Smt Prabha Rani Agarwal, Hyderabad V. ITO., Ward-8(2), Hyderabad

ITA 1711/HYD/2014

• Counselvise Citation: 171122514 RSA 2014
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-04-2014
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: B
• Next Hearing Date: 26-03-2015
• Assessment Year: 2009-2010
• Appeal Filed On: 07-11-2014
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: RAJAT MITRA
• Assessee Lawyers: HARIKISHAN ASAWA
• Keywords: Unexplained cash credit; Unexplained investment; Sale consideration of property below Jantri Value; Opportunity of being heard
• Section: 50C; 133(6); 69

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCHES, B, HYDERABAD BEFORE: SHRI B. RAMAKOITAIAH , ACCOUNTANT MEMBER AND SHRI SAKTIJIT DEY, JUDICIAL MEMBER ITA NO. 1672 / HYD /201 4 ASSESSMENT YEAR : 2009-10 INCOME - TAX OFFICER, WARD 8(2), HYDERABAD. VS. SMT. PRABHA RANI AGARWAL , HYDERABAD. PAN ACLPA 3881C (APPELLANT) (RESPONDENT) ITA NO. 1711 HYD /2014 ASSESSMENT YEAR : 2009-10 SMT. PRABHA RANI AGARWAL , HYDERABAD. PAN ACLPA 3881C VS. INCOME - TAX OFFICER, WARD 8(2), HYDERABAD. (APPELLANT) (RESPONDENT) REVENUE BY: SHRI RAJAT MITRA ASSESSEE BY: SH RI HARIKISHAN ASAWA DATE OF HEARING : 26 .03.2015 DATE OF PRONOUNCEMENT : 08.04.2015 ORDER PER SAKTIJIT DEY, JUDICIAL MEMBER:- THESE CROSS APPEALS BY ASSESSEE AND REVENUE ARE AGA INST THE ORDER DATED 4 TH AUGUST, 2014 OF LD. CIT(A)-II, HYDERABAD FOR AY 2009-10. 2. ADDITIONS CHALLENGED BY ASSESSEE IN VARIOUS GROU NDS ARE AS UNDER: 1. ADDITION OF RS. 1,12,000 2. ADDITION OF RS. 1,09,65,762 ON ACCOUNT OF UNEXPL AINED CREDIT. 3. ADDITION OF RS. 10,48,934 4. INVESTMENT OF RS. 4,12,000 3. GROUNDS RAISED BY THE DEPARTMENT ARE AS UNDER: 1. THE LD. CIT(A) HAS ERRED BOTH ON FACTS AND LAW. ITA NOS. 1672 & 1711/HYD/14 PRABHA RANI AGARWAL 2 2. THE LD. CIT(A) OUGHT TO HAVE APPRECIATED THE FAC T THAT THE CREDITS WERE NOT PROVED AS THE SUNDRY CREDITORS HAV E NOT RESPONDED TO THE LETTERS ISSUED U/S 133(6) OF THE I T ACT AND OUGHT TO HAVE SUSTAINED THE ADDITIONS MADE ON THIS ISSUE. 3. THE LD. CIT(A) OUGHT O HAVE APPRECIATED THE FACT THAT THE HAS FAILED TO FURNISH THE DETAILS AND SOURCES FOR T HE INVESTMENT MADE TO THE EXTENT OF 50% SHARE OF RS. 4,12,000 TOW ARDS PURCHASE OF PROPERTY AND OUGHT TO HAVE CONFIRMED TH E ADDITIONS MADE. 4. THE LD. CIT(A) OUGHT NOT TO HAVE REMITTED BACK T HE ABOVE ISSUES I.E. UNEXPLAINED SUNDRY CREDITORS AND UNEXPL AINED INVESTMENTS TO THE AO FOR REVERIFICATION, AS THE CI T(A) DOES NOT HAVE POWER TO SET