ITO, Faridabad V. Sh Nafe Singh Gahlawat, Faridabad

ITA 2295/DEL/2009

• Counselvise Citation: [2011] 140 COUNSELVISE.COM (IT) 53308 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 6 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-12-2011
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: E
• Next Hearing Date: 22-11-2011
• Assessment Year: 2005-2006
• Appeal Filed On: 28-05-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: R S NEGI
• Keywords: Sale consideration of property below Jantri Value; Capital asset; Income from undisclosed sources; Fair market value; Corroborative evidences; Assessment record; Reason to believe
• Section: 50C; 133A

Judgement Text

ITA NO. 2295/DEL/2009 1 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH E NEW DELHI BEFORE SHRI A.D. JAIN, JUDICIAL MEMBER AND SHRI SHAMIM YAHYA, ACCOUNTANT MEMBER I.T.A. NO. 2295/DEL/2009 A.Y. : 2005-06 INCOME TAX OFFICER, WARD-II (I), BLOCK-B, NEW CGO COMPLEX, NH-IV, NIT, FARIDABAD VS. SH. NAFE SINGH GAHLAWAT , S/O SH. MAHA SINGH, H.NO. 1032, SECTOR-14, FARIDABAD (PAN/GIR NO. : AANPG3944N) (APPELLANT ) (APPELLANT ) (APPELLANT ) (APPELLANT ) (RESPONDENT ) (RESPONDENT ) (RESPONDENT ) (RESPONDENT ) ASSEESSEE BY : SH. GURJEET SINGH, CA DEPARTMENT BY : SH. R.S. NEGI, SR. D.R. ORDER ORDER ORDER ORDER PER SHAMIM YAHYA: AM PER SHAMIM YAHYA: AM PER SHAMIM YAHYA: AM PER SHAMIM YAHYA: AM THIS APPEAL BY THE REVENUE IS DIRECTED AGAINST TH E ORDER OF THE LD. COMMISSIONER OF INCOME TAX (APPEALS) DATED 17.3.2 009 PERTAINING TO ASSESSMENT YEAR 2005-06. 2. THE GROUNDS RAISED READ AS UNDER:- 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE, THE LD. COMMISSIONER OF INCOME TAX (APPEALS) HAS ERRED ON FACTS AND IN LAW IN DELETING THE ADDITION OF ` 2,14,500/- MADE BY THE ASSESSING OFFICER ON ACCOUNT OF UNACCOUNTED COMMISSION FROM DEAL OF PLOT NO. 7, SECTOR-4, DISREGAR DING THE FACT THAT THE ASSESSEE HAD FAILED TO FURNISH AN Y SATISFACTORY REPLY IN SUPPORT OF HIS CLAIM. ITA NO. 2295/DEL/2009 2 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E, THE LD. COMMISSIONER OF INCOME TAX (APPEALS) HAS ERRED ON FACTS AND IN LAW IN DELETING THE ADDITION OF ` 7,10,000/- MADE BY THE ASSESSING OFFICER ON ACCOUNT OF UNACCOUNTED COMMISSION FROM DEAL OF FIVE PROPERTIES DISREGARDING THE FACT THAT THE ASSESSEE HAD FAILED TO FURNISH ANY S ATISFACTORY REPLY IN SUPPORT OF HIS CLAIM. 3. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E, THE LD. COMMISSIONER OF INCOME TAX (APPEALS) HAS ERRED ON FACTS AND IN LAW IN DELETING THE ADDITION OF ` 2,37,000/- MADE BY THE ASSESSING OFFICER ON ACCOUNT OF UNACCOUNTED COMMISSION FROM DEAL OF PLOT NO. 73, SECTOR-6, FARIDA BAD DISREGARDING THE FACT THAT THE ASSESSEE HAD FAILED TO FURNISH ANY DOCUMENTARY EVIDENCE IN SUPPORT OF HIS CLAIM. 4. