M/S. GORI SHANKAR COLONIZERS PVT. , JAIPUR V. ITO, WARD-5(1), JAIPUR

ITA 220/JPR/2020

• Counselvise Citation: [2021] 109 COUNSELVISE.COM (IT) 4958 (ITAT-JAIPUR)
• Duration Of Justice: 11 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-02-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2012-2013
• Appeal Filed On: 03-03-2020
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MANISHA CHOUDHARY CIT DHK
• Assessee Lawyers: RAM BABU GUPTA
• Keywords: Unexplained investment
• Section: 143(3); 69B; 13; 131

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCH A, (VC) JAIPUR JH LANHI XKSLKBZ] U;KF;D LNL; ,O A JH FOE FLAG ;KNO] YS[KK LNL; DS LE{K BEFORE: SHRI SANDEEP GOSAIN, JM & SHRI VIKRAM SING H YADAV, AM VK;DJ VIHY LA- @ ITA NO. 220/JP/2020 FU/KZKJ.K O'K Z @ ASSESSMENT YEAR : 2012-13. M/S. GORI SHANKAR COLONIZERS PVT LTD., T-2, RAMESH MARG, C-SCHEME, JAIPUR. CUKE VS. THE INCOME TAX OFFICER, WARD 5(1), JAIPUR. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO. AACCG 7601 E VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY : SHRI RAM BABU GUPTA (CA) JKTLO DH VKSJ LS@ REVENUE BY : SMT. MANISHA CHOUDHARY (ADDL.CIT) LQUOKBZ DH RKJH[K@ DATE OF HEARING : 03.02.2021. ?KKS'K .KK DH RKJH[K @ DATE OF PRONOUNCEMENT : 09/02/2021 . VKNS'K@ ORDER PER SANDEEP GOSAIN, J.M. THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST TH E ORDER DATED 23.12.2019 OF LD. CIT (A)-2, JAIPUR FOR THE ASSESSMENT YEAR 2012- 13. THE SOLITARY GROUND RAISED BY THE ASSESSEE RELATES TO CHALLENGING THE ORDER OF TH E LD. CIT (A) IN UPHOLDING THE ADDITION OF RS. 6,50,000/- UNDER SECTION 69B OF THE I.T. ACT. 2. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSE E COMPANY FILED ITS RETURN OF INCOME FOR THE ASSESSMENT YEAR 2012-13 ON 29.09.201 2 DECLARING TOTAL INCOME AT RS. NIL. THE CASE OF THE ASSESSEE WAS SELECTED FOR SCR UTINY UNDER SECTION 143(3) OF THE 2 ITA NO. 220/JP/2020 M/S. GORI SHANKAR COLONIZERS PVT. LTD., JAIPUR. IT ACT. THE AO WHILE COMPLETING THE ASSESSMENT UND ER SECTION 143(3) OF THE IT ACT HAS MADE AN ADDITION OF RS. 6,50,000/- ON ACCOUNT O F UNEXPLAINED INVESTMENT UNDER SECTION 69B OF THE IT ACT. THE ASSESSEE CHALLENGED THE ACTION OF THE AO BEFORE THE LD. CIT (A). HOWEVER, THE LD. CIT (A) HAS UPHELD T HE ASSESSMENT ORDER CONFIRMING THE ADDITION. 