Mahavir Singh, V. ITO Ward 1 (4),

ITA 197/DEL/2007

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 82188 (ITAT-DELHI)
• Duration Of Justice: 7 year(s) 11 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-12-2014
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: D
• Next Hearing Date: 29-10-2014
• Assessment Year: 2003-2004
• Appeal Filed On: 11-01-2007
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: GAURAV DUDEJA
• Keywords: Competent authority; Revised return

Judgement Text

ITA NO. 197/DEL/2007 1 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH D , NEW DELHI BEFORE SHRI G.D. AGRAWAL, VICE PRESIDENT AND SHRI S.K. YADAV, J UDICIAL MEMBER I.T.A. N O. 197/DEL/2007 A.Y. : 2003 - 04 SH. MAHAVIR SINGH, S/O SH. ATTAR SINGH, VILLAGE: RAJPURA, TE H . DISTT. MEERUT (PAN: AXHPS - 2723 - C) VS. INCOME TAX OFFICER, WARD - 1(4), MEERUT INCOME TAX OFFICE, BHAINSALI GROUND, MEERUT (APPELLANT) (RESPONDENT) ASSESSEE BY : SH. SANJAY MALIK, ADV. DEPARTMENT BY : SH. GAURAV DUDEJA, SR. D.R. DATE OF HEARING : 22 - 12 - 2014 DATE OF ORDER : 26 - 12 - 2014 ORDER PER S.K. YADAV : J M TH IS APPEAL PREFERRED BY THE ASSESSEE AGAINST THE O RDER OF THE LD. CIT(A), MEERUT INTER - ALIA ON THE FOLLOWING GROUNDS WHICH ARE AS UNDER: - 1. THAT THE LD. CIT(A), MEERUT ORDER DATED 18.9.2006 IS UNWARRANTED, UNJUST AND NON - JUDICIOUS AND BASED ON SURMISES AND CONJECTURES. 2. THAT THE LD. CIT(A), MEERUT DID THE SAME MISTAKE AS AO DID BY OVERLOOKING, THE FACTS OF THE CASE. THAT THE APPELLANT IS A AGED FARMER AND HE DID NOT HAVE ANY OTHER SOURCE OF INCOME. ITA NO. 197/DEL/2007 2 3. THAT THE LD. CIT(A) MEERUT DID NOT CONSIDER THE PROVISION OF SECTION 50 - C OF THE I.T. ACT, 1961. 4. THAT THE LD. CIT(A), MEERUT DID NOT REALIZE THAT THE APPELLANT (MAHAVIR SINGH) SHARE IN TOT AL SALE CONSIDERATION WAS ONLY HALF OF IT THE REST HALF SHARE BELONG TO HIS BROTHER. 5. THAT THE LD. CIT(A), MEERUT DID NOT WANT THROUGH THE STATEMENT OF MRS. VIJAY KUMARI (VENDEE) RECORDED BY THE ITO. MR. V.K. NIGAM, CAREFULLY, WHERE SHE HAS FAILED TO R EPLY THE QUESTION THAT NOW SHE MANAGE TO BUY THE PROPERTY WORTH OF RS. 15,63,000/ - FOR MERE RS. 90,000/ - ONLY. SHE FURTHER FAILED TO ANSWER THE QUESTION NO. 12 THAT BESIDES CHEQUE/ DRAFT OF RS. 90,000/ - SHE ALSO PAID CASH OF RS. 14,93,000/ - TO MAHAVIR SIN GH BEFORE TWO WITNESSES SH. PAL SINGH AND SH. ANIL SINGH, AGAINST THE SALE CONSIDERATION OF AGRICULTURAL LAND. 6. THAT NEITHER THE LD. CIT(A) NOR AO DID NOT MAKE ON THE SPOT ENQUIRIES THROUGH THE INSPECTOR OR ANY COMPETENT AUTHORITY REGARDING THE ACTUAL FACTS IN CIRCUMSTANCES. 