Nizam Ahmed , Haryana V. ITO-ward 2(1) , Haryana

ITA 2167/DEL/2022

• Counselvise Citation: [2022] 104 COUNSELVISE.COM (IT) 1082 (ITAT-DELHI)
• Duration Of Justice: 1 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-10-2022
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: SMC
• Next Hearing Date: 09-10-2022
• Assessment Year: 2012-2013
• Appeal Filed On: 04-09-2022
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Capital asset
• Section: 69; 234B

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH ‘SMC’, NEW DELHI BEFORE SH. N.K. BILLAIYA, ACCOUNTANT MEMBER ITA No.2167/Del/2022 Assessment Year: 2012-13 Nizam Ahmed H. No.B-102, Sanjay Colony Sector-23, Street No.-54, Faridabad PAN No.ADLPA7124K Vs ITO Ward- 2 (1) Haryana (APPELLANT) (RESPONDENT) Appellant Sh. Rahul Khandooja, CA Respondent Sh. Om Prakash, Sr. DR Date of hearing: 10/10/2022 Date of Pronouncement: 12/10/2022 ORDER PER N.K. BILLAIYA, AM: This appeal by the assessee is preferred against the order dated 06.07.2022 by National Faceless Appeal (NFAC) for A.Y.2012-13. 2. The grievance of the assessee read as under :- 1. That the Ld. CIT(A) has erred in law and facts of case in confirming/ upholding the assessment made by AO of the sum of' 16,99,430/- by addition of Rs1045600/- being the amount deposited in Central Bank of India, received as a consideration for execution of irrevocable will confirming transfer of property after death, as income of assessee from undisclosed sources as unexplained money u/s 69 of IT Act holding the amount deposited as non- genuine, which being erroneous, arbitrary and untenable be 2 kindly deleted/excluded from assessment. That the Ld. CIT(A) has disregarded Section 2(47)of the Income Tax Act, 1961, without considering that definition of transfer u/s 2(47), which is inclusive in nature and not exclusive. Further, Ld. CIT (A) has disregarded 2(47)(i). 2(47)(v) and 2(47)(vi) which covers transfers involving transactions that have effect of transferring, or enabling enjoyment of properties. Further, Transfer by WILL was treated as Transfer involving Power of Attorney and Delay in execution of Sale Deed was treated as ground of addition, where WILL clearly spell out Transfer would take effect after Death of executor of WILL. 3. That the Ld. Authorities have failed to appreciate the contentions, evidences adduced and the basic facts of case properly and in the right prospective and the various inferences as drawn and observations as made are incorrect, misconceived and untenable. The reliance placed by them on the cited case laws is misplaced because of distinguishable facts. 4. That having regard to the facts and circumstances of the case, the Ld. CIT(A) has erred both on facts and in law in deciding the appeal in violation of the principles of natural justice and without granting to the assessee a fair, proper and meaningful opportunity and the findings of the Ld. CIT(A) was not even elaborated and no reply was asked over the findings by CIT(A). 5. That the appellant craves, leave to add, alter, amend or vary and / or withdraw any or all of the aforesaid grounds of Appeal or at time of hearing of the above appeal. 6. That having regard to the facts and circumstances of the case, Ld. AO has erred in law and on facts in charging interest u/s. 234B and 234C. 3. Briefly stated the facts of the case are that as per AIR in possession with the department it was noticed that the assessee has deposited cash of Rs.1045600/- in his savings bank account in F.Y.2011-12. Assessee was asked to furnish details and explain the sources of cash deposit. 4. In his reply the assessee stated that the source of cash deposits is out of the sale consideration of agricultural land. However, on careful examination of the documents furnished by the assessee the AO found that only a power of attorney has been 3 executed in favour of Sh. Islam and Sh. Meghraj on 29.02.2012 whereas the cash of Rs. 9.80 lacs was deposited on 09.11.2011 and Rs.32500/- was deposited on 11.11.2011 which was approximately four months prior to execution of the GPA the AO accordingly dismissed the contention of the assessee and made the addition of Rs.1045600/-. 