Shri Rameshbhai Keshubhai Lathia, Bhavnagar V. The Income tax Officer,Ward-2(3), Bhavnagar

ITA 1328/AHD/2012

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 9865 (ITAT-AHMEDABAD)
• Duration Of Justice: 4 year(s) 5 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-11-2016
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: SMC
• Next Hearing Date: 30-11-2016
• Assessment Year: 2008-2009
• Appeal Filed On: 18-06-2012
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: N P PATEL
• Keywords: Capital asset
• Section: 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, AHMEDABAD BEFORE SHRI SHAMIM YAHYA, ACCOUNTANT MEMBER ./ ITA NO. 1328/AHD/2012 / ASSESSMENT YEAR : 2008-2009 SHRI RAMESHBHAI KESHUBHAI LATHIA, BELA, NAVAGAM ROAD, GARIYADHAR, DIST : BHAVNAGAR PAN : ACXPL 1423 D VS THE ITO, WARD 2 (3), BHAVNAGAR / (APPELLANT) / (RESPONDENT) ASSESSEE BY : SHRI TUSHAR P. HEMANI, AR REVENUE BY : SHRI N.P. PATEL, SR. DR / DATE OF HEARING : 30/11/2016 / DATE OF PRONOUNCEMENT: 30/11/2016 / O R D E R THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF THE LD. COMMISSIONER OF INCOME-TAX (APPEALS)-XX, AHMEDABAD DATED 25.01.2012 AND PERTAINS TO ASSESSMENT YEAR 2008-09. 2. THE GROUNDS OF APPEAL READ AS UNDER:- 1. THE LEARNED ASSESSING OFFICER OUGHT TO HAVE TAKEN I NTO CONSIDERATION THE FACTS, LEGAL POSITION AND PROVIDE REASONABLE TIME T O THE APPELLANT. 2. THE LEARNED ASSESSING OFFICER HAS ERRED IN LAW BY A DDING ADVANCE OF RS.12,50,000/- U/S 68 OF THE ACT. 3. THE ASSESSEE IN THIS CASE IS DOING MEDICAL PRACT ICE AND IS ALSO HAVING AGRICULTURAL INCOME. THE CASE WAS SELECTED FOR SCR UTINY THROUGH CASS ON THE AIR INFORMATION. UPON SCRUTINY, IT WAS REVEALED THAT THE ASSESSEE HAS DEPOSITED CASH TOTALING TO RS.13,00,000/- IN THE AX IS BANK AT AMRELI DURING THE F.Y. 2007-08. DURING THE YEAR UNDER CONSIDERATI ON, THE TOTAL INCOME OF ASSESSEE RS. 1,30,560/- REDUCING BY CHAPTER VI DEDU CTION OF RS. 22573/- AND TAXABLE INCOME SHOWN AT RS.107930/-. THE ASSESSEE H AS NOT FURNISH THE AIR INFORMATION WHILE FILLING OF THE RETURN OF INCOME A ND ALSO THE AXIS BANK SMC-ITA NO 1328/AHD/2012 SHRI RAMESHBHAI KESHUBHAI LATHIA VS. ITO AY : 2008-09 2 ACCOUNT IN WHICH CASH DEPOSITED RS. 13,00,000/- WAS NOT DECLARED AT THE TIME OF RETURN. THE ASSESSEE FILED HIS REVISED STAT EMENT OF INCOME AFTER THE FIRST HEARING BEFORE THE AO AND IN THIS FIRST FILIN G HE HAD NOT SHOWN ANY PROPERTY ON TRANSFER OF AGRICULTURAL LAND FROM HIS FATHER. HE ALSO STATED BEFORE THE AO THAT THERE WAS NO LOAN RECEIVED FROM ANYBODY. 