7. THAT KINDLY DELETE THE ADDITION OF RS. 14,93,000/ - AS UNEXPLAINED DEPOSIT AND ADDITION OF RS. 51,052/ - AS LONG TERM CAPITAL GAIN. 8. THAT THE PAPER BOOK WOULD BE SUBMITTED ONE WEEK PRIOR TO HEARING. 2. THOUGH VARIOUS GROUNDS ARE RAISED IN THIS APPEAL, BUT THEY A LL RELATE TO THE ADDITIONS MADE ON ACCOUNT OF CASH DEPOSITED IN THE BANK. ITA NO. 197/DEL/2007 3 3. THE FACTS IN BRIEF BORNE OUT ON RECORD ARE THAT DURING THE ENQUIRY BY THE ADIT(INV.) , IT WAS FOUND THAT ASSESSEE MADE DEPOSITS OF RS. 14,93,000/ - IN CASH ON 20.7.2002 IN SAVINGS BANK A/C NO. 4167 WITH PUNJAB NATIONAL BANK, MAWAN ROAD, MEERUT. THE ASSESSEE WAS ASKED TO EXPLAIN THE SOURCE OF DEPOSITS AND IN RESPONSE THERETO IT WAS EXPLAINED THAT DEPOSITS IN THE BANK WAS OUT OF THE SALE CONSIDERATION OF LAND SOLD TO SMT. VIJAY KUMARI. AS PER THE SALE DEED LAND WAS SOLD FOR RS. 1,80,000/ - (HALF SHARE OF THE ASSESSEE WAS RS. 90,000/ - ) SINCE THE DEPOSIT IN THE BANK ACCOUNT WAS NOT APPARENTLY EX PLAINED , T HE NOTICE U/S. 142(2) WAS ISSUED TO THE ASSESSEE . DURING THE COURSE OF ASSESSMENT PROCEEDINGS, IT WAS NOTICED BY THE AO THAT THE ASSESSEE CLAIMED HIMSELF TO BE AGRICULTURIST AND THE SOURCE OF DEPOSIT IN THE BANK ACCOUNT OF RS. 13,93,000/ - WAS HI S AGRICULTURAL INCOME. BY VARIOUS NOTICES AND THE ORDER SHEETS NOTINGS THE ASSESSEE WAS ASKED TO EXPLAIN AND SUBSTANTIATE THE SOURCE OF CASH DEPOSITS IN THE BANK ACCOUNT AND IN RESPONSE THERE TO , THE ASSESSEE LATER ON TOOK A STAND THAT THE SALE CONSIDER ATION OF LAND SOLD FOR RS. 1,80,000 , A S PER THE SALE DEED , WAS RS. 15,83,000/ - OUT OF WHICH ONLY RS. 1,80,000/ - WAS RECEIVED THROUGH DEMAND DRAFT AND BALANCE OF RS. 14,93,000/ - WAS RECEIVED IN CASH. IT WAS FURTHER SUBMITTED THAT OUT OF THE AFORESAID SALE CONSIDERATION ASSESSEE ALSO PURCHASED THE ANOTHER AGRICULTURAL LAND FOR RS. 13,32,000/ - , A LTHOUGH THE SALE CONSIDERATION IN THIS D EED WAS SHOWN AS LOWER PRICE OF RS. 6,60,000/ - . THE ASSESSEE SUBSEQUENTLY ASKED TO EXPLAIN AND SUBSTANTIATE THE CLAIM OF S ALE OF AGRICULTURAL LAND WHICH WAS SOLD FOR RS. 1,80,000/ - , WAS ACTUALLY SOLD FOR RS. 15,83,000/ - BY OBTAINING THE CONFIRMATION FROM THE PURCHASER OF THE AFORESAID LAND SMT. VIJAY KUMARI, ADVOCATE, W/O SH. BRAHAM PAL SINGH. SIMILARL Y , ASSESSEE WAS ASKED T O SUBSTANTIATE THE PURCHASE CONSIDERATION FOR OTHER AGRICULTURAL LAND BY OBTAINING THE CONFIRMATION FROM THE SELLER SH. AMAR SINGH, THAT HE ACTUALLY SOLD ITA NO. 197/DEL/2007 4 THE LAND AT RS. 13,32,800/ - . ASSESSEE WAS ALSO ASKED TO EXPLAIN AS TO WHY THE ENTIRE AMOUNT OF RS. 14,93,000/ - RECEIVED IN CASH WAS DEPOSITED IN THE BANK OF THE ASSESSEE ONLY WHEREAS 50% OF THE SHARE BELONGED TO HIS BROTHER SH. SUKHBIR SINGH. ASSESSEE FAILED TO PRODUCE THE SAID CONFIRMATION AND SUBSTANTIATE THE SAID TWO TRANSACTION AS ABOVE CLAIMED. LATER ON , SHE HAS CONCEDED THAT SHE COULD NOT GET THE CONFIRMATION LETTER REGARDING THE SALE AND PURCHASE OF THE LANDS AS DISCUSSED AND FURTHER REQUESTED THAT TH E SE PERSONS BE SUMMONED AND EXAMINED WITH REGARD TO THE ACTUAL SALE TRANSACTIONS. ACCORDING LY, SMT. VIJAY KUMARI, THE PURCHASER WAS EXAMINED AND SHE CONFIRMED THAT NO CASH WHATSOEVER WAS PAID FOR THE ABOVE LAND OVER AND ABOVE THE SALE CONSIDERATION OF RS. 1,80,000/ - AS RECITED IN THE SALE DEED. THE SOURCE OF PAYMENT OF SALE CONSIDERATION WAS E XPLAINED AS WITHDRAWAL FROM THE SAVINGS BANK ACCOUNT WITH PNB, MEERUT. THESE FINDINGS WERE CONFRONTED TO THE ASSESSEE BUT THE ASSESSEE FAILED TO EXPLAIN THE SOURCE OF DEPOSITS OF RS. 14,93,000/ - IN THE SAVINGS BANK ACCOUNT. THE AO ACCORDINGLY MADE A N ADDITION OF RS. 14,93,000/ - ON ACCOUNT OF UNEXPLAINED DEPOSITS IN THE BANK. 4. AGGRIEVED WITH THE ORDER OF THE ASSESSING OFFICER, ASSESSEE PREFERRED AN APPEAL BEFORE THE LD. CIT(A) AND FILED AN AFFIDAVIT IN SUPPORT OF HIS CONTENTIONS. THE LD. CIT(A) REEXAMINED THE ISSUES, BUT WAS NOT CONVINCED WITH THE EXPLANATION OF THE ASSESSEE AND HE ACCORDINGLY CONFIRMED THE ADDITIONS. 5. NOW THE ASSESEE IS BEFORE THE TRIBUNAL AND REITERATED HIS CONTENTIONS. 6. IT WAS CONTENDED ON BEHALF OF THE ASSESE THAT IT IS A GENERAL PRACTICE THAT MARKET RATE OF THE LAND ARE MORE THAN THE DECLARED VALUE OF THE LAND IN THE SALE DEED. IN SUPPORT OF H IS CONTENTIONS HE ITA NO. 197/DEL/2007 5 ALSO FILED A FRESH AFFIDAVIT REITERATING ITS CONTENTIONS . B ESIDES , COPY OF THE STATEMENT OF SMT. VIJAY KUMARI RECORDED BY THE AO IS ALSO FILED. ASSESSEE IS TRYING TO POINT OUT THE DISCREPANCY IN THE STATEMENT WITH REGARD TO THE PAYMENT OF SALE CONSIDERATION. THE ASSESSEE IS ALSO PLACED RELIANCE UPON THE FOLLOWING JUDGMENTS: - - M.S. SRINIVASA NICKER & ORS. VS. ITO [2007] 292 ITR 481 (MAD.) - CIT VS. H.H. MAHARAJA SAHIB SHRI LOKENDRA SINGH [1986] 162 ITR 93 (MP) - CIT VS. MANOHAR SIN GHJI P JADEJA[2006] 281 ITR 19 (GUJ.) - CIT VS. AMRIK SINGH [2008] 299 ITR 14 (P&H) - HUF OF H.H. LATE SIR J.M. SCINDIA VS. ACIT [2008] 305 ITR (AT) 231 (MUMBAI) - CIT VS. INTEZAR ALI (I.T.A. NO. 162 OF 2013) OF ALLAHABAD HIGH COURT. 