Smt. Neeta Devi Dembla, UDAIPUR V. DCIT, UDAIPUR

ITA 179/JODH/2011

• Counselvise Citation: [2013] 120 COUNSELVISE.COM (IT) 1618 (ITAT-JODHPUR)
• Duration Of Justice: 1 year(s) 8 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-01-2013
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: DB
• Next Hearing Date: 10-01-2013
• Assessment Year: 2008-2009
• Appeal Filed On: 06-05-2011
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: SUBHASH CHANDRA
• Section: 133A; 153A; 132

Judgement Text

1 IN THE INCOME TAX APPELALTE TRIBUNAL : JODHPUR BENC H : JODHPUR BEFORE SHRI HARI OM MARATHA, JUDICIAL MEMBER AND SHRI N.K. SAINI, ACCOUNTANT MEMBER. ITA NO. 190/JODH/2011 (A.Y. 2008-09) THE DY. C.I.T VS. SMT. NEETA DEVI DEMBLA CENTRAL CIRCLE-2, 3A/13, SARDARPURA 6, MUMAL TOWER, UDAIPUR. OPPOSITE M.G. COLLEGE, UDAIPUR UDAIPUR (RAJASTHAN) PAN NO. AAZPD7823K ITA NO. 179/JODH/2011 (A.Y. 2007-08) SMT. NEETA DEVI DEMBLA VS. THE DY. C.I.T. 3A/13, SARDARPURA CENTRAL CIRCLE-2, OPPOSITE M.G. COLLEGE, 16, MUMAL TOWER, UDAIPUR. UDAIPUR (RAJASTHAN) PAN NO. AAZPD7823K ASSESSEE BY : SHRI AMIT KOTHARI. SHRI J.S. NAINAWATEE DEPARTMENT BY : SHRI SUBHASH CHANDRA- CIT(DR) DATE OF HEARING : 10/01/2013. DATE OF PRONOUNCEMENT: 31/01/2013. 2 ORDER PER BENCH :- THESE CROSS-APPEALS, PERTAINING TO A.Y. 2008-09 HA VE BEEN FILED AGAINST THE ORDER OF LD. CIT(A) DATED 24.02.2011. B OTH THE APPEALS ARE BEING DECIDED BY A COMMON ORDER FOR THE SAKE OF CON VENIENCE AND BREVITY. 2. FOLLOWING GROUNDS HAVE BEEN RAISED BY THE ASSESS EE : 1. THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS) CENTRAL ERRED IN LAW AS WELL AS ON THE FACTS AND CI RCUMSTANCES OF THE CASE IN NOT HOLDING THAT THE IMPUGNED ORDER OF ASSESSMENT HAS BEEN COMPLETED CONTRARY TO THE TERMS OF PANCHNA MA PREPARED DURING THE COURSE OF SEARCH. 2. THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS) CENTRAL ERRED IN LAW AS WELL AS ON THE FACTS AND CI RCUMSTANCES OF THE CASE IN UPHOLDING THE ADDITION OF UNDISCLOSED I NVESTMENT TO THE EXTENT OF RS. 14,04,334/-OUT OF TOTAL ADDITION OF RS. 26,00,000/- MADE BY THE ASSESSING OFFICER ON ACCOUN T OF PURCHASE OF SHARE IN AGRICULTURE LAND BY THE APPELLANT. 3. THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS) CENTRAL JAIPUR ERRED IN LAW AS WELL AS ON THE FACTS AND CIRCUMSTANCES OF THE CASE IN NOT ADJUDICATING AND / OR GIVING ANY 3 FINDING ON THE FOLLOWING ADDITIONAL GROUNDS OF APPE AL DATED 22- 02-2010 FILED BY THE APPELLANT: I. THE ASSESSING OFFICER HAS ERRED IN LAW AS WELL AS ON THE FACTS AND CIRCUMSTANCES OF THE CASE IN REVIEWING TH E POINTS AND/OR ISSUES IN THE ASSESSMENT MADE UNDER SECTION 153A OF THE ACT WHICH HAVE ATTAINED FINALIT Y IN ORIGINAL ASSESSMENT MADE UNDER SECTION 143(3)/143(1 ) OF THE ACT