Sh. Ashwani Kumar, Nabha V. ITO, Nabha

ITA 231/CHANDI/2014

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 95727 (ITAT-CHANDIGARH)
• Duration Of Justice: 1 year(s) 8 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-11-2015
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 17-11-2015
• Assessment Year: 2009-2010
• Appeal Filed On: 06-03-2014
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: MANJIT SINGH
• Assessee Lawyers: K P BAJAJ
• Keywords: Principle of natural justice; Onus to prove
• Section: 131

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DIVISION BENCH,CHANDIGARH BEFORE SHRI BHAVNESH SAINI, JUDICIAL MEMBER AND MS.RANO JAIN, ACCOUNTANT MEMBER ITA NO. 231/CHD/2014 ASSESSMENT YEAR: 2009-10 SHRI ASHWANI KUMAR, VS THE ITO, PROP. SAI PLANT PROTECTOR, NABHA. THANA ROAD, BHADSON,TEH. NABHA. PAN: AAZPK6954A (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI K.P.BAJAJ RESPONDENT BY : SHRI MANJIT SINGH DATE OF HEARING : 17.11.2015 DATE OF PRONOUNCEMENT : 27.11.2015 O R D E R PER BHAVNESH SAINI,JM THIS APPEAL BY ASSESSEE IS DIRECTED AGAINST THE ORDER OF LD. CIT(APPEALS) PATIALA DATED 24.12.2013 FOR ASSESSMENT YEAR 2009-10 ON THE FOLLOWING GROUNDS : 1. THAT ON FACTS AND CIRCUMSTANCES OF THE CASE THE ID. CIT(A) IS NOT JUSTIFIED IN HOLDING THAT THE ORDER PASSED IS NOT IN VIOLATION OF THE RULES OF NATURAL JUSTICE AS THE MA TERIAL COLLECTED AT THE BACK OF THE ASSESSEE WAS NOT CONFR ONTED. 2. THAT WITHOUT PREJUDICE TO ABOVE, THE ID. CIT(A) IS NOT JUSTIFIED IN UPHOLDING THE ADDITION OF RS. 65,00,00 0/- MADE ON ACCOUNT OF ALLEGED UNEXPLAINED AMOUNT OF ADVANCE S RECEIVED AGAINST SALE OF PROPERTIES. 3. THAT WITHOUT FURTHER PREJUDICE TO ABOVE, THE ID. CIT(A) IS NOT JUSTIFIED IN UPHOLDING THE ADDITION OF RS. 5,40,000 /- THOUGH THE AMOUNT WAS DEPOSITED AND DULY RECORDED IN THE B OOKS OF ACCOUNT. 2 2. THE ASSESSEE FILED RETURN OF INCOME AT RS. 1,14,640/-. THE CASE WAS SELECTED FOR SCRUTINY ON T HE BASIS OF AIR INFORMATION THAT THERE ARE DEPOSITS OF RS. 70,41,000/- IN THE BANK ACCOUNT OF THE ASSESSEE, TH E SOURCE OF WHICH IS REQUIRED TO BE EXAMINED. THE ASSESSEE SUBMITTED BEFORE ASSESSING OFFICER THAT ON 19.06.2008, ASSESSEE ENTERED INTO AN AGREEMENT OF S ALE WITH SHRI MANDEEP SINGH FOR SALE OF HIS IMMOVABLE PROPERTY MENTIONED IN THE AGREEMENT FOR CONSIDERATI ON OF RS. 70 LACS. THE DATE OF REGISTRATION OF SALE D EED WAS FIXED FOR 27.06.2008. THE ASSESSEE APPEARED BEFORE REVENUE OFFICER BUT OTHER PARTY DID NOT APPEAR. THEREFORE, ASSESSEE CONFISCATED THE ADVANCE OF RS. 35 LACS RECEIVED FROM SHRI MANDEEP SINGH. SIMILARLY, ON 24.06.2008, ASSESSEE ENTERED INTO ANOTHER AGREEMENT OF SALE WITH SHRI DHANNA SINGH FOR SALE OF IMMOVABLE PROPERTY FOR A TOTAL CONSIDERATION OF RS. 60 LACS A ND ASSESSEE RECEIVED ADVANCE OF RS. 30 LACS. ON THE D ATE OF REGISTRATION, OTHER PARTY DID NOT APPEAR THEREFORE, ASSESSEE SIMILARLY CONFISCATED THE ADVANCE OF RS. 3 0 LACS. COPIES OF THE AGREEMENT WERE FILED BEFORE ASSESSING OFFICER. THE ASSESSING OFFICER ASKED THE ASSESSEE TO PRODUCE BOTH THE PERSONS FROM WHOM ASSESSEE RECEIVED ADVANCE OF RS. 65 LACS BUT ASSESS EE DID NOT PRODUCE ANY OF THESE PERSONS FOR EXAMINATIO N BEFORE ASSESSING OFFICER AND REQUESTED TO ISSUE SUM MON UNDER SECTION 131 OF THE ACT TO THESE PERSONS. THE ASSESSING OFFICER ISSUED SUMMONS UNDER SECTION 131 OF 3 THE INCOME TAX ACT ON THE