ITO, New Delhi V. Shri Kumar Saurabh, New Delhi

ITA 248/DEL/2017

• Counselvise Citation: [2018] 121 COUNSELVISE.COM (IT) 5436 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 3 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-04-2018
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: SMC
• Next Hearing Date: 21-06-2017
• Assessment Year: 2010-2011
• Appeal Filed On: 13-01-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ASHIMA NEB
• Assessee Lawyers: MANOJ KUMAR CA
• Keywords: Income from undisclosed sources; Corroborative evidences
• Section: 143(3); 131; 69; 54; 6

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: F NEW DELHI BEFORE SMT. DIVA SINGH, JUDICIAL MEMBER ITA NO.-248/DEL/2017 ( ASSESSMENT YEAR: 2010-11) ITO WARD 71(1), ROOM NO. 401, 4 TH FLOOR, D-BLOCK, PRATAYAKASHKAR BHAWAN, DR. SPM CIVIC CENTRE, NEW DELHI. VS KUMAR SAURABH R/O 305, DHAKA CHAMBER, 2068/38, NAI WALA, KAROL BAGH, NEW DELHI. AUVPS4765K ASSESSEE BY SH. MANOJ KUMAR,CA REVENUE BY MS. ASHIMA NEB, SR. DR ORDER THE PRESENT APPEAL HAS BEEN FILED BY THE ASSESSEE, ASSAILING THE CORRECTNESS OF THE ORDER DATED 20.10.2016 OF CIT(A) -21, NEW DELHI PERTAINING TO 2010-11 AY ON THE FOLLOWING GROUNDS: 1. WHETHER, THE LD.CIT(A), ON THE FACTS AND THE CI RCUMSTANCES OF THE CASE, AND ALSO IN LAW HAS ERRED IN DELETING THE ADDITION OF RS. 35 LAKHS MADE BY THE AO ON ACCOUNT OF UNEXPLAINED CASH DEPOSIT U/S 6 9 OF THE I.T. ACT, 1961. 2. THE APPELLANT CRAVES LEAVE TO ADD, AMEND, ALTER, VARY AND/OR WITHDRAW ANY OR ALL THE ABOVE GROUNDS OF APPEAL. 2. THE LD. SR. DR ON 17.04.18 HAD REQUESTED FOR TIM E. THE SAID REQUEST WAS OPPOSED BY THE LD. AR STATING THAT THE DEPARTMENT H AVING FILED THE APPEAL IS FREQUENTLY SEEKING TIME IGNORING THE FACT THAT THER E ARE CONSISTENTLY ORDERS OF AND CIT(APPEALS) IN THE CASE OF THE ASSESSEE AND HIS MO THER SMT. IBHA RANI AND THE ASSESSING OFFICERS IN THE CASE OF THE PURCHASERS SH . OM PRAKASH BANSAL AND SH. HARSH ARORA. COPY OF THE ORDER DT. 10.03.2017 OF C IT(A)-19, NEW DELHI IN THE CASE OF SMT. IBHA RANI SINGH WAS FILED STATING THAT THE CIT(A) CATEGORICALLY RELYING UPON THE AGREEMENTS AND THE VARIOUS OTHER D OCUMENTS CONSIDERED THE ASSESSMENT ORDER IN THE CASE OF THE PURCHASER SH. O M PRAKASH BANSAL HAS HELD THAT SH. OM PRAKASH BANSAL AND SH. HARSH ARORA MADE A PAYMENT OF RS. 70,75,240/- OVER AND ABOVE THE 20 LAKH WHICH WAS AC CEPTED BY THEM AND THUS, THE ADDITION IN THE HANDS OF THE ASSESSEES MOTHER WHO WAS A CO-OWNER OF THE PROPERTY SOLD WAS HELD TO BE UNWARRANTED. TIME WAS GIVEN TO THE LD. SR. DR TO STUDY THE SAID ORDER AND THE APPEAL WAS ADJOURNED T O 18.04.2018. DATE OF HEARING 18.04.2018 DATE OF PRONOUNCEMENT 26.04.2018 ITA NO. 248 /DEL/2017 2 3. ON THE NEXT DATE, THE LD. SR. DR SUBMITTED THAT IN THE PECULIAR FACTS THE APPEAL MAY BE ADJOURNED AS IT IS A PROTECTIVE ASSES SMENT, HOWEVER, SHE WAS UNABLE TO STATE ON QUERY AS TO WHY THE APPEAL SHOUL D BE ADJOURNED AD INFINITUM. THE RECORD SHOWS THAT THE PRESENT APPEAL HAS CONSIS TENTLY BEEN ADJOURNED FROM 24.4.2017. THEREAFTER IT CAME UP FOR HEARING ON 21 .06.2017 AND CONTINUOUSLY FROM 31.7.2017; 3.10.2017 TO 10.10.2017 IT HAS BEE N ADJOURNED ON THE REQUEST WRITTEN OF THE DEPARTMENT. APART FROM VARIOUS OTHE R DATES THE ADJOURNMENT WAS GRANTED FOR WANT OF TIME ETC. IT IS SEEN THAT AGAI N ADJOURNMENT WAS SOUGHT BY THE DEPARTMENT ON 6.3.2018 WHICH WAS GRANTED. ACCORDIN GLY, THERE APPEARS TO BE NO JUSTIFIABLE REASON FOR GRANT OF ANY FURTHER TIME IN THE FACE OF THE SPEAKING ORDER OF THE CIT(A). BOTH THE PARTIES WERE HEARD. 