INCOME TAX OFFICER, BEHROR V. SHRI VIRENDER YADAV, ALWAR

ITA 1340/JPR/2018

• Counselvise Citation: [2019] 112 COUNSELVISE.COM (IT) 0096 (ITAT-JAIPUR)
• Duration Of Justice: 1 year(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-12-2019
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2012-2013
• Appeal Filed On: 29-11-2018
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Unexplained investment; Set aside
• Section: 133(6); 148; 144

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCH B, JAIPUR JH FOT; IKY JKWO] U;KF;D LNL; ,O A JH FOE FLAG ;KNO] YS[KK LNL; DS LE{K BEFORE: SHRI VIJAY PAL RAO, JM & SHRI VIKRAM SINGH YADAV, AM VK;DJ VIHY LA- @ ITA NO. 1340/JP/2018 FU/KZKJ.K O'K Z @ ASSESSMENT YEAR : 2012-13. THE INCOME TAX OFFICER, BEHROR. CUKE VS. SHRI VIRENDER YADAV S/O LATE SHRI JEET SINGH YADAV, VILLAGE : SANOLI, TEHSIL: MUNAWAR, DISTT. ALWAR. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO. ABPPY 6892 C VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY : NONE (NOTICE SERVED BY D/R) JKTLO DH VKSJ LS@ REVENUE BY : SMT. RUNI PAL (JCIT) LQUOKBZ DH RKJH[K@ DATE OF HEARING : 10.12.2019. ?KKS'K .KK DH RKJH[K @ DATE OF PRONOUNCEMENT : 12/12/2019. VKNS'K@ ORDER PER VIJAY PAL RAO, J.M. THIS APPEAL BY THE REVENUE IS DIRECTED AGAINST THE ORDER DATED 13.09.2018 OF LD. CIT (APPEALS), ALWAR FOR THE ASSESSMENT YEAR 20 12-13. THE REVENUE HAS RAISED THE SOLITARY GROUND AS UNDER :- ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW LD.CIT (A) ERRED IN RESTRICTING THE ADDITION OF RS. 2,91,5 2,880/- TO RS. 2,92,880/- MADE BY THE AO ON ACCOUNT OF UNEXPLAINED INVESTMENT FROM UNDISCLOSED SOURCES, WITHOUT APPREC IATING THE MATERIAL FACTS OF THE CASE. 2 ITA NO. 1340/JP/2018 SHRI VIRENDER YADAV, ALWAR. 2. NONE HAS APPEARED ON BEHALF OF THE ASSESSEE RESP ONDENT DESPITE THE NOTICE SENT THROUGH THE AO WAS DULY SERVED ON THE ASSESSE E AS PER THE ACKNOWLEDGEMENT AND REPORT OF THE AO. WE FURTHER NOTE THAT SINCE B EGINNING THE ASSESSEE HAS NOT BEEN APPEARING DESPITE THE NOTICES ISSUED, THEREFOR E, IN THE FACTS AND CIRCUMSTANCES WHEN THE NOTICE WAS DULY SERVED UPON THE ASSESSEE A S PER THE ACKNOWLEDGEMENT OF THE ASSESSEE AND NOBODY HAS APPEARED ON BEHALF OF T HE ASSESSEE, WE PROPOSED TO HEAR AND DISPOSE OFF THE APPEAL OF THE REVENUE EX P ARTE. 3. WE HAVE HEARD THE LD. D/R AND CAREFULLY PERUSED THE ORDERS OF THE AUTHORITIES BELOW. THE ASSESSEE IS AN INDIVIDUAL AND HAS NOT FI LED ANY RETURN OF INCOME FOR THE YEAR UNDER CONSIDERATION. THE AO HAS ISSUED A NOTIC E UNDER SECTION 148 OF THE IT ACT ON 29 TH DECEMBER, 2014 ON THE BASIS OF THE INFORMATION OF PURCHASE OF IMMOVABLE PROPERTIES FOR A CONSIDERATION OF RS. 2,6 9,82,340/-. DURING THE ASSESSMENT PROCEEDINGS, THE ASSESSEE EXPLAINED THE SOURCE OF INVESTMENT AS SALE OF LAND MEASURING 4.81 HECTARES I.E. 19.20 BIGHA TO ON E SHRI T. LACHUNAGAPA RESIDENT OF GANGTOK (SIKKIM) @ RS. 15 LACS PER BIGHA FOR A T OTAL CONSIDERATION OF RS. 2,88,05,845/-. THE ASSESSEE HAS CLAIMED THAT THE S