Prashant Ramnath Golecha, Pune V. Income-tax Officer,

ITA 1331/PUN/2014

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 9366 (ITAT-PUNE)
• Duration Of Justice: 2 year(s) 11 month(s) 10 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-05-2017
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC
• Next Hearing Date: 17-04-2017
• Assessment Year: 2008-2009
• Appeal Filed On: 20-06-2014
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: ANIL CHAWARE
• Keywords: Additional evidence
• Section: 143(3)

Judgement Text

- IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH SMC, PUNE , BEFORE MS. SUSHMA CHOWLA, JM . / I TA NO. 1331 /PUN/2014 / ASSESSMENT YEAR : 2008 - 09 PRASHANT RAMNATH GOLECHA 15/1111, LAKAKI ROAD, SILVER BIRCH MODEL COLONY, SHIVAJI NAGAR, PUNE - 411 005. PAN : AHCPG 1409N ....... / APPELLANT / V/S. INCOME TAX OFFICER, WARD - 3 ( 2 ), PUNE. / RESPONDENT A PPELLANT BY : SMT. DEEPA KHARE RESPONDENT BY : SHRI ANIL CHAW A RE / DATE OF HEARING : 22 .05.2017 / DATE OF PRONOUNCEMENT : 31. 05.2017 / ORDER PER SUSHMA CHOWLA , JM THIS APPEAL FILED BY THE ASSESSEE IS AGAINST THE ORDER OF THE CIT(A) - II , PUNE , DATED 29.01.2014 RELATING TO ASSESSMENT YEAR 2008 - 09 AGAINST THE ORDER PASSED UNDER SECTION 143(3) OF THE INCOME TAX ACT, 1961 ( IN SHORT THE ACT). 2 ITA NO. 1331/PUN/2014 A.Y. 2008 - 09 2. THE ASSESSEE HAS RAISED THE FOLLOWING REVISED GROUNDS OF APPEAL: - 1) ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LEARNED CIT(A) IS NOT JUSTIFIED IN CONFIRMING THE ADDITION OF RS.14,69,000/ - ON ACCOUNT OF UNEXPLAINED MONEY U/S 69A OF THE ACT ON ONLY CIRCUMSTANTIAL EVIDENCE. THE ADDITION MAY PLEASED BE DELETED. 2) ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LEARNED CI T(A) IS NOT JUSTIFIED IN CONFIRMING ADDITION OF RS.14,00,000/ - AS UNEXPLAINED MONEY WHEN THE APPELLANT HAD DISCHARGED ITS PRIMARY BURDEN. THE ADDITION MAY KINDLY BE DELETED. 3) ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LEARNED CIT(A) IS NOT JUSTIFIED IN CONFIRMING ADDITION OF RS. 10,00,000/ - AS UNEXPLAINED MONEY WHEN THE APPELLANT HAD DISCHARGED ITS PRIMARY BURDEN. THE ADDITION MAY KINDLY BE DELETED. 4) THE APPELLANT CRAVES LEAVE TO ADD, ALTER, MODIFY OR SUBSTITUTE ANY GROUND OF APPEAL AT THE TIME OF HEARING. 