Sh Balwinder Singh, Jalandhar V. The Income-tax Officer, Nawanshahr

ITA 126/ASR/2011

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 57409 (ITAT-AMRITSAR)
• Duration Of Justice: 11 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-03-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2005-2006
• Appeal Filed On: 13-04-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: R L CHHANALIA
• Assessee Lawyers: RAVISH SOOD
• Keywords: Gift; Income from undisclosed sources
• Section: 143(3); 234B; 69

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH; AMRITSAR. BEFORE SH. H.S. SIDHU, JUDICIAL MEMBER AND SH. B.P.JAIN, ACCOUNTANT MEMBER I.T.A. NO.126(ASR)/2011 ASSESSMENT YEAR:2005-06 PAN:BESPS8534L SH. BALWINDER SINGH, VS. THE INCOME TAX OFFICER, VPO MALSIAN, SHAHKOT, NAKODAR. DISTT. JALANDHAR. DISTT. JALANDHAR. (APPELLANT) (RESPONDENT) APPELLANT BY: SH. RAVISH SOOD, ADV. RESPONDENT BY: SH. R.L. CHHANALIA, DR DATE OF HEARING : 22/03/2012 DATE OF PRONOUNCEMENT:28/03/2012 ORDER PERBENCH; THIS APPEAL OF THE ASSESSEE ARISES FROM THE ORDER OF THE CIT(A), JALANDHAR, DATED 22.02.2011 RELATING TO ASSESSME NT YEAR 2005-06. 2. THE ASSESSEE HAS RAISED FOLLOWING GROUNDS OF APP EAL: 1. THAT THE CIT(A) HAS ERRED IN LAW AND FACTS OF T HE CASE IN SUSTAINING THE ASSESSMENT FRAMED BY THE A.O. 2. THAT THE CIT(A) HAS ERRED IN LAW AND FACTS OF TH E CASE IN SUSTAINING THE ADDITION OF RS.26,85,000/- IN THE HA NDS OF THE ASSESSEE BY TREATING THE SAID AMOUNT AS UNDISCLOSE D INCOME OF THE ASSESSEE U/S 69 OF THE ACT. ITA NO.125(ASR)/2011 2 3. THAT THE CIT(A) ERRED IN FAILING TO APPRECIATE T HAT NOW WHEN THE ONUS AS STOOD CAST UPON THE ASSESSEE AS REGARDS THE SOURCE OF THE IMPUGNED AMOUNT OF RS.26,85,000/- STOOD DISC HARGED BY THE ASSESSEE ON THE BASIS OF SUBSTANTIAL MATERIAL M ADE AVAILABLE ON RECORD, THEREIN NO ADVERSE INFERENCE WAS LIABLE TO BE DRAWN IN THE HANDS OF THE ASSESSEE. 4. THAT THE CIT(A) WHILE SUSTAINING THE ORDER OF TH E A.O. HAD ACTED MORE ON ASSUMPTIONS, PRESUMPTIONS, SURMISES A ND CONJECTURES, BRUSHING ASIDE THE SUBSTANTIAL CONCRET E MATERIAL AVAILABLE ON RECORD. 5. THAT THE CIT(A) HAS ERRED IN SUSTAINING THE ADDI TIONAL DEMAND OF RS.14,09,835/- TOWARDS TAX AND INTEREST U/SS . 234A, 234B AND 234C IN THE HANDS OF THE ASSESSEE. 6. ANY OTHER GROUND OF APPEAL AS MAY BE ALLOWED TO BE RAISED AT THE TIME OF HEARING OF APPEAL. 