AND ARE BEYOND THE SCOPE OF ASSESSMENT UNDE R SECTION 153A OF THE ACT. II. THE ASSESSING OFFICER ERRED IN LAW AS WELL AS ON THE FACTS AND CIRCUMSTANCES OF THE CASE IN NOT DETERMINING TH E UNDISCLOSED INCOME OF THE APPELLANT ON THE BASIS OF ASSETS/ EXPENDITURE WHEN ALL THE UNDISCLOSED ASSETS AND EXPENDITURE HAVE BEEN IDENTIFIED BY CONDUCTING SEARCHES AND SURVEYS SIMULTANEOUSLY AT ALL THE CONNECTED PLACES OF THE APPELLANT. 3. FOLLOWING GROUNDS HAVE BEEN RAISED BY THE DEPART MENT : 1. WHETHER ON THE FACTS AND CIRCUMSTANCES OF THE CASE THE CIT(A) JAIPUR HAS ERRED IN LAW AND ON FACTS IN DELE TING THE ADDITION OF RS.11,95.666- OUT OF TOTAL ADDITION OF RS.26,00,000/- MADE BY THE AO ON ACCOUNT OF UNDISCLOSED PAYMENT IN PURCHASE OF PROPERTY. 4 2. WHETHER ON THE FACTS AND CIRCUMSTANCES OF THE CA SE THE CIT(A) (CENTRAL), JAIPUR HAS ERRED IN LAW AND ON FA CTS IN DELETING THE ADDITION OF RS. 11,95,6667- OUT OF TOT AL ADDITION OF RS.26,00,000/- MADE BY THE AO ON ACCOUNT OF UNDI SCLOSED PAYMENT IN PURCHASE OF PROPERTY DESPITE THE FACT TH AT THE ADDITION WAS MADE ON THE BASIS OF STATEMENT OF SHRI VIMAL KUMAR JAIN HUSBAND OF CO-OWNER OF THE PROPERTY WHEREIN HE HAD ADMITTED THAT 35% PAYMENT WAS MADE THROUGH CHEQUE AND REMAIN ING 65% PAYMENT WAS MADE IN CASH AS ON-MONEY AND ACCORDINGL Y THE ADDITION WAS MADE IN THE ASSESSEE'S CASE. 3. WHETHER ON THE FACTS AND CIRCUMSTANCES OF THE CA SE THE CIT(A) (CENTRAL), JAIPUR HAS ERRED IN LAW AND ON FA CTS IN DELETING THE ADDITION OF RS. 11,95,6667- OUT OF TOT AL ADDITION OF RS.26,00,0007- MADE BY THE AO ON ACCOUNT OF UNDI SCLOSED PAYMENT IN PURCHASE OF PROPERTY DESPITE THE FACT TH AT THE CIT(A) HIMSELF HAD OBSERVED THAT THE STATEMENT MADE BY SHR I VIMAL KUMAR JAIN HUSBAND OF CO-OWNER OF THE PROPERTY WHER EIN HE HAD ADMITTED THAT PART PAYMENT WAS MADE IN CASH AS ON-M ONEY WAS ACCEPTABLE AS EVIDENCE AND THAT CAN NOT BE BRUSHED ASIDE. 4. WE HAVE HEARD THE RIVAL SUBMISSIONS IN THE LIGHT OF THE EVIDENCE ON RECORD. GROUND NO. 3 OF ASSESSEES APPEAL WAS NO T PRESSED BY LD. AR, SHRI KOTHARI, AND THEREFORE, IT STANDS DISMISSE D AS NOT PRESSED. 5 5. GROUND NO. (1) IS GENERAL IN NATURE AND NEEDS NO SPECIFIC ADJUDICATION. GROUND NO. (2) OF THE ASSESSEES APPE AL IS CONNECTED WITH ALL THE THREE GROUNDS [I.E., 1, 2 & 3] OF THE DEPARTMENT CONTAINING ISSUE REGARDING UNDISCLOSED INVESTMENT IN AGRICULTU RAL LAND. THE FACTS APROPOS THIS ISSUE ARE THAT DURING THE COURSE OF SU RVEY U/S 133A CONDUCTED IN THIS GROUP ON 20.09.2007, ALONGWITH SE ARCH OPERATION CARRIED U/S 132 OF THE ACT, ESPECIALLY AT THE BUSIN ESS PREMISES OF M/S. DELHIWALA REAL ESTATE PVT. LTD. CERTAIN LOOSE PAPER S RELATING TO TRANSACTION OF PURCHASE/SALE OF LAND SITUATED AT SO BHAGPURA AND BHAGWANA VILLAGES, WERE FOUND AND