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E, THE LD. COMMISSIONER OF INCOME TAX (APPEALS) HAS ERRED ON FACTS AND IN LAW IN DELETING THE ADDITION OF ` 1,22,000 /- MADE BY THE ASSESSING OFFICER ON ACCOUNT OF INCOME FROM UNDISCLOSED SOURCES DISREGARDING THE FACT THAT THE ASSESSEE HAD FAILED TO FURNISH ANY DOCUMENTARY EVIDENCE IN RESPECT OF CASH IN HAND. 5. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E, THE LD. COMMISSIONER OF INCOME TAX (APPEALS) HAS ERRED ON FACTS AND IN LAW IN DELETING THE ADDITION OF ` 6,50,500/- MADE BY THE ASSESSING OFFICER ON ACCOUNT OF INCOME FROM UNDISCLOSED SOURCES DISREGARDING THE FACT THAT THE ITA NO. 2295/DEL/2009 3 ASSESSEE HAD FAILED TO PROVE THE IDENTITY, CREDITWO RTHINESS AND GENUINENESS OF THESE TRANSACTIONS. 6. THAT THE APPELLANT CRAVES FOR THE PERMISSION TO A DD, DELETE OR AMEND THE GROUNDS OF APPEAL BEFORE OR AT THE TIME OF HEARING OF APPEAL. 3. THE ASSESSEE IN THIS CASE DERIVES INCOME FROM C ONSULTANCY BUSINESS AND INTEREST INCOME FROM BANK. ALONGWITH TH IS THE ASSESSEE IS DOING BUSINESS IN THE NAME OF U. CHOUDHARY ESTAT E AGENCY, SECTOR- 14, FARIDABAD AS PROPERTY DEALER. IN THIS CASE SUR VEY WAS CONDUCTED ON 6.11.2004 BY ADDL. DIRECTOR OF (INV.) HARYANA, FA RIDABAD. DURING THE COURSE OF SURVEY U/S 133A(1), CERTAIN BOOKS OF ACCO UNTS AND DOCUMENTS WERE FOUND. 4. APROPOS GROUND NO. 1 ADDITION OF ` 2,14,500/- THE ASSESSING OFFICER WHILE EXAMINING THE CONTENTS OF ANNEXURE A-1, FOUND THAT THE ASSESSEE HAD SHOWN COMMISSION OF ` 1,43,000/- FROM THE DEAL OF PLOT NO. 7, SECTOR-4, BUT AS PER PAGE 23 OF ANNEXURE A-1 IMPOUNDED FROM OFFICE OF SHRI NS GAHLAWAT, THE CO MMISSION WAS PAID ON CHEQUE COMPONENT OF SALE CONSIDERATION. BU T THE TOTAL COMMISSION ON SALE CONSIDERATION OF ` 3,25,00,000/- @1%, ACCORDING TO THE ASSESSING OFFICER, WOULD BE ` 3,25,000/- PLUS ` 32,500/- (SERVICE TAX). THE ASSESSING OFFICER, THEREFORE, CALCULAT ED THE UNACCOUNTED COMMISSION AT ` 2,14,500/- ON THE MARKET VALUE OF THE PLOT WHICH ACCORDING TO THE ASSESSING OFFICER, WAS ATLEAST ` 3 .25 CRORES. 5. UPON ASSESSEES APPEAL LD. COMMISSIONER OF INCOME TAX (APPEALS) CONSIDERED THE ISSUE AND HELD AS UNDER: - ITA NO. 2295/DEL/2009 4 I HAVE CAREFULLY CONSIDERED THE SUBMISSIONS OF THE LD. AUTHORISED REPRESENTATIVE AND PERUSED THE ORDER O F ASSESSMENT, THE ADIS REPORT IN THE ASSESSMENT RECOR DS, AND DISCUSSED THE ISSUE WITH THE ASSESSING OFFICER. IT IS TRUE THAT IN THE ANNEXURE A-1, THE REFERENCE TO THIS PLO T SHOWS ITS SALE PRICE AT ` 3.25 CRORES ON PAGE 23, ANNEXURE A- 1. HOWEVER, AS THE LD. AUTHORISED REPRESENTATIVE HAS EXPLAINED, THE DEED WAS NOT MATURED AT THAT PRICE D UE TO SEVERAL REASONS INCLUDING HIS OWN NATURE OF PROPERT Y DEALING BUSINESS. ACCORDING TO HIM, THE FINAL SALE PRICE AM OUNTED TO ` 1.30 CRORES ONLY IN SUPPORT OF WHICH THE LD. AUTH ORISED REPRESENTATIVE HAS SUBMITTED THE REGISTERED DEED A S PER THE REGISTRAR AUTHORITIES WHICH IS AN AUTHENTIC DOC UMENT AND NOT DISPUTED BY