ITO, Mohindergarh V. Sh. Parmanand Saini Prop., Haryana

ITA 1591/DEL/2015

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 6571 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 8 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-12-2016
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: SMC 1
• Next Hearing Date: 25-10-2016
• Assessment Year: 2011-2012
• Appeal Filed On: 19-03-2015
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: S K JAIN
• Assessee Lawyers: RAJESH KUMAR GOEL
• Keywords: Unexplained investment; Gift
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH SMC-1, NEW DELHI BEFORE SHRI S.V. MEHROTRA, ACCOUNTANT MEMBER ITA NO.1591/DEL/2015 ASSESSMENT YEAR : 2011-12 ITO, WARD-2, MOHINDERGARH VS. PARMANAND SAINI, PROP. M/S BABA MOHAR SINGH FRUIT COMPANY, MOHINDERGARH, DISTT. MOHINDERGARH, HARYANA PAN : AJIPS 3146 E (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI S. K. JAIN, SR. DR RESPONDENT BY : SHRI RAJESH KUMAR GOEL, ADV. DATE OF HEARING : 25-10-2016 DATE OF PRONOUNCEMENT : 01-12-2016 O R D E R PER S.V. MEHROTRA, A.M : THIS IS AN APPEAL FILED BY THE REVENUE AGAINST THE ORDER DATED 05.01.2015 PASSED BY THE COMMISSIONER OF INCOME TAX (APPEALS), ROHTAK, U/S 143(3) OF THE INCOME TAX ACT, 1961 (IN SHORT T HE ACT) RELATING TO A.Y. 2011-12. 2. BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE FI LED RETURN OF INCOME DECLARING NET INCOME OF RS.1,51,300/-. FROM THE BA LANCE SHEET FILED BY ASSESSEE FOR THE ASSESSMENT YEAR 2010-11, THE ASSES SING OFFICER NOTED THAT THERE WAS NO FIXED ASSET WITH THE ASSESSEE. HOWEVE R, THE PERUSAL OF BALANCE 2 ITA NO.1591/DEL/2015 SHEET FOR THE ASSESSMENT YEAR 2011-12 REVEALED THAT THE ASSESSEE HAD SHOWN FIXED ASSETS AT RS.13,54,870/- UNDER THE HEAD LAND AND BUILDING. THE ASSESSING OFFICER HAS GIVEN AT PAGE 2 OF HIS OR DER THE DETAILS FILED BY THE ASSESSEE UNDER THE HEAD FIXED ASSETS AND HAS DRAWN HIS CONCLUSION FROM THE SAME WHICH IS REPRODUCED HEREUNDER :- FIXED LAND & BUILDING 01-04-2010 TO 31-03-2014 DATE PARTICULARS VCH. TYPE VCH. NO. DEBIT CREDIT 19.05.2010 CR CASH PAYMENT 72 10,40,000 10.06.2010 DR CASH RECEIPT 77 9,50,000 14.06.2010 DR CASH RECEIPT 82 3,50,000 22.06.2010 DR CASH RECEIPT 91 8,00,000 09.07.2010 DR CASH RECEIPT 112 6,00,000 07.10.2010 CR CASH PAYMENT 279 10,00,000 18.18.2010 CR CASH PAYMENT 291 5,00,000 21.10.2010 CR CASH PAYMENT 294 2,25,000 15.12.2010 CR CASH PAYMENT 318 3,80,000 21.01.2011 CR CASH PAYMENT 332 4,17,000 02.02.2011 CR CASH PAYMENT 336 2,20,870 16.03.2011 CR CASH PAYMENT 348 