4. THE RELEVANT FACTS OF THE CASE, IT IS SEEN ARE T HAT THE ASSESSEES RETURNED INCOME WAS PICKED UP FOR SCRUTINY ASSESSMENT, CONSI DERING THE FACT THAT IN THE JOINT ACCOUNT OF THE ASSESSEE WITH HIS MOTHER SMT. IBHA RANI SINGH CASH DEPOSIT AMOUNTING TO RS. 60 LAKH HAD BEEN NOTICED. THE ASS ESSEE WAS REQUIRED TO EXPLAIN THE SAME THE ASSESSEE BEFORE THE AO, VIDE L ETTER DATED 24.1.2013 STATED THAT HE HAD PURCHASED JOINTLY A PLOT OF LAND IN GRE ENFIELDS COLONY, FARIDABAD IN 2002 FOR AN AMOUNT OF RS. 4 LAKH, WHEREIN BOTH THE ASSESSEE AND HIS MOTHER HAD CONTRIBUTED EQUALLY. THE SAID PLOT WAS SOLD TO SH. HARSH ARORA & SH. OM PRAKASH BANSAL ON 28.10.2009 FOR A CONSIDERATION OF RS. 91. 75 LACS. THE SAID CLAIM WAS SUPPORTED BY COPY OF AGREEMENT TO SELL ALONG WITH T HE RECEIPT OF SALE CONSIDERATION IN THE FOLLOWING MANNER: 1. RS. 10,00,000/- RECEIVED AS CASH ON DATED 21.08.2 009 IN THE NAME OF JOINTLY. 2. RS. 30,00,000/- RECEIVED AS CASH ON DATED 28.10.20 09 IN THE NAME OF IBHA RANI SINGH. 3. RS. 30,00,000/- RECEIVED AS CASH ON DATED 28 10.2009 IN THE NAME OF KUMAR SAURABH. 4. RS. 10,50,000/- RECEIVED AS PAY ORDER NO. 020224 D ATED 27.10.2009 IN THE NAME OF MRS IBHA RANI SINGH, DRAWN ON UNION BANK OF INDIA, DELHI. 5. RS. 10,50,000/- RECEIVED AS PAY ORDER NO. 020225 D ATED 27.10.2009 IN THE NAME OF MR KUMAR SAURABH, DRAWN ON UNION BANK OF IN DIA, DELH. 6. RS. 75,240/- PAID DIRECTLY TO BROKER AS PART OF BROKER COMMISSI ON TO MR. RAJAT GUPTA RESIDENT OF B-109, GREEN FIELDS COLONY, FARID ABAD. THE ASSESSEE HAS FILED COPY OF CASH RECEIPTS AS RECEIVED RS. 10,00,000/- FROM MR. HARSH ARORA AND RS. 30,00,000/- EACH FROM MR. OM PRAKASH BANSAL AS PART OF SALE CONSIDERATION AGAINST PROPER TY / PLOT BEARING NO. B- 980, GREEN FIELD COLONY, FANDABAD (HARYANA) TOTAL AREA OF PLOT IS 269.86 SQYARDS. THE ASSESSEE ALSO FILED COPY OF LETTER ADD RESS TO BANK MANAGER M/S STANDARD CHARTERED BANK, BARAKHAMBA ROAD, CONNAUGHT PLACE, NEW ITA NO. 248 /DEL/2017 3 DELHI REGARDING CASH DEPOSIT IN SAVINGS BANK A/C NO . 52211833165 THAT SUCH CASH IS MV SALE PROCEEDS OF MY PLOT (AS PER SA LE AGREEMENT). 5. THE AO ISSUED SUMMONS U/S 131 TO SH. OM PRAKASH BANSAL WHOSE STATEMENT WAS RECORDED. HE ACCEPTED THAT THE PROPE RTY HAD BEEN PURCHASED FROM THE SAID PARTIES, HOWEVER, HE DENIED THAT IT WAS PU RCHASED FOR RS. 91,75,240/- AND STATED THAT HE HAS PURCHASED IT FOR RS. 21 LAKH. T HOUGH SUMMONS WERE ISSUED TO SH. HARSH ARORA ALSO S/O SH. ASHOK ARORA R/O 518 SE CTOR 16, FARIDABAD ALSO HOWEVER, THE FATE OF THE SAID SUMMONS IS NOT DISCUS SED IN THE ASSESSMENT ORDER. THE AO PASSES THE FOLLOWING ORDER WHOSE CORRECTNESS WAS CHALLENGED IN APPEAL BEFORE THE CIT(A): ACCORDING TO AGREEMENT TO SELL FOR RS. 91.75,240/ -, A SUMMONS UNDER SECTION 131 OF INCOME TAX ACT., 1961 WERE ISS UED ON 12.03.2013 TO MR. HARISH AROFRA S/O SH. ASHOK ARORA, R/O 518, SECTOR-16, FARIDABAD - (HARYANA) AND MR. RAJAT GUPTA, S/O SH. VIKAS GUPTA, H.NO. 109, GREEN FIELD COLONY, FARIDABAD - HARYANA AND FOR PERSONAL DEPOSITION AND FILED NECESSARY DETAILS AS MENTIONED IN SUMMONS FOR GENUI NENESS OF SALE CONSIDERATION AS SHOWN BY MR. KUMAR SAURABH AGAINST SALE OF PROPERTY BEARING NO. B-980, GREEN FIELD COLONY, FADDABAD (HARYANA) TOTAL AREA OF PLOT IS 269.86 SQYARDS FOR AMOUNTING RS. J5,2A0I-. AS THE ABOVE SAID PROPERTY WAS SOLD BY ASSESSEE THROUGH MR. RAJAT GUP TA (BROKER /COMMISSIONER AGENT AND WITNESS) COPY OF AGREEMENT ENCLOSED. IN RESPONSE TO ABOVE SAID SUMMONS NEITHER ANYBODY ATTE NDED THE PROCEEDINGS NOR ANY DETAILS WERE FILED BY THEM. THE DEPUTY DIRECTOR INCOME TAX (INV-M), FARIDABAD ( HARYANA) HAS BEEN REQUESTED BY ISSUING COMMISSION U/S 131 (1 )(D ) OF THE INCOME TAX ACT. VIDE F. NO ITO/WARD 47(1) / SCRUTINY PROCEEDIN G /2012-13/ DATED 15.03.2013 THAT KINDLY ASCERTAIN FROM MR. HARSH ARORA S/O SH. ASHOK ARORA, R/O 518, SECTOR 16, FARIDABAD (HARYANA) WHET HER HE HAD SIGNED THE ABOVE SAID AGREEMENT (COPY OF AGREEMENT ENCLOSED) FOR PURCHASE OF ABOVE