Gurlal Singh Mann, Bathinda V. The Income Tax Office, Bathinda

ITA 210/ASR/2015

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 7814 (ITAT-AMRITSAR)
• Duration Of Justice: 2 year(s) 4 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-09-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 21-06-2017
• Assessment Year: 2008-2009
• Appeal Filed On: 05-05-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RAHUL DHAWANLD
• Keywords: Gift; Source of fund; Additional evidence

Judgement Text

IN THE INCOME TAX APPELLATE TR IBUNAL AMRITSAR BENCH; AMRITSAR BEFORE SH.T.S. KAPOOR, ACCOUNTANT MEMBER AND SH.N.K.CHOUDHRY, JUDICIAL MEMBER I.T.A. NO.210(ASR)/2015 ASSESSMENT YEAR: 2008-09 GURLAL SINGH MANN, B,40, THERMAL COLONY, BATHINDA. PAN:ACFPM-1492B VS. INCOME TAX OFFICER, WARD-1(1), BATHINDA. (APPELLANT) (RESPONDENT) APPELLANT BY: SH. SUDHIR SEHGAL RESPONDENT BY: SH. RAHUL DHAWAN (LD. DR) DATE OF HEARING: 14.09.2017 DATE OF PRONOU NCEMENT:18.09.2017 ORDER PER N. K. CHOUDHRY (JM): THE INSTANT APPEAL HAS BEEN PREFERRED BY THE ASSESSEE, ON FEELING AGGRIEVED AGAINST THE ORDER DATED 04.03.201 5, PASSED BY THE LD. CIT(A)-, BATHINDA, RELEVANT TO THE ASST. YEAR:200 8-09. 2. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL. 1. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LEARNED CIT(A) HAS ERRED IN UPHOLDING THE ADDITION OF RS.1569437/- IN THE STATUS OF INDIVIDUAL WHEREAS TH E MAJOR SOURCE OF INVESTMENT MADE IN FDR IS OUT OF INCOME FROM AGRICU LTURAL LAND BELONGING TO THE HUF AS PER EXPLANATION FURNISHED AND MATERIA L PLACED ON RECORD. ACCORDINGLY, THE SAME MAY KINDLY BE DELETED . 2. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LEARNED CIT(A) ERRED IN REJECTING THE CREDIT OF RS. 300000/- AS CASH IN HAND ON THE OPENING DAY OF THE YEAR WITHOUT APPRECI ATING THAT THE ASSESSEE APPELLANT IS HAVING SUFFICIENT INCOME FROM HUGE AGRICULTURAL LAND (44.5 ACRES) IN THE EARLIER YEARS ALSO. ACCORDINGLY , THE CREDIT OF RS.300000/- MAY BE ALLOWED. 3. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LEARNED CIT(A) ERRED IN UPHOLDING THE ADDI TION ON ACCOUNT OF GIFTS OF RS.100000/- FROM SH. SURINDER SINGH (BROTHER OF SPOUSE), RS.300000/- IT A NO.210(ASR)/2015 AS ST. YEAR: 2008-09 2 FROM SH. KULBIR SINGH (HUSBAN4OF SPOUSES SISTER) A ND RS.140000/- FROM SH. SEHAJ PAL SINGH (SON) WHEREAS AS PER EXPLANATIO N FILED AND OTHER MATERIAL PLACED ON RECORD, NO ADDITION IS CALLED FO R. ACCORDINGLY, THE MAY BE DELETED. 4. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND M IN LAW, THE LEARNED CIT(A) ERRED IN NOT ALLOWING THE CREDIT OF RS. 500000/- USED FOR INVESTMENT IN FDR RECEIVED AS ADVANCE FROM SH. JASWA NT SINGH AGAINST THE SALE AGREEMENT OF AGRICULTURAL LAND WHEREAS NECESSARY EV IDENCE AND CONFIRMATION FRON SH. JASWANT SINGH HAS DULY BEEN FILED. ACTUALLY, SAL E DEED WAS REGISTERED ON 15.09.2010 AS THE AGRICULTURAL LAND WAS UNDER ADVER SE POSSESSION OF PURCHASER FOR THE LAST 12 YEARS. 