ITO, Ward-1(4), Siliguri, Siliguri V. Sri Jogesh Ghosh, Darjeeling

ITA 1532/KOL/2016

• Counselvise Citation: [2018] 121 COUNSELVISE.COM (IT) 6327 (ITAT-KOLKATA)
• Duration Of Justice: 1 year(s) 10 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-06-2018
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2013-2014
• Appeal Filed On: 25-07-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Additional evidence; Corroborative evidences
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH : KOLKATA [BEFORE HONBLE SHRI J.SUDHAKAR REDDY, AM & HONB LE SMT. MADHUMITA ROY, JM ] I.T.A NO. 1532/KOL/20 16 ASSESSMENT YEAR : 2013-1 4 ITO, WARD-1(4), SILIGURI -VS- SHRI JO GESH GHOSH [PAN: AJUPG 6645 G ] (APPELLANT) (RESPON DENT) FOR THE DEPARTMENT : SHRI SALLONG YADEN, ADDL . CIT FOR THE APPELLANT : SHRI SUBASH AGARWAL, ADV . DATE OF HEARING : 30.05.2018 DATE OF PRONOUNCEMENT : 01.06.2018 ORDER PER J.SUDHAKAR REDDY, AM THIS APPEAL BY THE REVENUE DIRECTED AGAINST THE ORD ER OF THE COMMISSION OF INCOME TAX(APPEALS)-SILIGURI PASSED U/S 143(3) OF THE INCOME TAX ACT, 1961(THE ACT) FOR THE ASSESSMENT YEAR 2013-14. 2. THE ASSESSEE IS A INDIVIDUAL AND EARNS INCOME BY WAY OF INTEREST ON FIXED DEPOSITS. DURING THE YEAR UNDER CONSIDERATION THE A SSESSEE HAD SOLD HIS LAND AND PURCHASED LAND. THE ASSESSING OFFICER OBSERVED TH AT THE ASSESSEE HAS NOT ENTERED INTO AN AGREEMENT FOR THE SALE OF HIS LAND. THE ASS ESSEE CLAIMED THAT IT HAD RECEIVED CASH FROM THE PURCHASER OF HIS LAND, AT TH E DIFFERENT POINTS OF TIME AND 2 ITA NO.1532/KOL/2016 SHRI JOGESH GHOSH A.YR .2013-14 2 COPIES OF MONEY RECEIPTS WAS PRODUCED BEFORE THE AO . AS THERE IS NO AGREEMENT BETWEEN THE ASSESSEE AND THE PURCHASER AND AS THE M ONEY RECEIPTS ARE NOT SERIALLY NUMBERED THE AO DISBELIEVED THE CONTENTIONS OF THE ASSESSEE. THE ASSESSING OFFICER ISSUED A LETTER TO THE PURCHASER COMPANY M/ S WINDSTAR REALTORS PVT. LTD. CALLING FOR INFORMATION. THE SAME WAS RETURNED UNSE RVED. HENCE THE COPY OF THE MONEY RECEIPTS PRODUCED BY THE ASSESSEE WERE NOT AC CEPTED BY THE EVIDENCE OF THE AO. 3. FURTHER IT WAS OBSERVED BY THE ASSESSING OFFICER THAT IN THE DEED OF CONVEYANCE IT WAS STATED THAT, THE MONEY WAS RECEIVED ON THE DATE OF EXECUTION OF SALE DEED BY MENTIONING THE WORD TODAY . THE ASSESSEE PROD UCED A REGISTERED RECTIFICATION DEED, AND SUBMITTED THAT THERE WAS A MISTAKE WHICH WAS SUBSEQUENTLY RECTIFIED. THE EXPLANATION WAS NOT ACCEPTED BY THE AO AND THE AMOUNT OF RS. 76,05,701/- WAS ADDED AS INCOME ON THE GROUND THAT MONEY WAS R ECEIVED FROM UNDISCLOSED SOURCES AS WELL AS ON THE GROUND THAT THERE WAS UNE XPLAINED EXPENDITURE. AGGRIEVED THE ASSESSEE CARRIED THE MATTER ON APPEAL . THE FIRST APPELLATE AUTHORITY CONSIDERED THE SET OF MONEY RECEIPTS PRODUCED BY T HE ASSESSEE AND ALSO AN AFFIDAVIT SIGNED BY AUTHORIZED PERSON OF THE PURCHA SER COMPANY M/S WINDSTAR REALTORS PVT. LTD. HE ALSO STATED AT PARA 2.5 OF HI S ORDER THAT COL. DIPANKAR DHAR (RETD.), AUTHORIZED PERSON OF WINDSTAR REALTORS PVT . LTD. APPEARED BEFORE THE LD. CIT(A) ON 25.07.2016 AND CONFIRMED THE CASH PAYMENT S AS WELL AS DATES MENTIONED IN THE NINE MONEY