SAID-PROPERTY. FURTHER MR. RAJAT GUPTA S/O SH . VIKAS GUPTA, H NO. 109, GREEN FIELD COLONY, FARIDABAD- (HARYANA) HAS A LSO SIGNED (AS BROKER/COMMISSIONER AGENT AND WITNESS). BUT TILL DATE THE REPLY OF THE DEPUTY DIRECTOR OF I NCOME TAX (INV. -II), FARIDABAD (HARYANA) HAS NOT BEEN RECEIVE D. HENCE I AM LEFT WITH NO ALTERNATIVE TO COMPLETE THE ASSESSMENT UNDER SECTIO N 143(3) OF THE ACT ON THE BASIS OF THE INFORMATION AVAILABLE ON RECORD. H ENCE IN ORDER TO PROTECT THE INTEREST OF REVENUE AN ADDITION OF RS 5,00,000 (AS 50% OF RS 10,00,000/- RECEIVED FROM MR. HARSH ARORA) IS MADE AS PROTECTIVE IN THE HAND OF MR KUMAR SAURABH FOR THE YEAR UNDER CONSIDERATION AS UNEXPLAINED CASH / CREDIT U/S 69A OF THE INCOME TAX ACT UNDER THE HEAD INCOME FROM OTHER SOURCE. SINCE THE ASSESSEE HAS CONCEALED HIS INCOME AND FURNISHED INACCURATE PARTICULARS OF INCO ME TO THE EXTENT OF RS. 5,00,000/-, PENALTY PROCEEDINGS UNDER SECTIO N 271(1)(C) OF THE INCOME-TAX ACT. 1961 HAVE BEEN INITIATED SEPARATELY. (ADDITION OF RS. 5,00,000/-) FURTHER IN ORDER TO PROTECT THE INTEREST OF REVENUE AN ADDITION OF RS. 30,00,000/- (AS 50% OF RS. 60,00,000/- RECEIVED FRO M MR. OM PRAKASH ITA NO. 248 /DEL/2017 4 BANSAL) IS ALSO MADE AS PROTECTIVE IN THE HAND OF M R. KUMAR SAURABH FOR THE YEAR UNDER CONSIDERATION AS UNDISCLOSED CASH U/ S 69A OF THE ACT UNDER THE HEAD INCOME FROM OTHER SOURCES. SINCE THE ASSESSEE HAS CONCEALED HIS INCOME AND FURNISHED INACCURATE PARTI CULARS OF INCOME TO THE EXTENT OF RS. 30,00,000/-, PENALTY PROCEEDIN GS U/S 271(1)(C ) OF THE ACT HAVE BEEN INITIATED SEPARATELY. (ADDITION OFRS. 30,00,000/-) A SUBSTANTIVE AN ADDITION OF RS.1 0,00,000/- SHALL BE MADE IN THE HAND OF MR. HARSH ARORA (AS CO PURCHASER OF SEL L TO AGREEMENT) RESIDENT OF 518-SECT-16, FARIDABAD - (HARYANA) FOR THE A.Y. 2010-2011. THE SAME IS INTIMATED TO THE CONCERNED WARD / CIRCL E AOS WHERE MR. HARSH ARORA IS ASSESSED TO TAX UNDER INCOME TAX ACT . FURTHER SUBSTANTIVE ADDITION OF RS.60,00,000/- SHAL L ALSO BE MADE IN THE HAND OF MR. OM PRAKASH BANSAL (AS CO-PU RCHASER OF SELL TO AGREEMENT) FOR THE A.Y. 2010-2011 VIDE PAN AAGPB 5663G. THE SAME IS INTIMATED TO THE CONCERNED WARD I CIRCLE AO S WHERE MR. OM PRAKASH BANSAL IS ASSESSED TO TAX UNDER INCOME TAX ACT. 6. THE ASSESSEE CARRIED THE ISSUE BEFORE THE CIT(AP PEALS) WHO PROCEEDED TO GRANT RELIED HOLDING AS UNDER: GROUND NO. 1, 3 & 5 : ILLEGAL ADDITION OF RS. 35 LA KHS IN THE HANDS OF THE ASSESSEE ON PROTECTIVE BASIS : ON CAREFUL PERUSAL OF MATERIAL AVAILABLE ON RECORD IT HAS COME TO MAY NOTICE THAT HE ASSESSEE HAD PURCHASED ONE PLOT NO. B-980, GREENFIELD COLONY, FA RIDABAD FOR RS. 4,00,000/- WHICH WAS CONTRIBUTED EQUALLY BY THE ASS ESSEE AND HIS MOTHER SMT. IBHA RANI. THE SAID LAND WAS SOLD TO ONE SH. HARSH ARORA AND MR. OM PRAKASH BANSAL FOR A SALE CONSIDERATION OF RS. 9 1,75,240/- VIDE AN AGREEMENT TO SALE DT. 21.08.2009 BETWEEN THE CONCER NED PARTIES. THE AGREEMENT TO SALE WAS ALSO WITNESSED BY ONE SH. RAJ AT GUPTA (PROPERTY BROKER) AND BY FATHER OF THE ASSESSEE. AGAINST ABO VE AGREEMENT, THE SELLERS (ASSESSEE AND MOTHER) RECEIVED AN ADVANCE O F RS. 10,00,000/- ON 21.08.2009 WHICH HAS ALSO BEEN WITNESSED BY SH. RAJ AT GUPTA (PROPERTY BROKER). AS A MATTER OF FACT, SH. RAJAT GUPTA HAS WITNESSED THE ENTIRE DOCUMENT RELATING TO SALE OF PROPERTY. IT IS ALSO STATED BY THE ASSESSEE THAT OUT OF RS. 10 LACS ADVANCE, THE SELLERS (ASSES SEE AND HIS MOTHER) DEPOSITED RS. 5 LACS EACH IN THE BANK ON 21.08.2009 . IN THIS REGARD, THE APPELLANT (SELLER) HAS CONTENDED THAT HE AND HIS MO THER (SELLER) HAD ALSO RECEIVED RS. 30 LACS EACH IN CASH ON 28.10.09 FROM SH. O.P. BANSAL (THE BUYER) WHICH WAS ON THE SAME DAY DEPOSITED IN THE B ANK BY THE ASSESSEE. IN THIS REGARD, THE APPELLANT HAS CONTENDED THAT TH E CONCERNED BANK ACCEPTED HUGE CASH OF RS. 60 LACS ON THE SAME DAY O N THE STRENGTH OF AGREEMENT TO SALE DATED 21.08.09. IT IS ALSO A MAT TER OF FACT THAT THE ASSESSEE AND HIS MOTHER ALSO RECEIVED PAY ORDER DT. 27.10.09 FOR RS. ITA NO. 248 /DEL/2017 5 10,50,000/- EACH DRAWN ON UNION BANK OF INDIA ON 28 .10.09 FROM SELLER (BEING 50% OF RS. 21 LACS). THIS PAY ORDER WAS ALS O DEPOSITED ON THE SAME DAY IN THE ASSESSEES BANK ACCOUNT. ON 28.10. 