3. WE HAVE HEARD THE RIVAL CONTENTIONS AND CAREFULL Y PERUSED THE MATERIAL AVAILABLE ON RECORD, JUDGMENTS CITED BY THE BOTH TH E PARTIES AS WELL AS THE ORDERS PASSED BY THE REVENUE AUTHORITIES. THE LD. COUNSEL FOR THE ASSESSEE HAS SUBMITTED THAT DURING THE YEAR UNDER CONSIDERATION THE ASSESS EE HAS PURCHASED LAND SITUATED AT VILLAGE DUDU FOR A CONSIDERATION OF RS. 39,12,00 0/- AND RS. 32,15,000/- FROM SHRI NARAYAN AND SHRI GANGA RAM RESPECTIVELY. IN ORDER TO EXAMINE THE TRANSACTIONS, THE AO ISSUED SUMMONS UNDER SECTION 131 OF THE IT A CT TO THE SELLERS AND CONSEQUENTLY THEIR STATEMENTS WERE ALSO RECORDED. IN THE STATEMENTS, BOTH THE PERSONS I.E. SHRI NARAYAN AND SHRI GANGA RAM ADMITT ED THAT THEY SOLD THE LAND TO THE ASSESSEE FOR A CONSIDERATION OF RS. 44,00,000/- AND RS. 34,60,000/- OUT OF WHICH A SUM OF RS. 4,00,000/- AND RS. 2,50,000/- RESPECTI VELY RECEIVED IN CASH AS ADVANCE AND THE REMAINING AMOUNT WAS RECEIVED THROUGH CHEQU ES. WHEREAS ON THE CONTRARY, THE ASSESSEE HAD SHOWN THE COST OF THE LA ND AT RS. 39,12,000/- AND RS. 3,15,000/- RESPECTIVELY IN THE BOOKS OF ACCOUNT EXC LUDING STAMP DUTY AND OTHER EXPENSES. THEREFORE, THE AO ADDED A SUM OF RS. 6,5 0,000/- UNDER SECTION 69B OF THE IT ACT BY HOLDING THAT THE ABOVE INVESTMENT OF RS. 6,50,000/- WAS MADE BY THE ASSESSEE OUT OF BOOKS OF ACCOUNT, THE SOURCE OF WHI CH HAS NOT BEEN EXPLAINED. ON THE CONTRARY, THE LD. COUNSEL FOR THE ASSESSEE SPEC IFICALLY SUBMITTED BEFORE US THAT THE AO WAS WRONG IN MAKING THE ADDITION OF RS. 6,50 ,000/- UNDER SECTION 69B OF THE 3 ITA NO. 220/JP/2020 M/S. GORI SHANKAR COLONIZERS PVT. LTD., JAIPUR. ACT WITHOUT GIVING ANY OPPORTUNITY TO THE ASSESSEE AND EVEN THE OPPORTUNITY TO CROSS EXAMINE THE SELLERS WAS NOT PROVIDED. IT WAS FURTH ER SUBMITTED THAT THE REVENUE HAS NOT PLACED ANY EVIDENCE TO SHOW THAT THE ASSESSEE H AD MADE ANY SUCH INVESTMENT. IN ORDER TO SUPPORT HIS VERSION, THE ASSESSEE RELIE D ON THE DECISIONS OF HONBLE HIGH COURTS IN THE CASES OF CIT VS. NARESH KHATTAR (HUF) 261 ITR 664 (DELHI), SMT. AMAR KUMARI SURANA VS. CIT, 226 ITR 344 (RAJ.) WHEREIN I T WAS HELD THAT THE BURDEN IS ON THE REVENUE TO PROVE THE REAL INVESTMENTS EXCEEDING INVESTMENTS SHOWN IN THE BOOKS OF ACCOUNT OF THE ASSESSEE. 3.1. AFTER HAVING GONE THROUGH THE FACTS OF THE PRE SENT CASE AND AFTER PERUSAL OF THE STATEMENTS MADE BY THE SELLERS UNDER SECTION 13 1 OF THE ACT, WE FIND THAT IN THE ENTIRE STATEMENTS OF THE SELLERS NOWHERE NAME OF TH E ASSESSEE WAS MENTIONED. APART FROM RECORDING THE STATEMENTS UNDER SECTION 1 31, THE REVENUE WAS NOT HAVING ANY OTHER CORROBORATIVE EVIDENCE TO PROVE THAT THE ASSESSEE HAD MADE INVESTMENTS EXCEEDING THE AMOUNT SHOWN IN THE BOOKS OF ACCOUNT. AS PER THE DECISION IN THE CASE OF SMT. AMAR KUMARI SURANA VS. CIT (SUPRA), TH E HONBLE RAJASTHAN HIGH COURT HAS ALREADY HELD THAT THE BURDEN IS ON THE REVENUE TO PROVE THAT THE INVESTMENTS WERE MADE EXCEEDING THE AMOUNT SHOWN IN THE BOOKS O F ACCOUNT OF THE ASSESSEE. IN