2,72,000 40,54,870 27,00,000 CLOSING BALANCE 13,54,870 40,54,870 40,54,870 THE ASSESSEE FURNISHED ANOTHER DETAILS OF FIXED ASS ETS AS ON 31.03.2011 DETAILS OF WHICH ARE AS UNDER: NAME OF PROPERTY AMOUNT DATE OF PURCHASE 1. PLOT AT NNL 300000/- 08-06-1999 2. GODOWN AT M/GARH 50000/- 30.03.1999 3. AGRICULTURAL LAND (M/GARH) 3K- 7M 250000/- 02.05.20 01 4. AGRICULTURAL LAND (M/GARH) 3K - 1/2 120000/ - 12.08.2004 3 ITA NO.1591/DEL/2015 SHARE 5. AGRICULTURAL LAND (M/GARH) 10K - 0M 725000/ - 25.11.2010 6. PLOT SAINIPURA MOH. (ADV.) B-1/74 1000000/- 16.11.2 010 7. PLOT 19 MARLA 300000/- 23.03.2010 8. PLOT AT TOBRA ATELI, 253 SQ 1040000/- 28.05.2010 28,85,000/- FROM THE DETAILS NARRATED ABOVE IT IS VERY MUCH CLE AR THAT BOTH OF THE DETAILS FILED BY THE ASSESSEE IN RESPECT OF FIXED A SSET ARE CONTRADICTORY TO EACH OTHER. FURTHER AS PER BALANCE SHEET FOR THE ASSESS MENT YEAR 2010-11 FILED BY THE ASSESSEE NO FIXED ASSETS HAS BEEN SHOWN BY THE ASSE SSEE WHEREAS THE ASSESSEE HAVING FIX ASSET WORTH RS.18,45,000/- UP TO 23.03.2 007 MEANING THEREBY THE ASSESSEE HIMSELF IS NOT IN A POSITION TO DISCLOSE T HE TRUE FACTS OF HIS ASSETS AND THE DETAILS FURNISHED BY THE ASSESSEE ARE ONLY ON ESTIM ATED BASIS. 3. HE SHOW-CAUSED THE ASSESSEE TO EXPLAIN SOURCE OF INVESTMENT OF RS.40,54,870/- FOR PURCHASE OF PROPERTY DURING THE FINANCIAL YEAR 2010-11 AND ALSO TO SHOW AS TO HOW HE HAD RECEIVED RS.27,00 ,000/- FROM SALE OF PROPERTY NAMELY SHOP NO.25 WHICH WAS IN THE NAME OF SMT. KIRAN DEVI (WIFE). THE ASSESSEE SUBMITTED THAT HIS WIFE SMT. KIRAN DEVI HAD RECEIVED RS.27,00,000/- AS ADVANCE AGAINST SALE OF SHOP NO.2 5, SUBZI MANDI, M/GARH DURING THE YEAR UNDER CONSIDERATION AND THE AMOUNT WAS RECEIVED AS RS.9,50,000/- ON 10.06.2010, RS.3,50,000/- ON 14.06 .2010, RS.8,00,000/- ON 22.06.2010 AND RS.6,00,000/- ON 08.07.2010 AND THIS AMOUNT WAS HANDED OVER AS CASH GIFT TO HIM ON THE DATES AS PER AFFIDA VIT FILED. IT WAS FURTHER SUBMITTED BY ASSESSEE THAT SALE PROCEEDS, ADVANCED AGAINST THIS SHOP, WERE UTILIZED BY THE ASSESSEE WITH THE CONSENT OF WIFE O F THE ASSESSEE. THE ASSESSING OFFICER REQUIRED THE ASSESSEE TO PRODUCE SMT. KIRAN DEVI (WIFE) 4 ITA NO.1591/DEL/2015 FOR EXAMINATION AND ALSO TO FURNISH DOCUMENTARY EVI DENCE REGARDING GIFT RECEIVED, OCCASION, CREDITWORTHINESS AND GENUINENES S OF TRANSACTION. AFTER CONSIDERING THE ASSESSEES REPLY, THE ALLEGED RS.27 ,00,000/- STATED TO BE RECEIVED FROM HIS WIFE, WAS NOT CONSIDERED AS GENUI NE, INTER-ALIA, FOR FOLLOWING REASONS :- II) DURING THE COURSE OF ASSESSMENT PROCEEDINGS