ITO, Alwar V. RAGHUNANDAN GOYAL, Alwar

ITA 249/JPR/2017

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 0093 (ITAT-JAIPUR)
• Duration Of Justice: 2 year(s) 1 month(s) 16 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-05-2019
• Appeal Filed By: Department
• Order Result: Partly Allowed
• Bench Allotted: B
• Assessment Year: 2008-2009
• Appeal Filed On: 31-03-2017
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: ASHOK KHANNA JCIT DHK
• Assessee Lawyers: DILIP SHIVPURI
• Keywords: Gift; Additional evidence; Set aside

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHE S, JAIPUR JH JES'K LH- 'KEKZ] YS[KK LNL; ,O A H JH FOT; IKY JKWO] U;KF;D LNL; DS LE{K BEFORE: SHRI RAMESH C. SHARMA, AM & SHRI VIJAY PAL RAO, JM VK;DJ VIHY LA-@ ITA NO. 238/JP/2017 FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2008-09. SHRI RAGHUNANDAN GOYAL 3/21, KALA KUAN HOUSING BOARD, ALWAR (RAJ.) CUKE VS. THE INCOME TAX OFFICER, WARD-1 (1), ALWAR. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN NO. ACBPG 7449 Q VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT VK;DJ VIHY LA-@ ITA NO. 249/JP/2017 FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2008-09. THE INCOME TAX OFFICER, WARD-1 (1), ALWAR. CUKE VS. SHRI RAGHUNANDAN GOYAL 3/21, KALA KUAN HOUSING BOARD, ALWAR (RAJ.) LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN NO. ACBPG 7449 Q VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY : SHRI DILIP SHIVPURI (ADVOCATE) JKTLO DH VKSJ LS@ REVENUE BY : SHRI ASHOK KHANNA (JCIT) LQUOKBZ DH RKJH[K@ DATE OF HEARING : 15.05.2019. ?KKS'K .KK DH RKJH[K@ DATE OF PRONOUNCEMENT : 17/05/2019. VKNS'K@ ORDER PER VIJAY PAL RAO, JM : THESE TWO CROSS APPEALS ARE DIRECTED AGAINST THE O RDER DATED 23.01.2017 OF LD. CIT (A), ALWAR FOR THE ASSESSMENT YEAR 2008-09. THE ASSESSEE AS WELL AS THE REVENUE HAS RAISED THE FOLLOWING GROUNDS :- ITA NO. 238/JP/2017 (ASSESSEE) : THAT UNDER THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. CIT (APPEALS), ALWAR ERRED IN SUSTAINING THE ADDITION O F RS. 11,10,000/- EVEN WHEN SOURCE OF THIS AMOUNT WAS FULLY EXPLAINED . ACCORDINGLY, THE ADDITION OF RS. 11,10,000/- DESERVES TO BE DELETED. 2 ITA NOS. 238 & 249/JP/2017 SHRI RAGHUNANDAN GOYAL, ALWAR. ITA NO. 249/JP/2017 (REVENUE) : 1. ON FACTS AND IN THE CIRCUMSTANCES OF THE CASE, LD. COMMISSIONER OF INCOME TAX (APPEALS), ALWAR HAS ERRED IN RESTRICTIN G THE ADDITION OF RS. 58,02,000/- TO RS. 11,10,000/- WHICH WAS MADE BY TH E AO ON ACCOUNT OF EXPENSES INCURRED BY THE ASSESSEE ON THE MARRIAG E OF HIS DAUGHTER. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E, THE LD. COMMISSIONER OF INCOME TAX (APPEALS), ALWAR ERRED I N DELETING THE ADDITION OF RS. 71,52,255/- MADE BY THE AO ON ACCOU NT OF ADVANCE AGAINST LAND AND CASH CREDITORS. 