ITO, New Delhi V. Smt. Shweta Aggarwal, New Delhi

ITA 208/DEL/2010

• Counselvise Citation: [2010] 119 COUNSELVISE.COM (IT) 5461 (ITAT-DELHI)
• Duration Of Justice: 2 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-03-2010
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: G
• Assessment Year: 2002-2003
• Appeal Filed On: 14-01-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SHUMANA SEN
• Keywords: Cost of acquisition

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH G: NEW DELHI BEFORE SHRI C.L. SETHI, JUDICIAL MEMBER & SHRI R.C. SHARMA, ACCOUNTANT MEMBER ITA NOS. 208 & 209/DEL/2010 ASSESSMENT YEARS : 2002-03 & 2004-05 THE INCOME TAX OFFICER, WARD 33(4), NEW DELHI. VS. SMT. SHWETA AGGARWAL, 47/1, EAST PATEL NAGAR, NEW DELHI (APPELLANT) (RESPONDENT) PAN : AERPA 3138 G APPELLANT BY : SHUMANA SEN, SR . DR RESPONDENT BY : NONE O R D E R PER: C.L. SETHI, J.M. THESE TWO APPEALS, FILED BY THE REVENUE ARE DIRECT ED AGAINST TWO SEPARATE ORDERS OF THE CIT(A), BOTH DATED 30.10.200 9 PERTAINING TO THE A.Y. 2002-03 AND 2004-05 RESPECTIVELY. 2. ISSUES INVOLVED IN THESE TWO APPEALS ARE COMMON AND IDENTICAL AS WOULD BE CLEAR FROM THE GROUNDS OF APPEAL RAISED BY THE REVENUE, WHICH ARE AS UNDER:- A.Y. 2002-03 LD. CIT(A) HAS ERRED IN DELETING THE ADDITION OF RS . 34,02,100/- MADE BY THE AO ON ACCOUNT OF UNDISCLOSE D INVESTMENT IN PURCHASE OF PROPERTY VALUED BY THE VALUATION OFFICER, RELYING UPON THE DECISION OF ITA T IN THE CASE OF SH. SUSHIL KUMAR AGGARWAL, A CO-PURCHASER O F THE SAME PROPERTY WITHOUT CONSIDERING THE FACT THAT THE ITA NOS. 208 & 209/DEL/2010 PAGE 2 OF 4 DECISION OF THE ITAT HAS NOT BEEN ACCEPTED BY THE DEPARTMENT. A.Y. 2004-05 LD. CIT(A) HAS ERRED IN DELETING THE ADDITION OF RS72,01,500/- MADE BY THE AO ON ACCOUNT OF UNDISCLO SED INVESTMENT IN PURCHASE OF PROPERTY VALUED BY THE VALUATION OFFICER, RELYING UPON THE DECISION OF ITA T IN THE CASE OF SH. SUSHIL KUMAR AGGARWAL, A CO-PURCHASER O F THE SAME PROPERTY WITHOUT CONSIDERING THE FACT THAT THE DECISION OF THE ITAT HAS NOT BEEN ACCEPTED BY THE DEPARTMENT. 3. IN THE A.Y. 2002-03, THE AO MADE AN ADDITION OF RS. 34,02,100/- BEING DIFFERENCE BETWEEN THE VALUE ESTIMATED BY THE VALUATION OFFICER AT RS. 37,12,100/- BEING HALF SHARES OF THE ASSESSEE, AND THE SUM OF RS. 3,10,000/- SHOWN BY THE ASSESSEE AS ACTUAL PURCHASE VALUE TOWA RDS PURCHASE OF THE PROPERTY. SIMILARLY, IN THE A.Y. 2004-05, A DIFFER ENCE OF RS. 72,01,500/- IN RESPECT OF THE PROPERTY PURCHASED BY THE ASSESSEE B EING SHOP NO. 95 & 97, 1 ST FLOOR AND 2I ND FLOOR, BANGLA SAHIB ROAD, NEW DELHI, WAS ADDED. I N THIS CASE ALSO, THE ASSESSEE HAD HALF SHARES IN THE PROP ERTY PURCHASED. 