ASIDE THE ISSUES TO THE AO AS PER THE PROVISIONS OF SECTION 251(1) OF THE ACT. 5. THE LD. CIT(A) OUGHT TO HAVE APPRECIATED THE FAC T THAT THE AO DOES NOT HAVE POWER TO REVISIT THE ASSESSMENT AG AIN ON THE CONCLUDED ASSESSMENT AND CANNOT GAIN THAT POWER FROM THE ORDER OF THE CIT(A) WHICH IS NOT AUTHORIZED BY THE PROVISIONS OF THE IT ACT. 4. ISSUES RAISED BY THE DEPARTMENT ARE IN RELATION TO ADDITIONS WHICH ARE ALSO SUBJECT MATTER OF CHALLENGE IN GROUN D NOS. 2 & 4 RAISED BY ASSESSEE. THE DEPARTMENT IS ONLY AGGRIEVE D WITH THE DECISION OF LD. CIT(A) IN REMITTING THE ISSUES BACK TO THE AO. 5. AS THE ISSUES RAISED BY THE DEPARTMENT CAN BE DE CIDED WHILE TAKING UP SIMILAR ISSUES RAISED BY ASSESSEE, WE PR OPOSE TO DEAL WITH THE GROUNDS RAISED BY ASSESSEE CHRONOLOGICALLY FOR THE SAKE OF CONVENIENCE. BEFORE PROCEEDING TO DECIDE THE INDIVI DUAL GROUNDS RAISED BY ASSESSEE, IT IS NECESSARY TO GIVE BRIEF N ARRATION OF THE FACTS. 6. BRIEFLY STATED, ASSESSEE IS AN INDIVIDUAL ENGAGE D IN TRADING OF READYMADE GARMENTS ON WHOLESALE BASIS. FOR THE AY U NDER CONSIDERATION, ASSESSEE FILED HER RETURN OF INCOME ON 19/08/2010 DECLARING TOTAL INCOME OF RS. 2,27,487. IN COURSE O F ASSESSMENT PROCEEDING, AO AFTER VERIFYING INFORMATION AVAILABL E ON RECORD ISSUED A SHOW CAUSE NOTICE TO ASSESSEE PROPOSING VA RIOUS ADDITIONS. THOUGH, ASSESSEE OBJECTED TO PROPOSE ADD ITIONS, BUT, AO PROCEEDED TO COMPLETE ASSESSMENT BY MAKING VARIOUS ADDITIONS, AS ITA NOS. 1672 & 1711/HYD/14 PRABHA RANI AGARWAL 3 A RESULT OF WHICH TOTAL INCOME WAS DETERMINED AT RS . 1,32,14,753. BEING AGGRIEVED, ASSESSEE CHALLENGED THE ADDITIONS MADE BEFORE LD. CIT(A). LD. CIT(A) DISPOSED OF APPEAL FILED BY ASS ESSEE BY GRANTING PARTIAL RELIEF. BEING AGGRIEVED WITH THE DECISION O F LD. CIT(A), ASSESSEE IS BEFORE US. 7. IN GROUND NO. 1, ASSESSEE HAS CHALLENGED THE ADD ITION OF AN AMOUNT OF RS. 1,12,000. 8. BRIEFLY THE FACTS ARE, DURING THE ASSESSMENT PRO CEEDING, ON VERIFICATION OF BANK ACCOUNT MAINTAINED BY ASSESSEE IN SBI, KING KOTI BRANCH, IT WAS NOTICED THAT ASSESSEE HAD DEPOS ITED AN AMOUNT OF RS. 1,12,100. HOWEVER, THE SAID AMOUNT WAS NOT S HOWN EITHER IN BALANCE SHEET OR IN INCOME-TAX RETURNS. WHEN CALLED UPON TO EXPLAIN, ASSESSEE STATED THAT SHE HAD WITHDRAWN AND DEPOSITED AN AMOUNT OF RS. 12,100 AND RS. 1 LAKH WAS TAKEN AS LO AN FROM ONE KAMALABAI. AO OBSERVED THAT THERE WAS NEITHER ANY C ONFIRMATION FROM THE CREDITOR NOR THE PURPOSE FOR WHICH SUCH LO AN WAS TAKEN WAS SHOWN. ACCORDINGLY, AO DISBELIEVING THE EXPLANATIO N OF ASSESSEE ADDED THE AMOUNT OF RS. 1,12,100 AS UNEXPLAINED CRE DIT. LD. CIT(A), THOUGH DEALT WITH THE ISSUE IN PARA NO. 5 OF THE OR DER AND RELIED UPON CERTAIN JUDICIAL PRONOUNCEMENTS, BUT, ULTIMATE LY, AS IT APPEARS, HE HAS NOT GIVEN ANY FINDING ON THE ISSUE. 