TH E ASSESSEE WAS ASKED TO FURNISH THE SALE DEED OF PROPERTY NO.25 SITUATED AT SUBZI MANDI, M/GARH AS CLAIM TO BE SOLD FOR RS.27,00,000/- BUT NO SALE DEED HAS BEEN FURNISHED BY THE ASSESSEE MEANING THEREBY THAT NO SUCH PROPERTY HAS BEEN SOLD . THUS IT IS ONLY COOKED STORY AND NO SUCH ALLEGED GIFT WAS MADE BY SMT. KIR AN DEVI. 4. HE, THEREFORE, MADE AN ADDITION OF RS.27,00,000/ -, INTER-ALIA, OBSERVING THAT ASSESSEE FAILED TO DISCHARGE THE ONU S REGARDING THE ALLEGED GIFT. THE ASSESSING OFFICER, FURTHER, MADE ADDITIO N OF RS.13,54,870/- AS THE ASSESSEE FAILED TO DISCHARGE HIS ONUS OF SATISFACTO RILY EXPLAINING THE SOURCE OF INVESTMENT OF RS.13,54,870/-. THE LD. CIT(A) DE LETED ADDITION OF RS.27,00,000/-, INTER-ALIA, OBSERVING AS UNDER :- HOWEVER, IN THE BODY OF ASSESSMENT ORDER THE AO GO T CONFUSED FROM THE TABLES SUBMITTED ON THREE SEPARATE OCCASIONS BY THE ASSESS EE DURING THE ASSESSMENT PROCEEDINGS. THE ASSESSEE SUBMITTED FIRST TABLE SH OWING THEREIN THE FINANCIAL STATUS OF FIXED ASSETS DURING 01.04.2010 TO 30.03.2 011 UNDER THE HEADING FIXED LAND AND BUILDING. THE SECOND TABLE WAS SUBMITTED SHOWING FIXED ASSETS AS ON 31.03.2011 IN WHICH THE ASSESSEE GAVE DETAILS OF AL L THE ASSETS ACQUIRED SINCE 1999 TILL 31.03.2011. THE THIRD TABLE WAS SUBMITTE D ON 20.02.2014 DURING ASSESSMENT PROCEEDINGS WHICH WAS THE REPETITION OF SECOND TABLE EXCEPT THE LAST ITEM SHOWN AS STAMP PAPER EXPENSES OF RS.2,69,870/- . AS PER THE ASSESSMENT ORDER, IT IS PROVED BEYOND DOUBT THAT BOOKS OF ACCO UNTS WERE MAINTAINED IN REGULAR COURSE OF BUSINESS AND EXAMINED BY THE A.O. AND FOUND IT CORRECT. THE ADDITION OF RS.27,00,000/- IS TOTALLY UNJUSTIFIED A ND AGAINST LAW AND MAY KINDLY BE DELETED. 5 ITA NO.1591/DEL/2015 5. LD. CIT(A) ALSO DELETED ADDITION OF RS.13,54,870 /-, INTER-ALIA, OBSERVING THAT FULL EXPLANATION REGARDING 8 NUMBER ITEMS WERE AVAILABLE TO ASSESSING OFFICER ALONG WITH REGULAR BOOKS OF ACCOU NT WHICH WERE FULLY EXPLAINED AND SUBMITTED BEFORE HIM. 6. BEING AGGRIEVED WITH THE ORDER OF LD. CIT(A), TH E DEPARTMENT IS IN APPEAL BEFORE THE TRIBUNAL AND HAS TAKEN FOLLOWING GROUNDS :- I) ON FACTS AND IN THE CIRCUMSTANCES OF THE CASE THE LD. COMMISSIONER OF INCOME TAX (APPEALS) HAS ERRED IN DELETING THE ADDI TION OF RS. 27,00,000/- AS THIS AMOUNT WAS RECEIVED AS AN ADVANCE BY THE WIFE OF THE ASSESSEE AGAINST SALE OF SHOP. HOWEVER, THE A.O. HAS HELD THAT RS. 2 7,00,000/- AS CLAIMED AS ALLEGED GIFT AND THE ASSESSEE HAD NOT DISCHARGED HI S ONUS REGARDING THE ALLEGED GIFT.' II) ON FACTS AND IN THE CIRCUMSTANCES