AID LAND WAS SOLD THROUGH A SALE AGREEMENT DATED 07.05.2011 AGAINST THE CONSIDERATIO N RECEIVED IN CASH. THE AO HAS NOT ACCEPTED THE SAID EXPLANATION OF THE ASSESS EE ON THE GROUND THAT THE ASSESSEE HAS NOT PRODUCED ANY DOCUMENTARY EVIDENCE WHICH CAN BE VERIFIED. THE ASSESSEE HAS PRODUCED ONLY AN AGREEMENT WHICH IS NO T REGISTERED AND FURTHER THE ENTIRE SALE CONSIDERATION WAS CLAIMED TO HAVE BEEN RECEIVED IN CASH. THUS THE AO DOUBTED THAT A PERSON WHO BELONGS TO GANGTOK (SIKKI M) CANNOT BRING OR CARRY SUCH A HUGE AMOUNT OF RS. 2,88,60,000/- IN CASH. THE AO F URTHER NOTED THAT EVEN AFTER THE 3 ITA NO. 1340/JP/2018 SHRI VIRENDER YADAV, ALWAR. EXPIRY OF ABOUT 6 (SIX) YEARS FROM THE DATE OF ALLE GED SALE AGREEMENT, NO SALE DEED HAS BEEN EXECUTED OR REGISTERED. THE AO ACCORDINGLY MADE THE ADDITION OF RS. 2,91,52,880/- ON ACCOUNT OF UNEXPLAINED INVESTMENT IN PURCHASE OF IMMOVABLE PROPERTIES. ON APPEAL, THE LD. CIT (A) HAS CALLED FOR A REMAND REPORT FROM THE AO. IN THE REMAND PROCEEDINGS, THE ALLEGED PURCHASER SH RI T. LACHUNAGAPA, A SIKKIMESE, HAS ADMITTED THE TRANSACTION OF PURCHASE OF LAND FR OM THE ASSESSEE. BASED ON THE SAID ADMISSION OF THE PURCHASER, THE LD. CIT (A) HA S DELETED THE ADDITION. THE LD. D/R HAS CONTENDED THAT IT IS ONLY A DEVICE TO COVER UP THE UNDISCLOSED INCOME BY THE ASSESSEE BY PLANTING A PURCHASER WHOSE INCOME IS EX EMPT UNDER SECTION 10(26AAA) OF THE IT ACT. THUS THE LD. D/R HAS SUBMITTED THA T SINCE THE INCOME IN THE HANDS OF SIKKIMESE IS EXEMPT UNDER SECTION 10(26AAA), THEREF ORE, THE ASSESSEE HAS CLAIMED THAT HE HAS RECEIVED THE CONSIDERATION FROM THE ALL EGED PURCHASER. THE LD. D/R HAS FURTHER CONTENDED THAT THE ASSESSEE HAS CLAIMED TO HAVE SOLD THE LAND THROUGH AN UNREGISTERED AGREEMENT WHICH IS NOT POSSIBLE WHEN T HE PURCHASER BELONGS TO SIKKIM AND WILL PAY SUCH A HUGE CONSIDERATION WITHOUT HAVI NG A PROPER TITLE DOCUMENT, DESPITE THE EXPIRY OF SUCH A LONG TIME THERE IS NO SALE DEED REGARDING THE SAID TRANSACTION, THEREFORE, THE ALLEGED AGREEMENT TO SE LL IS NOTHING BUT AN AFTER-THOUGHT MAKE BELIEF DOCUMENT. SHE HAS RELIED UPON THE ORDE R OF THE AO. 4. HAVING CONSIDERED THE SUBMISSIONS OF THE LD. D/R AND GOING THROUGH THE ORDERS OF THE AUTHORITIES BELOW, WE FIND THAT DURIN G THE ASSESSMENT PROCEEDINGS, THE AO GRANTED AS MANY AS 20 OPPORTUNITIES TO THE ASSES SEE. THE DETAILS OF THE NOTICES ISSUED BY THE AO GIVEN AT PAGE 3 OF THE ASSESSMENT ORDER AS UNDER :- 4 ITA NO. 1340/JP/2018 SHRI VIRENDER YADAV, ALWAR. THE AO ISSUED NOTICE UNDER SECTION 133(6) TO THE SU B REGISTRAR, NEEMRANA AND ON RECEIVING THE DETAILS OF THE DOCUMENTS FROM CONCERN ED SUB REGISTRAR, THE AO FOUND THAT THE ASSESSEE HAD MADE INVESTMENT OF RS. 2,69,8 2,340/-. ALL THESE ENQUIRIES WERE CONDUCTED BY THE AO DUE TO THE REASON THAT THE ASSESSEE DID NOT COOPERATE AND FILE THE DETAILS REGARDING THE INVESTMENT MADE IN THE IMMOVABLE PROPERTIES. ONLY WHEN THE AO ISSUED THE SHOW CAUSE NOTICE TO FR AME THE ASSESSMENT UNDER SECTION 144 OF THE IT ACT AND ALSO ISSUED SUMMON UN DER SECTION 131, THE ASSESSEE FURNISHED A COPY OF THE ALLEGED AGREEMENT DATED 07. 