09, ONCE AGAIN REVISED AGREEMENT TO SALE WAS ENTERED INTO BY THE C ONCERNED PARTIES SHOWING THAT AGREEMENT WAS BETWEEN THE SELLER AND T HE BUYER FOR A SALE CONSIDERATION OF RS. 21 LACS WHICH WAS PROPERTY DON E ON THE STAMP PAPER PURCHASED BY THE PURCHASER/BROKER ON 23.10.09 IN TH E NAME OF ASSESSEE AND HIS MOTHER AND REVISED AGREEMENT TO SALE WAS PR EPARED BY THE BROKER AND PURCHASER ON 23.10.09 AND ASSESSEE AND HIS MOTH ER WERE TOLD TO SIGN THE SAME CITING THE REASON THAT THIS WAS THE USUAL PREVAILING MARKET NORMS. ON 28.10.09 THE ASSESSEE TRANSFERRED THE PROPERTY T O THE BUYER BY IRREVOCABLE LETTER OF AUTHORITY. ON THE BASIS OF ABOVE FACTS, THE APPELLANT AHS FIL ED HIS RETURN OF INCOME ON 04.08.2010 DECLARING TOTAL SALE CONSIDERA TION OF THE PROPERTY AT RS. 4587620/- AND HAS ALSO CLAIMED DEDUCTION U/S 54 F ON ACCOUNT OF INVESTMENT ON HOUSE PROPERETY AND THAT THE BALANCE 50% VALUE ON SALE CONSIDERATION (RS. 4587620/-) WAS DECLARED IN THE I NCOME TAX RETURN BY THE ASSESSEES MOTHER. BASED ON THE INFORMATION THAT T HE ASSESSEE HAD DEPOSITED RS. 60 LACS IN SAVING BANK ACCOUNT JOINTL Y HELD WITH HIS MOTHER IN STANDARD CHARTERED BANK, THE CASE WAS SELECTED FOR SCRUTINY AND NOTICE U/S 143(2) DT. 28.08.2014 ISSUED. DURING THE COURS E OF ASSTT. PROCEEDINGS, SUMMONS U/S 131 WAS ISSUED TO THE BUYERS (SH. HARSH ARORA & SH. OP BANSAL) AND THE BROKER (SH. RAJAT GUPTA). HOWEVER, ONLY SH. BANSAL APPEARED BUT HE DECLINED THE APPELANTS CONTENTION THAT HE PURCHASED A PROPERTY FOR RS. 91.75 LACS. RATHER, HE STATED BEF ORE THE AO THAT HE PURCHASED THE DEMISED PROPERTY FOR RS. 21 LACS ONLY AND HAS DENIED TO HAVE PAID ANYTHING OVER & ABOVE RS. 21 LACS. BASED ON THE ABOVE FACTS AND CIRCUMSTANCES OF THE CASE AND PREVAILING MARKET PRACTICE, THE AO APPEARS CONVINCED THAT PROPERTY WAS SOLD FOR RS. 91 .75 LACS WHICH IS APPARENT FROM THE FACT THAT THE AO IN HIS ASSTT. OR DER HAS MADE PROTECTIVE ASSESSMENT IN THE HANDS OF ASSESSEE TO GUARD THE IN TEREST OF REVENUE WHICH LED HIM TO ISSUE DIRECTION TO THE CONCERNED A O FOR SUBSTANTIVE ASSESSMENT IN THE HANDS OF BUYERS OF THE PROPERTY, I.E. SH. HARSH ARORA & SH. OP BANSAL. IN THIS REGARD, THE APPEALLANT HAS POINTED OUT BEF ORE ME THAT NO PROTECTIVE ASSESSMENT CAN BE MADE UNDER THE LAW BEF ORE SUBSTANTIVE ASSESSMENT. IN SUPPORT OF ABOVE CONTENTION THE ASS ESSEE HAS RELIED UPON ITA NO. 248 /DEL/2017 6 THE JUDGMENT IN THE CASE OF MP RAMACHANDRAN VS. DCI T (2009) 32 SOT 592 (MUMBAI) WHEREIN IT HAS BEEN HELD THAT THERE MA Y BE SUBSTANTIVE ASSESSMENT WITHOUT ANY PROTECTIVE ASSESSMENT BUT TH ERE CANNOT BE PROTECTIVE ASSESSMENT WITHOUT THERE BEING A SUBSTAN TIVE ASSESSMENT. IT IS ALSO HELD THAT PROTECTIVE ASSESSMENT IS ALWAYS SUCC ESSIVE TO THE SUBSTANTIVE ASSESSMENT. THIS VIEW HAS ALSO BEEN SU PPORTED BY THE JUDGMENT OF JURISDICTIONAL DELHI ITAT IN THE CASE O F JK CONSULTANT LTD. VS. ITO, ITA NO. 1502/DEL/2013. FROM THE FACTS OF THIS CASE AND ON PERUSAL OF ASSESSMENT ORDER UNDER APPEAL IT EMERGES THAT THE A SSESSMENT ORDER WAS PASSED TREATING RS. 5 LAC (50% OF RS. 10 LACS RECEI VED FROM SH. HARSH ARORA) AND RS. 30 LACS (50% OF RS. 60 LACS RECEIVED FROM SH. OP BANSAL) ON PROTECTIVE BASIS IN THEHANDS OF THE ASSESSEE AFTER TREATING THE SAME AS UNEXPLAINED CASH IN THE HANDS OF ASSESSEE UNDER THE HEAD INCOME FROM OTHER