REQUEST OF THE ASSESSEE B UT NOBODY APPEARED BEFORE ASSESSING OFFICER ON THE DAT E OF HEARING. ON FURTHER ENQUIRY, IT WAS FOUND THAT SHR I MANDEEP SINGH IS NOT RESIDENT OF THE VILLAGE WHICH IS MENTIONED IN THE AGREEMENT. SIMILARLY, SHRI DHANNA SINGH HAS LEFT THE VILLAGE A FEW YEARS BACK BY SELL ING THE PROPERTIES. ON FURTHER ENQUIRY, IT WAS ALSO FOUND THAT SHRI DHANNA SINGH HAS EXPIRED ABOUT THREE YEARS BAC K. THE ASSESSING OFFICER, THEREFORE, HELD THAT ASSESSE E HAS INTRODUCED UNACCOUNTED MONEY AND HENCE, SHOWN THE ENTIRE TRANSACTION THROUGH SHAM AGREEMENT. FURTHER , ASSESSEE HAS NOT FILED ANY EXPLANATION OF BALANCE AMOUNT OF RS.5,40,000/-. THE ADDITION OF THE ENTIR E AMOUNT WAS ACCORDINGLY MADE. 3. THE ASSESSEE SUBMITTED BEFORE LD. CIT(APPEALS) THAT THE ENQUIRY CONDUCTED BY ASSESSING OFFICER WAS AT THE BACK OF THE ASSESSEE. THE LD. CIT(APPEALS), HO WEVER, NOTED THAT ASSESSEE DID NOT PRODUCE ANY OF THE ABOV E PERSONS BEFORE ASSESSING OFFICER FOR VERIFICATION D ESPITE ISSUE OF THE SUMMONS. BURDEN UPON ASSESSEE IS NOT DISCHARGED AND ACCORDINGLY, APPEAL OF THE ASSESSEE WAS DISMISSED. 4. AFTER CONSIDERING RIVAL SUBMISSIONS, WE DO NOT F IND ANY MERIT IN THIS APPEAL OF THE ASSESSEE. THE ASSES SEE CLAIMED RECEIPT OF RS. 65 LACS THROUGH AGREEMENT OF SALE ENTERED INTO WITH TWO ALLEGED PERSONS. FURTHER, NO NE OF THEM WAS PRODUCED BEFORE ASSESSING OFFICER FOR 4 EXAMINATION AND VERIFICATION OF THE SOURCE OF THE B ANK DEPOSIT. THE ASSESSEE'S REQUEST FOR ISSUE OF SUMMO N WAS ALSO ACCEPTED BY ASSESSING OFFICER AND DESPITE SUMMONING BOTH THESE PERSONS UNDER SECTION 131, NON E APPEARED BEFORE ASSESSING OFFICER. THE BURDEN WAS U PON ASSESSEE TO PROVE THE SOURCE OF THE ADVANCE MONEY RECEIVED ON ACCOUNT OF AGREEMENT OF SALE BUT BURDEN UPON ASSESSEE HAS NOT BEEN DISCHARGED. THE ENQUIRY WAS CONDUCTED LATER ON WHICH FIND THAT NONE OF THES E PERSONS HAVE BEEN RESIDING AT THE GIVEN ADDRESS. THEREFORE, WHEN PERSONS WERE NOT RESIDING IN VILLAG E, NOTHING COULD BE SAID THAT ANY ENQUIRY WAS CONDUCTE D AT THE BACK OF THE ASSESSEE BECAUSE ASSESSEE FAILED TO PROVE THE SOURCE OF THE CASH DEPOSIT IN HIS BANK ACCOUNT. EVEN FOR THE BALANCE AMOUNT OF RS.5,40,00 0/-, NO EXPLANATION WAS FILED BEFORE THE AUTHORITIES BEL OW. NO MATERIAL WAS THUS, COLLECTED AT THE BACK OF THE ASSESSEE. THE LD. COUNSEL FOR THE ASSESSEE, DURING THE COURSE OF ARGUMENTS ADMITTED THAT NO REQUEST WAS MA DE BEFORE LD. CIT(APPEALS) IF ASSESSEE WAS ABLE TO PRO DUCE ANY OF THESE PERSONS FOR EXAMINATION, EVEN BEFORE T HE LD. CIT(APPEALS). THE LD. COUNSEL FOR THE ASSESSEE MER ELY CONTENDED THAT MATTER MAY BE REMANDED TO THE ASSESSING OFFICER FOR FRESH ADJUDICATION. THE REQU EST OF THE ASSESSEE CANNOT BE ACCEPTED BECAUSE ASSESSEE FA ILED TO DISCHARGE ONUS TO PROVE THE SOURCE OF THE CASH DEPOSIT IN THE BANK ACCOUNT OF THE ASSESSEE. IN TH E ABSENCE OF ANY EVIDENCE OR MATERIAL ON RECORD, WE D O NOT 5 FIND ANY INFIRMITY IN THE ORDERS OF THE AUTHORITIES BELOW IN MAKING AND CONFIRMING THE ADDITION. WE, THEREFO RE, CONFIRM THE ADDITION AND DISMISS THE APPEAL OF THE ASSESSEE. 5. IN THE RESULT, APPEAL OF THE ASSESSEE IS DISMISS ED. ORDER PRONOUNCED IN THE OPEN COURT. SD/- SD/- (RANO JAIN) (BHAVNESH SAIN I) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 27 TH NOV., 2015. POONAM COPY TO: THE APPELLANT, THE RESPONDENT, THE CIT(A), THE CIT, DR ASSISTANT REGISTRAR, ITAT/CHD