3.1 LATER ON, THE ASSESSEE ALSO SHOWED THAT HE HAD RECEIVED AN ADVANCE OF RS.12,50,000/-. THE ASSESSEE FILED REVISED STATEMEN T OF INCOME AND FURNISHED REVISED BALANCE SHEET AND WRITTEN SUBMISSION ON 12. 10.2010 BEFORE THE AO, TO THE EFFECT THAT HE HAS SOLD HIS AGRICULTURAL LAN DS TO HIS UNCLES SHRI DEVRAJBHAI KARSANBHAI LATHIA AND VALLABHBHAI KARSAN BHAI LATHIA AND AGAINST THE SAID SALE, THE DETAILS OF CASH PAYMENT RECEIVED ARE AS UNDER:- SHRI DEVRAJBHAI KARSANBHAI LATIA CASH PAID (RS) SHRI VALLABHABHAI KARSANBHAI LATIA CASH PAID (RS) 25.07.2007 1,25,000 25.07.2007 1,25,000 21.08.2007 1,50,000 21.08.2007 1,50,000 20.09.2007 1,00,000 20.09.2007 1,00,000 20.10.2007 1,00,000 20.10.2007 1,00,000 11.11.2007 1,25,000 11.11.2007 1,25,000 11.12.2007 25,000 11.12.2007 25,000 TOTAL 6,25,000 TOTAL RS.6,25,000 3.2 THE AO ISSUED SUMMONS TO THE CONCERNED PERSONS AND RECORDED THEIR STATEMENTS. AFTER ANALYZING THE STATEMENTS AND SUB MISSIONS, THE AO CONCLUDED AS UNDER:- IT IS NOTICED THAT THE SHRI DEVRAJBAHI & VALLABHAB HAI LAND IS UNDER HYPOTHECATION OF BELA SEVA SAHKARI MANDI, BHAVNAGAR DIST. CO.OP. BANK. OVER ALL IT IS PROVE THE THAT SHIR VALLABHBHAI AND DEVRAJBAHI CREDIT WORTHINESS NOT GENUINE. THE FAMILY MEMBERS OF BOTH SHRI DEVRAJBHAI AND VALLABHBHAI IS MORE THAN SIX. THE CROPS PRODUCTION IS AND INCOME FROM AGRICULTURAL IS ROUND ABOUT LLACS TO 1.251ACS. THE CREDIT WORTHINESS OF THE DEVRAJBHAI & VALLLABVHBHAI NOT GENUINE. THEY HAVE N OT MADE REGISTERED DOCUMENT FOR WANT OF SMALL AMOUNT IT PROVE THAT THE Y HAVE NOT PAID RS.6,25,000/- EACH AND TOTAL CASH PAYMENT OF RS. 12 ,50,000/- FOR PURCHASING SMC-ITA NO 1328/AHD/2012 SHRI RAMESHBHAI KESHUBHAI LATHIA VS. ITO AY : 2008-09 3 AGRICULTURAL LAND IS NOT GENUINE. THEY ARE UNCLE OF SHRI RAMESHBHAI K. LATHIA AND MADE STORY TO SAVE HIM. THE AGRICULTURAL LAND IS TRANSFER ON 07- 08-2007 AND SALE PAYMENT STARTED FROM THE 25-07-200 7. THE ASSESSEE ALSO FILED HIS WRITTEN STATEMENT ON 08-06-2010 THAT DURI NG THE YEAR UNDER CONSIDERATION THERE IS NO PURCHASE OR SALE OF IMMOV ABLE PROPERTY. HOWEVER AGRICULTURE LAND OF BELA VILLAGE IS TRANSFER IN MY NAME BY MY FATHER AS PER AGRICULTURAL BOOK IS ENCLOSED. DURING THIS TIME ASS ESSEE HAS NOT DECLARE THAT HIS SALE TRANSACTION OF AGRICULTURAL LAND. THE ASSE SSEE RECEIVED SALE PAYMENT BEFORE THE TRANSFER OF AGRICULTURAL LAND. THIS TRAN