3. THE ISSUE RAISED VIDE GROUND OF APPEAL NO. 1 IS AGAINST THE ADDITION OF RS. 14,69,000/ - ON ACCOUNT OF UNEXPLAINED MONEY U/S 69A OF THE ACT. 4. BRIEFLY, IN THE FACTS OF THE CASE THE ASSESSEE HAD DECLARED TOTAL INCOME OF R S. 2,23,130/ - IN ITS RETURN OF INCOME. THE ASSESSING OFFICER HAD RECEIVED AIR INFORMATION OF CASH DEPOSITS OF RS. 16,69,000/ - IN THE SAVINGS BANK ACCOUNT OF CORPORATION BANK, JANGLI MAHARAJ BRANCH, PUNE. THE ASSESSEE WAS ASKED TO EXPLAIN SOURCE OF CASH DEP OSITS . IN REPLY TH E ASSESSEE EXPLAINED THAT IT HAD SOLD AGRICULTURAL LAND ON 31.05.2007 BY WAY OF A VISAR PAVATI OR AN AGREEMENT TO SELL WHICH WAS UNREGISTERED DOCUMENT. THE SOURCE OF CASH DEPOSITS IN THE SAVING BANK ACCOUNT WAS CLAIMED TO BE OUT OF ADVA NCE RECEIVED AGAINST THE SALE OF LAND. THE AGREEMENT TO SELL WAS FOR A TOTAL CONSIDERATION OF RS. 35,00,000/ - AGAINST WHICH THE ASSESSEE CLAIMED THAT ADVANCE OF RS. 9,00,000 / - WAS RECEIVED ON 01.04.2007 AND RS.5,65,000/ - ON 11.04.2007. THE BALANCE AMOUNT OF RS. 20,35,000/ - AS P ER THE AGREEMENT WAS RECEIVABLE BY THE ASSESSEE OVER A PERIOD OF THREE YEARS. THE ASSESSEE WAS ASKED TO PRODUCE DETAILS OF OWNERSHIP OF SAID LAND. THE ASSESSEE EXPLAINED THAT THE SAID LAND IN THE NAME OF THE ASSESSEE WAS INHERITED PR OPERTY 3 ITA NO. 1331/PUN/2014 A.Y. 2008 - 09 UNDER WHICH THE AS SESSEE GOT AGRICULTURAL LAND AD MEASURING 4.29R. HE STATED THAT THE SAID LAND WAS DIVIDED ON 07.03.1991 WHEN THE ASSESSEE WAS MINOR AND HIS MOTHERS NAME WAS WRITTEN ON ALL THE DOCUMENTS ALONG WITH ASSESSEES NAME. THE ASSESSEE CLAI MED THAT HE CARRIED AGRICULTURAL ACTIVITIES IN THE SAID PIECE OF LAND AND AGRI CULTURAL INCOME WAS DECLARED AT RS. 4,76,871/ - IN THE ASSESSMENT YEAR 2008 - 09. THE ASSESSING OFFICER WAS OF THE VIEW THAT NO PERSON WOULD GIVE ADVANCE SUM OF RS. 14,69,000 / - ON BASIS OF UNREGISTERED DOCUMENT . IT WAS HELD BY THE ASSESSING OFFICER THAT ASSESSEE HAD NOT RECEIVED BALANCE AMOUNT AND IN VIEW THERETO, THE SUM OF RS. 14,69,000/ - WAS ADDED AS UNEXPLAINED MONEY U/S 69A OF THE ACT. THE BALANCE CASH DEPOSITS OF RS. 2,04,00 0/ - HAD BEEN EXPLAINED AS DEPOSITED OUT OF THE AGRICULTURAL RECEIPTS OF THE ASSESSEE AND THE SAME WAS ACCEPTED BY THE ASSESSING OFFICER. 