9. LD. AR SUBMITTED BEFORE US, ASSESSEE HAS TAKEN A LOAN OF RS. 1 LAKH FROM SMT. KAMALABAI, WHO IS AN INCOME-TAX AS SESSEE. IT WAS SUBMITTED, IN COURSE OF ASSESSMENT PROCEEDING, ASSE SSEE HAD SUBMITTED CONFIRMATION FROM THE SAID CREDITOR, WHIC H NOT ONLY CONTAINED HER ADDRESS BUT ALSO HER INCOME-TAX PARTI CULARS INCLUDING PAN. IT WAS SUBMITTED, AO WITHOUT TAKING NOTE OF TH E CONFIRMATION OR MAKING ANY ENQUIRY HAS MADE ADDITION. 10. LD. DR, ON THE OTHER HAND, RELIED UPON THE ASSE SSMENT ORDER. ITA NOS. 1672 & 1711/HYD/14 PRABHA RANI AGARWAL 4 11. WE HAVE CONSIDERED THE SUBMISSIONS OF THE PARTI ES AND PERUSED THE MATERIALS ON RECORD AS WELL AS THE ORDE RS OF REVENUE AUTHORITIES. AS CAN BE SEEN, AO HAS MADE ADDITION O F RS. 1,12,100 ONLY FOR THE REASON THAT NO CONFIRMATION FROM THE C REDITOR IS AVAILABLE. HOWEVER, ON PERUSAL OF THE CONFIRMATION LETTER OF SMT. KAMALABAI, A COPY OF WHICH IS IN THE PAPER BOOK, IT APPEARS, THE SAID CREDITOR HAS CONFIRMED OF HAVING ADVANCED LOAN OF R S. 1 LAKH TO ASSESSEE. IT IS ALSO THE CLAIM OF ASSESSEE THAT SUC H CONFIRMATION LETTER WAS PRODUCED BEFORE AO. ON PERUSAL OF THE A FORESAID CONFIRMATION LETTER, IT IS VERY MUCH EVIDENT THAT N OT ONLY THE CREDITOR HAS CONFIRMED OF HAVING ADVANCED THE AMOUNT BUT HER ADDRESS AND PAN HAS ALSO BEEN PROVIDED. THAT BEING THE CASE, AO , IN OUR VIEW, WAS NOT JUSTIFIED IN TREATING THE AMOUNT OF RS. 1 L AKH RECEIVED AS LOAN, AS UNEXPLAINED WITHOUT MAKING ANY ENQUIRY. U NFORTUNATELY, LD. CIT(A) HAS ALSO NOT GIVEN ANY FINDING ON THE ISSUE. BE THAT AS IT MAY, SINCE THE CREDITOR HAS NOT ONLY CONFIRMED OF H AVING ADVANCED AN AMOUNT OF RS. 1 LAKH, BUT, IS ALSO AN INCOME-TAX ASSESSEE, IN OUR VIEW, ADDITION MADE OF RS. 1 LAKH CANNOT BE SUSTAIN ED. SIMILARLY, AS FAR AS BALANCE AMOUNT OF RS. 12,100 IS CONCERNED, A SSESSEES EXPLANATION THAT IT IS A DEPOSIT OUT OF EARLIER WIT HDRAWALS, IS ACCEPTABLE. IN VIEW OF THE AFORESAID, WE DELETE THE ADDITION OF RS. 1,12,100. 12. IN GROUND NO. 2, ASSESSEE HAS CHALLENGED THE AD DITION OF AN AMOUNT OF RS. 1,09,65,762 AS UNEXPLAINED CREDIT. 