TA X. THEREAFTER, BEFORE THE LEARNED CIT(A), THE ASSESSEE SUBMITTED SHRI BALWANT SINGH 6 THAT THE AMOUNT RECEIVED WAS PURSUANT TO A FAMILY SETTLEMENT, HENCE, THIS WAS NOT EXIGIBLE TO CAPITAL GAIN TAX. IN THIS REGARD, THE LEARNED CIT(A) HAS PLACED RELIANCE UPON THE LETTER OF EX SA RPANCH AND AFFIDAVIT OF THE BROTHER REGARDING THE FAMILY SETTLEMENT . WE FIND THAT THOUGH THE LEARNED COUNSEL IS CLAIMING THAT THESE DOCUMENTS WERE SHOWN BEFORE THE ASSESSING OFFICER, NO COGENT RECEIPT / RECORD WAS SUBMITTED TO SHOW THAT IN FACT THE ASSESSIN G OFFICER HAD THE OCCASION TO EXAMINE THE SAME. IN THIS VIEW OF THE MATTER, CONSIDERING THE OVERALL FACTS AND CIRCUMSTANCES OF THE CASE, WE ARE OF THE CONSIDERED OPINION THAT THE LEARNED CIT(A) CONSIDERED THE DOCUMENTS WHICH WERE NOT BEFORE THE ASSESSING O FFICER. W E FURTHER NOTED THAT THE CONDUCT BY THE ASSESSEE DURING THE COURSE OF ASSESSMENT BY NOT DISCLOSING THE BANK ACCOUNT AND THE SUBMISSION OF FAMILY SETTLEMENT AFTER THE COMPLETION OF ASSESSMENT BY THE ASSESSING OFFICER DO POINT OUT THAT THIS MATTER N EEDS TO BE ADJUDICATED AFRESH BY THE ASSESSING OFFICER BY TAKING INTO ACCOUNT THE ASSESSEES SUBMISSIONS AND DOCUMENTS THAT WERE PRODUCED BEFORE THE LEARNED CIT(A). THIS IS MORE SO AS NO EVIDENCE IS ON RECORD THAT THE LETTER OF SARPANCH AND AFFIDAVITS OF B ROTHERS HEAVILY RELIED UPON BY THE LEARNED CIT(A) WERE BEFORE THE SHRI BALWANT SINGH 7 ASSESSING OFFICER. ACCORDINGLY, THIS ISSUE IS REMANDED TO THE FILE OF THE ASSESSING OFFICER. NEEDLESS TO ADD THAT THE ASSESSEE SHOULD BE GRANTED ADEQUATE OPPORTUNITY OF HEARING. 7. IN THE RES ULT, REVENUES APPEAL IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT O N 19 TH JUNE 2015 SD/ - MUKUL K. SHRAWAT JUDICIAL MEMBER SD/ - SHAMIM YAHYA ACCOUNTANT MEMBER RAI PUR , DATED : 19 TH JUNE 2015 COPY OF THE ORDER F ORWARDED TO : (1) THE ASSESSEE ; (2) THE REVENUE; (3) THE CIT(A ) ; (4) THE CIT, BILASPUR CITY CONCERNED ; (5) THE DR, ITAT, RAIPUR (6) GUARD FILE . TRUE COPY BY ORDER PRADEEP J. CHOWDHURY SR. PRIVATE SECRETARY SR. PRIVATE SECRETARY / ASSISTANT REGISTR AR ITAT, RAIPUR