Sh. Piyush Kumar Gupta, Etah V. I.T.O., Ward-3(1), Etah

ITA 141/AGR/2013

• Counselvise Citation: 14120314 RSA 2013
• Duration Of Justice: 1 year(s) 1 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-06-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 25-06-2014
• Assessment Year: 2009-2010
• Appeal Filed On: 02-05-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: WASEEAM ARS HAD
• Assessee Lawyers: RAJENDRA SHARMA
• Keywords: Sale consideration of property below Jantri Value; Additional evidence
• Section: 40A(3); 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AGRA BENCH, AGRA BEFORE SHRI BHAVNESH SAINI, JUDICIAL MEMBER AND SHRI PRAMOD KUMAR, ACCOUNTANT MEMBER ITA NO.141/AGRA/ 2013 ASSESSMENT YEAR: 2009-10 SHRI PIYUSH KUMAR GUPTA, VS. THE INCOME TAX OFFIC ER, 46, RAILWAY ROAD, CIRCLE-3 (1), EATAH. HOTEL INDRAPRASTHA, ETAH (U.P.) (PAN ABVPG 5787 G). (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI RAJEND RA SHARMA, ADVOCATE RESPONDENT BY : SHRI WASEEAM ARS HAD, SR. D.R. DATE OF HEARING : 25.06.2014 DATE OF PRONOUNCEMENT : 27.06.2014 ORDER PER PRAMOD KUMAR, ACCOUNTANT MEMBER: BY WAY OF THIS APPEAL, THE ASSESSEE APPELLANT HAS CALLED INTO QUESTION CORRECTNESS OF LEARNED CIT(A)S ORDER DATED 26 TH FEBRUARY, 2013, IN THE MATTER OF ASSESSMENT UNDER SECTION 143(3) OF THE INCOME TAX A CT, 1961, FOR THE ASSESSMENT YEAR 2009-10. 2. GRIEVANCES RAISED BY THE ASSESSEE ARE AS FOLLOWS :- ITA NO.141/AGRA/2013 A.Y. 2009-10 2 1. THE LEARNED CIT(A) HAS ERRED IN LAW AND ON FACT S OF THE CASE IN AFFIRMING DISALLOWANCE OF WINE PURCHASE RS.30,89,76 8/- AND CONTRACT EXPENSES RS.14,98,724/- U/S 40A(3) WITHOUT APPRECIA TING THE FACTS AND CIRCUMSTANCES OF THE CASE. 2. THE LEARNED CIT(A) HAS ERRED IN LAW AND ON FACTS IN CHOOSING REMAND REPORT OF THE ASSESSING OFFICER TO THE EXTEN T SUIT HIM AND IGNORING HIS OTHER FACTUAL FINDING THEREBY THE SUSP ICIOUS INFERENCE THEREFROM AS DRAWN BY HIM IN THE CASE IS ERRONEOUS, UNTENABLE AND MISCONCEIVED. 3. THE LD. CIT(A) HAS ERRED IN NOT ADMITTING ADDITI ONAL EVIDENCE U/S 46A AFTER CALLING REMAND REPORT THEREON FROM TH E ASSESSING OFFICER, THEREBY THE REFUSAL SO AMOUNT TO DENYING J USTICE TO THE APPELLANT AND THE CONCLUSION OF LEARNED CIT(A) IS M ERELY ON PROBABILITY, SUSPICION, WITHOUT PROPER JUSTIFICATIO N BASED UPON EVIDENCE AND IGNORING ALL SUPPORTIVE EVIDENCE PRODU CED/RELIED BY THE APPELLANT. 4. THE LEARNED CIT(A) HAS ERRED IN IGNORING UNTENAB LE OBSERVATIONS MADE BY THE LEARNED A.O. AND THE APPRO ACH OF THE CIT(A) AS WELL S AUTHORITIES BELOW ARE TOTALLY ILLE GAL, PERVERSE AND BAD IN LAW AND ON FACTS. 5. THE LEARNED CIT(A) HAS ERRED IN LAW AND ON FACTS IN SUSTAINING PART ESTIMATED DISALLOWANCE OUT OF SALARY, TRAVELLI NG, BREAKAGE/WASTAGE TO RS.25,000/-, WHICH IS AGAIN ON ESTIMATE BASIS. 6. LEARNED CIT(A) HAS ERRED IN CONFIRMING ADDITIONS ON SALE/PURCHASE OF IMMOVABLE PROPERTY WITHOUT CONSIDE RING CORRECT VALUES AND THE ENHANCEMENT IN THE CAPITAL GAIN TO R S.5,90,000/- MADE BY HIM IS ERRONEOUS, UNTENABLE AND MISCONCEIVED. 7. THE JUDGEMENT REFERRED BY THE APPELLANT HAS NOT BEEN PROPERLY CONSIDERED EITHER BY THE C.I.T. (APPEALS) OR BY THE ASSESSING OFFICER. THUS, ADDITION IS WHOLLY ILLEGAL AND WITHOUT JURISD ICTION. 8. FOR THE REASONS DISCUSSED ABOVE AND TO BE ARGUED AT THE TIME OF HEARING, APPELLANT PRAY FOR RELIEF. ITA NO.141/AGRA/2013 A.Y. 2009-10 3 9. THE APPELLANT CRAVES LEAVE TO ADD OR AMEND ANY G ROUND OF APPEAL. 