5 . THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LEARNED CIT(A) ERRED IN GIVING A FINDING, 'THAT THE PURPORTED ADVANCE OF RS.500000/- AGAINST THE SALE OF LAND FROM ONE SH. JA SWANT SINGH HAS THE COLOUR OF SHAM TRANSACTION IN VIEW OF THE NON REGISTRATION OF THE SAID SALE DEED, IN VIEW OF THE FACT THAT THE SAME WAS REGISTERED ON 15.10.2 010 FOR RS.1727000/- EVEN BEFORE THE DATE OF ASSESSMENT ORDER AND ASSESSEE WA S HAVING HALF SHARE IN IT. IT SEEMS THAT THE C1T(A) HAS GIVEN THE WHOLE FINDINGS ON THIS ISSUE WITH OUT SEEING THE ACTUAL SALE DEED FILED BEFORE HIM. 6. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LEARNED C1T(A) ERRED IN UPHOLDING THE ADDITIONS OF RS.350000 /- BEING THE DEPOSIT IN THE BANK OF PUNJAB ON 12.04.2007 AND OF RS.50000/- BEING THE DEPOSIT IN SBOP ON 13.04.2007. THE DEPOSIT IS OUT OF AGRICULTURAL INCO ME (THEKA) RECEIVED ON 10.04.2007 FROM BALBIR SINGH S/O SH. KARAM SINGH, R/ O V. KHUDIA GULAB SINGH RECEIPT OF WHICH WAS PRODUCED BEFORE CIT(A). ACCORDI NGLY, THE ADDITION IS LIABLE TO BE DELETED.( NOT PRESSED) 7. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF TH E CASE AND IN LAW, THE LEARNED CIT(A) ERRED IN UPHOLDING THE ADDITION OF RS .100000/- BEING GIFT OF RS.100000/- FROM SH. SEHAJ PAL SINGH ON 28.08.2007 W HO IS SON OF THE ASSESSEE AND HAS THE CAPACITY TO GIVE THE GIFT. THE FINDING OF THE CIT(A) THAT EXPLANATION TO SECTION 56(VI) ALSO GET HIT IS TOTALLY WRONG AS SH. SEHAJ PAL SINGH IS SON OF THE APPELLANT ASSESSEE. ACCORDINGLY, THE ADDITION OF RS. 100000/- IS LIABLE TO BE DELETED . (NOT PRESSED) 8. THAT THE ASSESSEE HAS RECEIVED RS.297020/- AS THE AMOUNT OF LEAVE ENCASHMENT FROM THE EMPLOYER ON 18.12.2006 AND GPF, THE AMOUNT OF WHICH WAS ALSO UTILIZED IN THE PURCHASE OF FDR OF RS.1500000/-. ACCORDINGLY, THE ASSESSEE IS ENTITLED FOR THE CREDIT OF THIS AMOUNT. 9. THAT ON THE FACTS AND IN TLIE CIRCUMSTANCES OF T HE CASE AND IN LAW, THE LEARNED C1T(A) ERRED IN NOT ALLOWING THE CREDIT OF AGRICULTURAL INCOME WHEREAS AS PER EXPLANATION FURNISHED AND OTHER MATERIAL PLACED ON RECORD THE ASSESSEE APPELLANT AND HIS FAMILY OWNED HUGE AGRICULTURAL LA ND (44.5 ACRES). ACCORDINGLY, THE ASSESSEE IS ENTITLED FOR CREDIT OF PAST AGRICUL TURAL INCOME USED FOR INVESTMENT IN FDR. 10. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF T HE CASE AND IN LAW, THE LEARNED CIT(A) ERRED IN CONFIRMING THE ADDITION OF RS. 39437/- ON ACCOUNT OF BANK INTEREST WHEREAS AS PER EXPLANATION, FACTUAL POSITI ON AND MATERIAL PLACED ON RECORD, THE SAME BELONGS TO THE HUF AS THE DEPOSITS IN THE BANK ACCOUNT ARE OUT OF INCOME FROM AGRICULTURAL LAND. ACCORDINGLY, THE ADDI TION OF RS. 39437/- IS LIABLE TO BE DELETED . (NOT PRESSED) 11. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF T HE CASE AND IN LAW, THE LEARNED CIT(A) HAS ERRED IN UPHOLDING THE ASSESSMEN T OF AGRICULTURAL INCOME OF IT A NO.210(ASR)/2015 AS ST. YEAR: 2008-09 3 RS.400000/- FOR RATE PURPOSES IN THE STATUS OF INDIV IDUAL WHEREAS THE AGRICULTURAL LAND BELONGS TO HUF BEING ANCESTRAL AS PER EXPLANAT ION FURNISHED AND MATERIAL PLACED ON RECORD. THE ADDITION UPHELD IN THE STATUS OF INDIVIDUAL IS UNJUSTIFIED AND UNCALLED FOR. ACCORDINGLY, THE SAME MAY BE DELETED . (NOT PRESSED) 11. THAT ANY OTHER RELIEF MAY KINDLY BE GRANTED TO THE ASSESSEE TO WHOM IT IS FOUND ENTITLED AT THE TIME OF HEARING OF APPEAL. 3. THE BRIEF FACTS OF THE CASE ARE AS UNDER: THE APPELLANT IS A RETIRED EMPLOYEE OF PSEB WHO FIL ED HIS RETURN OF INCOME FOR ASST. YEAR:2008-09 DECLARING AN INCOME OF RS.1,02,448/- PRIMARILY OUT OF PENSION AND AN AGRICULTURAL INCOME O F RS.4,00,000/- FOR RATE PURPOSES. IN THE SCRUTINY PROCEEDINGS, THE APPEL LANT WAS FOUND TO HAVE PURCHASED AN FDR FOR RS.15,00,000/- IN CENTURI ON BANK OF PUNJAB ON 28.06.2007. BESIDES THE ABOVE, THE APPELLAN TS BANK HAD CREDIT ENTRIES OF (A) RS.3,50,000/-, (B)RS.50,000/- & ( C) RS.1,00,000/- ON 12.04.2007, 13,04,2007 AND 28-08-2007 RESPECTIVELY . IN ADDITION, THE APPELLANT WAS SEEN TO HAVE EARNED INTEREST ON CRED IT BALANCE IN HIS ACCOUNTS AMOUNTING TO RS.39,437/-. WHILE MAKING ASSESSME NT, THE AO ACCEPTED THE EXPLANATION OF THE APPELLANT REGARDIN G THE SOURCE OF FUNDS FOR PURCHASE OF THE AFORESAID FDR OF RS.15,00,000/ -, ONLY TO THE EXTENT OF RS.5,00,000/- AND ADDED BACK THE REST OF THE AMOUNT AGGREGATING TO RS.15,69,437/-. 4. ON FEELING AGGRIEVED AGAINST THE ASSESSMENT ORDER, THE ASSESSEE PREFERRED THE FIRST APPEAL BEFORE THE LD. CIT(A), WH O UPHELD THE ORDER PASSED BY THE ASSESSING OFFICER AND THEREAFTER, THE ASSESSES CAR RIED THE MATTER BEFORE THIS BENCH. IT A NO.210(ASR)/2015 AS ST. YEAR: 2008-09 4 5. DURING THE PENDENCY OF THE APPEAL, THE ASSESSEE FILED AN APPLICATION FOR ADMISSION OF ADDITIONAL EVIDENCE AND IN THE SAID APPLICATION, THE APPELLANT HAS SUBMITTED THAT THE APPE LLANT HAD SOLD AGRICULTURAL LAND BELONGING TO THE APPELLANT IN VILL AGE ADHIAN, TEHSIL MALOUT, DISTT. MUKTSAR BY ADJUDICATING A SALE DEED ON 1 1.06.2007 ON CONSIDERATION OF RS.12,71,000/-. HOWEVER, DURING THE AP PELLATE PROCEEDINGS, BEFORE THE LD. CIT(A) IN MARCH,2015, THE SAME COULD NOT BE REMEMBERED, BUT THIS IS A VITAL PIECE OF EVIDENCE, WHICH GOES TO PROVE THE CASE OF THE ASSESSEE AND, THEREFORE, THE ABOVE SALE DEED MAY, PLEASE, BE ADMITTED AS ADDITIONAL EVIDENCE. THE APPELLANT HAS ALSO RELIED UPON THE JUDGMENT OF THE HONBLE SUPREME COURT IN THE CASE OF TEK RAM (DEAD) THROUGH LRS VS. COMMISSIONER OF I NCOME TAX AS REPORTED IN 357 ITR 133 (SC) AND SUBMITTED THAT WH ERE THE ADDITIONAL EVIDENCE IS MUST FOR JUST DECISION OF THE CASE, THE SAME DESERVES TO BE ADMITTED. THE EVIDENCE NOW BEING TENDER ED CLEARLY IS VERY VITAL PIECE OF EVIDENCE TO EXPLAIN THE SOURCE. 