2. THE MATTER WAS EARLIER DECIDED BY THIS TRIBUNAL VIDE ORDER DATED 14.11.2017 WHEREBY THE APPEAL OF THE ASSESSEE WAS DISMISSED AN D THE APPEAL OF THE REVENUE WAS PARTLY ALLOWED. THE ASSESSEE CHALLENGED THE SA ID ORDER BEFORE THE HONBLE JURISDICTIONAL HIGH COURT AND VIDE ORDER DATED 14.0 8.2018 IN DBIT APPEAL NO. 142/2018 THE HONBLE HIGH COURT HAS SET ASIDE THE O RDER OF THE TRIBUNAL DATED 14.11.2017 AND REMANDED THE MATTER BACK TO THE TRIB UNAL TO EXAMINE THE SAME AFRESH IN THE LIGHT OF THE DOCUMENTS AS REFERRED TH EREIN. THE RELEVANT PART OF THE ORDER OF THE HONBLE HIGH COURT IS AS UNDER :- HAVING HEARD LEARNED COUNSEL FOR THE PARTIES AND PERUSED THE MATERIAL ON RECORD AND CONSIDERING THE FACT THAT SA LE DEED (ANNEXURE- 4) AND ITS CONFIRMATION LETTER PERTAIN TO THE RELEV ANT PERIOD SHOWING SALE OF THE PROPERTY BY THE ASSESSEE TO M/S. CITY S TAR HOSPITALITY PVT. LTD., WE DEEM IT APPROPRIATE TO SET ASIDE THE JUDGM ENT PASSED BY THE ITAT AND REMIT THE MATTER BACK TO ITAT TO EXAMINE T HE SAME AFRESH IN THE LIGHT OF AFORESAID DOCUMENTS AND PASS FRESH JUD GMENT IN THE APPEAL IN ACCORDANCE WITH LAW. THEREFORE, THE APPEALS WERE AGAIN PLACED BEFORE US FOR FRESH ADJUDICATION. 3 ITA NOS. 238 & 249/JP/2017 SHRI RAGHUNANDAN GOYAL, ALWAR. 3. THE LD. A/R OF THE ASSESSEE HAS SUBMITTED THAT T HE ASSESSEE HAS FILED THE COPY OF SALE DEED DATED 07.10.2011 AS WELL AS THE C ONFIRMATION LETTER FROM THE PURCHASER IN RESPECT OF THE AMOUNT OF RS. 30 LACS R ECEIVED BY THE ASSESSEE AS ADVANCE FOR SALE OF AGRICULTURAL LAND. HE HAS FURT HER SUBMITTED THAT THE ASSESSEE HAS ALSO FILED THE AFFIDAVITS OF SMT. SUDESH BALA G OYAL, SMT. MEENA AGARWAL AND SHRI VIJAY MISHRA IN SUPPORT OF THE EXPLANATION THAT THE GOLD BRICK WEIGHING ABOUT 1 KG WAS GIVEN BY LATE SHRI MUSSADI LAL GOYAL AFTER CLOS ING HIS BUSINESS OF JEWELLERY IN THE NAME AND STYLE OF M/S. MUSSADI LAL & SONS. THEREFO RE, ONCE THE ASSESSEE HAS EXPLAINED THE SOURCE OF THE SAID GOLD WHICH WAS GIV EN AS A GIFT IN THE MARRIAGE OF THE DAUGHTER OF THE ASSESSEE, THEN THE ADDITION WHI CH WAS CONFIRMED BY THE LD. CIT (A) IS NOT JUSTIFIED. HE HAS FURTHER CONTENDED THA T AS PER THE CONFIRMATION FILED BY THE ASSESSEE, THE AMOUNT OF RS. 30 LACS HAS BEEN DU LY REFLECTED IN THE BANK ACCOUNT WHICH IS ALSO REFERRED IN THE SALE DEED AS SALE CON SIDERATION RECEIVED BY THE ASSESSEE ON TRANSFER OF THE LAND. THEREFORE, THESE DOCUMENT S PRODUCED BY THE ASSESSEE ESTABLISHED THE FACT THAT THE SAID AMOUNT OF RS. 30 LACS WHICH WAS CONFIRMED BY THE TRIBUNAL WHILE PASSING THE IMPUGNED ORDER IS NOW DU LY STAND EXPLAINED. THUS THE LD. A/R HAS SUBMITTED THAT THE ORDER OF THE LD. CIT (A) WHEREBY THE ADDITION WAS DELETED BY ACCEPTING THE SOURCE OF THE CASH CREDIT AS ADVANCED AGAINST THE SALE MAY BE CONFIRMED. 