Naresh Laxminarayan Khandelwal, Jalgaon V. Income-tax Officer, Jalgaon

ITA 1385/PUN/2017

• Counselvise Citation: [2018] 112 COUNSELVISE.COM (IT) 5821 (ITAT-PUNE)
• Duration Of Justice: 1 year(s) 6 month(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-12-2018
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: SMC
• Next Hearing Date: 17-09-2018
• Assessment Year: 2012-2013
• Appeal Filed On: 31-05-2017
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: N O N E
• Keywords: Reassessment proceedings
• Section: 143(1); 201; 148

Judgement Text

- IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, PUNE , BEFORE SHRI VIKAS AWASTHY, JM . / ITA NO . 1385 /P U N/201 7 / ASSESSMENT YEAR : 20 12 - 13 NARESH LAXMINARAYAN KHANDELWAL, BHUSHAN ESTATE & LAND DEVELOPERS, 243, GOLANI MARKET, 1 ST FLOOR, JALGAON 425001 PAN : ABFPK9761J ....... / APPELLANT / V/S. THE INCOME TAX OFFICER, WARD 1 (2), JALGAON / RESPONDENT ASSESSEE BY : N O N E REVENUE BY : SHRI SUDHENDU DAS / DATE OF HEARING : 17 - 09 - 201 8 / DATE OF PRONOUNCEMENT : 05 - 1 2 - 201 8 / ORDER PER VIKAS AWASTHY, JM : TH IS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF COMMI SSIONER OF INCOME TAX (APPEALS) - 2, NASHIK DATED 1 6 - 02 - 2017 FOR THE ASSESSMENT YEAR 20 12 - 13. 2. A PERUSAL OF CASE FILE SHOWS THAT THE CASE WAS FIRST LISTED FOR HEARING ON 20 - 06 - 2018. THE NOTICE OF APPEAL WAS SENT TO THE ASSESSEE THROUGH 2 ITA NO . 1385/PUN/2017, A.Y. 2012 - 13 RPAD ON 24 - 04 - 2018 FOR THE SAID DATE. NONE APPEARED ON BEHALF OF THE ASSESSEE. FRESH NOTICE WAS ISSUED FOR 17 - 0 9 - 2018 . THE NOTICE OF APPEAL WAS SENT TO THE ASSESSEE THROUGH RPAD ON 25 - 06 - 2018 FOR HEARING OF THE APPEAL FIXED ON 17 - 09 - 2018. THE NOTICE WAS DULY SERVED AS IS EVIDENT FROM THE ACKNOWLEDGMENT AVAILABLE ON RECORD. DESPITE SERVICE OF NOTICE NEITHER THE AS SESSEE NOR ANY AUTHORIZ ED REPRESENTATIVE OF ASSESSEE APPEARED TO REPRESENT THE CASE. NEITHER THERE IS ANY REQUEST FOR ADJOURNMENT FROM THE ASSESSEE. IT APPEARS THAT THE ASSESSEE IS NOT KEEN TO PURSUE HIS APPEAL. UNDER SUCH CIRCUMSTANCES WE PROCEED TO DE CIDE THE APPEAL OF THE ASSESSEE WITH THE ASSISTANCE OF LD. DR AND THE MATERIAL AVAILABLE ON RECORD. 