THE ASSESSING OFFICER. MOREOVE R, THE DOCUMENT OF REGISTRATION IS IN ACCORDANCE OF PROVISI ONS OF SECTION 50C OF THE INCOME TAX, ACCORDING TO WHICH T HE FULL VALUE OF THE CONSIDERATION FOR THE PURPOSE OF SECTI ON 48 HAS BEEN TAKEN AS PER THE STAMP VALUATION AUTHORITY WH ICH HAS NOT BEEN DISPUTED BY THE ASSESSING OFFICER AT ANY MOMENT DURING THE COURSE OF ASSESSMENT PROCEEDINGS. IF THE ASSESSING OFFICER HAD ONLY DOUBT AGAINST THE REGISTRATION DEED SHOWING THE UNDERSTATED VALUE, TH E ASSESSING OFFICER COULD HAVE REFERRED THE MATTER TO THE VALUATION OFFICER FOR THE VALUATION OF THE CAPITAL ASSETS, BUT EVIDENTLY THE ASSESSING OFFICER HAS NOT TAKEN ANY ACTION TO ASCERTAIN THE VERACITY OF THE SALE PRICE OF ` 1.30 CRORES REFLECTED IN THE REGISTERED DEED. THUS, THERE BEIN G NO PRIMA FACIE MATERIAL GATHERED BY THE ASSESSING OFFICE R IN ITA NO. 2295/DEL/2009 5 REJECTING THE VALUATION OF THE PLOT SHOWN IN THE R EGISTRATION DEED, THE SALE PRICE OF ` 3.25 CRORES REFLECTED IN ANNEXURE A-1 CANNOT BE TAKEN TO BE THE FAIR MARKET VALUE OF T HIS PLOT. IN FACT, THE ASSESSING OFFICER HAS NOT BROUGHT OUT ANY CORROBORATING EVIDENCES ON RECORD WHICH MAY TRULY E STABLISH THE VALUE OF THE PLOT AT ` 3.25 CRORES APPEARING IN ANNEXURE A-1. THE ASSESSING OFFICER HAS PROCEEDED MERELY ON DOUBT/ PRESUMPTION THAT THE ACTUAL SALE PRICE WAS ` 3.25 CR ORES WITHOUT BRINGING ANY ADVERSE MATERIAL ON RECORD TO SUBSTANTIATE HIS APPARENT INFERENCES TO THE VALUA TION OF THIS PLOT, IN THE ABSENCE OF ANY ENQUIRIES, LIKE REFERENCE TO THE VALUATION OFFICER AS PER THE PROVISION OF SECTI ON 50C OF THE INCOME TAX ACT, 1961. THEREFORE, THE WHOLE ACTI ON OF THE ASSESSING OFFICER BEING WITHOUT ANY ENQUIRIES TO SUPPORT HER CONCLUSIONS IN WORKING OUT THE COMMISSIO N @1% AMOUNTING TO ` 2,14,500/- CANNOT BE SUSTAINED. HENCE, THE ADDITION OF ` 2,14,500/- IS DELETED. 6. AGAINST THE ABOVE ORDER THE REVENUE IS IN APPEAL BEFORE US. 7. WE HAVE HEARD THE RIVAL CONTENTIONS IN LIGHT OF THE MATERIAL PRODUCED AND PRECEDENT RELIED UPON. WE FIND THAT IT IS A CLAIM OF THE ASSESSEE THAT SALE PRICE OF ` 3.25 CRORES DID NOT M ATERIALISE, THE DEAL WAS FINALLY SETTLED AT ` 1.30 CRORES. IN SUPPORT OF THIS REGISTERED DEED, AS PER REGISTRATION AUTHORITIES HAD BEEN PRODUCED. THE LD. COMMISSIONER OF INCOME TAX (APPEALS) HAS RIGHTLY HEL D THAT THE VALUATION IS AS PER SECTION 50C OF THE IT ACT. IF THE ASSESSING OFFICER HAD ANY DOUBT ABOUT THE VALUATION, IN THIS REGARD, HE COULD HAVE REFERRED THE MATER TO THE VALUATION CELL WHICH APPAR ENTLY ASSESSING ITA NO. 2295/DEL/2009 6 OFFICER HAS NOT DONE. UNDER THE CIRCUMSTANCES, T HE VALUE OF ` 1.30 CRORES DULY REFLECTED BY THE REGISTERED SALE DEED FROM THE REGISTRATION AUTHORITIES CANNOT BE DOUBTED. HENCE , IN OUR CONSIDERED OPINION, LD. COMMISSIONER OF INCOME TAX (APPEALS) IS CORRECT IN HOLDING THAT ACTION OF THE ASSESSING OFFICER IN W ORKING OUT THE COMMISSION @1% AMOUNTING TO ` 3.25 LACS CANNOT BE SU STAINED. ACCORDINGLY, WE UPHOLD THE ORDER OF THE LD. COMMISSI ONER OF INCOME TAX (APPEALS). 