SOURCES. SINCE THE AO HAS ISSUED DIREC TION TO THE CONCERNED AO FOR SUBSTANTIVE ASSESSMENT IN THE HANDS OF SH. H ARSH ARORA (FOR RS. 10 LAC) & SH. OP BANSAL (FOR RS. 60 LAKHS), IT IS QUIT E CLEAR THAT ON THE DATE OF PASSING OF ASSESSMENT ORDER UNDER APPEAL, NO SUBSTA NTIVE ASSESSMENT EXISTED WHICH APPEARS TO BE BAD IN LAW. ON PERUSAL OF ENTIRE FACTS AND CIRCUMSTANCES OF TH E CASE IT IS APPARENT VISIBLE THAT AO WAS HIMSELF OF THE VIEW TH AT SALE HAS TAKEN PLACE AT RS. 91.75 LACS AND THE SAME REPRESENTS UNDISCLOS ED MONEY OF THE PURCHASER FOR THE REASONS THAT HE HAS MADE PROTECTI VE ASSESSMENT IN THE HANDS OF THE ASSESSEE AND DIRECTED SUBSTANTIVE ADDI TION IN THE HANDS OF THE PURCHASER. IN SUPPORT OF ABOVE CONTENTION THE APPELLANT HAS FURNISHED A NUMBER OF SUPPORTING DOCUMENTS WHICH SUBSTANTIATE THE CLAIM OF THE ASSESSEE SUCH AS AFFIDAVIT BEFORE THE AO CONFIRMING THE SALE TRANSACTION AT RS. 91.75 LAKHS SHOWING DETAILS, COPY OF AGREEMENT TO SALE DT. 28.10.09 ALONG WITH RECEIPT OF ADVANCE MONEY, RECEIPT OF RS. 30 LAKHS IN CASH DT. 28.10.09, AGREEMENT TO SALE DT. 28.10.09 FOR A CONS IDERATION OF RS. 21 LAKHS, ID PROOF OF BUYERS, COPY OF E-MAIL BY STANDA RD CHARTERED BANK REGARDING LETTER FILED BY THE SELLER BEFORE THE BAN K AT THE TIME OF DEPOSITING CASH, COPY OF DEALER NOTE OF MR. RAJAT GUPTA, OF M/ S GUPTAJEE PROPERTIES WHO WAS BROKER IN THIS SALE TRANSACTION, QUOTING TH E ABOVE PROPERTY AT RS. 91.75 LAKHS, PROPERTY RATES AT VARIOUS REAL ESTATE SITES SUCH AS CLASSIC.COM, 99 ACRES.COM WHICH ARE NEARING TO THE RATE AT WHICH SALE TRANSACTION TOOK PLACE. ITA NO. 248 /DEL/2017 7 FROM THE ABOVE DISCUSSION, IT IS APPARENT THAT THE AO HAS COMPLETELY FAILED IN BRINGING ANYTHING ON RECORD TO SHOW THAT VARIOUS DETAILS AND SUPPORTING EVIDENCE FURNISHED BY THE AP PELLANT ARE NOT RELIABLE. WHEN BOTH THE BUYERS ALONG WITH BROKER SH. RAJAT GU PTA WAS CALLED FOR DEPOSITION, ONLY SH. OP BANSAL APPEARED BEFORE THE AO WHO SIMPLY DENIED THAT THE SALE CONSIDERATION STOOD AT RS. 91. 75 LAKHS WHICH IS NOT SUPPORTED BY FACTS DISCUSSED IN DETAIL ABOVE AND TH E PREVAILING MARKET NORMS ETC. TAKING ALL THE ABOVE INTO CONSIDERATION , I FIND NO MERIT IN AO MAKING PROTECTIVE ASSESSMENT BY ADDING RS. 35 LAKHS U/S 69A IN THE HANDS OF ASSESSEE WHICH DESERVES TO BE DELETED. TH IS GROUND OF APPEAL IS DECIDED IN FAVOUR OF THE APPELLANT. 7. AGGRIEVED BY THE SAID ORDER THE REVENUE IS IN AP PEAL BEFORE THE ITAT. THOUGH RELIANCE WAS PLACED ON THE ASSESSMENT ORDER NOTHING WAS PLACED ON RECORD TO SHOW THAT ON WHAT GROUNDS THE I MPUGNED ORDER CANNOT BE UPHELD. NO CONTRARY FACTS OR EVIDENCES W ERE RELIED UPON TO UPSET THE FINDING. ON THE CONTRARY, THE LD. AR REL IED UPON THE ORDERS OF THE AO IN THE CASE OF SH. HARSH ARORA DT. 22.12.201 6 COPY OF WHICH HAD BEEN FILED ON EARLIER DATE AND THE ISSUE IT WAS SUB MITTED HAD ALSO BEEN ADDRESSED BY THE CIT(A) IN THERECENT DECISION PASSE D IN THE CASE OF THE CO-OWNER SH. IBHA RANI, WHEREIN REFERENCE HAS BEEN MADE TO THE ORDER OF THE AO DT. 1.9.2014 IN THE CASE OF SH. OM PRAKASH B ANSAL. THESE FACTS EVIDENCES AND ORDERS HAVE NOT BEEN ALLOWED. IT WAS SUBMITTED THAT THE CIT(A), THEREIN HAS TAKEN COGNIZANCE OF COPY OF AGR EEMENT TO SELL DT. 21.62009 AND, THEREAFTER, REFERRING TO THE ADDITION MADE IN THE CASE OF O.P. BANSAL IN PARA 13 AND 14 DELETED THE ADDITION IN THE HANDS OF THE ASSESSEES MOTHER SMT. IBHA RANI SINGH. 