3. TO ADJUDICATE ON THIS APPEAL, ONLY A FEW MATERIA L FACTS NEED TO BE TAKEN NOTE OF. DURING THE COURSE OF SCRUTINY ASSESSMENT PROCE EDINGS, AND DESPITE SEVERAL REQUISITIONS TO PRODUCE BOOKS OF ACCOUNTS, THE ASSE SSEE DID NOT PRODUCE BOOKS OF ACCOUNTS. IT WAS IN THIS BACKDROP THAT THE ASSESSM ENT WAS COMPLETED ON THE BASIS OF MATERIAL ON RECORD, AND CERTAIN ADDITIONS, INCLU DING THE ADDITIONS IMPUGNED IN APPEAL BEFORE US, WERE MADE. AGGRIEVED, ASSESSEE C ARRIED THE MATTER IN APPEAL BEFORE THE CIT(A) BUT WITHOUT COMPLETE SUCCESS. WH ILE, BASED ON MATERIAL PRODUCED BEFORE THE CIT(A) ON WHICH ASSESSING OFF ICERS REPORT WAS ALSO CALLED, PARTIAL RELIEF WAS GIVEN IN RESPECT OF PURCHASE OF HSD, THE CIT(A) DECLINED TO ADMIT THE RELATED ADDITIONAL EVIDENCES ON THE BAS IS THAT THERE WAS NO JUSTIFIABLE REASON FOR NOT PRESENTING THE BOOKS OF ACCOUNTS AND RELEVANT DETAILS WHEN ASKED FOR, AND THAT THE COMPUTERIZED LEDGER ACCOUNTS WHI CH ARE NOW PRESENTED HAVE BEEN FABRICATED/CONCOCTED. LEARNED CIT(A) ALSO MA DE AN ENHANCEMENT OF INCOME FROM CAPITAL GAINS BY ADOPTING STAMP DUTY VA LUATION FOR COMPUTING CAPITAL GAINS. THE ASSESSEE IS AGGRIEVED AND IS IN APPEAL BEFORE US. 4. WE HAVE HEARD THE RIVAL CONTENTIONS, PERUSED THE MATERIAL ON RECORD AND DULY CONSIDERED THE FACTUAL MATRIX OF THE CASE IN THE LI GHT OF THE APPLICABLE LEGAL POSITION. ITA NO.141/AGRA/2013 A.Y. 2009-10 4 5. WE FIND THAT IT IS AN UNDISPUTED POSITION THAT, FOR WHATEVER REASONS, THE BOOKS OF ACCOUNTS AND REQUISITE DETAILS WERE NOT PR ODUCED BEFORE THE A.O. NO DOUBT, SOME DETAILS AND ACCOUNT COPIES WERE FILED B EFORE THE CIT(A) BUT THAT EXERCISE IS CERTAINLY NOT A GOOD AND SUFFICIENT SUB STITUTE FOR EXAMINATION OF BOOKS OF ACCOUNTS BY THE ASSESSING OFFICER PARTICULARLY IN THE LIGHT OF PRIMA FACIE APPARENT INCONSISTENCIES WHICH SHOW PURCHASE INVOIC ES FAR IN EXCESS OF RS.20,000/- EACH ON CASH AND CARRY BASIS AND ALL CASH PAYMENTS BEING LESS THAN RS.20,000/- RELATED TO VENDORS. THESE THINGS NEED TO BE LOOKED INTO AND RECONCILED. IN OUR CONSIDERED VIEW, THEREFORE, RIGHT COURSE OF ACTION WILL BE TO REMIT THE MATTER TO THE FILE OF THE ASSESSING OFFICER FOR FRESH ADJU DICATION ON DISALLOWANCES IMPUGNED IN THIS APPEAL. WE DO SO. HOWEVER, SO FA R AS COMPUTATION OF CAPITAL GAINS IS CONCERNED, LD. REPRESENTATIVES FAIRLY AGRE E THAT THE ISSUE IS NOW COVERED IN FAVOUR OF THE ASSESSEE, BY HONBLE CALCUTTA HIGH CO URTS DECISION IN THE CASE OF SUNIL KUMAR AGARWAL VS. CIT (ITA NO.221 OF 2013; JU DGEMENT DATED 13 TH MARCH, 2014; WWW.ITATONLINE.ORG ), TO THE EXTENT THAT WHENEVER STAMP DUTY VALUE IS MORE THAN TRANSFER VALUE, REFERENCE IS REQUIRED TO BE MA DE FOR DVOS VALUATION WHETHER OR NOT ASSESSEE SPECIFICALLY REQUESTS FOR T HE SAME. THEREFORE, SO FAR AS THIS ASPECT OF THE MATTER IS CONCERNED, THE ASSESSING OF FICER, IN REMANDED PROCEEDINGS, CALL FOR DVOS REPORT AND RECOMPUTED THE CAPITAL GA INS IN THE LIGHT OF THE SAME. ITA NO.141/AGRA/2013 A.Y. 2009-10 5 6. FOR THE REASONS SET OUT ABOVE AND IN THE TERMS S ET OUT ABOVE, THE MATTER STANDS RESTORED TO THE FILE OF THE A.O. AS SUCH. 7. IN THE RESULT, THE APPEAL IS ALLOWED FOR STATIST ICAL PURPOSES. (ORDER PRONOUNCED IN THE OPEN COURT ON 27.06.2014 ) SD/- SD/- (BHAVNESH SAINI) (PRAMOD KUMAR) JUDICIAL MEMBER ACCOU NTANT MEMBER DATE: 27 TH JUNE, 2014 PBN/* COPY OF THE ORDER FORWARDED TO:- 1. APPELLANT 2. RESPONDENT 3. CIT (APPEALS) CONCERNED 4. CIT CONCERNED 5. D.R., ITAT, AGRA BENCH, AGRA 6. GUARD FILE. BY ORDER SR. PRIVATE SECRETARY INCOME TAX APPELLATE TRIBUNAL, AGRA TRUE COPY