13. BRIEFLY THE FACTS RELATING TO THIS ADDITION ARE , DURING THE ASSESSMENT PROCEEDING, AO ON EXAMINING THE BALANCE SHEET, NOTICED THAT ASSESSEE HAS SHOWN SUNDRY CREDITORS OF RS. 1,12,24,520. HE, THEREFORE, CALLED UPON ASSESSEE TO FURNISH CONFIRMATIONS ALONG WITH POSTAL ADDRESS OF THE CRED ITORS TO VERIFY THE GENUINENESS OF THE TRANSACTION. AS IT APPEARS, AO A LSO ISSUED LETTERS U/S 133(6) TO THE CREDITORS CALLING FOR INF ORMATION. IT WAS NOTED BY AO THAT THOUGH ASSESSEE FURNISHED SOME CON FIRMATIONS ON 29/11/2011, BUT, IN RESPONSE TO THE LETTERS ISSUED BY HIM NONE OF THE ITA NOS. 1672 & 1711/HYD/14 PRABHA RANI AGARWAL 5 CREDITORS SUBMITTED THEIR CONFIRMATIONS EXCEPT ONE CREDITOR, NAMELY, SOMANI GARMENTS, INDORE FOR AN AMOUNT OF RS. 2,58,7 58. AO OBSERVING THAT THE OTHER CREDITORS HAVE NOT CONFIRM ED DIRECTLY IN RESPONSE TO THE NOTICE ISSUED BY HIM, TREATED THE B ALANCE AMOUNT OF RS. 1,09,65,762 AS UNEXPLAINED CREDIT AND ADDED IT TO THE INCOME OF ASSESSEE. BEING AGGRIEVED OF SUCH ADDITION, ASSESS EE PREFERRED APPEAL BEFORE LD. CIT(A). 14. LD. CIT(A), HOWEVER, DEALT WITH THE ISSUE IN TH E FOLLOWING MANNER: 7. THE ADDITION MADE ON ACCOUNT OF BALANCES OF SUND RY CREDITORS HAS NOT BEEN EXPLAINED SATISFACTORY BY TH E APPELLANT. THE AO IS DIRECTED TO EXAMINE THE ADDITION MADE ON ACCOUNT OF BALANCES OF SUNDRY CREDITORS THOROUGHLY AND IF T HEY ARE FOUND TO BE GENUINE DELETE THE ADDITION MADE. HOWEV ER, IF THE EVIDENCES PRODUCED ARE NOT CLEAR THE AO IS DIRECTED TO MAKE ADDITION AS DEEMED FIT. 15. LD. AR SUBMITTED BEFORE US, IN COURSE OF ASSESS MENT PROCEEDING, ASSESSEE HAS SUBMITTED LIST OF SUNDRY C REDITORS WITH THEIR COMPLETE POSTAL ADDRESS. IT WAS SUBMITTED, EV EN ACCOUNT COPIES OF ALL THE SUNDRY CREDITORS WITH CONFIRMATIO N LETTERS WERE SUBMITTED IN ORIGINAL BEFORE AO. IT WAS SUBMITTED, WITHOUT BRINGING ANY ADVERSE MATERIAL ON RECORD TO SHOW THAT THE CRE DITORS ARE NOT GENUINE, AO COULD NOT HAVE MADE THE ADDITION. FURTH ER, IT WAS SUBMITTED BY LD. AR, OUT OF THE TOTAL SUNDRY CREDIT ORS AN AMOUNT OF RS. 46,49,706 RELATING TO SIX TRADE CREDITORS ARE B ROUGHT FORWARD FROM PRECEDING ASSESSMENT YEAR, HENCE, THEY ARE NOT FRESH CREDITS AND, THEREFORE, IF AT ALL THEY ARE CONSIDERED AS NO T GENUINE, THE DISALLOWANCE HAS TO BE MADE IN THE RELEVANT YEAR AN D NOT IN CURRENT AY. 16. LD. DR WHILE SUPPORTING REASONING OF AO SUBMITT ED BEFORE US, AO HAVING MADE THE ADDITION WITH PROPER REASONING, IT HAS TO BE SUSTAINED. ARGUING THE GROUND RAISED BY THE DEPARTM ENT, LD. DR SUBMITTED, LD. CIT(A) HAVING NO POWER TO SET ASIDE COULD NOT HAVE REMITTED THE ISSUE BACK TO THE FILE OF THE AO. ITA NOS. 1672 & 1711/HYD/14 PRABHA RANI AGARWAL 6 17. WE HAVE