OF THE CASE T HE LD. CIT(A) HAS ERRED IN DELETING THE ADDITION OF RS. 13,54,870/- AS THIS AM OUNT WAS UNEXPLAINED INVESTMENT.' III) THAT THE APPELLANT IS FILLING APPEAL AS THE CA SE IS COVERED UNDER THE EXCEPTION AS PER PARA 8(A) OF INSTRUCTIONS 3 OF 201 1 ISSUED BY CBDT. IV) THAT THE APPELLANT CRAVES FOR PERMISSION TO ADD , DELETE OR AMEND THE GROUNDS OF APPEAL BEFORE OR AT THE TIME OF HEARING OF APPEAL. 7. LD. DR SUBMITTED THAT ASSESSEE NEVER PRODUCED AN Y SALE DEED BEFORE THE ASSESSING OFFICER TO ESTABLISH THE SOURCE OF GI FT BY WIFE OF RS.27,00,000/-. HE REFERRED TO PAGE 2 OF ORDER OF LD. CIT(A) AND POINTED OUT THAT NO CLEAR FINDING HAS BEEN GIVEN BY LD. CIT (A). IN RESPECT OF GROUND NO.2, LD. CIT(A) HAS NOT GIVEN ANY CLEAR FIN DING REGARDING SOURCE OF INVESTMENT. 6 ITA NO.1591/DEL/2015 8. LD. COUNSEL REFERRED TO THE SUBMISSIONS MADE BEF ORE LD. CIT(A) AND POINTED OUT THAT AGREEMENT TO SELL BETWEEN SMT. KIR AN DEVI (WIFE) AND SHRI KEHAR SINGH AND SHRI SATISH KUMAR WAS FILED BEFORE LD. CIT(A) AND THE HINDI COPY OF THE SAME WAS ALSO FILED. 9. AS REGARDS BALANCE INVESTMENT OF RS.13,54,870/-, LD. COUNSEL SUBMITTED THAT THE SAME IS FROM REGULAR BOOKS OF AC COUNT AND, THEREFORE, NO ADDITION IS CALLED FOR. 10. I HAVE CONSIDERED THE SUBMISSIONS OF BOTH THE P ARTIES AND HAVE PERUSED THE RECORD OF THE CASE. AS NOTED EARLIER, THE ASSESSING OFFICER HAS CLEARLY OBSERVED AT PAGE 5 OF HIS ORDER THAT NO SAL E DEED HAD BEEN FURNISHED BY THE ASSESSEE IN REGARD TO ALLEGED SALE OF PROPER TY IN THE NAME OF WIFE SMT. KIRAN DEVI. LD. CIT(A) HAS ALSO NOT RECORDED ANY SPECIFIC FINDING ON THIS CRUCIAL ASPECT. UNDER SUCH CIRCUMSTANCES, IT WOULD BE APPROPRIATE TO RESTORE THE MATTER BACK TO THE FILE OF THE ASSESSIN G OFFICER FOR DE NOVO CONSIDERATION OF FACTS. I ORDER ACCORDINGLY. 11. AS FAR AS THE SOURCE REGARDING BALANCE INVESTME NT OF RS.13,54,870/- IS CONCERNED, THE ASSESSING OFFICER WILL EXAMINE THE B OOKS OF ACCOUNT IN THIS REGARD AND IF THE INVESTMENT IS FROM EXPLAINED SOUR CES IN THE REGULAR BOOKS OF ACCOUNT THEN NO ADDITION IS CALLED FOR. 7 ITA NO.1591/DEL/2015 12. IN THE RESULT, THE APPEAL OF THE REVENUE IS ALL OWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 01 ST DAY OF DECEMBER, 2016. SD/- SD/- (SUDHANSHU SRIVASTAVA) (S.V. MEHROTRA) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED : 01-12-2016. SUJEET COPY OF ORDER TO: - 1) THE APPELLANT; 2) THE RESPONDENT; 3) THE CIT; 4) THE CIT(A)-, NEW DELHI; 5) THE DR, I.T.A.T., NEW DELHI; BY ORDER //TRUE COPY// ASSISTANT REGISTRAR ITAT, NEW DELHI