ITO, New Delhi V. Shri Dinesh Kapoor, Delhi

ITA 125/DEL/2015

• Counselvise Citation: [2018] 126 COUNSELVISE.COM (IT) 4069 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 14 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-01-2018
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2010-2011
• Appeal Filed On: 08-01-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ASHIMA NEB
• Keywords: Gift; Additional evidence
• Section: 143(3); 142(1)

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH B, NEW DELHI BEFORE SHRI H.S. SIDHU, JUDICIAL MEMBER AND SHRI PRASHANT MAHARISHI, ACCOUNTANT MEMBER I.T.A. NO.125/DEL/2015 A.Y. : 2010-11 INCOME TAX OFFICER, WARD 17(2), NEW DELHI VS. SH. DINESH KAPOOR, B-2/615, VARUN APARTMENT, SECTOR-9, ROHINI, DELHI 110 085 (PAN : AAAPK7901J) (ASSESSEE) (RESPONDENT) REVENUE BY : MS. ASHIMA NEB, SR. DR ASSESSEE BY : NONE ORDER PER H.S. SIDHU : JM THE REVENUE HAS FILED THIS APPEAL AGAINST THE IMPUGN ED ORDER DATED 20.10.2014 OF THE LD. CIT(A)-VIII, NEW DELHI R ELEVANT TO ASSESSMENT YEAR 2010-11. 2. THE GROUNDS RAISED IN THIS APPEAL READ AS UNDER: - 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A) HAS ERRED IN ACCEPTING THE SUBMISSION OF THE ASSESSEE FOR RECEIPT OF RS. 37,00,000/- IN CASH AS ADVANCE AGAINST SALE OF PROPERTY FROM SH. HUKUM 2 CHAND KHATTAR MERELY ON THE BASIS OF SUBMISSIONS OF THE ASSESSEE AND NOT VERIFYING THE SAME FROM SH. HUKUM CHAND KHATTAR DIRECTLY. 2. THE LD. CIT(A) HAS ERRED ON FACTS AND IN LAW IN ACCEPTING THE CREDITWORTHINESS OF THE DONOR OF RS. 14,00,000/- WITHOUT ANY DOCUMENTARY EVIDENCES. 3. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A) HAS ERRED IN NOT PROVIDING ANY OPPORTUNITY TO THE AO BEFORE ACCEPTING THE ADDITIONAL EVIDENCE AND HENCE VIOLATION OF RULE 46A HAS BEEN MADE. 4. THAT THE ORDER OF THE LD. CIT(A) IS ERRONEOUS AND IS NOT TENABLE ON FACTS AND IN LAW. 5. THAT THE GROUNDS OF APPEAL ARE WITHOUT PREJUDICE TO EACH OTHER. 6. THAT THE APPELLANT CRAVES LEAVE TO ADD, ALTER, AMEND OR FOREGO ANY GROUND(S) OF THE APPEAL RAISED ABOVE AT THE TIME OF THE HEARING. 3 3. THE BRIEF FACTS OF THE CASE ARE THAT ASSESSEE FIL ED HIS RETURN OF INCOME ON 06.12.2010 DECLARING INCOME AT RS. 1,50,00 0/-. THE CASE OF THE ASSESSEE WAS PROCESSED U/S. 143(1) OF THE INC OME TAX ACT, 1961 (HEREINAFTER REFERRED AS THE ACT) AND WAS TAKEN UP FOR SCRUTINY UNDER CASS. NOTICE U/S. 143(2) OF THE ACT D ATED 26.8.2011 WAS ISSUED AND SERVED UPON THE ASSESSEE. NOTICE U/S . 142(1) OF THE ACT DATED 21.2.2012 AND 03.7.2012 ALONGWITH DETAILED QUESTIONNAIRE WAS ISSUED AND SERVED UPON THE ASSESSEE . IN RESPONSE TO THE SAID NOTICES, THE AR OF THE ASSESSEE ATTENDED THE PROCEEDINGS FROM TIME TO TIME AND FILED THE DETAILS. IN THIS CASE THE AIR INFORMATION HAS BEEN GENERATED THROUGH ITS D ETAILS WHICH REVEALS THAT THE ASSESSEE HAS DEPOSITED RS. 51,72,000/ - CASH IN HIS SAVING BANK ACCOUNT WITH THE KARNATAKA BANK LIMITED. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, ASSESSEE HAS FILED COPY OF BANK PASS BOOK WITH THE KARNATAKA BANK LIMITED WHICH CONF IRMS THE CASH DEPOSIT OF RS. 51,72,000/- IN SAVING BANK ACCOUNT. ASSESSE DURING THE ASSESSMENT PROCEEDINGS SUBMITTED THAT THE SOURCE OF DEPOSITS IN THE BANK ACCOUNTS WAS OUT OF MONEY RECEIVED FROM SH. HUKUM CHAND KHATTAR AS PART OF SALE CONSIDERATION OF AGRICU LTURAL LAND SOLD TO HIM WHICH WAS PURCHASED BY THE ASSESSEE IN 2001-2 002 FOR RS. 60,000/- AND BALANCE PAYMENT WAS RECEIVED IN SUB SEQUENT ASSESSMENT YEAR 2011-12. HOWEVER, THE AO REJECTED THIS 4 SUBMISSION OF THE AO BY OBSERVING THAT NO DETAILS HAS BEEN FILED WHETHER THE RESULTANT CAPITAL GAIN HAVE BEEN DECLARED B Y THE ASSESSEE IN AY 2011-12 OR NOT AND IN THE ABSENCE T HEREOF, THE ADDITION OF RS. 37,00,000/- WAS MADE. FURTHER, THE A SSESSEE SUBMITTED THAT HE HAS RECEIVED A CASH GIFT OF RS. 14,00 ,000/- FROM HIS BROTHER SH. KISHORE KAPOOR AND AO REJECTED THE C LAIM OF THE ASSESSEE STATING THAT THE ASSESSEE HAS NOT BEEN ABLE TO PROVE THE JUSTIFICATION AND CREDITWORTHINESS OF THE DONOR AND MA DE THE ADDITION OF RS. 14 LACS TO THE TOTAL INCOME OF THE ASS ESSEE AND ASSESSED THE INCOME OF THE ASSESEE AT RS. 52,50,300/- U/S. 143(3) OF THE I.T. ACT, 1961 VIDE ASSESSMENT ORDER DATED 18. 03.2013. AGAINST THE SAID ASSESSMENT ORDER, ASSESSEE APPEALED BEFORE THE LD. CIT(A)-VIII, NEW DELHI, WHO VIDE HIS IMPUGNED ORDER DATED 20.10.2014 HAS ALLOWED THE APPEAL OF THE ASSESSEE. AGGRIEVED WITH THE ORDER OF THE LD. CIT(A)-VIII, NEW DELHI THE R EVENUE IS IN APPEAL BEFORE THE TRIBUNAL. 4. LD. DR RELIED UPON THE ORDER OF THE AO AND REITE RATED THE CONTENTIONS RAISED IN THE GROUNDS OF APPEAL. SHE FU RTHER STATED THAT LD. CIT(A) HAS ERRED IN NOT PROVIDING ANY OPPORTUNITY TO THE AO BEFORE ACCEPTING THE ADDITIONAL EVIDENCE AND HENCE MADE THE VIOLATION OF RULE 46A. THEREFORE, SHE REQUESTED THA T THE ISSUES IN 5 DISPUTE MAY BE SET ASIDE TO THE FILE OF THE AO FOR FRE SH ADJUDICATION, AS PER LAW. 5 . IN THIS CASE, NOTICE OF HEARING TO THE ASSESSEE WAS SENT BY THE REGISTERED AD POST BUT NOBODY PRESENT ON BEHALF OF THE ASSESSEE AND NOR ANY APPLICATION FOR ADJOURNMENT HAS BEEN FILED. KE EPING IN VIEW THE FACTS AND CIRCUMSTANCES OF THE PRESENT CASE AND THE ISSUE INVOLVED IN THE PRESENT APPEAL, WE ARE OF THE VIEW THAT NO USEFUL P URPOSE WOULD BE SERVED TO ISSUE NOTICE AGAIN AND AGAIN TO THE ASSES SEE ON THE SAME ADDRESS, THEREFORE, WE ARE DECIDING THE PRESENT APP EAL EXPARTE QUA ASSESSEE, AFTER HEARING THE LD. DR AND PERUSING THE RECORDS. 