HEARD THE PARTIES AND PERUSED THE ORDER S OF REVENUE AUTHORITIES AS WELL AS OTHER MATERIAL ON RECORD. AS IS EVIDENT FROM THE ASSESSMENT ORDER, AO HAS MADE THE ADDITION SOLE LY FOR THE REASON THAT THE CONCERNED CREDITORS HAVE NOT REPLIE D TO THE LETTERS ISSUED U/S 133(6) OF THE ACT. HOWEVER, IT IS A FACT ON RECORD THAT DURING THE ASSESSMENT PROCEEDING, ASSESSEE HAS NOT ONLY FURNISHED CONFIRMATION LETTERS WITH FULL POSTAL ADDRESS AND O THER DETAILS FROM ALL THE CREDITORS BUT HAS ALSO FURNISHED THEIR ACCO UNT COPIES. IT IS ALSO TO BE NOTED, ASSESSEES CONTENTION THAT SUNDRY CREDITORS FOR AN AMOUNT OF RS. 46,49,706 WERE BROUGHT FORWARD FROM P RECEDING ASSESSMENT YEAR HAS NOT BEEN CONTROVERTED BY THE DE PARTMENT. IN THESE CIRCUMSTANCES, IN OUR VIEW, THE ADDITION MADE BY AO WITHOUT VALID REASON AND PROPER ENQUIRY CANNOT BE SUSTAINED . AT LEAST, BROUGHT FORWARD SUNDRY CREDITORS CANNOT AT ALL BE C ONSIDERED FOR ADDITION IN THE IMPUGNED AY. AS NEITHER AO NOR LD. CIT(A) HAS EXAMINED THE FACTS AND EVIDENCES PROPERLY, WE ARE I NCLINED TO REMIT THE ISSUE BACK TO THE FILE OF AO, WHO SHALL DECIDE THE SAME AFRESH AFTER CONSIDERING ALL EVIDENCES BROUGHT ON RECORD A ND ONLY AFTER DUE OPPORTUNITY OF BEING HEARD TO ASSESSEE. THIS GROUND IS ALLOWED FOR STATISTICAL PURPOSES. 18. IN GROUND NO.3, ASSESSEE HAS CHALLENGED THE ADD ITION OF RS. 10,48,934. 19. BRIEFLY THE FACTS RELATING TO THIS ADDITION ARE , DURING THE ASSESSMENT PROCEEDING, AO ON VERIFICATION OF ASSESS EES BANK ACCOUNT IN AXIS BANK FOUND TOTAL DEPOSITS OF RS. 10 ,25,840. HE, THEREFORE, CALLED UPON ASSESSEE TO SHOW CAUSE AS TO WHY THE SAID AMOUNT SHALL NOT BE TREATED AS UNEXPLAINED INVESTME NT U/S 69 OF THE ACT. THOUGH, ASSESSEE OBJECTED TO THE PROPOSED ADDI TION BY AO, BUT, THE AO, REJECTING THE EXPLANATION OF ASSESSEE TREATED THE DEPOSITS IN HIS BANK ACCOUNT AS UNEXPLAINED INVESTM ENT AND MADE THE ADDITION. ASSESSEE CHALLENGED THE ADDITION BEFO RE LD. CIT(A). HOWEVER, LD. CIT(A) CONFIRMED THE ADDITION BY OBSER VING AS UNDER: ITA NOS. 1672 & 1711/HYD/14 PRABHA RANI AGARWAL 7 9. THE ADDITION MADE ON ACCOUNT OF CASH DEPOSITS IN SAVINGS BANK ACCOUNT AND TREATED AS UNEXPLAINED INV ESTMENTS WERE DISCUSSED AT THE TIME OF HEARING AND ALSO IN T HE PAPER BOOK FILED ON 28/07/2014 BY THE APPELLANT. AFTER DU E CONSIDERATION THE ADDITION MADE BY THE AO IS UPHELD . 