5. THE ASSESSING OFFICER FURTHER NOTED THAT THE ASSESSEE HAD ACCEPTED RS. 72,00,000/ - FROM VARIOUS PARTIES WHICH WERE DEPOSITED IN THE BANK ACCOUNT. THE DETAILS OF THE CHEQUE DEPOSITED IN THE B ANK ACCOUNT ARE TABULATED AT PAGE NO. 5 OF DETAILS OF THE CHEQUE DEPOSITED IN THE B ANK ACCOUNT ARE TABULATED AT PAGE NO. 5 OF THE ASSESSMENT ORDER. THE ASSESSEE HAD FILED CONFIRMATION IN RESPECT OF 13 CREDITORS WHERE THE LOAN WAS STILL OUTSTANDING. THE ASSESSEE E XPLAINED THAT IT HAD TAKEN THE SAID MONE Y IN ORDER TO MAKE INVESTMENT IN LAND AT PUNE FOR WHICH ADVANCE OF RS. 5,00,000/ - HA D BEEN GIVEN. THE ASSESSEE FURNISHED CONFIRMATION IN RESPECT OF ALL CASES EXCEPT TWO AND HAD ALSO FILED BANK ACCOUNT IN SUPPORT OF T HE LOAN REPAID. THE ASSESSEE HAD REPAID RS. 32,50,000/ - BY CHEQUE S . THE ASSESSEE WAS UNABLE TO PRODUCE CONFIRMATION FROM BABAJI GALANDE FOR RS.10,00,000/ - NOR THE AMOUNT WAS RETURNE D TO HIM AND HENCE THIS AMOUNT WA S CONSID ERED UNEXPLAINED AND SUM OF RS. 10,00,000/ - WAS ADDED U/S 69A OF THE ACT. ANOTHER LOAN FROM SUDAM PACHANGE AMOUNTING TO RS. 14,00,000/ - WAS ALSO SUSPECT ED AS EVEN THOUGH CONFIRMATION HAD BEEN FILED, BUT THE CONFIRMATION DID NOT BEAR ANY PAN NO. 4 ITA NO. 1331/PUN/2014 A.Y. 2008 - 09 AND ALSO THE AMOUNT HA D NOT BEEN REPAID TILL DATE. H ENCE, RS. 14,00,000/ - WAS ADDED U/S 69A OF THE ACT. 6. BEFORE THE CIT(A), THE ASSESSEE ARGUED THAT THE ASSESSING OFFICER HAD NOT ASKED TO PRODUCE DETAILS REGARDING PURCHASER NEITHER TO FURNISH ADDITIONAL EVIDENCE IN RESPECT OF CASH RECEIPTS AG AINST SALE OF AGRICULTURAL LAND. HE FURTHER POINTED OUT THAT THE ASSESSING OFFICER HAD NOT CARRIED ANY INDEPENDENT INQUIRIES NOR BROUGHT ANY EVIDENCE TO ESTABLISH THE EXPLANATION OF THE ASSESSEE WAS INCORRECT. THE ASSESSEE FURNISHED ADDITIONAL EVIDENCE IN THE FORM OF LEGAL NOTICE ISSUED TO THE PURCHASER ALONG WITH COPY OF DEED OF CANCELLATION OF AGREEMENT TO SELL ON 26.06.2012 AND COPY OF BANK ACCOUNT OF CORPORATION BANK, PUNE. IN THE REMAND REPORT, THE ASSESSING OFFICER ACCEPTED THAT THE UNREGISTERED SALE AGREEMENT ENTERED INTO BY THE ASSESSEE HAD BEEN CANCELLED ON 26.06.2012 AND AMOUNT OF RS.14,67,000/ - HAD BEEN REFUNDED. THE ASSESSING OFFICER EXAMINED ADDITIONAL EVIDENCES AND ALSO THREE PURCHASERS FROM WHOM ADVANCE WAS CLAIMED TO HAVE BEEN RECEIVED WHO A DMITTED THAT THEY HAD ENTERED INTO THE TRANSACTION. HOWEVER, BEEN RECEIVED WHO A DMITTED THAT THEY HAD ENTERED INTO THE TRANSACTION. HOWEVER, AGAINST THE CHEQUE DEPOSITS IN THEIR ACCOUNTS, CASH WAS WITHDRAWA N ON THE NEXT DATE AND HENCE, ASSESSING OFFICER OBJECTED TO SAME. THE CIT(A) ADMITTED ADDITIONAL EVIDENCE FILED BY THE ASSESSEE BU T DID NOT ACCEPT THE EXPLANATION OF THE ASSESSEE TO BE CORRECT WHERE THE PERSONS WHO HAD