7. THE LD. CIT(DR) ON THE OTHER HAND , HAS CONTENDED THAT AO HAS AFFORDED SUFFICIENT OPPORTUNITY TO EXPLAIN THE SOURCE OF DEPOSITS. BUT THE ASSESSEE COULD NOT PLACE RELEVANT EVIDENCE EITHER IN THE FORM OF CONFIRMATION OR OTHERWISE TO EXPLAIN THE SOURCE OF DEPOSITS. THE LD . DR FURTHER INVITED TO OUR ATTENTION THAT ASSESSEE HAS ORIGINALLY FILED THE RETURN OF INCOME IN WHICH HE HAS DECLARED LONG TERM CAPITAL GAIN S ON THE BASIS OF THE SALE CONSIDERATION OF RS. 1,80,000/ - AND ASSESSE S SHARE WAS RS. 90,000/ - . WHEN THE ASSESS EE WAS CORNERED WITH REGARD TO THE CASH DEPOSITS IN THE BANK ACCOUNT, INITIALLY IT WAS CONTENDED ON BEHALF OF THE ASSESSEE THAT SOURCE OF DEPOSITS WAS FROM AGRICULTURAL INCOME. BUT LATER ON HE FILED THE REVISED RETURN ITA NO. 197/DEL/2007 6 CLAIMING THEREIN THE SALE CONSIDERAT ION OF AGRICULTURAL LAND AT RS. 15,83,000/ - . OUR ATTENTION WAS ALSO INVITED TO THE FACT THAT UNDISPUTEDLY THE ASSESEE HAS JOINTLY OWNED AGRICULTURAL LAND, BUT THE ENTIRE CASH RECEIVED , ACCORDING TO ASSESSEE , WAS OF RS. 14,93,000/ - AND WAS DEPOSITED I N HIS BANK ACCOUNT. WITH REGARD TO THE CASE LAWS RELIED UPON BY THE ASSESSEE, LD. DR HAS CONTENDED THAT ALL THESE CASE LAWS RELATE TO THE COMPUTATION OF CAPITAL GAIN S WHERE THE ISSUE IN DISPUTE IS WITH REGARD TO THE ACTUAL SALE CONSIDERATION. SO FAR AS T HE JUDGMENT OF ALLAHABD HIGH COURT IN THE CASE OF CIT VS. INTEZAR ALI (SUPRA) IS CONCERNED , THE LD. DR HAS CONTENDED THAT IN THAT JUDGMENT DETAILED ENQUIRY WAS MADE. ASSESSEE HAS FILED THE CONFIRMATION OF THE WITNESS TO THE S ALE D EED AND COMPLAIN T TO THE REGISTRAR WAS ALSO MADE WITH REGARD TO UNDER VALUATION OF THE SALE TRANSACTIONS. THE LD. DR FURTHER CONTENDED THAT HAD IT BEEN A CASE OF ACTUAL SALE CONSIDERATION, AS ALLEGED BY THE ASSESSEE. THE ASSESSEE WOULD HAVE PAID THE HIGHER STAMP DUTY ON THE SAL E DEED. THEREFORE, THE CONTENTION OF THE ASSESSEE CANNOT BE ACCEPTED. 8. HAVING HEARD THE RIVAL SUBMISSIONS AND CAREFUL PERUSAL OF RECORD, WE FIND THAT UNDISPUTEDLY THE SALE CONSIDERATION DECLARED IN THE SALE DEED WAS AT RS. 1,80,000/ - AND ACCORDINGLY, THE STAMP DUTY WAS PAID THEREON ON ITS REGISTRATION. THE ASSESSEE HAS JOINTLY OWNED THE AGRICULTURAL LAND, THEREFORE, THE SHARE WAS SHOWN TO BE AT RS. 90,000/ - . IT IS ALSO AN ADMITTED FACT THAT ASSESSEE HAS INITIALLY FILED ORIGINAL RETURN OF INCOME DECLARING THE CAPITAL GAIN S ON THE BASIS OF THE SALE VALUE OF RS. 90,000/ - OF HIS SHARE. BUT WHEN THE SUBSTANTIAL AMOUNT OF CASH DEPOSITS IN THE BANK WAS NOTICED, THE ASSESEE HAS TAKEN A DIFFERENT PLEAS . I NIT IALLY IT WAS CONTENDED