20. LD. AR DRAWING OUR ATTENTION TO THE BANK ACCOUN T COPY OF AXIS BANK SUBMITTED, TOTAL DEPOSITS DURING THE YEAR WAS RS. 10,25,839 WHEREAS THE TOTAL WITHDRAWALS DURING THE YEAR WAS R S. 10,18,522 AND THE OPENING BALANCE WAS NIL WHEREAS CLOSING B ALANCE WAS RS. 7,346 ONLY. IT WAS SUBMITTED, DETAILS OF DATE-WISE WITHDRAWALS IS ALSO THERE TO EXPLAIN THE DEPOSITS. LD. AR SUBMITTE D, DURING THE YEAR ASSESSEE HAD PURCHASES OF RS. 10,25,000 AND EFFECTE D SALES OF RS. 10,48,964. OUT OF THE SALES MADE, A SUM OF RS. 38,6 12 IS A CREDIT SALE. THEREFORE, AS DEPOSITS WERE VIRTUALLY NEUTRAL IZED BY WITHDRAWALS, IT CANNOT BE SAID THAT THEY ARE UNEXPL AINED INVESTMENT OF ASSESSEE. 21. LD. DR, ON THE OTHER HAND, RELIED ON THE ORDER OF LD. CIT(A) AND A.O. 22. WE HAVE CONSIDERED THE SUBMISSIONS OF THE PARTI ES AND PERUSED THE MATERIALS ON RECORD AS WELL AS ORDERS O F REVENUE AUTHORITIES. AS CAN BE SEEN FROM THE ACCOUNT COPIES , WITHDRAWALS MADE BY ASSESSEE ARE ALMOST AT PAR WITH THE DEPOSIT S, THEREFORE, ASSESSEES EXPLANATION THAT THE DEPOSITS WERE MADE OUT OF WITHDRAWALS CANNOT BE REJECTED OUTRIGHT. FURTHER, A SSESSEES CLAIM THAT THE DEPOSITS WERE MADE OUT OF TRADING RECEIPTS /SALES ALSO CANNOT BE REJECTED IN A CASUAL MANNER. WHEN THE DEP ARTMENT DOES NOT DISPUTE ASSESSEES BUSINESS ACTIVITIES, CLAIM O F ASSESSEE THAT THE DEPOSITS WERE OUT OF TRADING RECEIPTS HAS TO BE ACCEPTED. IN OUR VIEW, AO HAS MADE THE ADDITION PURELY ON CONJECTURE S AND SURMISES WITHOUT PROPERLY APPRECIATING THE EVIDENCE ON RECOR D. UNFORTUNATELY, LD. CIT(A) HAS ALSO DECIDED THE ISSUE IN A RATHER M ECHANICAL AND CRYPTIC MANNER WITHOUT PROPERLY CONSIDERING THE SUB MISSIONS OF ASSESSEE. IN THE AFORESAID FACTS AND CIRCUMSTANCES, WE DO NOT SEE ANY REASON TO SUSTAIN THE ADDITION. THIS GROUND IS ALLOWED. ITA NOS. 1672 & 1711/HYD/14 PRABHA RANI AGARWAL 8 23. IN GROUND NO. 4, ASSESSEE HAS CHALLENGED THE AD DITION OF AN AMOUNT OF RS. 4,12,000. 24. BRIEFLY THE FACTS RELATING TO THIS ISSUE ARE, D URING THE ASSESSMENT PROCEEDING, AO ON THE BASIS OF THE MATER IAL ON RECORD FOUND THAT IN THE RELEVANT PY, ASSESSEE ALONG WITH HIS HUSBAND HAS PURCHASED A PROPERTY AT INDORE, M.P. AND AS PER THE SALE DEED, THE CONSIDERATION PAID WAS RS. 40 LAKHS. HOWEVER, FOR S TAMP DUTY PURPOSE, THE PROPERTY WAS VALUED AT RS. 48,24,000. AO, THEREFORE, WAS OF THE VIEW THAT THE DIFFERENCE BETWEEN CONSIDE RATION MENTIONED IN THE SALE DEED AND VALUATION MADE FOR S TAMP DUTY PURPOSE AMOUNTING TO RS. 8,24,000 SHOULD BE TREATED AS UNEXPLAINED INVESTMENT OF ASSESSEE. THOUGH, ASSESSE E EXPLAINED THAT THE PROPERTY WAS JOINTLY PURCHASED FOR A CONSI DERATION OF RS. 40 LAKHS, BUT, THE ACTUAL OWNER OF THE PROPERTY