ADVANCED MONEY , WERE FOUND TO BE PERSONS WITHOUT ANY MEANS. THE CIT(A) THUS UPHELD THE ORDER OF ASSESSING OFFICER IN THIS REGARD. SIMILARLY IN RESPECT OF ADDITION MA DE O F RS. 10,00,000/ - AND RS. 14,00,000/ - U/S 69 OF THE ACT, THE EXPLANATION OF THE ASSESSEE WAS THAT THESE WERE HAND LOAN AND CO NFIRMATION WERE FILED WHICH WERE HELD TO BE INCORRECT AND ADDITION WAS CONFIRMED. 7. THE ASSESSEE IS IN APPEAL AGAINST THE ORDER OF THE CIT(A) ON ALL THE THREE ADDITIONS. 5 ITA NO. 1331/PUN/2014 A.Y. 2008 - 09 8. THE LD. AR FOR THE ASSESSEE POINTED OUT THAT IN VIEW OF THE EVIDENCE FILED BY THE ASSESSEE IN RESPECT OF TRANSACTION OF AGREEMENT OF SALE AND LEGAL NOTICE AND THEREAF TER CANCELLATION OF AGREEMENT OF SALE, THE ASSESSEE HAD DISCHARGED ONUS OF PROVING SOURCE OF CASH DEPOSITS IN THE BANK ACCOUNT AND THERE IS NO MERIT IN THE ORDER S OF AUTHORITIES BELOW . IN RESPECT OF OTHER ADDITION, THE LD. AR FOR THE ASSESSEE POINTED OUT T HAT THE CONFIRMATION WAS FILED AND HENCE NO ADDITION SHOULD BE MADE IN THE HANDS OF THE ASSESSEE. SHE ALSO STRESSE D THAT THERE WAS NO MERIT IN THE OBSERVATION OF THE ASSESSING OFFICER THAT CASH HAS BEEN WITHDRAWN AND REPAID TO THE ASSESSEE , A S THERE WAS NO EVIDENCE OF CASH REVERTED TO ASSESSEE . 9. THE LD. DR FOR THE REVENUE HAS PLACED RELIANCE ON THE ORDERS OF THE AUTHORITIES BELOW. 10. ON THE PERUSAL OF RECORD AND AFTER HEARING BOTH THE AUTHORIZED REPRESENTATIVES, THE FIRST ISSUE WHICH ARISES IN THE PRESE NT APPEAL IS AGAINST ADDITION MADE U/S. 69A OF THE ACT ON ACCOUNT OF CASH DEPOSITS IN THE BANK ACCOUNT OF THE ASSESSEE. THE ASSESSEE CLAIMED THAT IT HAD RECEIVED CASH FROM THREE DIFFERENT PERSONS AGAINST SALE OF ITS LAND AND SAID CASH OF RS. 14,69,000 / - WAS DEPOSITED IN THE BANK ACCOUNT OF THE ASSESSEE. THE ASSESSING OFFICER REJECTED THE PLEA OF THE ASSESSEE SINCE AGREEMENT TO SELL WAS UNREGISTERED. THE CLAIM OF THE ASSESSEE WAS THAT THE SAID CASH WAS ACCEPTED BY WAY OF VISAR PAVATI WHICH WAS NOT ADM ITTED BY THE ASSESSING OFFICER. BEFORE THE CIT(A), THE ASSESSEE RAISED PLEA OF CANCELLATION OF AGREEMENT TO SELL AND REMAND REPORT WERE CALLED FOR . THE ASSESSING OFFICER IN REMAND PROCEEDINGS CALLED THE THREE PURCHASERS AND RECORDED THEIR STATEMENT. THE AS SESSING OFFICER HOWEVER, DID NOT ACCEPT EXPLANATION OF THE ASSESSEE AND ALSO ALLEGED THAT AGAINST THE CHEQUE DEPOSITS ON CANCELLATION OF AGREEMENT, CASH WAS WITHDRAWN AND REPAID TO THE