3. IN GROUND NOS. 1 TO 4 OF THE ASSESSEE, THE BRIEF FACTS AS APPEARING IN THE ORDER OF THE A.O. ARE AS UNDER: ORIGINAL ASSESSMENT IN THIS CASE WAS COMPLETED U/S 143(3) OF THE INCOME-TAX ACT, 1961(HEREINAFTER CALLED THE ACT) VIDE ASSESSMENT ORDER DATED 19.12.200 ON TOTAL INCOME OF RS.27,34,5 43/- AGAINST THE RETURNED INCOME OF RS.49,540/-. AGAINST THE ASSESSM ENT ORDER DATED 19.12.2007 THE ASSESSEE FILED AN APPEAL BEFORE THE CIT(A) JALANDHAR WHO VIDE HIS APPELLATE ORDER DATED 15.10.2008 PASSE D IN APPEAL NO.436/07-08/CIT(A)/JAL DELETED THE ADDITION OF RS. 26,85,000/- MADE BY AO ON ACCOUNT OF UNEXPLAINED CASH DEPOSITS IN HI S BANK ACCOUNT NO.SB 1501 WITH CAPITAL LOCAL AREA BANK, MALSIAN AS PER DETAILS GIVEN BELOW: S.NO . DATE AMOUNT 1. 24.10.2004 : RS.5,00,000/- 2. 24.10.2004 : RS.9,85,000/- 3. 09.11.2004 : RS.6,00,000/- 4. 09.11.2004 : RS.6,00,000/- RS.26,85,000/- 2. AGAINST THE APPELLATE ORDER DATED 15.10.2008 OF THE LD. CIT(A) JALANDHAR, THE DEPARTMENT FILED APPEAL BEFORE THE L EARNED ITAT, AMRITSAR BENCH, AMRITSAR. THE LD. TRIBUNAL VIDE ITS ORDER DATED ITA NO.125(ASR)/2011 3 18.03.2009 PASSED IN ITA NO.43(ASR)/2009 SET ASIDE THE ISSUE RELATING TO THE ADDITION OF RS.26,85,000/- MADE BY THE AO ON ACCOUNT OF UNEXPLAINED CASH DEPOSITS IN HIS BANK ACCOUNT NO.15 01 WITH CAPITAL LOCAL AREA BANK, MALSIAN TO THE FILE OF THE AO WITH THE FOLLOWING OBSERVATIONS AND DIRECTIONS: II. WE HAVE HEARD BOTH THE PARTIES AND HAVE PERUS ED THE MATERIAL AVAILABLE WITH US. WE ARE OF THE CONSIDERE D OPINION THAT THE ASSESSEE HAS NOT PRODUCED SUFFICIENT EVIDENCE BEFOR E THE REVENUE AUTHORITIES FOR SUBSTANTIATING HIS CLAIM BUT THE LE ARNED FIRST APPELLATE AUTHORITY HAS WRONGLY DELETED THE ADDITION BY MIS-R EADING THE EVIDENCE PRODUCED BY THE ASSESSEE. WE ARE ALSO OF T HE OPINION THAT BEFORE US THE ASSESSEE HAS NOT FILED ANY EVIDENCE S UPPORTING HIS CLAIM WITHOUT WHICH WE CANNOT COMMENT UPON THE SAME. KEEP ING IN VIEW ALL THE FACTS AND THE CIRCUMSTANCES OF THE PRESENT CASE , WE ARE OF THE CONSIDERED OPINION THAT IN THE ABSENCE OF SUFFICIEN T EVIDENCE PRODUCED BY THE ASSESSEE BEFORE THE REVENUE AUTHORITIES, EVE N BEFORE US, WE ARE UNABLE TO UPHOLD THE ORDER OF THE FIRST APPELLATE A UTHORITY. THEREFORE, IN THE INTEREST OF JUSTICE, WE ARE SETTING ASIDE TH E ISSUE IN DISPUTE TO THE A.O. ONLY, WITH THE DIRECTION TO A.O., GIVE FULL OP PORTUNITY TO THE ASSESSEE FOR SUBSTANTIATING HIS CLAIM. 4. PURSUANT TO THE AFORESAID DIRECTIONS OF THE ITAT, A MRITSAR BENCH, THE ASSESSEE WAS ASKED TO PRODUCE EVIDENCE TO SUBSTANTI ATE HIS CLAIM OF CASH DEPOSITS AMOUNTING TO RS.26,85,000/- IN SB A/C NO. 1501 WITH CAPITAL LOCAL AREA BANK, MALSIAN. THE ASSESSEE SUBMITTED VA RIOUS EVIDENCES AND THE A.O. EXAMINED THE ASSESSEES FATHER SH. SARWAN SINGH BROTHER OF SH. NARANJAN SINGH, THE BUYER AND OTHER PERSONS AND CON CLUDED VIDE PARA 6 & 6.1 OF HIS ORDER AS UNDER: 6. I HAVE CONSIDERED THE ARGUMENTS PUTFORTH BY THE ASSESSEE. THE ASSESSEE HAS FAILED TO FURNISH ANY DOCUMENTARY EVID ENCE TO PROVE THAT ANY BIANA (SAINAMA) WAS WRITTEN OR BIANA AMOUNT WAS PAID BY