6. WE HAVE HEARD LD. DR AND PERUSED THE RECORDS, E SPECIALLY THE IMPUGNED ORDER. WITH REGARD TO GROUND NO. 1 RELATING TO DELETION OF ADDITION OF RS. 37 LACS IS CONCERNED, WE FIND THAT I N THE PRESENT CASE TWO ADDITIONS ARE INVOLVED AMOUNTING TO RS. 51, 72,000/- WHICH WAS DEPOSITED IN BANK ACCOUNT IN CASH DURING TH E CURRENT FINANCIAL YEAR BEING RECEIVED FROM:- A. SH. HUKUM CHAND KHATTAR B. SH. KISHORE KAPOOR 6 WE NOTE THAT DURING THE ASSESSMENT PROCEEDINGS VIDE L ETTER DATED 11.3.2013 THE ASSESSEE PROVIDE ALL THE RELEVANT DETAILS BEFORE THE AO THAT HE HAS ENTERED INTO AN AGREEMENT TO SELL WIT H SH. HUKUM CHAND KHATTAR AND SH. SURENDER GOYAL FOR SALE OF AGRICULTURE LAND MEASURING 1 BIGHA OUT OF THE KHASR A NO. 40/23, VILLAGE MUNDKA, DELHI. THE TOTAL SALE CONSIDERATION DETERMINED WAS RS. 65,00,000/- OUT OF WHICH THE ASSESSEE HAS RECEIVE D RS. 37 LACS IN CASH DURING THE YEAR UNDER CONSIDERATION. THE SA LE WAS COMPLETED ON 17.1.2011 AND POSSESSION WAS HANDED OVE R ON 17.1.2011. THE ASSESSEE HAS PAID THE TAX ON THE CAPI TAL GAIN OF RS. 65,00,000/- DURING THE AY 2011-12. WE FURTHER FIND THAT AO WHILE MAKING THE ASSESSMENT HAS NOT CONSIDERED THE SU BMISSIONS / DOCUMENTS SUBMITTED BY THE ASSESSEE AND HAD MADE THE ADDITIONS OF RS. 37 LACS AS INCOME FROM UNEXPLAINED CASH DEPO SITS. AS PER RECORD, IT REVEALS THAT THE AMOUNT OF RS. 65 LACS HAS BEEN TAXED IN AY 2011-12 AND THE ASSESSEE HAS DEPOSITED THE TAX IN THE ASSESSMENT YEAR 2011-12 AND THE COPY OF THE TAX PAID CHALLAN WAS ON RECORD. HENCE, THE INCOME CANNOT BE TAXED TWICE, B ECAUSE RS. 37 LACS IS PART OF PAYMENT OF RS. 65 LACS WHICH WAS TAXE D IN AY 2011- 12 AND THEREFORE RS. 37 LACS WAS NOT TO BE TAXED IN A Y 2010-11, HENCE, THE LD. CIT(A) HAS RIGHTLY DELETED THE ADDITIO N OF RS. 37 LACS, WHICH DOES NOT NEED ANY INTERFERENCE ON OUR PART, TH EREFORE, WE 7 UPHOLD THE ACTION OF THE LD. CIT(A) ON THE ISSUE IN D ISPUTE AND ACCORDINGLY REJECT THE GROUND NO. 1 RAISED BY THE REVE NUE. 6.1 APROPOS GROUND NO. 2 RELATING TO DELETION OF ADDI TION OF RS. 14 LACS IS CONCERNED, WE FIND THAT THE ASSESSEE HAD RE CEIVED AN AMOUNT OF RS. 14 LACS IN CASH AS GIFT FROM HIS REAL BROTHER NAMELY SH. KISHORE KAPOOR AND THE DETAILS IN THIS REGARD WERE PR OVIDED TO THE AO VIDE LETTER DATED 11.3.2013 AND 13.3.2013. THE A O WAS OF THE VIEW THAT THE ASSESSEE HAS NO JUSTIFICATION TO PROVE THE CREDITWORTHINESS OF SH. KISHORE KAPOOR, HENCE, HE M ADE THE ADDITION OF RS. 14 LACS. HOWEVER, DURING THE COURSE OF APPELLATE PROCEEDINGS IT WAS NOTED THAT ASSESSMENT PROCEEDINGS FO R THE AY 2010-11 IN THE CASE OF SH. KISHORE KAPOOR (BROTHER O F THE ASSESSEE) WAS HELD BY