8. APROPOS GROUND NO. 3 : ADDITION OF ` 7,10,000/-. THE ASSESSING OFFICER IN PARA 2 OF HER ORDER MAD E ENQUIRIES FROM HUDA OFFICE, FARIDABAD TO ASCERTAIN PROPERTIES IN ANN EXURE A-1, AND FOUND THAT THE DEALS FROM S.NO. 1 TO 5 MENTIONED IN THE ORDER ON WHICH THE ASSESSING OFFICER WORKED OUT THE COMMISSION @ 1% WHICH AMOUNTED TO ` 7,10,000/- WERE BROKERED BY THE ASSESS EE, AND ADDED IT TO THE INCOME OF THE ASSESSEE. 9. UPON ASSESSEES APPEAL LD. COMMISSIONER OF INCOME TAX (APPEALS) CONSIDERED THE ISSUE AND HELD AS UNDER:- I HAVE CAREFULLY CONSIDERED THE SUBMISSIONS OF THE LD. AUTHORISED REPRESENTATIVE AND PERUSED THE ORDER O F ASSESSMENT AS WELL AS THE ASSESSMENT RECORDS AND DISCUSSED TH E ISSUE WITH THE ASSESSING OFFICER. AS EXPLAINED BY THE LD. AUTH ORISED REPRESENTATIVE AND AS IS EVIDENT FROM THE ORDER, T HE ASSESSING OFFICER HAS MADE ONLY HALF-HEARTED ENQUIRIES ABOUT THE PROPERTIES FROM S.NO. 1 RO 3 PERTAINED TO THE DLF WHI CH ARE NOT COVERED UNDER THE HUDA ACT AND IN WHICH CASES ONLY REGISTERED DEEDS AS PER THE REGISTRAR THROUGH PATWARI OR TEHSI LDAR ARE AFFECTED AND ON WHICH HUDA HAS NO POWER AS SUCH. T HEREFORE, ITA NO. 2295/DEL/2009 7 THESE DEALS CANNOT BE ATTRIBUTED TO THE ASSESSEE AN D AS SUCH NO COMMISSION CAN BE CALCULATED ON THEM. AS FAR AS T HE PROPERTIES AT SL. NO. 4 ARE CONCERNED, THEY WERE SOLD THROUGH AUCTION AND IT IS OBVIOUS THAT THERE IS NO ROLE OF ANY COMMISSION A GENT IN SUCH TYPE OF TRANSACTIONS. THEREFORE, NO COMMISSION CAN BE WORKED OUT ON THESE DEALS CONSIDERED WRONGLY BY THE ASSESS ING OFFICER. AS FAR AS THE PROPERTY AT S.NO. 5 IS CONCERNED, THE ASSESSING OFFICER HAS EXPLAINED THAT IT WAS PURCHASED BY SHR I BHIM WHO HIMSELF WAS A PROPERTY DEALER TO WHOM NO COMMISSION W AS PAID BEING IN THE SAME LINE OF BUSINESS FOR PROFESSIONAL COURTESIES. THE ASSESSING OFFICER HAS ARGUED THAT THERE IS NO REASON TO BELIEVE THAT NO COMMISSION OR ADJUSTMENT CONSIDERATIO N WAS PASSED TO SHRI BHIM. HOWEVER, THE LD. AUTHORISED REP RESENTATIVE HAS PLEADED THAT IF THESE PROPERTIES WERE SOLD AT A LL WITH SUCH CONSIDERATION, THE ASSESSING OFFICER HAS NOT BROUG HT ANY MATERIAL ON RECORD TO JUSTIFY HIS ACTION. I TEND TO CONCUR WITH THE CONTENTIONS OF THE LD. AUTHORISED REPRESENTATIVE. THE ASSESSING OFFICER HAS NOT DISCHARGED HIS ONUS IN BRINGING OUT THE ACTUAL SALE MADE TO SHRI BHIM, AND MORE SO, WORKING COMMISS ION ON THE DEAL AS SUCH. IN FACT, THE ASSESSING OFFICER HAS NO BASIS TO CH ARGE COMMISSION ON ALL THE PROPERTIES AS NO REGISTERED DE ED HAS BEEN PRODUCED BY THE ASSESSING OFFICER IN SUPPORT OF HI S ACTION IF THESE WERE SOLD THROUGH THE APPELLANT. ALL THESE DOCUMENTS AND EXPLANATIONS WERE GIVEN BY THE ASSESSEE DURING THE COURSE OF ASSESSMENT PROCEEDINGS BUT THE ASSESSING OFFICER CONVENIENTLY IGNORED THEM. SINCE THERE IS NO EVIDENCE ON RECORD THAT THE ABOVE PROPERTIES WERE SOLD/ PURCHASED THROUGH THE A SSESSEE, IN ITA NO. 2295/DEL/2009 8 THE ABSENCE OF CORROBORATIVE DIRECT EVIDENCES, THE ASSESSING OFFICERS ACTION IN APPLYING THE FLAT RATE OF 1% COMMISSION IS TOTALLY ARBITRARY AND IMPROBABLE ON THE FACTS AND C IRCUMSTANCES OF THE CASE. THEREFORE, THE ADDITION OF ` 7,10,00 0/- STANDS DELETED. 