THE PURCHASER TO THE SELLER. AS ALREADY DISCUSSED HEREI NABOVE STATEMENT OF SH. SWARAN SINGH BROTHER OF SH. NARANJAN SINGH BAL ATTORNEY HOLDER OF HIS SON AND DAUGHTER-IN-LAW FOR THE PURCHASE OF IMPUGNED LAND ITA NO.125(ASR)/2011 4 DOES NOT CARRY ANY EVIDENTIARY VALUE AS ATTORNEY HO LDER (SH. NARANJAN SING BAL) IS NOT LEGALLY AUTHORIZED TO GIVE FURTHE R ATTORNEY TO HIS BROTHER SHRI SWARAN SINGH FOR ENTERING INTO ANY FIN ANCIAL TRANSACTIONS OR FOR THE PURCHASE AND SALE IMMOVABLE PROPERTIES. SH. NARANJAN SINGH BAL HAS NOT EVEN ALLOWED HIS BROTHER SH. SARW AN SINGH, AFORESAID, TO USE HIS ROOM IN HIS ABSENCE AS THE RO OM BELONGING TO HIM IN THE ANCESTRAL HOUSE AS PER DEPOSITION MADE BY SH . SARWAN SINGH STANDS LOCKED. SIMILARLY, THERE IS NO EVIDENTIARY V ALUE OF THE STATEMENT OF SH. AJIT SINGH WHO IS AN INTERESTED PARTY IN THI S CASE BEING FATHER OF THE ASSESSEE. ON THE OTHER HAND, THERE IS STRONG DO CUMENTARY EVIDENCE AGAINST THE ASSESSEE I.E. THE ENTRY MADE IN THE SAL E DEED. BOTH THE PARTIES STATED THAT NO BIANA WAS WRITTEN. IN THE SA LE DEEDS NO WHERE IS THERE A MENTION OF HAVING PAID TO THE SELLER SH. AJ IT SINGH THE AMOUNTS OF RS.15 LAKH ON 24.10.2004 AND RS.12 LAKH ON 09.11 .2004. THE BURDEN LIES ON THE ASSESSEE TO PROVE THAT THE APPA RENT WAS NOT REAL WHICH HAS NOT BEEN DISCHARGED. 6.1. THE SALE DEEDS WERE WRITTEN ON 17.11.2004 & 19 .11.2004 AND ALSO EXECUTED ON 17.11.2004 AND 19.11.2004. THE ASH TAMS WERE PURCHASED ON 16.11.2007 AND 19.11.2007 FROM TREASUR Y OFFICE, SHAHKOT. DEPONENTS IN THE AFFIDAVITS ARE FATHER OF THE ASSESSEE AND THE OTHER IS FATHER OF THE PURCHASER OF LAND. THERE IS A GAP OF ABOUT THREE YEARS BETWEEN THE DATES OF TRANSACTION AND DATE OF AFFIDAVIT. THE AFFIDAVITS ARE NOT SUPPORTED BY ANY DOCUMENTARY EVI DENCE. IT MAY BE MENTIONED HERE THAT SH. AJIT SINGH IN PARA 4 OF HIS AFFIDAVIT HAS STATED THAT OUT OF EARNEST MONEY RS.26,85,000/- WERE DEPOS ITED BY HIM IN SF A/C 1581 HELD IN THE NAME OF BALWINDER SINGH HIS SO N IS A FALSE STATEMENT AS THE PAY-IN-SLIPS FOR DEPOSITING THE AM OUNTS OF RS.6,00,000/- ON 9.11.2004 AND AGAIN RS.6,00,000/- ON 9.11.2004 BEAR THE SIGNATURES OF SH. BALWINDER SINGH AS DEPOS ITOR. THE FACTS OF THE CASE OF THE ASSESSEE ARE ALSO DIFFERENT FROM TH E FACTS OF THE CASES CITED BY THE ASSESSEE. KEEPING IN VIEW THE REASONS MENTIONED IN THIS OFFICE SHOW CAUSE NOTICE DATED 12.11.2007 AND ALSO THE FACTS AS DISCUSSED ABOVE, THE AMOUNT OF RS.26,85,000/- IS TR EATED AS ASSESSEES INCOME FROM UNDISCLOSED SOURCES WITHIN THE MEANING OF SECTION 69 OF THE INCOME-TAX AT. 5. THE LD. CIT(A) CONFIRMED THE ACTION OF THE ASSES SING OFFICER. 