8. I HAVE HEARD THE SUBMISSIONS AND PERUSED THE MAT ERIAL AVAILABLE ON RECORD. IN THE LIGHT OF THE CONSISTENT ORDERS OF T HE AO IN THE CASE OF THE PURCHASERS SH. O.P. BANSAL & HARSH ARORA AND THE LA TEST ORDER PASSED BY THE CIT(A) IN THE CASE OF THE ASSESSEES MOTHER SMT. IB HA RANI. I FIND THAT IN THE ABSENCE OF ANY CONTRARY SUBMISSION THE IMPUGNED ORD ER IN THE PECULIAR FACTS AND CIRCUMSTANCES OF THE CASE DESERVES TO BE UPHELD. T HE RELEVANT EXTRACT OF THE FINDING OF THE CIT(A) CHALLENGED BY THE REVENUE HAS ALREADY BEEN REPRODUCED IN THE EARLIER PART OF THIS ORDER AND THE FOLLOWING FI NDING OF THE CIT(A)-19 IN HIS ORDER DT. 10.3.2017 IN THE CASE OF THE ASSESSEES MOTHER SMT. IBHA WHO WAS A CO- ITA NO. 248 /DEL/2017 8 OWNER OF THE SPECIFIC PROPERTY, I FIND FURTHER SUPP ORTS THE VIEW TAKEN. ACCORDINGLY, ON GOING THROUGH THE SAME I FIND THAT THERE IS NO MERIT IN THE APPEAL OF THE REVENUE. FOR READY REFERENCE THE RELEVANT EX TRACT IS REPRODUCED HEREUNDER: 12. THE NEXT GROUND IS ON THE MERIT OF THE CASE. AS ALREADY NARRATED ABOVE, THE APPELLANT HAS PRODUCED A COPY OF AGREEMENT TO S ALE, DT. 21.06.09, BETWEEN THE APPELLANT SH. HARSH ARORA JOINTLY WITH SH. OP B ANSAL. THE DOCUMENTS CLEARLY SHOWED THAT CONSIDERATION HAD BEEN WORKED O UT RS. 91,75,240/- BY TAKING THE LAND RATE @ 34000 PER SQ. YARD. THE AGR EEMENT WAS COUNTER SIGNED BY SH. HARSH ARORA AND DULY ATTESTED BY BROKERS OF HARSH ARORA & APPELLANT NAMELY SH. RAJAT GUPTA. SH. RAJAT GUPTA WAS ALSO A WITNESS TO THE FACT THAT A SUM OF RS. 10 LACS HAD BEEN PAID BY BUYERS TO APPEL LANT. THE APPELLANT HAS ALSO PRODUCED COPIES OF VARIOUS WEBSITES TO SHOW TH AT MARKET VALUE OF THE PROPERTY WAS MUCH MORE THAN THE CONSIDERATION SHOWN IN THE REGISTERED DED/DEAL. THE RATE WAS SOMEWHERE IN THE VICINITY O F 35000 TO 40000 PER SQ. YARD AS EVIDENCED FROM THE WEBSITES 99 ACRES.COM AND DELHICLASSIC.COM. 13. IN THE CASE OF SH. OP BANSAL, AFTER EXAMINING T HE VARIOUS PARTIES TO THE AGREEMENT AND VARIOUS DOCUMENTS PRODUCED, THE A O OF OP BANSAL HELD AS UNDER: I HAVE CAREFULLY EXAMINED THE CRUCIAL DOCUMENIS FI LED BY SELLER OF THE PROPERTY AND AFTER RECORDING THE STATEMENT OF THE P ERSONS IRROLVED IN THE TRANSACTIONS, FOLLOWING ISSUE/POINTS HAVE EMERGED W HICH INDICATES THAI CASH TRANSACTIONS OF RS. 70,00,000/- (APPROX.) WAS INVOLVED IN THE DEAL:- POINT NO. 1 IF WE ACCEPTED THE VERSION OF THE -'UYER AS PER WHI CH THE AGREEMENT DATED28.10.2009 IS THE ONLY AGREEMENT EXECUTED THEN HOW COME THE DEAL HAS COMPLETED ON THE SAME DAY I.E. THE AGREEME NT EXECUTED ON 28.10.2009 AND THE REGISTRY OF THE PROPERTY ALSO CO MPLETED ON 28.10.2009. IN THE NORMAL COURSE OF SELL & PURCHASE IT IS A NORM THAT THE AGREEMENT TO SELL IS EXECUTED BEFORE 45 OR 60 DAYS WITH SOME INITIAL AMOUNT/BAYANA THROUGH DEMAND DRAFT/CASH. IT CAN NEV ER HAPPEN THAT THE DEAL IS EXECUTED ON THE SAME DAY INCLUDING THE REGI STRY OF THE PROPERTY. WHAT WAS THE NEED FOR AGREEMENT TO THE SELL IF THE REGISTRY AND ALL THE PAYMENTS HAVE TO HAPPEN ON THE SAME DAY. IT MAKES C LEAR THAT IT WAS EXECUTED AS PER AGREEMENT TO SELL DATED 21.08.2009 AND THE CASH OF RS. 70,00,000.00 (APPROX.) WAS PAID TO THE SELLER OF TH E PROPERTY AS PER THE ITA NO. 248 /DEL/2017 9 AGREEMENT. POINT NO. 2 IT IS ALSO NOTED DURING THE ASSESSMENT PROCEEDINGS, THA THE PAY ORDER OF CHEQUE AMOUNT OF RS. 21,00,000/- BY THE BUYER SH. O M PRAKASH BANSAL ON 1 2.10.2009 BEFORE THE SECOND AGREEMENT TO SELL DATED 2 . J .2009. IT WAS NOT WELL EXPLAINED BY THE BUYER AS TO HOW THIS HAS HAPPENED IT ANY NORMAL COURSE OF TRANSACTION OF SELL & PURCHASE THI S COULD NEVER HAPPENED. THIS IS ANOTHER \ CIRCUMSTANTIAL EVIDENCE IN FAVOUR OF THE SELLER OF THE PNPERTY. POINT NO. 3 IN ANY NORMAL COURSE OF PROPERTY TRANSACTION, IT IS A WELL ESTABLISHED PRACTICE AN AGREEMENT TO SELL IS EXECUTED WELL IN A DVANCE BY PAYING AN AMOUNT IN CASH/DRAFT AS ADVANCE WHICH IS LATER ADJU STED WITH FINAL PAYMENT. IN THIS CASE IF WE AGREE TO THE VERSION OF THE BUYER THEN NO ADVANCE HAS BEEN MADE AND THE REGISTRY WAS EXECUTED ON THE SAME DAY WHEN THE COMPLETE PAYMENT MADE AS PER AGREEMENT DAT ED 28.10.2009. IT RAISES A POINT THAT