05.2011 AND CLAIMED THAT THE SOURCES OF INVESTMENT IS SALE PROCEEDS OF LAND FOR A CONSIDERATION OF RS. 2,88,60,000/- TO ONE SHRI T. LACHUNAGAPA RESIDENT O F GANGTOK (SIKKIM). IT IS 5 ITA NO. 1340/JP/2018 SHRI VIRENDER YADAV, ALWAR. PERTINENT TO NOTE THAT IT IS BEYOND PREPONDERANCE O F HUMAN PROBABILITY THAT A PERSON FROM GANGTOK (SIKKIM) WOULD PURCHASE A LAND IN RAJA STHAN AGAINST A CONSIDERATION OF RS. 2,88,60,000/- WITHOUT HAVING A PROPER TITLE DEED IN HIS FAVOUR. THE ALLEGED AGREEMENT TO SELL IS NOT A DOCUMENT WHICH CAN BE VE RIFIED INDEPENDENTLY AND CAN BE CONSIDERED AS A CONCLUSIVE EVIDENCE FOR TRANSACTION OF PURCHASE AND SALE OF THE IMMOVABLE PROPERTIES. EVEN OTHERWISE, THE IMMOVABL E PROPERTIES CANNOT BE TRANSFERRED UNDER SUCH AN UNREGISTERED DOCUMENT BEI NG AGREEMENT TO SELL. THE DETAILS OF ASSESSEES SHARE IN THE ALLEGED ANCESTRA L LAND ARE ALSO NOT AVAILABLE ON RECORD. IT IS ALSO NOT CLEAR FROM THE RECORD WHETHE R THE ASSESSEE WAS HAVING THE SHARE IN THE ANCESTRAL PROPERTY TO THE EXTENT OF 19 .20 BIGHA. FURTHER, NOT EXECUTING THE SALE DEED AND REGISTRATION WITH THE AUTHORITIES EVEN AFTER THE EXPIRY OF SUCH A LONG TIME CREATES A GENUINE DOUBT ABOUT THE TRANSAC TION. THEREFORE, THE GENUINENESS OF THE CLAIM HAS NOT BEEN ESTABLISHED W ITH VERIFIABLE DOCUMENTARY EVIDENCE. IT IS ALSO A RELEVANT FACT THAT THE ALLE GED PURCHASER OF THE LAND BEING A SIKKIMESE, IS EXEMPT FROM INCOME TAX AS PER SECTION 10(26AAA) OF THE IT ACT. THEREFORE, THE POSSIBILITY OF USING THE NAME OF SUC H A PERSON AS A DEVICE TO EVADE THE TAX CANNOT BE RULED OUT. ACCORDINGLY, IN THE F ACTS AND CIRCUMSTANCES OF THE CASE, WE SET ASIDE THIS MATTER TO THE RECORD OF THE AO FO R CONDUCTING A PROPER ENQUIRY PARTICULARLY ON THE POINT OF THE ASSESSEES SHARE I N THE ALLEGED ANCESTRAL PROPERTY AND WHETHER THE SAID PROPERTY IS AVAILABLE IN THE EXCLU SIVE RIGHT OF THE ASSESSEE FOR TRANSFER. THE STATUS OF THE LAND REGARDING THE POS SESSION AND THE REAL OWNERSHIP IS ALSO REQUIRED TO BE VERIFIED. NEEDLESS TO SAY THAT THE ASSESSEE BE GIVEN A PROPER OPPORTUNITY OF HEARING BEFORE PASSING THE FRESH ASS ESSMENT ORDER. 6 ITA NO. 1340/JP/2018 SHRI VIRENDER YADAV, ALWAR. 5. IN THE RESULT, APPEAL OF THE REVENUE IS ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT ON 12/12/2019 . SD/- SD/- FOE FLAG ;KNO FOT; IKY JKWO (VIKRAM SINGH YADAV) (VIJAY PAL RAO) YS[KK LNL;@ ACCOUNTANT MEMBER U;KF;D LNL;@ JUDICIAL MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 12/12/2019. DAS/ VKNS'K DH IZFRFYFI VXZSFKR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT-THE INCOME TAX OFFICER, BEHROR. 2. IZR;FKHZ@ THE RESPONDENT-SHRI VIRENDRA YADAV, ALWAR. 3. VK;DJ VK;QDR@ CIT 4. VK;DJ VK;QDR@ CIT(A) 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ@ DR, ITAT, JAIPUR 6. XKMZ QKBZY@ GUARD FILE {ITA NO. 1340/JP/2018} VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASST. REGISTRAR