5. The assessee agitated the matter before the CIT(A). After considering the facts and the submission the CIT(A) held as under :- 4. The contentions of the AO and the appellant have been carefully examined. The AO has observed that the appellant has deposited cash of Rs. 10,45,600/- in his bank account. When the appellant was asked to explain the sources for this cash deposited, the appellant contended that the said cash was out of the sale proceedings of agricultural land. The AO, however, observed that the said land was sold by way of GPA/Will dated 29.02.2012. However the cash deposited was Rs. 9,80,000/- on 09.11.2011 and 32,500/- on 11.11.2011. The AO, therefore, held that since the cash was deposited around 4 months prior of the executing of the general power of attorney the assessee's contentions could not be believed. The AO also observed that even after the alleged GPA dated 29.02.2012, the appellant had not been able to provide the sale deed for the alleged sale of property till the date of passing of order in November 2019. 5. During the course of the appellate proceedings the appellant has simply le same explanation filed before the AO. He has also contended that o specific mention as to timing of the sale consideration to be paid under section 53A of Transfer of Property Act. As per the appellant, the sale consideration can be paid in reasonable time, and that payment of Rs. 10 lakhs on 09.11.2011 and 11.11.2011 was reasonable even though the GPA was entered around four and a half months later on 29.02.2012. 6. The contentions of the appellant cannot be accepted. Even though the alleged GPA is dated 29.02.2012, the appellant has not produced any sale deed for this alleged sale even after 10 years have passed since the alleged sale took place. 4 Further-, the entire transaction has taken place in cash and therefore the onus 7. The AO has correctly upheld that the appellant’s action do not satisfy and comprehensibly fail on the “Theory of the Test of Human Probabilities and surrounding circumstances” as laid down by the Supreme Court in the case of CIT V.Durga Prasad More (1971) 82 ITR 540 and in the case of Sumati Dayal v. CIT (1995) 214 ITR 801. The appellant’s contention therefore cannot be accepted as a genuine explanation for source of cash deposits. Keeping in view the circumstances of the case, the action of the A.O. is therefore, upheld and the appellant’s appeal is accordingly dismissed. 6. Before me once again the Counsel reiterated what has been stated before the lower authorities. It is the say of the Counsel that there is no specific mention for timing of consideration u/s. 53A of transfer of property Act and, therefore, no adverse inference should be drawn if consideration were received prior to the execution of general power of attorney. 7. The DR strongly supported the findings of the AO and the CIT(A). 8. I have carefully considered the orders of the authorities below. It is not in dispute that the general power of attorney was executed much after the cash was deposited in the bank account. It is also not in dispute that neither before the AO nor before the CIT(A) and also not before me the assessee is able to furnish the copy of the sale deed nor the Counsel for the assessee mentioned any such sale deed during the course of his argument before me. In my considered opinion the source of deposit explained by the assessee appears to be illogical and without substance, therefore, I do not find any reason to interfere with the findings of the 5 CIT(A). 9. In the result, the appeal of the assessee is dismissed. Order pronounced in the open court on .10.2022. (N. K. BILLAIYA) ACCOUNTANT MEMBER *NEHA, Sr. Private Secretary* Date:- .10.2022 Copy forwarded to: 1. Appellant 2. Respondent 3. CIT 4. CIT(Appeals) 5. DR: ITAT ASSISTANT REGISTRAR ITAT NEW DELHI Date of dictation 11.10.2022 Date on which the typed draft is placed before the dictating Member 12.10.2022 Date on which the typed draft is placed before the Other member 12.10.2022 Date on which the approved draft comes to the Sr.PS/PS 12.10.2022 Date on which the fair order is placed before the Dictating Member for Pronouncement 12.10.2022 Date on which the fair order comes back to the Sr. PS/ PS 12.10.2022 Date on which the final order is uploaded on the website of ITAT 13.10.2022 Date on which the file goes to the Bench Clerk 13.10.2022 Date on which file goes to the Head Clerk. The date on which file goes to the Assistant Registrar for signature on the order Date of dispatch of the Order