HOW COME NO ADVANCE HAS BEEN PA ID BY THE PURCHASER AND PROPERTY HAS BEEN REGISTERED ON THE SAME DAY WI THOUT ANY ADVANCE. IT IS NOT A PRACTICE FOLLOWED IN REAL ESTATE TRANSA CTIONS AND THEREFORE, ESTABLISHES THE GENUINENESS OF AGREEMENT SELL DATED 21.08.2009. POINT NO. 4 IT IS A FACT THAT THE SELLER DOES NOT HAVE THE ORIG INAL COPIES OF THE CASH RECEIPT, AGREEMENT TO SELL AND ALSO SIGNATURE OF SH . OM PRAKASH BANSAL WERE NOT FOUND ON THOSE DOCUMENTS BUT IT IS ALSO FA CT THAT IN PROPERTY TRANSACTIONS ONLY THE BUYER KEEPS THE ORIGINAL DOCU MENTS WITH HIM/HER AND NO SIGNATURE ARE RECORDED BY THE BUYER OF THE P ROPERTY ON THE AGREEMENTS OR RECEIPTS IN WHICH CASH TRANSACTION IS MENTIONED. THEREFORE THIS CASE IS NO DIFFERENT THAN A NORMAL CASE OF PRO PERTY TRANSACTION IN WHICH CASH IS PAID. POINT NO. 5 IN ANY TRANSACTION IT IS BROKER WHO MEDIATES AND HE LPS IN COMPLETION OF THE DEAL. FROM PERUSAL OF THE DOCUMENTS FILED BY TH E SELLER IT IS SEEN THAT SH. RAJAT GUPTA OF GUPTA ESTATE WAS THE MAIN BROKER WHO ALSO GAVE WORKING NOTE OF THE VALUE OF PROPERTY @ 34,000/- PE R SQ YARD AS PER WHICH THE AGREEMENT SELL DATED 21.08.2009 WAS EXECUTED. S HRI OM PRAKASH BANSAL, HOWEVER, DENIED TO KNOWN ANY GUPTA PERSONAL LY OR HAVING ANY ROLE IN THE DEAL BUT SH. RAJAT GUPTA IN RECORDING O F HIS STATEMENT STATED THAT HE HAS RECEIPT OF RS. 21,000/- AS BROKERAGE FR OM SH. O.P. BANSAL. IT IS IMPORTANT TO MENTION IN HIS STATEMENT THAT HE DO ES NOT KNOW ANY SUCH BROKER SH. GUPTA JI PERSONALLY AND WHEN HE DONT KN OW, PAYMENT OF COMMISSION DOES NOT ARISE BUT SH. GUPTA ADMITTED IN THE STATEMENT THAT HE RECEIVED A COMMISSION OF RS. 21,000/-. SHRI O.P. BANSAL ALSO DENIED HAVING ANY WITNESS FROM HIS SIDE BUT SHRI GUPTA DEN IED HAVING ANY ROLE IN AGREEMENT TO SELL DATED 21.08.2009 BUT IT IS CLEAR THAT SH. GUPTA AS WITNESS HIDING THE FACTS OF THE CASE AND TRYING TO HELP SH. O.P. BANSAL IN EVASION OF TAXES. THE CONTRADICTORY VERSION OF SH. O.P. BANSAL & SH. RAJAT GUPTA CLEARLY EXPOSES THE LIES IN THE STATEME NT OF SH. O.P. BANSAL & SH. RAJAT GUPTA. POINT IT IS NOT COMMON TO HAVE NOT ENGAGED ANY BROKER FOR THE DEAL. FURTHER, SH. RAJAT GUPTA IS ALSO THE KEY WITNESS OF ALL THE DOCUMENTS INCLUDING BOTH THE ITA NO. 248 /DEL/2017 10 NO. 6 AGREEMENTS AND CASH RECEIPTS. HOW HE HAS BECAME WIT NESS TO BOTH THE AGREEMENT TO SELL IF SH. OM PRAKASH BANSAL DOES NOT KNOW HIM. FURTHER, IF WE CAREFULLY ANALYZE THE NOTINGS MADE ON THE ROU GH PAPER OF GUPTA JI ESTATE THEN IT EMERGED THAT THE PAYMENTS WERE MADE AS PER THE RALE GIVEN ON THE PAPER. THUS, IT PROVES THAT SH. GUPTA & SH. R. SINGH WERE PART OF THE DEAL FROM THE FIRST DAY WHEN THE DEAL W AS NEGOTIATED AN AGREEMENT TO SELL DATED 21.08.2009 EXECUTED SH. OM PRAKASH BANSAL CANNOT DENY THEIR ROLE IN THE EARLIER AGREEMENT TO SELL. POINT NO. 7 THERE WERE ONLY TWO WITNESSES TO THE WHOLE DEAL. SH . R. SINGH & SH. OM PRAKASH BANSAL AND THE GENUINENESS OF THE AGREEMENT TO SELL DATED 21.08.2009 AND CASH RECEIPTS CAN BE PROVED BY THE P OINT THAT BOTH THESE WITNESSES WERE PART OF THE WHOLE DEAL INCLUDING BOT H AGREEMENTS AND CASH RECEIPTS. SH. O.P. BANSAL CANNOT DENY THEIR RO LE IN THE FIRST AGREEMENT TO SELL & LATER ACCEPT THEIR ROLE SECOND AGREEMENT TO SELL OF WHICH ORIGINAL HAS BEEN PRODUCED BY HIM. FURTHER, S H. R. SINGH HAS GIVEN STATEMENT AS WITNESS CONFIRMING THE VERSION OF THE SELLER OF THE PROPERTY. POINT NO. 8 THERE IS ANOTHER IMPORTANT FACT THAT HAS EMERGED FR OM THE AGREEMENT TO SELL DATED 28.10.2009 THAT THE STAMP PAPER WERE PUR CHASED BY THE BUYER ON 23.10.2009 I.E. FIVE DAYS BEFORE THE EXECUTION O F AGREEMENT TO SELL AND HOW COME THE BUYER SH. O.P. BANSAL PURCHASED THE AG REEMENT TO SELL IN THE NAME OF BUYER FIVE DAYS BEFORE EXECUTION OF THE REGISTRY OF THE PROPERTY. ON