RECEIPTS. MR. DHAR HAD FURTHER SUBMITTED THAT THE CASH PAYMENTS WERE NECESSARY AND A COMMON FEATURE FOR PURCHASES OF LAND IN RURAL AREAS FROM THE AGRICULTURISTS AND THE COMPA NY HAD MADE THE PAYMENTS BY WITHDRAWING CASH FROM ITS BANK ACCOUNTS. THE LD. CI T(A) DELETED THE ADDITION MADE BY THE AO. AGGRIEVED THE REVENUE IS IN APPEA L BEFORE US. 3 ITA NO.1532/KOL/2016 SHRI JOGESH GHOSH A.YR .2013-14 3 4. THE LD. DR SUBMITTED THAT THE LD. CIT(A) HAD ACC EPTED ADDITIONAL EVIDENCE BY WAY OF AN AFFIDAVIT, AND AN EXPLANATION OF THE AUTH ORIZED PERSON OF WINDSTAR REALTORS PVT. LTD. THE PURCHASER AND THAT NO OPPO RTUNITY WHATSOEVER WAS GIVEN TO THE AO AND HENCE THE MATTER SHOULD BE SET ASIDE TO THE FILE OF THE AO FOR FRESH ADJUDICATION. HE CONTENDED THAT THE RECEIPTS PRODUC ED BY THE AO ARE NOT SERIALLY NUMBERS AND WERE NOT PRODUCED BEFORE THE LD. CIT(A) . HE ALSO FOUND FAULT WITH THE LD. CIT(A) ACCEPTING THE RECTIFICATION DEED, P RODUCED BY THE ASSESSEE TO CORRECT THE ORIGINAL CONVEYANCE DEED. 4. THE LD. COUNSEL FOR THE ASSESSEE ON THE OTHER HA ND SUBMITTED THAT ALL THE DETAILS WERE FILED BEFORE THE ASSESSING OFFICER AND THE AFF IDAVIT WAS ONLY SUPPLEMENTARY AND SUPPORTING EVIDENCE AND NOT AN ADDITIONAL EVID ENCE. FOR THIS PROPOSITION, HE RELIED ON THE FOLLOWING CASES: I) SHANKAR KHANDASARI SUGAR MILL VS. CIT REPORTED I N 193 ITR 669 (KAR) II) DCIT VS. NEW MANAS TEA ESTATE PVT. LTD. (GAU) R EPORTED IN 73 ITD 157 (GAU) HE SUBMITTED THAT THE ASSESSEE PRODUCED ALL THE DOC UMENTS IN HIS COMMANDS TO PROVE THAT THE SOURCES FOR PURCHASE OF LAND WERE T HE SALE PROCEEDS FROM SALE OF LAND AND THE TIMING DIFFERENCE OF RECEIPT OF MONEY ALLEGED BY THE AO WAS AGAINST THE FACTS AND EVIDENCES. 5. AFTER HEARING RIVAL CONTENTIONS, CONSIDERING THE PAPERS ON RECORD, ORDERS OF THE AUTHORITIES BELOW AS WELL AS CASE LAW CITED. WE HOL D AS FOLLOWS. 4 ITA NO.1532/KOL/2016 SHRI JOGESH GHOSH A.YR .2013-14 4 6. THE ASSESSEE IN THIS CASE HAS DISCHARGED THE ONU S THAT LAY ON HIM TO PROVE THE SOURCES FOR PURCHASE OF LAND. THE AO ONLY DOUBTS TH E TIMING OF RECEIPTS OF CASH BY THE ASSESSEE, CONSEQUENT TO THE SALE OF LAND TO WINDSTAR REALTORS PVT. LTD. ANY MONEY RECEIPTS ISSUED BY AN INDIVIDUAL WOULD HAVE A DATE BUT NOT A SERIAL NUMBER, AS IN THE CASE WITH A BUSINESS CONCERN. WH EN THE COMPANY HAS CONFIRMED THE PAYMENTS IN CASH ON THE DATES MENTION ED IN THE RECEIPTS, NOTHING ELSE SURVIVES. IN VIEW OF THE FACTUAL FINDINGS OF T HE LD. CIT(A), WE UPHOLD THE ORDER O THE LD. CIT(A) AND DISMISS THE APPEAL OF T HE REVENUE. 7. IN THE RESULT, THE APPEAL OF THE REVENUE IS DISM ISSED. ORDER PRONOUNCED IN THE COURT ON 01.06.2018 SD/- SD/- [MADHUMITA ROY] [ J.SUDHAKAR R EDDY] JUDICIAL MEMBER ACCOUNTANT MEMB ER DATED : 01.06.2018 SB, SR. PS COPY OF THE ORDER FORWARDED TO: 1. ITO, WARD-1(4), SILIGURI, AAYAKAR BHAWAN, PARI BAHAN NAGAR, MATIGARA, SILIGURI, PIN-734010. 2. SHRI JOGESH GHOSH, GOSAIPUR MAIN ROAD, BAGDOGRA, P.S.-NAXALBARI, DISTRICT- DARJEELING, PIN-734014. 3..C.I.T.(A)- , KOLKATA 4. C.I.T.- KOLKATA. 5. CIT(DR), KOLKATA BENCHES, KOLKATA. TRUE COPY BY ORDER SENIOR PRIVAT E SECRETARY HEAD OF OFFICE/D.D.O., ITAT, KOLKATA BENCHE S