A.C.I.T., Circle-1, Gwalior V. Smt Jai Devi Gupta, Gwalior

ITA 15/AGR/2012

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 0427 (ITAT-AGRA)
• Duration Of Justice: 7 year(s) 4 month(s) 4 day(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 16-05-2019
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 27-02-2013
• Assessment Year: 2009-2010
• Appeal Filed On: 11-01-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: RAJENDRA SHARMA MANUJ SHARM A
• Keywords: Unexplained investment; Assessment record
• Section: 133A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, AGRA BENCH, AGRA BEFORE : SHRI BHAVNESH SAINI, JUDICIAL MEMBER AND SHRI A.L. GEHLOT, ACCOUNTANT MEMBER ITA NO. 15/AGRA/2012) ASSTT. YEAR : 2009-10 A.C.I.T., CIRCLE-1, VS. SMT. JAI DEVI GUPTA, GWALIOR. PROP. M/S. LAXMI TRADING CO. CHITNIS KI GOTH, MADHAV GANJ, LASHKAR, GWALIOR. (PAN: AUMPG 5554 H) (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI WASEEM ARSHAD, SR. D.R. RESPONDENT BY : SHRI RAJENDRA SHARMA / MANUJ SHARM A, ADV. DATE OF HEARING : 27.02.2013 DATE OF PRONOUNCEMENT OF ORDER : 08.03.2013 ORDER PER BHAVNESH SAINI, J.M.: THIS APPEAL BY THE REVENUE IS DIRECTED AGAINST THE ORDER OF LD. CIT(A), GWALIOR DATED 17.10.2011 FOR THE ASSESSMENT YEAR 20 09-10, CHALLENGING THE DELETION OF ADDITION OF RS.24,00,000/- ON ACCOUNT O F UNEXPLAINED INVESTMENT MADE IN PROPERTY BASED ON SEIZED MATERIAL FOUND AND SEIZ ED DURING THE COURSE OF SEARCH. 2. BRIEFLY, THE FACTS OF THE CASE ARE THAT SEARCH / SURVEY U/S. 132A / 133A HAVE BEEN CONDUCTED ON 12.05.2008. THE ASSESSEE FILED TH E RETURN OF INCOME DECLARING NIL INCOME. THE AO MADE ADDITION OF RS.26,00,000/- ON ACCOUNT OF UNEXPLAINED ITA NO. 15/AGRA/2012 2 INVESTMENT IN PROPERTY. DURING THE COURSE OF SEARCH OPERATION, AN AGREEMENT LETTER DATED 19.12.06 (LPS-4) HAS BEEN FOUND FROM THE PREM ISES OF THE ASSESSEE ACCORDING TO WHICH PROPERTY MEASURING 1275 SQ. FT I S PROPOSED TO BE BOUGHT BY THE ASSESSEE FOR RS. 26 LAKHS FROM SHRI MAITHILISHARAN GUPTA, SHRI BRIJ KIRSHORE GUPTA, GOURI SHANKAR GUPTA AND SHRI RADHESHYAM GUPT A, S/O. LATE SHRI RAMGOPAL GUPTA. FURTHER, AS PER THE SAID AGREEMENT, A SUM OF RS.10,00,000/- IS STATED TO HAVE BEEN RECEIVED BY THE SELLERS. HOWEVER, AS PER THE A SSESSMENT ORDER, THE ASSESSEE HAS DENIED TO HAVE PURCHASED THE SAID PROPERTY AT T HE SPECIFIED AMOUNT OF RS.26 LAKHS, AS THE SAME IS STATED TO HAVE BEEN PURCHASED ALONGWITH OTHER FEMALE RELATIVES OF HER FAMILY AND PAYMENT FOR WHICH HAS B EEN MADE AT RS.1,75,000/IN PROPORTION TO HER