THAT THE SOURCE OF DE POSITS WAS FROM AGRICULTURAL INCOME AND LATER ON HE TOOK ANOTHER STAND THAT IT WAS OUT OF THE SALE CONSIDERATION RECEIVED ITA NO. 197/DEL/2007 7 ON SALE OF AGRICULTURAL LAND . IN SUPPORT THEREOF NO EVIDENCE WAS FILED. THOUGH THE AO HAS ASKED THE ASSESSEE TO FURNISH THE CONFIR MATION LETTERS OF THE BUYERS OR ANY OTHER EVIDENCE IN SUPPORT THEREOF. AT THE INSTANCE OF THE ASSESSEE THE BUYER WAS ALSO EXAMINED BY THE AO AND SHE HAS CATEGORICALLY DENIED THE PAYMENT OVER AND ABOVE THE SALE CONSIDERATION DECLARED FOR THE SALE DEED. CO PY OF THE STATEMENT IS ALSO FILED BEFORE US . E XCEPT THE AFFIDAVIT OF THE ASSESSEE IN SUPPORT OF HIS CONTENTION , NO OTHER EVIDENCE IS AVAILABLE ON THE BASIS OF WHICH AN INFERENCE CAN BE DRAWN IN FAVO U R OF THE ASSESSEE. AFFIDAVIT OF ASSESSEE IS A SELF SER VING DOCUMENT , THEREFORE, ON THE BASIS OF AFFIDAVIT, THE ADDITIONS MADE BY THE AO CANNOT BE DELETED. 9. WE HAVE ALSO CAREFULLY EXAMINED THE VARIOUS JUDGMENTS REFERRED TO BY THE ASSESSEE AND WE FIND THAT THESE JUDGMENTS ARE RENDERED ON COMPUTATION OF LONG TERM CAPITAL GAINS, BUT IN THOSE JUDGMENTS THERE WAS NO DISPUTE WITH REGARD TO SALE CONSIDERATION RECEIVED BY T HE ASSESSEE. IN THE CASE OF CIT VS. INTEZAR ALI (SUPRA), THE DISPUTE RAISED WAS WITH REGARD TO ACTUAL SALE CONSIDERATION, BUT IN THAT CASE ASSESSEE HAS FILED THE CONFIRMATION LETTER OF THE WITNESS OF THE SALE DEED. ASSESSEE HAS ALSO MADE A COMPLAINT TO THE REGISTRAR WITH REGARD TO THE UNDER VALUATION OF THE LAND FOR THE PURPOSE OF THE STAMP DUTY PAID ON REGISTRATION OF THE SALE DEED. THEREFORE, THE FACTS OF THAT CASE ARE DISTINGUISHABLE FROM THE PRESENT CASE , A S IN THE INSTANT CASE , EXCEPT THE ORAL STA TEMENT OF THE ASSESSEE NO OTHER DOCUMENTARY EVIDENCE WAS FILED. WE THEREFORE OF THE VIEW THAT UNDER THE GIVEN FACTS AND CIRCUMSTANCES OF THE CASE, THE REVENUE AUTHORITIES HA VE RIGHTLY TREATED THE CASH DEPOSITS IN THE BANK ACCOUNT OF THE ASSESSEE AS UNEXPLA INED CASH DEPOSITS AND MADE THE ADDITION OF THE SAME. SINCE WE DO NOT FIND ANY INFIRMITY IN THE ORDER OF THE LD. CIT(A), WE CONFIRM THE SAME. ITA NO. 197/DEL/2007 8 1 0 . IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE S TANDS DISMISSED. ORDER PRONOUNCED IN THE O PEN C OURT ON 26 / 12 /20 1 4 . SD/ - SD/ - [ G.D. AGRAWAL ] [ S.K. YADAV ] VICE PRESIDENT JUDICIAL MEMBER DATE 26 / 12 /201 4 SRBHATNAGAR COPY FORWARDED TO: - 1. APPELLANT - 2. RESPONDENT - 3. CIT 4. CIT (A) 5. DR, ITAT TRUE COPY BY ORDER, ASSISTANT REGISTRAR, ITAT, DELHI BENCHES ITA NO. 197/DEL/2007 9