3. THE BRIEF FACTS OF THE CASE AS EMANATING FROM RECORDS ARE : THE ASSESSEE IS ENGAGED IN TRADING OF LAND. THE ASSESSEE FILED HIS RETURN OF INCOME FOR THE IMPUGNED ASSESSMENT YEAR ON 31 - 03 - 2013 DECLARING TOTAL INCOME OF RS.3,16,980/ - AND AGRICULTURAL INCOME OF RS.4,15,068/ - . THE RETURN OF ASSESSEE WAS PROCESSED U/S. 143(1) O F THE INCOME TAX ACT, 1961 (H EREINAFTER REFERRED TO AS THE ACT ) ON 08 - 05 - 2013. ON THE BASI S OF INFORMATION RECEIVED ON AST SYSTEM, THE INCOME TAX O FFICER, WARD 2(4), JALGAON ISSUED NOTICE IN THE CASE OF SHRI BHAGWAT SHRIDHAR CH OUDHARY OF NASHIRABAD ASKING HIM TO EXPLAIN THE SOURCE OF CASH DEPOSITS INTO THE SAVING BANK ACCOUNT. DURING THE COURSE OF ENQUIRY PROCEEDINGS STATEMENT OF SHRI KAMLAKAR DAMODHAR PATIL, SON - IN - LAW OF SHRI BHAGWAT SHRIDHAR CHOUDHARY WHO WAS INSTRUMENTAL IN FINALIZATION OF THE TRANSACTION, DEPOSED THAT SHRI BH AGWAT SHRIDHAR CHOUDHARY HAD SOLD LAND FOR A TOTAL CONSIDERATION OF RS.60,00,000/ - . HOWEVER, IN THE SALE DEED THE TOTAL VALUE OF CONSIDERATION WAS MENTIONED AS RS.30,00,000/ - AND T HE SAID AMOUNT WAS RECEIVED BY CHEQUE. T HE REMAINING AMOUNT OF RS.30,00,00 0/ - WAS RECEIVED IN CASH FROM THE PURCHASERS I.E. SHARAD ANANDA SAPKALE, RAHUL MANTRI AND NARESH L. KHADELWAL (ASSESSEE). THE STATEMENT OF SHARAD 3 ITA NO . 1385/PUN/2017, A.Y. 2012 - 13 ANANDA SAPKALE AND RAHUL MANTRI WERE RECORDED ON OATH WHEREIN THEY ADMITTED THAT THEY JOINTLY PAID RS.15,00,0 00/ - BY CHEQUE TO SHRI BHAGWAT SHRIDHAR CHAUDHARY. HE FURTHER DEPOSED THAT CASH RS.30,00,000/ - WAS ENTIRELY MANAGED AND PAID BY NARESH L. KHADELWAL (ASSESSEE). THE INCOME TAX O FFICER, WARD 2(4), JALGAON SUMMONED THE ASSESSEE. THE ASSESSEE IN HIS STATEME NT RECORDED ON 16 - 01 - 2014 ADMITTED TO HAVE PAID RS.15,00,000/ - BY CHEQUE AND RS.5,00,000/ - BY CASH OR BEARER CHEQUE. THEREAFTER, THE ASSESSEE DID NOT CO - OPERATED WITH THE INCOME TAX OFFICER, WARD 2(4), JALGAON IN THE ENQUIRY PROCEEDINGS. ON THE BASIS OF INFORMATION RECEIVED FROM INCOME TAX OFFICER, WARD 2(4), JALGAON , ASSESSMENT OF ASSESSEE FOR ASSESSMENT YEAR 2012 - 13 WAS REOPENED AND NOTICE U/S. 148 WAS ISSUED TO THE ASSESSEE ON 22 - 08 - 2014. IN REASSESSMENT PROCEEDINGS THE ASSESSEE NEVER APPEARED BEFORE THE ASSESSING OFFICER DESPITE SEVERAL OPPORTUNITIES, THUS, THE ASSESSING OFFICER WAS CONSTRAINED TO PASS THE ASSESSMENT ORDER U/S. 144(1) R.W.S. 147 OF THE ACT. THE ASSESSING OFFICER AFTER CONSIDERING THE STATEMENT OF SELLER AND THE CO - PURCHASERS OF THE P ROPERTY MADE ADDITION OF RS.30,00,000/ - ON ACCOUNT OF ON - MONEY PAYMENT IN THE HANDS OF ASSESSEE. 3.1 AGGRIEVED BY THE ASSESSMENT ORDER DATED 10 - 03 - 2015 PASSED U/S. 144(1) R.W.S. 147, THE ASSESSEE FILED APPEAL BEFORE THE COMMISSIONER OF INCOME TAX (APPEALS). THE COMMISSIONER OF INCOME TAX (APPEALS) AFTER CONSIDERING THE SUBMISSIONS OF ASSESSEE AND DOCUMENTS ON RECORD DISM ISSED THE APPEAL OF ASSESSEE AND CONFIRMED THE ADDITION. NOW, THE ASSESSEE IS IN SECOND APPEAL BEFORE THE TRIBUNAL AND HAS ASSAILED THE ORDER OF FIRST APPELLATE AUTHORITY BY RAISING FOLLOWING GROUNDS. 