4. ON AN APPEAL, THE CIT(A) HAS DELETED THE ADDITIO N BY OBSERVING THAT IDENTICAL ADDITION BEING HALF SHARES IN THE HANDS O F THE CO-OWNER VIZ., SHRI SUSHIL KUMAR AGGARWAL HAS BEEN DELETED BY THE TRIBU NAL VIDE ORDER DATED 24.07.2009 BY HOLDING AND OBSERVING AS UNDER:- WE HAVE HEARD BOTH PARTIES AND GONE THROUGH THE MATERIAL AVAILABLE ON RECORD. THE LD. SR. DR COULD NOT ITA NOS. 208 & 209/DEL/2010 PAGE 3 OF 4 DISPUTE THE ARGUMENTS OF THE ASSESSEE THAT THE INCRIMINATING MATERIAL WHATSOEVER WAS FOUND DURING THE COURSE OF SEARCH. THE FACT THAT THE PROPERTIES WER E TENANTED AND MUTATIONS HAVE NOT BEEN ALLOWED IN THE NAME OF THE ASSESSEE BY LAND AND DEVELOPMENT OFFICE COULD NOT BE CONTROVERTED BY THE REVENUE. THE ASSE SSEE IS NOT RECEIVING RENT FROM THE PROPERTIES. THERE I S NO OTHER CORROBORATIVE EVIDENCE TO SUBSTANTIATE THE AD DITION IN RESPECT OF COST OF ACQUISITION OF THE ASSESSEES PROPERTY. THE DVO AND AO HAVE NOT CONSIDERED THE V ITAL ASPECTS OF ACQUISITION OF THE ASSESSEES PROPERTY. THE DVO AND AO HAVE NOT CONSIDERED THE VIAL ASPECTS OF THE PROPERTY BEING IN THE POSSESSION OF THE TENANTS. T HE ADDITION HAS BEEN MADE ON PRESUMPTION RELYING ONLY ON THE REPORT OF THE DVO, WHICH MAY BE BINDING ON THE ASSESSEE, BUT WE HAVE TO EXAMINE INTRINSIC VALUE FO R THE ADDITION. THE CIT(A) HIMSELF HAS ALLOWED SOME RELIE F ON ACCOUNT OF NEGATIVE FACTORS. THERE IS NO EVIDENCE ON RECORD TO SHOW THAT THE ASSESSEE HAD PASSED ON ON- MONEY OVER AND ABOVE THE SALE PRICE RECORDED IN SAL E DEEDS. HENCE, THE ISSUE IS COVERED BY THE DECISION OF HONBLE SUPREME COURT IN THE CASE OF K.P. VARGHESE 131 ITR 597 (SC). IN OUR CONSIDERED VIEW, THE ADDITION MADE IS WITHOUT PROPER REASONS, CORROBORATIVE EVIDENCE A ND ESTIMATE BEREFT OF ANY CORROBORATIVE EVIDENCE, WHIC H IS MATERIAL FOR MAKING SUCH ADDITIONS. IN THE ENTIRET Y OF FACTS AND CIRCUMSTANCES, WE DELETE THE ADDITION CONFIRMED BY THE LD. CIT(A) IN RESPECT OF PROPERTIE S IN QUESTION. 5. NOW, THE DEPARTMENT IS IN APPEAL TAKING A GROUND THAT THEY HAVE NOT ACCEPTED THE DECISION OF THE TRIBUNAL IN THE CASE O F SHRI SUSHIL KUMAR AGGARWAL, CO-PURCHASER OF THE SAME PROPERTY, BUT TH AT REASON BY ITSELF IS NOT SUFFICIENT TO TAKE A VIEW CONTRARY TO THE VIEW ALRE ADY TAKEN BY THE TRIBUNAL IN CO-OWNERS CASE. THE MATTER HAS TO BE DECIDED A S PER THE POSITION AS IT STANDS TODAY. THE ORDER OF THE TRIBUNAL IN THE CAS E OF SHRI SUSHIL KUMAR ITA NOS. 208 & 209/DEL/2010 PAGE 4 OF 4 AGGARWAL, CO-PURCHASER, HAS NOT BEEN SET ASIDE OR M ODIFIED OR ALTERED OR REVERSED. THEREFORE, BY MAINTAINING A JUDICIAL DIS CIPLINE, WE ARE INCLINED TO UPHOLD THE ORDER OF THE CIT(A) IN DELETING THE ADDI TION ON THE BASIS OF THE DECISION RENDERED BY THE TRIBUNAL IN THE CASE OF CO -OWNER ON IDENTICAL FACTS. THE ORDER OF THE CIT(A), IS THUS, UPHELD. 6. IN THE RESULT, THESE TWO APPEALS, FILED BY THE R EVENUE ARE DISMISSED. 7. THIS DECISION WAS PRONOUNCED IN THE OPEN COURT I MMEDIATELY AFTER THE HEARING WAS OVER ON 15 TH MARCH, 2010. SD/- (R.C. SHARMA) ACCOUNTANT MEMBER SD/- (C.L. SETHI) JUDICIAL MEMBER DATED: 15 TH MARCH, 2010 *NITASHA COPY TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR, ITAT, NEW DELHI. BY ORDER DEPUTY REGISTRAR