6. SH. RAVISH SOOD, ADV. APPEARING FOR THE ASSESSEE ARGUED THAT THE ASSESSEE HAS DECLARED THE FACT IN THE RETURN OF INC OME ITSELF THAT THE FATHER OF ITA NO.125(ASR)/2011 5 THE ASSESSEE SH. AJIT SINGH HAS SOLD THE AGRICULTUR AL LAND SITUATED IN VILLAGE MEHDAM PURA, TEHSIL SHAHKOT, FOR AN AGREED CONSIDER ATION MENTIONED IN THE SAID NOTE APPENDED TO RETURN OF INCOME. SH. AJIT SI NGH FATHER OF THE ASSESSEE RECEIVED VARIOUS ADVANCES AS PART OF THE SALE PROCE EDS, WHICH WERE GIFTED TO THE ASSESSEE AS UNDER: DATE AMOUNT 24.10.2004 RS.5,00,000/- 24.10.2004 RS.9,85,000/- 09.11.2004 RS.12,00,000/- TOTAL: RS.26,85,000/- IN SUPPORT OF THE CLAIM, SO MADE AND AFFIDAVIT OF S H. AJIT SINGH, FATHER OF THE ASSESSEE, WAS ALSO PRODUCED, WHICH IS AVAILABLE ON RECORD AT PAGE 34 OF THE PAPER BOOK. THE STATEMENT OF SH. AJIT SINGH FATHER OF THE ASSESSEE WAS ALSO RECORDED BY THE A.O. ON 06.08.2010, WHICH IS AVAILA BLE AT PAGE 31-33 OF THE PAPER BOOK, IN WHICH SH. AJIT SINGH HAD CONFIRMED T HE CONTENTS OF THE AFFIDAVIT DATED 16.10.2007, REGARDING PAYMENT OF RS .26,85,000/-, WHICH WAS RECEIVED AS AN EARNEST MONEY AGGREGATING TO RS.27 L AKHS OUT OF WHICH AN AMOUNT OF RS.26,85,000/- STOOD DEPOSITED IN SB A/ C NO.1581 OF HIS SON SH. BALWINDER SINGH AS HE DESIRED HIS SON ALONG WIT H OTHER SON MAY UTILIZE THE AMOUNT FOR PURCHASE OF NEW AGRICULTURAL LAND I N THEIR NAME, WHICH WAS PURCHASED BY THEM SUBSEQUENTLY. THERE WAS NO PRIOR WRITTEN AGREEMENT EXECUTED BUT SH. AJIT SINGH ISSUED THE RECEIPT OF S H. SARWAN SINGH BROTHER ITA NO.125(ASR)/2011 6 OF SH. NARANJAN SINGH BAL ON THE RESPECTIVE DATES. THE STATEMENT OF SH. SARWAN SINGH BROTHER OF SH. NARANJAN SINGH WAS ALSO RECORDED BY THE A.O. ON THE SAME DATE I.E. 06.08.2010, WHICH IS AVAILABL E AT PAGES 35 TO 38 OF THE PAPER BOOK, WHO HAD CONFIRMED OF GIVING THE AMOUNT OF RS.27 LAKHS BY HIS BROTHER SH. NARANJAN SINGH FOR MAKING PAYMENT TO S H. AJIT SIGH FOR PURCHASE OF THE LAND, AS DIRECTED BY HIS BROTHER FR OM TIME TO TIME. IN ADDITION TO THAT NO PAYMENT HAD EVER BEEN RECEIVED BY HIM F ROM HIS BROTHER SH. NARANJAN SINGH EITHER BY CHEQUE OR BY DRAFT. THE SI GNATURES ON THE RECEIPTS OF SH. AJIT SINGH WERE ALSO CONFIRMED BY SH. SARWAN SINGH DURING THE RECORDING OF THE STATEMENT. COPY OF THE RECEIPT IS AVAILABLE ON RECORD AT PAGES 40-43 OF THE PAPER BOOK. MOREOVER, THERE WERE TWO WITNESSES S/SH. NIRMAL SINGH AND JAGDISH LAL TO THE RECEIPTS ISSUED BY SH. AJIT SINGH, WHO WERE ALSO EXAMINED BY THE A.O. ON THE SAME DATE I.E . 06/08/2010. THE SAID STATEMENTS OF SH. NIRMAL SINGH AND SH. JAGDISH LAL ARE AVAILABLE AT PAGES 44 TO 47 OF THE PAPER BOOK. BOTH THE WITNESSES HAD CON FIRMED THE SIGNATURE AND RECEIPT OF MONEY BY SH. AJIT SINGH FROM SH. SARWAN SINGH. 