OWNERSHIP SHARE AS PER THE SALE D EED. A.O. HAS REJECTED THE APPELLANT'S SUBMISSIONS ON THE GROUND THAT IN THE S AID AGREEMENT LETTER ONLY HER NAME IS MENTIONED AND SHE IS THE SOLE OWNER. FURTHE R, SHE HAS FAILED TO GIVE ANY DETAILS REGARDING OTHER PERSONS WHO HAVE MADE THE P AYMENT FOR THE BALANCE AMOUNT. A.O. HAS TREATED THE INVESTMENT AS UNEXPLAI NED U/S 69, AS THE ASSESSEE HAS NOT PRODUCED ANY EVIDENCE FOR THE SOURCE OF PAYMENT IN RESPECT OF PURCHASE OF ABOVE MENTIONED PROPERTY. BEFORE THE LD. CIT(A), TH E ASSESSEE HAS SUBMITTED THAT THE DEAL FOR THE PURCHASE OF THE SAID PROPERTY HAS BEEN DONE THROUGH HER HUSBAND. THIS FACT HAS BEEN MENTIONED BY HER IN ANSWER TO TH E QUESTION RAISED BY THE A.O. THE AGREEMENT DATED 19.12.06 WAS NOT ACTED UPON DUE TO PROBLEM OF VACANT ITA NO. 15/AGRA/2012 3 POSITION. CONSEQUENTLY, THE SAME PROPERTY HAS BEEN PURCHASED FOR RS. 10 LAKHS AS PER THE SALE DEED WITH FULL OCCUPANCY. FURTHER, THE AGREEMENT RELIED ON BY THE A.O. FALLS DURING F.Y. 2006-07 RELEVANT TO THE A.Y. 2007 -08 AND NOT TO THE ASSTT. YEAR UNDER CONSIDERATION. THUS, THE ADDITION OF RS. 26 L AKHS BASED ON THE SAID AGREEMENT, WHICH DOES NOT PERTAIN TO THE PERIOD UND ER CONSIDERATION, IS NOT JUSTIFIED, AS NO INCRIMINATING MATERIAL RELATED TO THE YEAR UNDER CONSIDERATION HAS BEEN FOUND DURING THE COURSE OF SEARCH. THE ASSESSE E HAS ALSO RELIED ON THE STATEMENT OF HER HUSBAND VIZ. SHRI RAMESH KUMAR GUP TA RECORDED ON THE DATE OF SEARCH ITSELF, I.E. 12.05.08 WHEREBY HE HAS ALSO CA TEGORICALLY MENTIONED THAT THE SAID AGREEMENT WAS NOT ACTED UPON WITH REFERENCE TO MONEY TRANSACTION WHILE EXPLAINING THE SOURCE OF INVESTMENT OF RS.1,75,000/ -- MADE BY THE ASSESSEE. THE ASSESSEE HAS ALSO RELIED ON VARIOUS CASE LAWS IN HE R SUPPORT. 3. THE LD. CIT(A) CONSIDERING THE EXPLANATION OF TH E ASSESSEE AND THE SEIZED MATERIAL SUSTAINED THE ADDITION OF RS.2,00,000/- AN D DELETED THE ADDITION OF RS.24,00,000/-. THE FINDINGS OF LD. CIT(A) IN PARA 3.2 OF THE APPELLATE ORDER ARE REPRODUCED AS UNDER :- 3.2 APPELLANT'S SUBMISSIONS ALONGWITH ASSESSMENT OR DER HAVE BEEN CONSIDERED CAREFULLY. ASSESSMENT RECORDS ALONG WITH STATEMENTS OF THE APPELLANT AND HER HUSBAND HAVE ALSO BEEN PER USED. THE AGREEMENT LETTER DATED 19.12.06 FOUND AND SEIZED AS LPS-4 ON THE BASIS OF WHICH THE IMPUGNED ADDITION HAS BEEN MADE BY THE A.O. DOES NOT FALL IN THE YEAR UNDER CONSIDERATION NEITHER IT IS FOUND REGISTERED. ITA NO. 15/AGRA/2012 4 A.O. HAS BASED HIS ADDITION SOLELY ON PART OF THE S EIZED DOCUMENT COMPLETELY IGNORING AND