IMPOUNDED AS PER ANNEXURES A-27 AND A-31. THESE ANNEXURES INCLUDE THE FOLLOWING LAN D DEALS :- (1) PAGE NO. 4 TO 24 OF ANNEXURE A-27 : THIS IS A REGISTERED SALE DEED EXECUTED ON 16.04.2007 BETWEEN SH. LALURAM, NA RAYAN, LAKHA DANDI (AS SELLER) AND SMT. NEETA DEMBLA, SUMA N JAIN, MONA WADHWANI 9AS BUYER) AMOUNTING TO RS. 27,00,000 /-. (2) PAGE NO. 22 TO 33 OF ANNEXURE A-31 : THESE PAGES ARE RELATED TO SALE DEED EXECUTED ON 01.09.2007 BETWEEN SH. DUN GA DANGI, SMT. KANKU DANGI, ROOPAL DANGI AND SMT. NEET A DANGI, SMT. SUMAN JAIN AND SMT. MONA WADHWANI FOR RS. 19,0 0,000/- (3) PAGE NO. 6 TO 13 : THIS IS A SALE DEED EXECUTED ON 28.05.07 BETWEEN SH. GAGA, SH. BHAGA, SMT. NARAYANI AND SMT. NEETA DEMBLA, SMT. SUMAN JAIN, SMT. MONA WDHWANI AMOUNTIN G TO 6 RS. 15,00,000/- REGARDING TOTAL LAND OF 0.1700 HEC. SITUATED AT VILLAGE SHOBHAGPURA IN ARAZEE NO. 874. (4) PAGE NO. 14 TO 21 : THIS IS REGISTERED SALE DEED EXECUTED ON 01.06.2007 BETWEEN SH. KHEMRAJ, SH. BHERULAL, SH. S HANKAR LAL AND SH. ANIL WADHWANI, SMT. SUMAN JAIN, SMT. NE ETA DEMBLA FOR RS. 15,57,000/- REGARDING LAND SITUATED AT VILLAGE SHOBHAGPURA MEASURING 0.1300 HEC. IN ARAZEE NO. 877 . 6. A STATEMENT OF SHRI VIMAL KUMAR JAIN, THE HUSBAN D OF SMT. SUMAN JAIN, A CO-OWNER OF THE PROPERTY PURCHASED BY THE ASSESSEE, WAS RECORDED DURING THE COURSE OF SURVEY U/S 133A O F THE ACT. IN REPLY TO QUESTION NO. 3 OF HIS STATEMENT RECORDED ON 21.0 9.2007, HE ADMITTED THAT 35% OF THE TOTAL CONSIDERATION WAS PA ID BY CHEQUE AND THE REMAINING 65% WAS GIVEN IN CASH OUT OF THE BOOK S OF ACCOUNT. THUS, HE HAS ADMITTED RS. 78 LAKHS AS UNACCOUNTED INVESTM ENT (65% OF RS. 1.20 CRORES). LIKEWISE, STATEMENT OF SHRI ANIL WADH WANI; THE DIRECTOR OF M/S. DELHIWALA REAL ESTATE PVT. LTD., WAS ALSO R ECORDED ON 01.10.2007, WHEREIN HE ADMITTED VARIOUS DETAILS CON TAINED IN THE ABOVE ANNEXURES. THE SHARE OF THE ASSESSEE BEING 1/ 3 IN IN THIS PROPERTY, SHE WAS ASKED TO EXPLAIN THE SOURCE OF HE R INVESTMENT AT RS. 40 LAKHS (120 LAKHS/3), AND AS TO WHY NOT THE CASH PAYMENT OF RS. 26 7 LAKHS (78 LAKHS/3) SHOULD BE TREATED AS HER UNDISCL OSED INCOME. THE REPLY OF THE ASSESSEE DATED 16.11.2009 IS AS UNDER: - THE ASSESSEE HAS MADE THE PAYMENTS OF HER SHARE OF PURCHASE CONSIDERATION OUT OF AMOUNT WITHDRAWN FROM CANARA B ANK. THE COPY OF BANK ACCOUNT HAS ALREADY BEEN PLACED ON REC ORD. THE SURRENDER OF ALLEGED ON MONEY PAYMENT MADE BY SHRI VIMAL KUMAR JAIN ON BEHALF OF THE ASSESSEE, SMT. MO NA WADHWANI AND SMT. SUMAN JAIN IS TOTALLY ABSURD AND INCORRECT, WITHOUT ANY EVIDENCE AND CONTRARY TO THE FACTS ON R ECORDS. SHRI VIMAL KUMAR JAIN HAS SURRENDERED ALLEGED ON M ONEY PAYMENT OF RS. 78,00,000/- AS UNDISCLOSED INCOME HA VING NO AUTHORITY OF LAW FROM THE PURCHASERS DURING THE COU RSE