10. AGAINST THE ABOVE ORDER THE REVENUE IS IN APPEA L BEFORE US. 11. WE HAVE HEARD THE RIVAL CONTENTIONS IN LIGHT O F THE MATERIAL PRODUCED AND PRECEDENT RELIED UPON. WE FIND IN T HIS CASE ASSESSING OFFICER HAS OPINED THAT FIVE DEALS WERE ENTERED INTO BY THE ASSESSEE WHICH EMANATE FROM THE ENQUIRIES FROM HUDA OFFICE. ASSESSING OFFICER HAS COMPUTED COMMISSION @1% AMOUNTING TO ` 7 ,10,000/-. LD. COMMISSIONER OF INCOME TAX (APPEALS) HAS GIVEN A FINDING THAT PROPERTIES FROM SL. NO. 1 TO 3 PERTAIN TO DLF WHICH AR E NOT COVERED UNDER HUDA ACT. THEREFORE, THIS CANNOT BE ATTRIBUTE D TO THE ASSESSEE AND NO COMMISSION CAN BE ATTRIBUTED ON THEM. AS REGAR DS THE SL. NO. 4 THE SAME WAS SOLD THROUGH AUCTION AND HENCE, IT IS OBVIOUS THAT THERE IS NO ROLE OF ANY COMMISSION AGENT IN SUCH TYPE OF T RANSACTIONS. THEREFORE, NO COMMISSION CAN BE WORKED OUT ON THIS DEAL. AS FAR AS THE PROPERTY AT S.NO. 5 IS CONCERNED, IT WAS EXPLA INED THAT THE SAME WAS PURCHASED BY SHRI BHIM WHO HIMSELF WAS A PROPE RTY DEALER TO WHOM NO COMMISSION WAS PAID BEING IN THE SAME LINE O F BUSINESS FOR PROFESSIONAL COURTESIES. ON THIS REASONING LD. COMMI SSIONER OF INCOME TAX (APPEALS) HAS FOUND THAT THERE WAS NO REASON TO BELIEVE THAT THE ABOVE PROPERTIES WERE SOLD/ PURCHASED THROUGH THE A SSESSEE. THE LD. COMMISSIONER OF INCOME TAX (APPEALS) IS RIGHT IN HOL DING THAT IN THE ABSENCE OF CORROBORATIVE DIRECT EVIDENCES, THE ASSE SSING OFFICERS ACTION IN APPLYING THE FLAT RATE OF 1% COMMISSION IS NOT SUSTAINABLE. ITA NO. 2295/DEL/2009 9 IN OUR CONSIDERED OPINION, THERE IS NO INFIRMITY IN THE ORDER OF THE LD. COMMISSIONER OF INCOME TAX (APPEALS), HENCE, WE UPHO LD THE SAME. 12. APROPOS GROUND NO. 3 ADDITION OF ` 2,37,000/- AS PER THE ANALYSIS OF ANNEXURE A-3 ON PAGE 20 DEA LING WITH TRANSACTION OF PLOT NO. 73, SECTOR-6, FARIDABAD, THE ASSESSING OFFICER FOUND THAT THE ASSESSEE RECEIVED TOTAL COMMISSION O F ` 2,37,000/- OUT OF WHICH ` 1,15,000/- WAS RECEIVED BY CHEQUE AND TH E REMAINING OF ` 1,22,000/- IN CASH. SINCE THIS COMMISSION INCOME HA D NOT BEEN SHOWN IN THE RETURN OF INCOME, SHE TREATED IT AS UNACCOUN TED MONEY AND ADDED IT TO THE TOTAL INCOME OF THE ASSESSEE. 