SACTION WAS NOT PRODUCE AT THE TIME OF RETURN FILLING. THE CLAIM OF ADVANCE AG AINST SALE OF AGRICULTURAL LAND IS REJECTED AND ADDED TO THE TOTAL INCOME OF A SSESSEE. THE ASSESSEE IS NOT PROVING HIS GENUINENESS OF CASH DEPOSIT FROM ADVANC E RECEIPT FROM HIS UNCLE. THEY HAVE NOT CREDIT WORTHINESS AND SOURCE OF INCOM E IS NOT SUFFICIENT. IN VIEW OF THE ABOVE IT IS SEEN THAT ALL CREDITORS WER E SHOWN BY CASH RECEIPT. THE CASH CREDITOR HAD NO SUFFICIENT SOURCE OF INCOME AN D NO CAPACITY TO ADVANCE MONEY TO THE ASSESSEE. THE GENUINENESS OF THE TRANS ACTION WERE NOT PROVED THE ENTRIES SHOW IN THE REVISE BALANCE SHEET WERE T OTALLY FAKE. IN THIS CASE CREDITORS ARE NOT PROVING THEIR CAPACITY- CREDITWOR THINESS TO ADVANCE THE LOAN ALSO TO PROVE THE GENUINENESS OF TRANSACTION. IT IS HELD THAT UNDISCLOSED CASH CREDIT OF RS. 12,50,000/- WITHIN THE MEANING OF SEC TION 68 OF THE INCOME TAX ACT, 1961. A PENALTY NOTICE U/S 271(1)(C) OF THE AC T IS SEPARATELY ISSUED FOR CONCEALMENT OF INCOME AND FURNISH THE INCORRECT PAR TICULAR OF INCOME. (ADDITION OF RS. 12,50,000/-). 3.3 UPON ASSESSEES APPEAL, LD. CIT(A) ANALYZED THE ASSESSEES SUBMISSIONS AND CONCLUDED AS UNDER:- 4.2 IN THE ASSESSMENT ORDER, AO OBSERVED THAT THE APPELLANT RECEIVED RS.12.5 LAKHS FROM HIS UNCLES TOWARDS THE SALE CONS IDERATION OF AGRICULTURAL LAND; EVEN THOUGH THE PAYMENT WAS RECEIVED 2 YEARS BEFORE THE SALE OF AGRICULTURAL LAND WAS YET TO BE REGISTERED; THE ALL EGED PURCHASER OF AGRICULTURAL LAND HAD NO SUFFICIENT SOURCE OF INCOM E TO ADVANCE THE SAID AMOUNT FOR PURCHASE OF AGRICULTURAL LAND AND THEREF ORE ADDITION OF RS.12.5 LAKHS WAS BEING MADE U/S 68. THE CONTENTIONS OF THE LEARNED AR ARE THAT THE APPE LLANT HAD PROVIDED DOCUMENTS IN RESPECT OF ADVANCE RECEIVED FROM THE P ARTY; THE SALE DEED WAS NOT EXECUTED AS BALANCE PAYMENT OF RS.0.6 LAKHS WAS PENDING; THE PARTIES ARE CAPABLE OF PROVIDING FUNDS AND THEREFORE, THE ADDIT ION MADE IS REQUIRED TO BE DELETED. HAVING CONSIDERED THE FACTS OF THE CASE, I AM NOT I NCLINED TO ACCEPT THE CONTENTIONS OF THE LEARNED AR. THE SAID SUM OF MON EY WAS RECEIVED IN CASH AND APPARENTLY EVEN TILL DATE THE SALE DEED IS NOT REGISTERED. THE APPELLANT SMC-ITA NO 1328/AHD/2012 SHRI RAMESHBHAI KESHUBHAI LATHIA VS. ITO AY : 2008-09 4 HAS NOT BEEN ABLE TO SUBSTANTIATE THE CREDITWORTHIN ESS OF THE SO CALLED PURCHASERS OF AGRICULTURAL LAND. NO EVIDENCES HAVE BEEN PRODUCED DURING THE ASSESSMENT PROCEEDINGS TO CONTROVERT THE FINDIN GS OF THE AO; THEREFORE NO INTERFERENCE IS CALLED FOR. THIS GROUND OF APPEAL IS DISMISSED. 