ASSESSEE. HOWEVER, NO SUCH EVIDENCE IS AVAILABLE WITH THE ASSESSING OFF ICER IN THIS REGARD. THE ALLEGATION IS MERELY ON S URMISE AND CONJECTURE. THE ASSESSEE HAS DISCHARGED THE ONUS BY PRODUCING THE PERSONS AND 6 ITA NO. 1331/PUN/2014 A.Y. 2008 - 09 S PECIALLY WHERE THE ASSESSEE HAS PRODUCED THE PARTIES WHO HAVE ACCEPTED THAT THEY HAD MADE ADVANCE S TO THE AS SESSEE A GAINST AGREEMENT TO SELL AND SUCH AGREEMENT HAS BEEN CANCELLED AND AMOUNT HAS BEEN RE PAID BY CHEQUE ; THE ASSESSEE HAVING DISCHARGE D HIS ONUS THEN THE EXPLANATION OF THE ASSESSEE MERITS TO BE ACCEPTED. IN THE GAMUT OF EVIDENCE FILED BY THE ASSESSEE I.E VIS AR PAVATI ISSUED AT THE INITIAL STAGE, THEREAFTER LEGAL NOTICE ISSUED , CANCELLATION OF AGREEMENT AND STATEMENT RECORDED OF THE PARTIES, THE ONUS UPON ASSESSEE HAS BEEN DISCHARGED AND THE PLEA OF THE ASSESSEE MERITS TO BE ACCEPTED . NO ADDITION IS WARRANTE D ON ACCOUNT OF SAID CASH DEPOSITS IN THE BAN K ACCOUNTS OF RS. 14,69,000/ - , ON THE SURMISE THAT CASH HAS BEEN WITHDRAWN FROM BANK ACCOUNT OF THE SAID PERSONS. A CCORDINGLY, THE ASSESSING OFFICER IS DIRECTED TO DELETE ADDITION OF RS. 14,69,000/ - AND GROUND O F NO. 1 RAISED BY THE ASSESSEE IS ALLOWED. 11. NOW COMING TO THE ADDITION MADE IN THE HANDS OF THE ASSESSEE I.E ON ACCOUNT OF TWO LOAN RECEIPTS BY THE ASSESSEE OF RS. 10,00,000/ - AND RS. 14,00,000/ - AS ADV ANCE FROM TWO DIFFERENT PERSONS. T HE AMOUNTS WERE R ECEIVED 14,00,000/ - AS ADV ANCE FROM TWO DIFFERENT PERSONS. T HE AMOUNTS WERE R ECEIVED THROUGH CHEQUE S AND DEPOSITS IN THE BANK ACCOUNT OF THE ASSESSEE. THE ONUS WAS UPON THE ASSESSEE TO PROVE THE IDENTITY OF THE PERSONS, CREDIT WORTHINESS OF THE PERSONS AND GENUINENESS OF THE TRANSACTIONS. HOWEVER, THE ASSESSEE WAS UNABLE TO DISCHARG E HIS ONUS IN THIS REGARD. IN THE ABSENCE OF THE SAME, THERE IS NO MERIT IN THE GROUND NO. 2 AND 3 RAISED BY THE ASSESSEE AND ACCORDINGLY, THE SAME ARE DISMISSED. 12. IN THE RESULT, APPEAL OF THE ASSESSEE IS PARTLY ALLOWED. ORDER PRO NOUNCED ON 31 ST DAY OF MAY , 201 7 . SD/ - ( SUSHMA CHOWLA) / JUDICIAL MEMBER / PUNE; / DATED : 31 ST MAY , 2017 . 7 ITA NO. 1331/PUN/2014 A.Y. 2008 - 09 SB / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT. 2. / THE RESPONDENT. 3. THE CIT (APPEALS) - II , PUNE 4. THE CI T - II , PUNE. 5 . , , - , / DR, ITAT, SMC BENCH, PUNE. 6. / GUARD FILE. // TRUE COPY // / BY ORDER, /ASSISTANT REGISTRAR , / ITAT, PUNE .