13. UPON ASSESSEES APPEAL LD. COMMISSIONER OF INCOME TAX (APPEALS) CONSIDERED THE ISSUE AND HELD AS UNDER:- I HAVE CAREFULLY CONSIDERED THE SUBMISSIONS OF THE LD. AUTHORISED REPRESENTATIVE AND PERUSED THE ORDER OF ASSESSMENT. AGAIN, THE ASSESSING OFFICER HAS NOT MA DE ANY SUBSTANTIAL ENQUIRIES IN RESPECT OF THIS TRANSACTIO N IN GATHERING DOCUMENTS TO SUPPORT HER CONCLUSIONS. FIRS T OF ALL, IT IS FOUND THAT THERE WAS NO ACTUAL DEAL WITH THE ABOVE PARTY, WHICH EXPLAINS THE REASON FOR ITS NON-COOPER ATION TO THE ASSESSING OFFICER IN THIS RESPECT. THE LD. A UTHORISED REPRESENTATIVE HAS PLEADED THAT AS ON DATE, SO FAR THERE HAS BEEN NO SALE OF THIS PROPERTY, NO DEAL AS SUCH. THESE FACTS WERE STATED BY THE ASSESSEE IN HIS LETTER DAT ED 13.12.2002, BUT THE ASSESSING OFFICER IGNORED THOS E SUBMISSIONS AND RATHER DID NOT RAISE ANY OBJECTION T O THEM OR EVEN CONFRONTED HER INFERENCES WITH THE ASSESSEE DURING THE COURSE OF ASSESSMENT PROCEEDINGS. SECONDLY, AS THE ITA NO. 2295/DEL/2009 10 NATURE OF THE EXPENDITURE OF ` 2,37,000/- CRYSTAL C LEAR SHOWS IT IS AN EXPENDITURE AND NOT A RECEIPT, FOR THE WORD USED IS PAID AND NOT RECEIVED. THEREFORE, THEY CAN NOT APPARENTLY BE TREATED AS COMMISSION INCOME OF THE ASSESSEE. KEEPING IN VIEW THIS DISCUSSION, ESPECIA LLY THE LD. AUTHORISED REPRESENTATIVES REASONS FOR NON RECEIP T OF THE AMOUNT OF ` 2,37,000/- FROM POINTS NO. (I) TO (III) AS ABOVE SINCE THERE IS NO RECEIPT OF COMMISSION OF ` 2,37,00 0/- OUT OF TRANSACTION OF THE SAID PROPERTY, THE ADDITION HA S NO LEGS TO STAND UPON, AND THEREFORE, IT STANDS DELETED. 14. AGAINST THE ABOVE ORDER THE REVENUE IS IN APPEA L BEFORE US. 15. WE HAVE HEARD THE RIVAL CONTENTIONS IN LIGHT OF THE MATERIAL PRODUCED AND PRECEDENT RELIED UPON. IN THIS CASE I T IS A PLEA OF THE ASSESSEE THAT SO FAR THERE HAS BEEN NO SALE OF THIS PROPERTY AND NO DEAL HAS BEEN ENTERED INTO. SECONDLY, LD. COMMISSI ONER OF INCOME TAX (APPEALS) OBSERVED THAT AS THE NATURE OF THE EX PENDITURE OF ` 2,37,000/- CRYSTAL CLEAR SHOWS IT IS AN EXPENDITUR E AND NOT A RECEIPT, FOR THE WORD USED IS PAID AND NOT REC EIVED. THEREFORE, THEY CANNOT APPARENTLY BE TREATED AS COMMISSION INCOM E OF THE ASSESSEE. IN THESE CIRCUMSTANCES, LD. COMMISSIONER OF INCOME TAX (APPEALS) HAS HELD THAT THERE WAS NO RECEIPT OF CO MMISSION OF ` 2,37,000/- OUT OF THE TRANSACTION OF THE SAID PROP ERTY. THEREFORE, HE RIGHTLY DELETED THE ADDITION. HENCE, WE UPHOLD THE ORDER OF THE LD. COMMISSIONER OF INCOME TAX (APPEALS). 16. APROPOS GROUND NO. 4 - ADDITION OF ` 1,22,00 0/- THE ASSESSING OFFICER IN PARA 5 OF HER ORDER FOUN D THAT THERE WAS A PURCHASE OF STAMP PAPER OF ` 1,22,100/- ON THE PURCHASE OF PART ITA NO. 2295/DEL/2009 11 OF INDUSTRIAL PLOT NO. 22, DLF INDUSTRIAL ESTATE NO. I I AT VILLAGE PALLA, DISTRICT FARIDABAD. SINCE THE ASSESSEE COULD NOT FUR NISH ANY DOCUMENTARY EVIDENCE FROM WHERE THE PAYMENT IN CASH WAS MADE, SHE EFFECTED AN ADDITION OF ` 1,22,100/- AS INCOME FROM UNDISCLOSED SOURCES. 