1. IN THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LEARNED C.I.T. (A) HAS ERRED IN CONFIRMING THE ADDITION OF RS.30,00,000/ - MADE BY THE LEARNED AO BY ALLEGING THE SAME AS APPELLANT'S INCOME FROM UNEXPLAINED SOURCES. 4 ITA NO . 1385/PUN/2017, A.Y. 2012 - 13 2. IN THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LEARNED C.I.T. (A) HAS ERRED IN SUSTAINING THE ADDITION OF RS.30,00,000/ - MADE BY THE LEARNED AO SOLELY ON THE BASIS OF STATEMENTS OF THIRD PARTY, WITHOUT ANY CORROBORATIVE EVIDENCE. THE IMPUGNED ADDITION OF RS.30,00,000/ - BEING ARBITRARY, PERVERSE AND LEGALLY UNSUSTAINABLE THE SAME MAY PLEASE BE DELETED. 3. WITHOUT PREJUDICE TO ABOVE, THE LEARNED C.I.T. (A) HAS ERRED IN NOT APPRECIATING THE FACT THAT APPELLANT WAS HAVING ONLY 50% SHARE IN THE LAND PURCHASED AND ACCORDINGLY, THE ADDITION ON ACCOUNT OF ON MONEY GIVEN BY THE APP ELLANT, IF ANY TO THE SELLER CAN BE MADE ONLY TO THE EXTENT OF RS.15,00,000/ - . 4. THE APPELLANT CRAVES THE PERMISSION TO ADD, AMEND, MODIFY, ALTER, REVISE, SUBSTITUTE, DELETE ANY OR ALL GROUNDS OF APPEAL, IF DEEMED NECESSARY AT THE TIME OF HEARING OF THE APPEAL. 4. SHRI SUDHENDU DAS REPRESENTING THE DEPARTMENT VEHEMENTLY DEFENDED THE ORDER OF COMMISSIONER OF INCOME TAX (APPEALS) AND CONFIRMING THE ADDITION. THE LD. DR SUBMITTED THAT THE ASSESSEE IN HIS STATEMENT RECORDED ON 16 - 01 - 2014 HAS ADMITTED THE FACT OF CASH PAYMENT FOR THE PURCHASE OF LAND. THE LAND HAS BEEN JOINTLY PURCHASED BY THE ASSESSEE WITH SHARAD ANANDA SAPKALE AND RAHUL MANTRI. THE CO - PURCHASERS OF THE LAND HAVE ALSO SUPPORTED THE STATEMENT OF SELLER THAT OUT OF TOTAL CONSIDERATION OF RS.60,00,000/ - , RS.30,00,000/ - WAS PAID IN CASH . THEY HAVE FURTHER DEPOSED THAT THE CASH WAS ARRANGED AND PAID BY THE ASSESSEE. THE LD. DR PRAYED FOR UP HOLDING THE ORDER OF COMMISSIONER OF INCOME TAX (APPEALS) AND DISMISSING THE APPEAL OF ASSESSEE. 5. I HAVE HEARD THE SUBMISSIONS MADE BY LD. DR AND HAVE PERUSED THE ORDER OF AUTHORITIES BELOW. IN GROUND NOS. 1 AND 2 OF THE APPEAL THE ASSESSEE HAS ASSAILED CONFIRMING OF ADDITION OF RS .30,00,000/ - ON ACCOUNT OF ON - MONEY PAYMENT FOR PURCHASE OF LAND FROM UNDISCLOSED SOURCES. THE SOLITARY REASON FOR DELETING THE ADDITION AS PUT FORTH BY ASSESSEE IS THAT THE ADDITION HAS BEEN MADE MERELY ON THE BASIS OF STATEMENT OF THIRD PARTIES WITHOUT THERE BEING ANY CORROBORATIVE EVIDENCE. A PERUSAL OF THE 5 ITA NO . 