6.1. THE LD. COUNSEL FOR THE ASSESSEE, SH. RAVISH S OOD, ADV. ARGUED THAT THERE IS NO ROOM LEFT FOR THE A.O. TO DOUBT THE SO URCE OF DEPOSIT IN THE BANK ACCOUNT OF THE ASSESSEE. THE ASSESSEE HAD DISCHARGE D HIS ONUS OF PROVING THE IDENTITY, CREDITWORTHINESS AND GENUINENESS OF THE T RANSACTION. THE AO ON THE BASIS OF SURMISES AND CONJECTURES HAS MADE THE ADDI TION, WHICH HAS BEEN ITA NO.125(ASR)/2011 7 CONFIRMED BY THE LD. CIT(A) AND THE SAME IS PRAYED TO BE DELETED. THE LD. COUNSEL FOR THE ASSESSEE ALSO INVITED OUR ATTENTION TO THE ARGUMENTS AND EXPLANATION GIVEN ON EACH AND EVERY ALLEGATION, WHI CH IS PART OF THE PAPER BOOK PAGES 9 TO 16. 7. THE LD. DR, ON THE OTHER HAND, RELIED UPON THE O RDERS OF THE AUTHORITIES BELOW. 8. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE FACTS OF THE CASE. THERE IS NO DISPUTE TO THE FACT THAT THE ASSESSEE HAD DECLARED THE SOURCE AS APPENDIX IN THE RETURN OF INCOME AVAILABLE AT PAGES 18 TO 20 OF THE PAPER OF THE BOOK AS REGARDS THE SALE OF LAND BY THE FATHER OF THE ASSESSEE, SH. AJIT SINGH, THE AFFIDAVIT HAS BEEN PLACED ON RECORD AND AVAILABLE AT PAGE 34 OF THE PAPER BOOK, IN WHICH SH. AJIT SINGH HAS DEPOSED OF WHAT HAS BEEN STATED BY THE ASSESSEE IN THE APPENDIX ATTACHED WITH THE RETU RN OF INCOME. THE BUYER OF THE PROPERTY HAS ALSO CONFIRMED THE PAYMENT OF S AID AMOUNT THROUGH HIS BROTHER SH. SARWAN SINGH. SH. SARWAN SINGH, THE BRO THER OF SH. NIRANAN SINGH HAS ALSO CONFIRMED THE SAME. THE WITNESSES TO THE RECEIPTS ISSUED BY SH. AJIT SINGH HAVE ALSO CONFIRMED OF RECEIVING PAY MENT BY SH AJIT SINGH FROM SH. SARWAN SINGH. ON PERUSAL OF THE SUBMISSION /EXPLANATION AGAINST EACH AND EVERY ALLEGATION OF THE AO AT PAGES 9 TO 1 6 OF THE PAPER BOOK AND VARIOUS DOCUMENTARY EVIDENCES PLACED ON RECORD AND THE STATEMENT RECORDED BY THE AO, WE ARE OF THE VIEW THAT THE ALLEGATIONS MADE BY THE AO ARE ITA NO.125(ASR)/2011 8 BASELESS AND ADDITIONS MADE ARE ON THE BASIS OF SUR MISES AND CONJECTURES WHICH, IN FACT, SHOULD NOT HAVE BEEN MADE. THEREFOR E, IN THE CIRCUMSTANCES AND FACTS OF THE PRESENT CASE, WE DIRECT THE AO TO DELETE THE ADDITIONS SO MADE. ACCORDINGLY, THE ORDER OF THE LD. CIT(A) IS R EVERSED. THUS, GROUND NOS. 1 TO 4 OF THE ASSESSEE ARE ALLOWED. 9. AS REGARDS GROUND NO.5 RELATING TO CHARGING OF I NTEREST U/SS 234A, 234B AND 234C, THE SAME IS MANDATORY AND CONSEQUENT IAL IN NATURE. 10. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS AL LOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 28TH MARCH, 2012. SD/- SD/- (H.S. SIDHU) (B.P. JAIN ) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 28TH MARCH , 2012 /SKR/ COPY OF THE ORDER IS FORWARDED TO : 1. THE ASSESSEE:SH. BALWINDER SINGH, MALSIAN, SHAHKOT. 2. THE ITO, NAKODAR. 3. THE CIT(A), JALANDHAR. 4. THE CIT, JALANDHAR. 5. THE SR DR, ITAT, ASR TRUE COPY BY ORDER