THE PRESENT CASE, THE REVENUE HAS FAILED TO DISCHAR GE ITS ONUS. IN THE STATEMENTS RECORDED UNDER SECTION 131 OF THE IT ACT, THE SELLE RS HAD NOT MENTIONED THE NAME OF THE ASSESSEE BUT HAD TOLD THAT THE LAND WAS SOLD TH ROUGH AGENT AND CANNOT REMEMBER HIS NAME. THOUGH THE LD. D/R APPEARING ON BEHALF OF THE REVENUE RELIED ON THE DECISION IN THE CASE OF BELA JUNEJA VS.CIT, 20 TAXMANN.COM 392 (DELHI), HOWEVER, THE PARAMATERIA CONTAINED IN THE SAID JUD GMENT IS NOT RELEVANT TO THE FACTS OF THE PRESENT CASE AS IN THE SAID CASE DOCUM ENTS WERE SEIZED WHICH REVEALED 4 ITA NO. 220/JP/2020 M/S. GORI SHANKAR COLONIZERS PVT. LTD., JAIPUR. THAT THE ASSESSEE HAD PURCHASED THE PROPERTY AT A H IGHER SUM THAN WHAT WAS REVEALED IN THE SALE DEED. HOWEVER, IN THE PRESENT CASE NO DOCUMENTARY EVIDENCE HAS BEEN PLACED ON RECORD WHICH REVEALED THAT THE A SSESSEE IN THE PRESENT CASE HAD PURCHASED THE PROPERTY IN QUESTION AT A HIGHER SUM THAN WHAT WAS REVEALED IN THE SALE DEED. EVEN OTHERWISE, AFTER GOING THROUGH CON TENTS OF THE REGISTERED SALE DEEDS PLACED ON RECORD, WE ARE OF THE VIEW THAT THE SE SALE DEEDS ARE REGISTERED DOCUMENTS AND THE SALE CONSIDERATION OF RS. 39,12,0 00/- AND RS. 32,15,000/- WERE RECEIVED BY SHRI NARAYAN AND SHRI GANGA RAM RESPECT IVELY. ON THE CONTRARY, NO DOCUMENT OR CORROBORATIVE EVIDENCE HAS BEEN PLACED ON RECORD BY THE REVENUE AUTHORITIES TO PROVE THAT THE INVESTMENTS MADE EXCE EDED THE INVESTMENTS SHOWN IN THE BOOKS OF ACCOUNT OF THE ASSESSEE. THEREFORE, M ERELY STATING THAT THE ASSESSEE MADE INVESTMENTS EXCEEDING THE AMOUNT SHOWN IN THE SALE DEED WOULD NOT FASTEN ANY LIABILITY ON THE ASSESSEE UNDER SECTION 69B OF THE IT ACT. THEREFORE, KEEPING IN VIEW THE FACTS OF THE PRESENT CASE AND FOLLOWING TH E DECISIONS OF THE HONBLE HIGH COURTS RELIED ON BY THE LD. COUNSEL, WE DELETE THE ADDITION. 4. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED . ORDER PRONOUNCED IN THE OPEN COURT ON 09/02/2021. SD/- SD/- FOE FLAG ;KNO LANHI XKSLKBZ (VIKRAM SINGH YADAV) ( SANDEEP GOSAIN ) YS[KK LNL;@ ACCOUNTANT MEMBER U;KF;D LNL;@ JUDICIAL MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 09/02/2021. DAS/ 5 ITA NO. 220/JP/2020 M/S. GORI SHANKAR COLONIZERS PVT. LTD., JAIPUR. VKNS'K DH IZFRFYFI VXZSFKR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT-M/S. GORI SHANKAR COLONIZERS PVT. LTD ., JAIPUR. 2. IZR;FKHZ@ THE RESPONDENT-THE ITO WARD 5(1), JAIPUR. 3. VK;DJ VK;QDR@ CIT 4. VK;DJ VK;QDR@ CIT(A) 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ@ DR, ITAT, JAIPUR 6. XKMZ QKBZY@ GUARD FILE {ITA NO. 220/JP/2020} VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASST. REGISTRAR