OF SURVEY. THE A.O. WAS NOT SATISFIED WITH THE ABOVE REPLY AND THEREFORE, HE HAS ADDED RS. 26,00,000/- AS HER UNDISCLOSED INVESTMENT IN THE SAID PROPERTY ON THE BASIS OF THE STATEMENT OF SHRI VIMA L KUMR JAIN. AS AGAINST THE ABOVE LD. CIT(A) HAS REDUCED THIS ADDIT ION TO RS. 14,04,334/- BY RECALCULATING HER 1/3 RD OF SHARE OF THE TOTAL CONSIDERATION OF PURCHASE AMOUNT OF RS. 118.70 LAKH S, AND KEEPING IN VIEW THE FACT THAT SHE HAS ALREADY DISCLOSED PAYMEN T OF RS. 25,52,333/- IN HER BOOKS OF ACCOUNTS OUT OF TOTAL S HARE AT RS. 39,56,667/-. BOTH THE PARTIES ARE NOW AGGRIEVED. 8 7. THE MAIN PLANK OF THE SUBMISSION OF LD. A.R. IS THAT A STATEMENT RECORDED DURING PROCEEDINGS CONDUCTED U/S 133A OF T HE ACT HAS GOT NO EVIDENTIARY VALUE. IN THIS REGARD RELIANCE HAS BEEN PLACED ON THE RECENT DECISION OF HONBLE APEX COURT RENDERED IN T HE CASE OF CIT VS. S. KHADER KHAN SON REPORTED IN (2012) 254 CTR 229 ( SC), VIDE WHICH THEIR LORDSHIPS HAVE APPROVED THE VIEW TAKEN BY HON BLE MADRAS HIGH COURT IN THIS VERY CASE, REPORTED AS 214 CTR (MAD) 589. 8. PER CONTRA, LD. CIT(DR) HAS RELIED ON THE ORDER OF LD. A.O. AND THE STATEMENT OF SHRI JAIN SO RECORDED. AFTER CONSIDERI NG RIVAL STANDS WE HAVE FOUND THAT EXCEPT FOR THE STATEMENT OF SHRI JA IN WHO IS THE HUSBAND OF HER CO-OWNER RECORDED DURING PROCEEDINGS CONDUCTED U/S 133A, THERE IS NO OTHER EVIDENCE AVAILABLE TO SUPPO RT THE IMPUGNED ADDITION. AS PER HONBLE APEX COURT, SECTION 133A O F THE ACT DOES NOT EMPOWER ANY IT AUTHORITY TO EXAMINE ANY PERSON ON O ATH AND, THEREFORE, ANY ADMISSION MADE IN A STATEMENT RECORD ED DURING SURVEY CANNOT, BY ITSELF, BE MADE THE BASIS FOR ADDITION. UNDENIABLY THE ENTIRE ADDITION OF RS. 39,56,667/-, ON ACCOUNT OF UNDISCLO SED INVESTMENT, IS BASED ONLY ON THE ADMISSION OF SHRI JAIN, AS DISCUS SED ABOVE, RECORDED DURING PROCEEDINGS CONDUCTED U/S 133A. IN VIEW OF T HE ABOVE DECISION THIS ADMISSION IS NOT ANY VALID PIECE OF EVIDENCE A ND THUS CANNOT BE ACTED UPON FOR MAKING ADDITION. MOREOVER, THIS IS A N ADMISSION OF A 9 THIRD PARTY AND MORE SO IT IS OTHERWISE IRRELEVANT FOR THE PURPOSE. ACCORDINGLY, WE ORDER TO DELETE THE ENTIRE ADDITION FROM HER HANDS, AND, THEREFORE, ALLOW GROUND NO. 2 OF ASSESSEES AP PEAL AND DISMISS THE MERITORIOUS GROUNDS OF REVENUES APPEAL. GROUND NO. (4) OF ASSESSEES APPEAL IS GENERAL IN NATURE. 9. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS PAR TLY ALLOWED AND THAT OF THE REVENUE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 31 ST JANUARY, 2013. SD/- SD/- [N.K. SAINI] [HARI OM MARATHA] ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 31 ST JANUARY, 2013 VL/- COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT 4. THE CIT(A) BY ORDER 5. THE DR ASSISTANT REGISTRAR ITAT, JODHPUR