Sudhir Kumar Agrawal, Bhopal V. The ACIT 1(1), Bhopal

ITA 124/IND/2013

• Counselvise Citation: [2013] 120 COUNSELVISE.COM (IT) 2979 (ITAT-INDORE)
• Duration Of Justice: 2 month(s) 16 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-05-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2008-2009
• Appeal Filed On: 05-03-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: R A VERMA
• Assessee Lawyers: MANOJ AYACHIT
• Keywords: Unexplained investment; Opportunity of being heard; Principle of natural justice
• Section: 69; 6

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL INDORE BENCH, INDORE BEFORE SHRI JOGINDER SINGH, JUDICIAL MEMBER AND SHRI R.C. SHARMA, ACCOUNTANT MEMBER ITA NO. 121/IND/2013 A.Y.2008-09 ACIT-1(1), BHOPAL :: APPELLANT VS SUDHIR KUMAR AGRAWAL BHOPAL PAN AASPA 9450A :: RESPONDENT ITA NO. 124/IND/2013 A.Y.2008-09 SUDHIR KUMAR AGRAWAL BHOPAL :: APPELLANT VS ACIT-1(1), BHOPAL :: RESPONDENT DEPARTMENT BY SHRI R.A. VERMA ASSESSEE BY SHRI MANOJ AYACHIT DATE OF HEARING 20.05.201 3 DATE OF PRONOUNCEMENT 20.05.201 3 2 O R D E R PER JOGINDER SINGH, JUDICIAL MEMBER THESE ARE THE CROSS APPEALS BY THE REVENUE AND THE ASSESSEE AGAINST THE ORDER OF THE LEARNED CIT(A),BHOPAL, DAT ED 26 TH DECEMBER, 2012. DURING HEARING OF THESE APPEALS, W E HAVE HEARD SHRI R.A. VERMA, LEARNED SENIOR DR, AND SHRI MANOJ AYACHIT, LEARNED COUNSEL FOR THE ASSESSEE. THE REVENUE IS AG GRIEVED BY THE IMPUGNED ORDER WHEREIN ADDITION OF RS. 15 LACS WAS DELETED OUT OF THE ADDITION OF RS.26 MADE U/S 69 OF THE ACT LACS O N ACCOUNT OF UNEXPLAINED INVESTMENT WHEREAS THE ASSESSEE HAS CHA LLENGED THE PART RETENTION OF THE ADDITION. 2. THE CRUX OF ARGUMENTS ON BEHALF OF THE REVENUE I S THAT THE CASH FLOW STATEMENT WAS NOT FILED BEFORE THE ASSESS ING OFFICER AND IT WAS ONLY FILED FOR THE FIRST TIME BEFORE THE LEARNE D CIT(A), THEREFORE, THE ASSESSING OFFICER COULD NOT GET THE OPPORTUNITY TO EXAMINE SUCH DETAILS. THIS ASSERTION OF THE REVENUE WAS NOT CONT ROVERTED BY THE ASSESSEE. THE FACTS, IN BRIEF, ARE THAT THE ASSESS EE DECLARED TOTAL INCOME OF RS. 1,09,235/- IN ITS RETURN FILED ON 2 ND SEPTEMBER, 2008. THE ASSESSEE IS AN INDIVIDUAL AND PARTNER IN M/S AG RAWAL BUILDERS. THE ASSESSEE IS ALSO A MEMBER OF AGRAWAL EDUCATION & WELFARE 3 SOCIETY. THE ASSESSEE PURCHASED A PLOT SITUATED AT E2/4, ARERA COLONY, BHOPAL, FOR A CONSIDERATION OF RS. 3,20,00, 000/- WITH JOINT OWNERSHIP WITH SMT. ARCHANA AGRAWAL (WIFE OF THE AS SESSEE). THE ASSESSEE WAS ASKED TO EXPLAIN THE SOURCE OF SUCH IN VESTMENT. ON SCRUTINY OF PURCHASE DEED IT WAS FOUND BY THE ASSES SING OFFICER THAT THE ASSESSEE PAID RS.26 LACS IN CASH TO SHRI ASHOK GUPTA (SELLER) BY FURTHER CLAIMING THAT THE CASH PAID TO SHRI GUPTA W AS WITHDRAWN FROM TIME TO TIME FROM THE FIRM I.E. M/S AGRAWAL BU ILDERS. THIS EXPLANATION OF THE ASSESSEE WAS NOT FOUND CONVINCIN G AS PROOF OF WITHDRAWAL OF CASH FROM M/S AGRAWAL BUILDERS WAS NO T SUBSTANTIATED WITH DOCUMENTARY EVIDENCE, THUS THE A MOUNT OF RS. 26 LACS WAS TREATED AS UNEXPLAINED INVESTMENT U/S 6 9 OF THE ACT. ON APPEAL, THE LEARNED CIT(A) CONSIDERED THE SUBMIS SIONS OF THE ASSESSEE AND CONCLUDED THAT THE ASSESSEE COULD EXPL AIN THE SOURCE OF CASH ONLY TO THE EXTENT OF RS. 10 LACS IN HIS OW N HANDS AND RS. 5 LACS IN THE HANDS OF HIS WIFE, SMT. ARCHANA AGRAWAL , OUT OF THE TOTAL CASH OF RS. 26 LACS PAID TO SHRI ASHOK GUPTA ON 31. 8.2007 FOR PURCHASE OF PROPERTY AND THUS THE LEARNED CIT(A) G RANTED RELIEF OF RS. 15 LACS AND SUSTAINED THE ADDITION OF RS.11 LAC S AS UNEXPLAINED INVESTMENT. SINCE NECESSARY DETAILS WE RE NOT FILED 4 BEFORE THE ASSESSING OFFICER REGARDING AVAILABILITY OF CASH, THEREFORE, KEEPING IN VIEW THE PRINCIPLE OF NATURAL JUSTICE FA IR PLAY AND THE ASSERTION MADE BEFORE US BY THE PARTIES, WE THINK I T APPROPRIATE TO REMAND BOTH THESE FILES TO THE FILE OF THE ASSESSIN G OFFICER TO EXAMINE THE AVAILABILITY OF CASH AND DECIDE THE MAT TER IN ACCORDANCE WITH LAW. NEEDLESS TO MENTION HERE THAT THE ASSESSEE BE GIVEN PROPER OPPORTUNITY OF BEING HEARD WITH FURTHE R LIBERTY TO FURNISH EVIDENCE, IF ANY, TO SUBSTANTIATE HIS CLAIM . IN THE RESULT, BOTH THE APPEALS ARE ALLOWED FOR ST ATISTICAL PURPOSES ONLY. THIS ORDER WAS PRONOUNCED IN THE OPEN COURT, I N THE PRESENCE OF LD. REPRESENTATIVES FROM BOTH SIDES, AT THE CONCLUS ION OF THE HEARING ON 20.05.2013. SD SD (R.C.SHARMA) (JOGINDER SINGH ) ACCOUNTANT MEMBER JUDICIAL ME MBER DATED: 20.5.2013 COPY TO: APPELLANT, RESPONDENT, CIT, CIT(A), DR, GU ARD FILE DN/2020