REJECTING THE OTHER SEIZED DOCUMENT WHEREBY SALE DEED DTD. 03.08.07 IN RESPECT OF THE SAME PROP ERTY MENTIONS 5 PURCHASERS VIZ. THE APPELLANT, SMT. ASHA, W/O. SHRI SANTOSH KR. GUPTA, SMT. KAMLA DEVI, W/O. SH. ASHOK KR. GUPTA, S MT. SEEMA ALIAS SHAKUNTALA, W/O. SHRI BRIJ MOHAN GUPTA AND SMT. MOH INI, W/O. SH. DINESH KR. GUPTA, WHO HAVE JOINTLY BOUGHT THE SAME PROPERTY, AS MENTIONED IN THE AGREEMENT LETTER DATED 19. 12.06 F OR RS. 10,00,000/-. STAMP DUTY OF RS. 80,000/- HAS ALSO BEEN PAID ACCOR DINGLY. THE APPELLANT'S SHARE IN THE SAID PROPERTY COMES TO RS. 2,00,000/-, THE SOURCE OF WHICH IS STATED TO BE AS PER REPLY TO QN. NO.8, MONEY RECEIVED FROM HER MOTHER-IN-LAW VIZ. SMT. RAMWATI G UPTA AND RS. 50,000/- OUT OF HER OWN SAVINGS. IN REPLY TO QN. NO .7 AS PER HER STATEMENT RECORDED BY THE A.O. ON 06.12.10 PERTAINI NG TO THE AGREEMENT LETTER DATED 19.12.06, THE APPELLANT HAS SHOWN COMPLETE IGNORANCE AND HAS REPLIED THAT ONLY HER HUSBAND CAN SPECIFY REGARDING THE CONTENTS OF THE SAID LETTER, AS SHE H AS NO KNOWLEDGE OF THE SAME. FURTHER, IN REPLY TO QN. NO.9 REGARDING P AYMENT OF RS.10,00,000/- AND ITS SOURCE, AGAIN THE APPELLANT HAS REPLIED THAT SHE HAS NO KNOWLEDGE REGARDING THE SAME. THUS, THERE IS NO CONTRADICTION IN THE STATEMENT OF THE APPELLANT RECORDED BY THE A .O. DURING THE COURSE OF ASSESSMENT PROCEEDINGS ON 06.12.10. FURTH ER, AS PER THE STATEMENT OF HER HUSBAND VIZ. SH. RAMESH KR. GUPT R ECORDED ON OATH ON 12.05.08 DURING THE COURSE OF SEARCH OPERATIONS HE HAS CATEGORICALLY STATED THAT THE SAID AGREEMENT WAS NO T ACTED UPON AND DUE TO DISPUTE NO EXCHANGE OF MONEY HAS BEEN TRANSA CTED WITH THE SAID SELLERS. AS SUCH, NO AMOUNT OF RS.10,00,000/- HAS EVEN BEEN PAID. HIS WIFE HAS PAID FOR HER SHARE IN THE SAID PROPERT Y AS PER THE SALE DEED FROM AMOUNT RECEIVED FROM HIS MOTHER AND OUT O F HER SAVINGS AND SALE OF JEWELLERY. A.O. HAS REJECTED THESE SUBM ISSIONS OF THE APPELLANT AS MADE DURING THE COURSE OF ASSESSMENT P ROCEEDINGS WITHOUT BRINGING ANY MATERIAL ON RECORD OR MAKING A NY THIRD PARTY ENQUIRY FROM CONCERNED SELLERS OR PURCHASERS TO SHO W THAT THE APPELLANT HAS INDEED PAID RS.26 LAKHS AND IS THE SO LE OWNER OF THE SAID PROPERTY ESPECIALLY WHEN REGISTERED SALE DEED IN RESPECT OF THE SAID PROPERTY HAS ALSO BEEN FOUND AND SEIZED. IT IS A SETTLED LEGAL POSITION THAT SEIZED MATERIAL HAS TO BE READ AND AC CEPTED AS A WHOLE AND IT IS NOT PERMISSIBLE TO PICK AND CHOOSE THEREF ROM UNLESS AND UNTIL THERE IS COGENT MATERIAL IN SUPPORT OF UNDERTAKING SUCH AN EXERCISE. IT IS A NORMAL