17. UPON ASSESSEES APPEAL LD. COMMISSIONER OF INCOME TAX (APPEALS) CONSIDERED THE ISSUE AND HELD AS UNDER:- I HAVE CAREFULLY CONSIDERED THE SUBMISSIONS OF THE LD. AUTHORISED REPRESENTATIVE AND PERUSED THE ORDER OF ASSESSMENT. THE LD. AUTHORISED REPRESENTATIVE HAS AGREED THAT THE SAID STAMP DUTY AMOUNT WAS PAID ON TH E PURCHASE OF AGRICULTURAL LAND BY THE ASSESSEE. THE ASSESSING OFFICER HAS ONLY DISPUTED ITS SOURCE O F INVESTMENT. THE LD. AUTHORISED REPRESENTATIVE HAS EXPLAINED THE SOURCE OF CASH PAYMENT OF ` 1,22,100/ - FROM THE BANK STATEMENT FURNISHED IN WHICH VARIOUS WITH DRAWAL /SELF ENTRIES SO THE AVAILABILITY OF FUNDS OCCASION ED BY THE NATURE OF BUSINESS CONDUCTED BY THE ASSESSEE. TO EX PLAIN THE AVAILABILITY OF CASH WITHDRAWN FROM THE BANK, TH E LD. AUTHORISED REPRESENTATIVE HAS PRODUCED THE CASH FL OW STATEMENT FOR THE F.Y.S 2003-04 AND 2004-05, THE EXAMINATION OF WHICH REVEALS THAT THE APPELLANT HAD SUFFICIENT CASH WHICH COULD EASILY BE INVESTED IN S TAMP DUTIES. SINCE THE SOURCE IS QUITE EXPLAINABLE FROM THE FUNDS LYING IN THE BANK STATEMENT OF THE ASSESSEE BEING ON THE ASSESSMENT RECORDS BY CASH FLOW STATEMENT, THE ADDI TION OF ` 1,22,100/- IS DELETED. ITA NO. 2295/DEL/2009 12 18. AGAINST THE ABOVE ORDER THE REVENUE IS IN APPEA L BEFORE US. 19. WE HAVE HEARD THE RIVAL CONTENTIONS IN LIGHT OF THE MATERIAL PRODUCED AND PRECEDENT RELIED UPON. WE FIND THAT L D. COMMISSIONER OF INCOME TAX (APPEALS) HAS GIVEN A FINDING THAT SO URCE OF PURCHASE OF STAMP PAPER OF ` 1,22,100/- WAS AVAILABLE TO THE ASS ESSEE FROM HIS BANK. IN THIS REGARD ASSESSEE HAS ALSO SUBMITTED T HE CASH FLOW STATEMENT OF FINANCIAL YEARS 2003-04 AND 2004-05, O N EXAMINATION OF WHICH LD. COMMISSIONER OF INCOME TAX (APPEALS) HAS FOUND THAT ASSESSEE HAD SUFFICIENT CASH WHICH COULD EASILY BE INVESTED IN STAMP DUTIES. HENCE, LD. COMMISSIONER OF INCOME TAX (APPEA LS) HAS RIGHTLY HELD THAT THE SOURCE IS QUITE EXPLAINABLE FROM THE FUNDS LYING THE BANK STATEMENT AVAILABLE AND SUPPORTED BY THE CASH FLOW STATEMENT. HENCE, WE DO NOT FIND ANY INFIRMITY IN THE ORDER OF THE LD. COMMISSIONER OF INCOME TAX (APPEALS) IN THIS REGARD IN DELETING THE ADDITION. 20. APROPOS GROUND NO. 5 ADDITION OF ` 6,50,500/ - AS PER ANNEXURE-A-4, ASSESSING OFFICER FOUND THA T ASSESSEE HAS SHOWN CERTAIN RECEIPTS, THE TOTAL OF WHICH CAME TO ` 6,50,500/-. ASSESSEE WAS ASKED TO PRODUCE THE PERSONS MENTIONED OR FURNISH ANY CONFIRMATION OR COMPLETE ADDRESS, BUT ASSESSEE DID NO T PRODUCE THE PERSONS NOR HE HAS GIVEN THE CONFIRMATION. THEREFOR E, ASSESSING OFFICER MADE THE ADDITION OF ` 6,50,500/- BY HOLD ING THAT THE ASSESSEE HAS FAILED TO PROVE THE IDENTITY, CREDITWO RTHINESS AND GENUINENESS OF THE TRANSACTIONS. ITA NO. 2295/DEL/2009 13 21. UPON ASSESSEES APPEAL LD. COMMISSIONER OF INCOME TAX (APPEALS) HELD THAT AS UNDER:- I HAVE CAREFULLY CONSIDERED THE SUBMISSIONS OF THE LD. AUTHORISED REPRESENTATIVE AND PERUSED THE ORDER OF ASSESSMENT. IN THE PRESENCE OF THE ASSESSING OFFI CER, AGAIN THE MATTER HAS BEEN FULLY THRASHED OUT AND TH E REQUISITE IMPOUNDED DOCUMENTS U/S 