SHRI D ILIP SINGH EXPIRED IN AUGUST, 2008 FOR WHICH PURPOSE THE SALE DEED COU LD NOT BE EXECUTED, THOUGH, SUBSTANTIAL AMOUNTS OUT OF THE SA LE CONSIDERATION HAD ALREADY BEEN PAID TO HIM. IT WAS SUBMITTED, AS HIS LEGAL HEIRS WERE REQUIRED TO BE JOINED AS PARTIES TO THE SALE D EED IT TOOK SOME TIME TO REGISTER THE PROPERTY BY WHICH TIME THE VA LUE OF THE PROPERTY AS PER THE SRO HAS INCREASED. IT WAS SUBMITTED, A SSESSEE AND HER HUSBAND HAS ACTUALLY PAID RS. 40 LAKHS TOWARDS SALE CONSIDERATION, HENCE, NO ADDITION U/S 69 CAN BE MADE ON THE BASIS OF THE VALUATION MADE FOR STAMP DUTY PURPOSE. AO, HOWEVER, DID NOT F IND MERIT IN THE SUBMISSIONS OF ASSESSEE AND ADDED 50% OUT OF THE A MOUNT OF RS. 8,24,000 ( DIFFERENCE BETWEEN CONSIDERATION MENTION ED IN THE SALE DEED AND VALUATION MADE FOR STAMP DUTY PURPOSE) AS UNEXPLAINED INVESTMENT. BEING AGGRIEVED OF SUCH ADDITION, ASSES SEE PREFERRED APPEAL BEFORE LD. CIT(A). LD. CIT(A), HOWEVER DISPO SED OF THE ISSUE WITH THE FOLLOWING DIRECTIONS: 8. THE ADDITION MADE ON ACCOUNT OF UNEXPLAINED INVESTMENT HAS NOT BEEN EXPLAINED SATISFACTORILY BY THE APPELLANT AT THE TIME OF HEARING OR IN THE PAPER BO OK FILED ON 28/07/2014. THE AO IS DIRECTED TO EXAMINE THE ADDIT ION MADE ON ACCOUNT OF UNEXPLAINED INVESTMENT AND IF THEY AR E FOUND TO BE GENUINE DELETE THE ADDITION MADE. HOWEVER, IF TH E ITA NOS. 1672 & 1711/HYD/14 PRABHA RANI AGARWAL 9 CONFIRMATIONS, DOCUMENTS ETC., PRODUCED ARE NOT CLE AR THE AO IS DIRECTED TO MAKE ADDITION AS DEEMED NECESSARY. 25. LD. AR SUBMITTED BEFORE US, THE DIFFERENCE BETW EEN THE ACTUAL SALE CONSIDERATION AND THE VALUATION MADE FOR STAMP DUTY PURPOSE CANNOT BE TREATED AS UNEXPLAINED INVESTMENT U/S 69B . LD. AR SUBMITTED, THERE ARE MANY DISADVANTAGES IN THE PROP ERTY FOR WHICH CONSIDERATION PAID BY ASSESSEE WAS REASONABLE. THER E BEING NO EVIDENCE TO SHOW THAT ASSESSEE HAS PAID ANYTHING EX TRA OVER THE SALE CONSIDERATION MENTIONED IN THE SALE DEED, ADDI TION IS NOT JUSTIFIED. LD. AR SUBMITTED, AO COULD NOT HAVE MADE ADDITION ON THE BASIS OF SRO VALUE WHEN THERE IS NO EVIDENCE TO SHO W THAT ASSESSEE HAS PAID ANYTHING OVER AND ABOVE THE SALE CONSIDERATION MENTIONED IN THE SALE DEED. 26. LD. DR, ON THE OTHER HAND, WHILE SUPPORTING THE ADDITION MADE BY AO OBJECTED TO THE DIRECTIONS OF LD. CIT(A) TO AO TO EXAMINE THE MATTER AFRESH. LD. DR SUBMITTED THAT AS LD. CIT(A) HAS NO POWER TO SET ASIDE, HIS DIRECTIONS ARE LEGALLY UNSUSTAINABLE . 