1385/PUN/2017, A.Y. 2012 - 13 DOCUMENTS ON RECORD REVE AL THAT THE ASSESSEE IN THE COURSE OF ASSESSMENT PROCEEDINGS OF SHRI BHAGWAT SHRIDHAR CHAUDHARY (SELLER OF THE LAND) HAS ADMITTED TO HAVE PAID RS.15,00,000/ - BY CHEQUE AND RS .5,00,000/ - BY CASH. THUS, THERE IS ADMISSION BY ASSESSEE HIMSELF REGARDING THE PAYMENT OF ON - MONEY FOR PURCHASE OF LAND. THE LAND WAS JOINTLY PURCHASED BY THE ASSESSEE WITH SHARAD ANANDA SAPKALE AND RAHUL MANTRI. THE CO - PURCHASERS OF THE LAND ADMITTED PAYMENT OF ON - MONEY RS.30,00,000/ - . THEY FURTHER DEPOSED THAT ON - MONEY WAS ARRANGED AN D PAID BY THE ASSESSEE. T HE STATEMENT OF CO - PURCHASERS OF THE LAND CORROBORATE WITH THE STATEMENT OF THE SELLER OF LAND. THE ASSESSEE AT NO POINT OF TIME EVER REBUTTED THE STATEMENTS MADE BY THE SELLER AND/OR CO - PURCHASERS. RATHER, THE ASSESSEE NEVER PARTICIPATED IN THE ASSESSMENT PROCEEDINGS. THEREFORE, ADVERSE INFERENCE HAS TO BE TAKEN AGAINST THE ASSESSEE. THE CONDUCT OF THE ASSESSEE BEFORE THE AUTHORITIES BELOW A ND BEFORE THE TRIBUNAL SHOWS THAT THE A SSESSEE IS RECALCITRANT. I DO NOT FIND ANY INFIRMITY IN THE ORDER OF COMMISSIONER OF INCOME TAX (APPEALS) IN UPHOLDING THE ADDITION . THE FINDINGS OF FIRST APPELLATE AUTHORITY ARE CONFIRMED A ND GROUND NOS. 1 AND 2 RAIS ED IN THE APPEAL BY ASSESSEE ARE DISMISSED BEING DEVOID OF ANY MERIT. 6. IN GROUND NO. 3 OF THE APPEAL THE ASSESSEE HAS MADE AN ALTERNATE PRAYER THAT SINCE ASSESSEE IS HAVING ONLY 50% SHARE IN THE LAND PURCHASED, THE ADDITION ON ACCOUNT OF ON - MONEY PAY MENT SHOULD BE RESTRICTED TO 50% OF THE TOTAL ON - MONEY PAID I.E. RS.15,00,000/ - . THE CO - PURCHASERS OF THE LAND IN THEIR STATEMENT RECORDED ON 23 - 01 - 2014, 06 - 02 - 2014 AND 14 - 02 - 2014 HAVE DEPOSED THAT THE ENTIRE CASH PAYMENT OF RS.30,00,000/ - WAS MANAGED AND SUPPLIED BY THE ASSESSEE. THE ASSESSEE HAS FAILED TO CONTROVERT THE STATEMENT S MADE BY CO - PURCHASERS. THEREFORE, I DO NOT FIND ANY MERIT IN THE ALTERNATE PRAYER MADE BY THE ASSESSEE. 6 ITA NO . 1385/PUN/2017, A.Y. 2012 - 13 CONSEQUENTLY, THE GROUND NO. 3 RAISED IN THE APPEAL BY THE ASSESSEE IS DISMISSED. 7. IN THE RESULT, THE APPEAL OF ASSESSEE IS DISMISSED. ORDER PRONOUNCED ON WEDNESDAY, THE 05 TH DAY OF DECEMBER, 201 8 . SD/ - ( / VIKAS AWASTHY) / JUDICIAL MEMBER / PUNE; / DATED : 05 TH DECEMBER, 2018 RK / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT. 2. / THE RESPONDENT. 3. ( ) / THE CIT(A) - 2, NASHIK 4. THE PR. COMMISSIONER OF INCOME TAX - 2, NASHIK 5. , , - , / DR, ITAT, SMC BENCH, PUNE. 6. / GUARD FILE. / / // TRUE COPY// / BY ORDER, / PRIVATE SECRETARY, , / ITAT, PUNE