THIS SH. O.P. BANSAL STATED AS UNDER QUE: PLEASE EXPLAIN HOW COME YOU HAVE PURCHASED TH E STAMP PAPER FOR PREPARATION OF AGREEMENT TO SELL DATED 28.10.2009 I N THE NAME OF SH. KUMAR SAURABH ON 23.10.2009 (REFER BACK PAGE OF AGR EEMENT DATED 28.10.2009), FIVE DAYS EARLIER? IT PROVES THAT THE EARLIER AGREEMENT TO SELL DATED 21.08.2009 IS RIGHT IN ORDER: PLEASE COMMENT? ANS: IT HAVE ALREADY STATED IN MY EARLIER REPLY TO QUESTION NO. 20 THAT THE DISCUSSION WAS GOING ON FROM FEW DAYS AND THE AMOUN T WAS NEGOTIATED TO RS. 21,00,000.00 AND THEREAFTER I GOT THE AGREEMENT PREPARED IN THE NAME OF SELLER. IN CASE OF THE DEAL NOT MATERIALIZI NG I HAD THE OPTION OF DESTROYING THE AGREEMENT AND PAY ORDERS. THE REPLY TO THE ABOVE QUERY CLEARLY ESTABLISHES TH AT SH. O.P. BANSAL SINCE BEGINNING OF THE CASE AND IN THE COURSE OF STATEMEN T HAS OPTED AN APPROACH TO BLATANTLY DENY THE FACTS BY COOKING HIS OWN STORY. \ POINT NO. 9 LAST BUT NOT THE LEAST, IF WE ANALYZE THE STATEMENT OF SH. O.P. BANSAL, THEN IT CLEARLY APPEARS THAT SH. O.P. BANSAL HAS TR IED TO AVOID THE CIRCUMSTANTIAL QUESTIONS BY GIVING THE DIRECT AND B LATANT REPLY BY DENYING THE FACTS RATHER THAN ADDRESSING THE CIRCUMSTANTIAL QUERIES RAISED IN THE QUESTIONS. HE HAS DIRECTLY DENIED THE FACTS AND CIR CUMSTANCES OF THE CASE RATHER THAN ADDRESSING THEM IN A LOGICAL AND CONVIN CING WAY. SHRI O.P. BANSAL CANNOT DENY THE ROLE OF CIRCUMSTANTIAL EVIDE NCE REPRESENTED BY THE BUYERS JUST BY SHIFTING THE ONUS BY STATING TO PRODUCE ORIGINAL AGREEMENT AND THAT NO SIGNATURES WERE FOUND ON THE AGREEMENT AND CASH RECEIPTS. ITA NO. 248 /DEL/2017 11 8. BEING SATISFIED AS THE FINDING RECORDED IN ITS F ACTS OF THE PRESENT CASE CONSIDERING ITS RESPECTIVE ORDERS OF THE TAX AUTHOR ITIES IN THE CASE OF PURCHASES AND SELLERS WHICH HAVE BEEN CITED AND RELIED UPON B Y THE QUANTUM APPEAL OF THE REVENUE IS DISMISSED. SAID ORDER WAS PRONOUNCED IN THE OPEN COURT AT THE TIME OF HEARING ITSELF. 9. IN THE RESULT, THE APPEAL OF THE REVENUE IS DISM ISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 26.04.2018 SD/- (DIVA SINGH) JUDICIAL MEMBER DATED: 26.04.2018 *KAVITA ARORA COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT TRUE COPY FOR ANY CASH TRANSACTIONS IN A PROPERTY DEAL, THERE CANNOT BE ENOUGH FACTUAL/SECONDARY/CIRCUMSTANCIAL EVIDENCE THEN THE ONE PRODUCED IN THIS CASE BY THE SELLER OF THE PROPERTY. EVEN SH. RAJAT GUPTA & SH. HARSH ARORA HAS PLAYED IN THE HANDS OF SH OP BANSAL AND G AVE STATEMENT ON A SIMILAR LINES WITHOUT APPRECIATING THE CIRCUMSTANTI AL AND SECONDARY EVIDENCE PLACED BEFORE THEM. EVEN ON PERUSAL, THE SIGNATURE OF SH. HARSH ARORA AND SH. RAJAT GUPTA ON THE STATEMENT RE CORDED U/S 131(1) OF THE ACT, ARE MATCHES WITH THEIR SIGNATURES ON AGREE MENT TO SELL AND CASH RECEIPTS. DURING THE CONFRONTATION OF STATEMENT BE TWEEN SH. RAJAT GUPTA & SH. KUMAR SAURABH, SH RAJAT GUPTA STRAIGHT FORWAR D DENIED THE EXISTENCE OF AGREEMENT TO SELL AND HAS SIGNATURE ON THE SAME. HE HAS FAILED TO ADDRESS THE CIRCUMSTANTIAL ROLE PLAYED BY HIM IN THE WHOLE PROPERTY DEAL. THE ABOVE MENTIONED POINTS CLEARLY PROVES AND INDIC ATES THAT IN THE TRANSACTION, THE AGREEMENT TO SELL EXECUTED ON 21.08.09 IS A GEN UINE AGREEMENT AND THE TRANSACTIONS ARE COMPLETED AS PER THAT AGREEMENT TO SELL DATED 21.08.09 AND CASH OF RS. 60,75,240/- WAS PAID TO THE SELLER BY THE BU YER SH. OP BANSAL APART FROM RS. 10,00,000/- PAID BY SH. HARH ARORA TO THE SELLE R OF THE PROPERTY. THEREFORE, I AM OF THE VIEW THAT AN AMOUNT OF RS. 60,75,240/- PA ID BY SH. OP BANSAL IS AN UNACCOUNTED INCOME GENERATED BY HIM AND LIABLE TO B E ADDED TO HIS INCOME FOR THE AY 2010-11 IN WHICH THE PROPERTY TRANSACTIONS W ERE COMPLETED. ITA NO. 248 /DEL/2017 12 ASSISTANT REGISTRAR ITAT NEW DELHI