27. WE HAVE CONSIDERED THE SUBMISSIONS OF THE PARTI ES AND PERUSED THE MATERIAL ON RECORD. AS CAN BE SEEN, THE BASIS FOR ADDITION MADE BY AO IS THE VALUATION MADE BY SRO FO R STAMP DUTY PURPOSES. HOWEVER, AO HAS NOT MADE ANY ENQUIRY WIT H THE SELLER TO ASCERTAIN THE ACTUAL SALE CONSIDERATION PAID. AS IT APPEARS, AO KEEPING IN VIEW THE PROVISIONS OF SECTION 50C HAS T REATED THE SRO VALUE FOR STAMP DUTY PURPOSE AS DEEMED SALE CONSIDE RATION PAID BY ASSESSEE. HOWEVER, SUCH DEEMED SALE CONSIDERATION A S PER SRO AS PROVIDED U/S 50C WOULD ONLY BE APPLICABLE IN CAS E OF SELLER AND NOT THE PURCHASER OF THE PROPERTY. FOR MAKING ADDIT ION U/S 69B, AO HAS TO BRING ON RECORD POSITIVE EVIDENCE TO SHOW TH AT ASSESSEE HAS ACTUALLY PAID MORE THAN WHAT IS MENTIONED TOWARDS S ALE CONSIDERATION IN THE REGISTERED SALE DEED. AO HAS A LSO NOT MADE ANY INDEPENDENT ENQUIRY TO COME TO A CONCLUSION THA T VALUATION MADE FOR STAMP DUTY PURPOSE IS THE ACTUAL FAIR MARK ET VALUE. AT LEAST, NO COMPARABLE CASE HAS BEEN REFERRED TO BY A O TO PROVE THIS ITA NOS. 1672 & 1711/HYD/14 PRABHA RANI AGARWAL 10 FACT. IN THE AFORESAID FACTS AND CIRCUMSTANCES, AS THE ADDITION HAS BEEN MADE WITHOUT MAKING ANY ENQUIRY AND BRINGING A NY MATERIAL ON RECORD TO SHOW THAT ASSESSEE HAS PAID SALE CONSIDER ATION AS PER THE STAMP DUTY VALUATION, WE DELETE THE ADDITION MADE. ACCORDINGLY, THE GROUND IS ALLOWED. 28. IN VIEW OF OUR FINDING WHILE DECIDING ASSESSEE S GROUNDS 2 & 4, THE GROUNDS RAISED IN THE DEPARTMENTAL APPEAL H AVE BECOME INFRUCTUOUS, HENCE, DISMISSED. 29. IN THE RESULT, ASSESSEES APPEAL IN ITA NO. 171 1/HYD/14 IS PARTLY ALLOWED AND DEPARTMENTAL APPEAL IN ITA NO. 1 672/HYD/14 IS DISMISSED. PRONOUNCED IN THE OPEN COURT ON 8 TH APRIL, 2105. SD/- SD/- (B. RAMAKOTAIAH) (SAKTIJIT DEY) ACCOUNTANT MEMBER JUDICIAL MEMBER HYDERABAD, DATED 8 TH APRIL, 2015 COPY TO 1 THE INCOME-TAX OFFICER, WARD 8(2), 8 TH FLOOR, D-BLOCK, IT TOWERS, AC GUARDS, HYDERABAD 2 SMT. PRABHA RANI AGARWAL, H.NO. 21-3-699, GOLLAGA LLI, HYDERABAD 3 THE CITG(A)-III, HYDERABAD 4 THE CIT-II, HYDERABAD 5 DR, ITAT, HYDERABAD ITA NOS. 1672 & 1711/HYD/14 PRABHA RANI AGARWAL 11 SL. NO. DESCRIPTION DATE INITIALS 1. DATE OF DICTATION BY THE AUTHOR SR.PS 2. DRAFT PLACED BEFORE THE DICTATING MEMBER SR.PS 3. DRAFT PLACED BEFORE THE SECOND MEMBER SR. PS 4. DRAFT APPROVED BY THE SECOND MEMBER SR. PS 5. DATE OF APPROVED ORDER COMES TO THE SR. PS SR. PS 6. DATE OF PRONOUNCEMENT OF ORDER SR. PS 7. DATE OF FILE SENT TO THE BENCH CLERK SR. PS 8. DATE ON WHICH FILE GOES TO THE HEAD CLERK HD. C LK 9. DATE OF DISPATCH OF ORDER SR. PS