6. ON THE OTHER HAND, THE LD. DR RELIED UPON THE ORDE RS PASSED BY THE AUTHORITIES BELOW, ALTHOUGH HE DOES NOT RAISE ANY SPECIFIC OBJECTION TO THE AFORESAID APPLICATION, HOWEVER, REMINDED THAT THE PARTIES TO THE APPEAL SHALL NOT BE ENTITLED TO PRODUCE ADDITIONAL EV IDENCE EITHER ORAL AND DOCUMENTARY BEFORE THE TRIBUNAL, BUT IF THE TRIB UNAL REQUIRES ANY DOCUMENT TO BE PRODUCED OR ANY WITNESS TO BE EXAMINED O R ANY AFFIDAVIT TO BE FILED TO ENABLE IT TO PASS ORDERS OR F OR ANY OTHER IT A NO.210(ASR)/2015 AS ST. YEAR: 2008-09 5 SUBSTANTIAL CAUSE, OR, THEN THE SAME MAY BE ALLOWED AS TH E EVIDENCE TO BE ADDUCED. 7. WE HAVE GONE THROUGH WITH THE FACTS AND CIRCUMSTANCE S OF THE CASE AS IN THE INSTANT CASE ALLEGED SALE DEED HAS BEEN EXE CUTED ON 11.06.2017 ON CONSIDERATION OF RS.12,71,000/- AND THE FIXED DEPOSIT (FDR) OF RS.15,00,000/- WHICH IS UNDER CONSIDERATION WAS MADE ON 28.06.2007 BY CENTURION BANK OF PUNJAB IN THE NAME OF THE APPELLANT WHICH ACCORDING TO OUR MIND PRIMA FACIE REFLECTS TO HAVE DIRECT NEXUS WITH THE FIXED DEPOSIT AND SALE OF LAND AND IN OUR CO NSIDERED OPINION FOR THE JUST AND PROPER DECISION OF THE CASE, THE PRODUCT ION OF SAID SALE DEED IS VERY MUCH ESSENTIAL AND IMPORTANT FOR THE PROPE R DISPOSAL OF THE CASE, ALTHOUGH, THE ASSESSEE HAD FAILED TO PRODUCE TH E SAID ADDITIONAL EVIDENCE BEFORE THE AUTHORITIES BELOW, HOW EVER, REASONED TO HAD TAKEN THE PLEA, THAT THE SAME COULD NOT BE REMEMB ERED. AS THE SALE DEED HAVING DIRECT BEARING ON THE QUANTUM OF ADD ITION, HENCE, WE SET ASIDE THE ORDER PASSED BY THE AUTHORITIES BELOW UP T O THE EXTENT OF ISSUE QUA FDR OF RS.15,00,000/- AND REST OF THE ADDITIO N STANDS CONFIRMED AS LD. AR HAS NOT SPECIFICALLY AGITATED. 8. ON THE AFORESAID CONSIDERATION AND OBSERVATION, THE LD. ASSESSING OFFICER IS DIRECTED TO CONSIDER THE ADDITIONAL EVI DENCE TO BE ADDUCED BY THE ASSESSEE AS OBSERVED ABOVE AND PASS ASSESSMENT ORDER AFRESH QUA RS.15 LACS. IT A NO.210(ASR)/2015 AS ST. YEAR: 2008-09 6 9. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS PARTLY ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT ON 18.0 9.2017. SD/- SD/- (T. S. KAPOOR) (N.K.CHOUDHRY ) ACCOUNTANT MEMBER JUDICIA L MEMBER DATED:18.09.2017. /PK/ PS. COPY OF THE ORDER FORWARDED TO: (1) THE ASSESSEE: (2) THE (3) THE CIT(A), (4) THE CIT, (5) THE SR DR, I.T.A.T., TRUE COPY BY ORDER