133A HAVE ALSO BEE N EXAMINED. IT IS FOUND THAT THE ASSESSING OFFICER HAS CONSIDERED THE RECEIPT SIDE OF THE LEDGER OF THE P AGES OF THE ANNEXURE A-4 AND HAS NOT CONSIDERED THE EXPEND ITURE SIDE MENTIONED AS C1, C2, C3, C4 & C5 AGAINST THE RECEIPT SIDE. THESE ENTRIES ON THE PAYING SIDE ARE ONLY C ONTRA ENTRIES WHICH AS PER THE ACCOUNTING LANGUAGE CANNOT BE CONSTRUED TO BE THE RECEIPTS OF INCOME ON BEHALF OF KNOWN PEOPLE I.E. RSVP, BECAUSE THE RECEIVING ON ONE END AND PAYING ON THE OTHER END, DOES NOT AMOUNT TO ANY RECE IPT. THE LD. AUTHORISED REPRESENTATIVE HAS EXPLAINED AL L THE AMOUNTS VERY CONVINCINGLY AND THOROUGHLY IN HIS WRIT TEN SUBMISSIONS AS ABOVE. MOREOVER, THE ASSESSING OFFIC ER HAS NOT BROUGHT ANY CORROBORATIVE EVIDENCES AT ANY STAG E TO BUTTRESS HER FINDINGS, IF ANY. SINCE THE ASSESSING OFFICER HAS NOT BEEN ABLE TO APPRECIATE CO-RELATION OF THE REC EIPTS AND PAYMENTS OF THE ANNEXURE A-4 BEING THE CONTRA ENTRI ES, THE ADDITION OF ` 6,50,500/- MADE ON NON-APPRECIATION OF THE ACCOUNTING PRINCIPLES STANDS DELETED. 22. AGAINST THE ABOVE ORDER THE REVENUE IS IN APPEA L BEFORE US. ITA NO. 2295/DEL/2009 14 23. WE HAVE HEARD THE RIVAL CONTENTIONS IN LIGHT O F THE MATERIAL PRODUCED AND PRECEDENT RELIED UPON. WE FIND THAT L D. COMMISSIONER OF INCOME TAX (APPEALS) OBSERVED THAT ASSESSING OF FICER HAS CONSIDERED THE RECEIPT SIDE OF THE LEDGER OF THE PA GES OF ANNEXURE A-4 AND HAS NOT CONSIDERED THE EXPENDITURE SIDE MENTI ONED AS C1, C2, C3, C4 & C5 AGAINST THE RECEIPT SIDE. LD. COMMIS SIONER OF INCOME TAX (APPEALS) HAS OPINED THAT THESE ENTRIES ON THE PAYING SIDE ARE ONLY CONTRA ENTRIES WHICH AS PER THE ACCOUNTING LAN GUAGE CANNOT BE CONSTRUED TO BE THE RECEIPTS OF INCOME ON BEHALF O F KNOWN PEOPLE, BECAUSE THE RECEIVING ON ONE END AND PAYING ON THE OTHER END, DOES NOT AMOUNT TO ANY RECEIPT. THE LD. COMMISSIONER OF INCOME TAX (APPEALS) HAS HELD THAT SINCE THE ASSESSING OFFICE R HAS NOT APPRECIATED CO-RELATION OF THE RECEIPTS AND PAYME NTS OF THE ANNEXURE A-4 BEING THE CONTRA ENTRIES, THE ADDITION OF ` 6 ,50,500/- MADE ON NON-APPRECIATION OF THE ACCOUNTING PRINCIPLES IS DELETED. IN OUR CONSIDERED OPINION THERE IS NO INFIRMITY IN THE ORDE R OF THE LD. COMMISSIONER OF INCOME TAX (APPEALS), HENCE, WE UPHO LD THE SAME. 24. IN THE RESULT, THE APPEAL FILED BY THE REVENUE STANDS DISMISSED ORDER PRONOUNCED IN THE OPEN COURT ON 09/12/2011. SD/- SD/- [ [[ [A.D. JAIN A.D. JAIN A.D. JAIN A.D. JAIN] ]] ] [SHAMIM YAHYA] [SHAMIM YAHYA] [SHAMIM YAHYA] [SHAMIM YAHYA] JUDICIAL MEMBER JUDICIAL MEMBER JUDICIAL MEMBER JUDICIAL MEMBER ACCOUNTANT MEMBER ACCOUNTANT MEMBER ACCOUNTANT MEMBER ACCOUNTANT MEMBER DATE 09/12/2011 SRB COPY FORWARDED TO: COPY FORWARDED TO: COPY FORWARDED TO: COPY FORWARDED TO: - -- - 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT (A) 5. DR, ITAT TRUE COPY BY ORDER, ASSISTANT REGISTRAR, ITAT, DELHI BENCHES