THE SAME AO AS THAT OF SH. DINESH KAPOOR. THE FACTS RELATING TO THE SOURCES OF GIFT FROM SH. KISHORE KAPOO R WAS AVAILABLE WITH THE SAME AO. WE FURTHER NOTE THAT DURING THE APPEL LATE PROCEEDINGS THE ASSESSEE SUBMITTED THE ASSESSMENT ORDE R OF SH. KISHORE KAPOOR FOR THE AY 2010-11 WHEREIN THE SAME AO HAS TAXED RS. 130 LACS AS THE AMOUNT RECEIVED ON SALE OF AGRI CULTURAL LAND AT MUNDKA, DELHI. SH. KISHORE KAPOOR HAS MADE A GIFT TO HIS BROTHER I.E. ASSESSEE OUT OF SALE PROCEEDS OF RS. 130 LACS. IT IS GERMANE TO MENTION HERE THAT THE SAID SH. KISHORE KAPOOR HAD THE F UNDS AND CREDITWORTHINESS TO GIFT THE AMOUNT OF RS. 14 LACS TO HIS BROTHER. THE 8 COPY OF CASH FLOW STATEMENT IN RESPECT OF SH. KISHORE KAPOOR FOR THE AY 2010-11 WAS ON RECORD. THE CONFIRMATION OF TH E GIFT BY SH. KISHORE KAPOOR TO HIS BROTHER, THE ASSESSEE HEREIN W AS ALSO PLACED BEFORE THE AO VIDE LETTER DATED 11.3.2013. IN VIEW O F THE ABOVE, IT IS CRYSTAL CLEAR THAT GIFT WAS MADE BY THE BROTHER O F THE ASSESSEE AND THE IDENTITY OF THE DONOR IS NOT IN DOUBT. MOREOVER, THE DONOR HAS CONFIRMED THE GIFT MADE AND THE GIFT WAS OUT OF N ATURAL LOVE AND AFFECTION AS DONEE IS THE BROTHER OF THE DONOR. WE FUR THER NOTE THAT VIDE ORDER DATED 07.07.2014 AGAINST THE APPEAL NO. 0 123/2013-14 OF SH. KISHORE KAPOR PASSED BY THE SAME CIT(A), THE CREDITWORTHINESS OF THE DONOR AS WELL AS THE GENUINE NESS OF THE TRANSACTION WAS ALSO ESTABLISHED, HENCE, THE LD. CIT(A) HAS RIGHTLY DELETED THE ADDITION OF RS. 14 LACS WHICH DOES NOT N EED ANY INTERFERENCE ON OUR PART, THEREFORE, WE UPHOLD THE AC TION OF THE LD. CIT(A) ON THE ISSUE IN DISPUTE AND REJECT THE GROUND N O. 2 RAISED BY THE REVENUE. 6.2. WITH REGARD TO GROUND NO. 3 RELATING TO NOT PRO VIDING ANY OPPORTUNITY TO THE AO BEFORE ACCEPTING THE ADDITION EVI DENCES IS CONCERNED, WE FIND THAT WITH REGARD TO ISSUES OF D ELETION OF ADDITION OF RS. 37 LACS AND RS. 14 LACS ARE CONCERNED, WE NO TE THAT LD. CIT(A) HAS DELETED THE ADDITIONS IN DISPUTE ON THE BASI S OF THE EVIDENCES ALREADY AVAILABLE WITH THE SAME AO AND NO F RESH 9 EVIDENCE WAS FILED BEFORE THE LD. CIT(A) U/R. 46A OF THE RULES, HENCE, THE QUESTION OF ADMISSION OF ADDITIONAL EVIDE NCE U/R 46A AND PROVIDING AN OPPORTUNITY TO REBUT AS PER THE PROVISI ON OF RULE 46A IS CONCERNED, DOES NOT ARISE, HENCE, THIS GROUND IS D ISMISSED AS SUCH. 7. IN THE RESULT, THE APPEAL OF THE REVENUE IS DIS MISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 22/01/2018. SD/- SD/- [PRASHANT MAHARISHI] [H.S. SIDHU] ACCOUNTANT MEMBER JUDICIAL MEMBER DATE 22/01/2018 SRBHATNAGAR COPY FORWARDED TO: - 1. ASSESSEE - 2. RESPONDENT - 3. CIT 4. CIT (A) 5. DR, ITAT TRUE COPY BY ORDER, ASSISTANT REGISTRAR, ITAT, DELHI BENCHE S