3.4 AGAINST THE SAID ORDER OF LD. CIT(A), THE ASSES SEE IS IN APPEAL BEFORE THE ITAT. 4. I HAVE HEARD BOTH THE COUNSEL AND PERUSED THE RE CORDS. I FIND THAT THE ASSESSEE IN THIS CASE IS ENGAGED IN MEDICAL PRO FESSION AND ALSO SHOWS SOME AGRICULTURAL INCOME. AS PER AIR INFORMATION, UNDISCLOSED CASH DEPOSITS WERE FOUND BY THE AO IN HIS BANK ACCOUNT. WITH REGARD TO THE DEPOSIT OF RS.12,50,000/-, THE ASSESSEE CLAIMED THA T HE HAD RECEIVED THIS AMOUNT ON ACCOUNT OF PROPOSED SALE OF LANDS TO HIS TWO UNCLES ON VARIOUS DATES. EVEN BEFORE THE TRIBUNAL, NO EVIDENCE WHATS OEVER HAS BEEN PRODUCED AS TO WHETHER THE SAID TRANSFER OF LANDS W AS CONSUMMATED. LD. CIT(A) HAS NOTED THAT EVEN AFTER TWO YEARS OF THE C LAIM, NO EVIDENCE OF THE TRANSFER MATERIALIZING WAS SHOWN BEFORE HIM. IN TH ESE CIRCUMSTANCES, THE ABOVE CLAIM OF THE ASSESSEE IS ONLY A SELF SERVING STORY, DEVOID OF COGENCY. IN ABSENCE OF ANY EVIDENCE AS TO WHETHER THE LANDS SALE WAS CONSUMMATED, THE THEORY THAT THE CERTAIN PERSONS ADVANCED CASH O N VARIOUS DATES IN ANTICIPATION OF LAND PURCHASE DEAL CANNOT BE ACCEPT ED. IT IS DEVOID OF COGENCY AND ON THE ANVIL OF TEST OF HUMAN PROBABILI TY AND THE SAME IS LIABLE TO BE DISBELIEVED. WITHOUT ACTUAL TRANSFER OF LAND, HOW A PERSON WILL ADVANCE CASH ON VARIOUS DATES AND THEN KEEP SILENT ABOUT REGISTRATION OF THE DEAL OR RETURN OF MONEY? THE HONBLE APEX COURT IN THE CASE OF CIT VS. DURGA PRASAD MORE, REPORTED IN [1971] 82 ITR 540 AN D SUMATI DAYAL, 241 ITR 801 (SC) HAS HELD THAT REVENUE AUTHORITIES ARE NOT SUPPOSED TO PUT ON BLINKERS BUT HAVE TO CONSIDER THE SURROUNDING CIRCU MSTANCES AND TO TAKE INTO ACCOUNT THE TEST OF HUMAN PROBABILITY. ON TH E CONSPECTUS OF ABOVE SMC-ITA NO 1328/AHD/2012 SHRI RAMESHBHAI KESHUBHAI LATHIA VS. ITO AY : 2008-09 5 FACTS AND PRECEDENCE, IT IS MANIFEST THAT THERE IS NO INFIRMITY IN THE ORDERS OF THE AUTHORITIES BELOW AND ACCORDINGLY, I SUSTAIN TH E SAME. 5. IN THE RESULT, THIS APPEAL FILED BY THE ASSESSEE STANDS DISMISSED. ORDER PRONOUNCED IN THE COURT ON 30 TH NOVEMBER, 2016 AT AHMEDABAD. SD/- SHAMIM YAHYA (ACCOUNTANT MEMBER) AHMEDABAD; DATED 30/11/2016 *BIJU T., SR. PS / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. / CONCERNED CIT 4. ( ) / THE CIT(A) 5. , , / DR, ITAT, AHMEDABAD 6. / GUARD FILE . / BY ORDER, TRUE COPY / ( DY./ASSTT.REGISTRAR) , / ITAT, AHMEDABAD