PRACTICE ESPECIALLY IN HINDU SOCIETY TH AT THE MALE ITA NO. 15/AGRA/2012 5 MEMBERS LOOK AFTER ALL THE FINANCIAL MATTERS. THERE FORE, CONSIDERING AND RELYING ON A PART OF THE QUESTION AND ANSWER IG NORING THE OTHERS TO COME TO ADVERSE CONCLUSION IS NOT JUSTIFIED. HOW EVER, THE APPELLANT WAS NOT ABLE TO GIVE ANY DOCUMENTARY EVIDENCE EVEN IN RESPECT OF PAYMENT OF RS.2,00,000/- PURPORTED TO BE HER SHARE IN THE SAID PROPERTY WITH ANY DOCUMENTARY EVIDENCE. NO RETURN H AS BEEN FILED BY THE APPELLANT FOR ANY OF THE EARLIER YEARS NEITHER SHE HAS ANY DECLARED SOURCE OF INCOME. ACCORDINGLY, ADDITION OF RS.2,00, 000/- MADE ON THE BASIS OF SEIZED SALE DEED FOR WHICH THE APPELLANT H AS FAILED MISERABLY EVEN DURING THE COURSE OF APPEAL PROCEEDINGS TO PRO VE THE SOURCE OF INVESTMENT SO MADE IS, HEREBY, CONFIRMED OUT OF RS. 26,00,000/- MADE BY THE A.O. 4. THE LD. DR SUBMITTED THAT THE AO MADE ADDITION O N THE BASIS OF SEIZED AGREEMENT, THEREFORE, THE ADDITION SHOULD NOT HAVE BEEN DELETED BY THE LD. CIT(A). ON THE OTHER HAND, THE LD. COUNSEL FOR THE ASSESSEE REITERATED THE SUBMISSIONS MADE BEFORE THE AUTHORITIES BELOW AND SUBMITTED THAT THE AGREEMENT IN QUESTION WOULD FALL IN ASSESSMENT YEAR 2007-08 FOR WHICH NO ADDITI ON COULD BE MADE IN ASSESSMENT YEAR UNDER APPEAL AND FURTHER SUBMITTED THAT EVEN T HE SALE DEED DATED 03.08.2007 WOULD FALL IN ASSESSMENT YEAR 2008-09. THEREFORE, T HE LD. CIT(A) RIGHTLY DELETED THE ADDITION IN ASSESSMENT YEAR UNDER APPEAL, I.E., 2009-10. 5. ON CONSIDERATION OF THE RIVAL SUBMISSIONS, WE DO NOT FIND ANY MERIT IN THE APPEAL OF THE REVENUE. THOUGH THE SEIZED AGREEMENT DATED 19.12.2006 WAS FOUND IN SEARCH, BUT THE SAME WOULD NOT FALL IN ASSESSMEN T YEAR UNDER APPEAL, I.E., A.Y. 2009-10. IT MAY BE RELEVANT FOR THE ASSESSMENT YEAR 2007-08 AND AS SUCH, ON THIS ITA NO. 15/AGRA/2012 6 SOLE REASON, THE ADDITION COULD NOT BE MADE AGAINST THE ASSESSEE IN THE ASSESSMENT YEAR UNDER APPEAL. FURTHER, THE SALE DEED DATED 03. 08.2007 WOULD FALL FOR CONSIDERATION IN THE ASSESSMENT YEAR 2008-09. THERE FORE, WITHOUT FURTHER GOING INTO THE MERITS OF THE CASE, WE DO NOT FIND ANY MER IT IN THE DEPARTMENTAL APPEAL. THE SAME IS ACCORDINGLY DISMISSED. 6. IN THE RESULT, THE DEPARTMENTAL APPEAL IS DISMIS SED. ORDER PRONOUNCED IN THE OPEN COURT. SD/- SD/- (A.L. GEHLOT) (BHAVNESH SAINI) ACCOUNTANT MEMBER JUDICIAL MEMBER *AKS/- COPY OF THE ORDER FORWARDED TO : 1. APPELLANT 2. RESPONDENT 3. CIT(A), CONCERNED BY ORDER 4. CIT, CONCERNED 5. DR, ITAT, AGRA 6. GUARD FILE SR. PRIVATE SECRETARY TRUE COPY