4. ON THE OTHER HAND, THE LD. D/R HAS SUBMITTED THA T THE ASSESSEE HAS NOT PRODUCED ANY DOCUMENTARY EVIDENCE TO ESTABLISH THAT 1 KG GOLD BRICK WAS GIVEN BY THE FATHER OF THE ASSESSEE AS THERE IS NO MATERIAL TO SUBSTANTIATE THIS CLAIM. THE ASSESSEE HAS NOW FILED THE AFFIDAVITS WHICH ARE SEL F-SERVING DOCUMENTS AND CANNOT BE ACCEPTED AT THIS STAGE. THUS HE HAS SUBMITTED T HAT IN THE ABSENCE OF ANY 4 ITA NOS. 238 & 249/JP/2017 SHRI RAGHUNANDAN GOYAL, ALWAR. EVIDENCE WHICH CAN BE INDEPENDENTLY VERIFIED, THE A SSESSEE HAS FAILED TO EXPLAIN THE SOURCE OF 1 KG GOLD BRICK WHICH WAS UNDISPUTEDLY GI FTED BY THE ASSESSEE TO HIS DAUGHTER IN THE MARRIAGE. HE HAS RELIED UPON THE O RDER OF THE AO AND SUBMITTED THAT THE TRIBUNAL IN THE FIRST ROUND HAS CONFIRMED THIS ADDITION ON THE GROUND THAT NO CREDIBLE EVIDENCE HAS BEEN PRODUCED BY THE ASSESSEE EITHER DURING THE ASSESSMENT PROCEEDINGS OR DURING THE APPELLATE PROCEEDINGS. A S REGARDS THE AMOUNT OF RS. 30 LACS, THE LD. D/R HAS SUBMITTED THAT THE ASSESSEE H AS NOW PRODUCED A SALE DEED DATED 7 TH OCTOBER, 2011 WHICH IS AFTER MORE THAN 4 YEARS FRO M THE DATE OF CASH CREDIT. THUS THE LD. D/R HAS CONTENDED THAT THE ASS ESSEE HAS COVERED UP THIS CASH CREDIT IN THE SUBSEQUENT SALE DEED WHEREAS NO OTHER DOCUMENT HAS BEEN PRODUCED TO SHOW THAT CASH AMOUNTS WERE RECEIVED BY THE ASSE SSEE AS ADVANCE AGAINST THE SALE OF THE LAND. EVEN OTHERWISE, THE SALE DEED WA S NOT AVAILABLE BEFORE THE AO OR BEFORE THE LD. CIT (A) AND, THEREFORE, IT WAS NOT S UBJECTED TO VERIFICATION. HE HAS RELIED UPON THE ORDER OF THE AO. 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AS WELL AS THE RELEVANT MATERIAL ON RECORD. SO FAR AS THE SOURCE OF 1 KG GOLD BRICK IS CONCERNED, THE ASSESSEE HAS EXPLAINED THE SAME AS THIS WAS GIVEN BY THE FATHER OF THE ASSESSEE TO THE WIFE OF THE ASSESSEE AND AT THE TIME OF MARRIAGE OF THE DAUGHTE R OF THE ASSESSEE, THE WIFE OF THE ASSESSEE GIFTED TO THE DAUGHTER AND, THEREFORE, THIS KIND OF GIFT FROM THE FATHER- IN-LAW TO DAUGHTER-IN-LAW AND THEN BY THE MOTHER TO THE DAUGHTER, NO DOCUMENTARY EVIDENCE IS GENERALLY AVAILABLE. THE ASSESSEE HAS NOW FILED THE AFFIDAVITS OF ALL THE RELEVANT PERSONS TO SHOW THAT THE SAID GOLD BRICK W AS GIVEN BY THE FATHER OF THE ASSESSEE IN THE YEAR 1997 AT THE TIME OF CLOSING OF HIS BUSINESS AND SUBSEQUENTLY HE DIED IN THE YEAR 2002, THEREFORE, EXCEPT THE AFFIDA VITS OF THE FAMILY MEMBERS OF THE 5 ITA NOS. 238 & 249/JP/2017 SHRI RAGHUNANDAN GOYAL, ALWAR. ASSESSEE NO OTHER EVIDENCE CAN BE PRODUCED. SINCE THE ASSESSEE HAS FILED THESE AFFIDAVITS AT THIS STAGE AND AFTER THE MATTER HAS B EEN SET ASIDE BY THE HONBLE HIGH COURT, THEREFORE, A PROPER VERIFICATION HAS TO BE C ARRIED OUT IN RESPECT OF THESE AFFIDAVITS FILED BY THE ASSESSEE. 5.1. AS REGARDS THE REVENUES APPEAL AND THE ISSUE SET ASIDE BY THE HONBLE HIGH COURT REGARDING THE ADDITION SUSTAINED BY THE TRIBU NAL OF RS. 30 LACS, THE ASSESSEE HAS NOW PRODUCED THE SALE DEED DATED 7 TH OCTOBER, 2011 AS WELL AS CONFIRMATION FROM THE PURCHASER WHO GAVE THIS AMOUNT TO THE ASSE SSEE THROUGH CHEQUES DATED 5 TH MAY, 2007 AND 23 RD MAY, 2007. THESE TWO DOCUMENTARY EVIDENCES HAVE B EEN FILED FIRST TIME BY THE ASSESSEE AT THIS STAGE AFTE R THE MATTER WAS SET ASIDE BY THE HONBLE HIGH COURT. THEREFORE, IN OUR CONSIDERED O PINION, THE DOCUMENTARY EVIDENCES FILED BY THE ASSESSEE BEFORE US REQUIRED TO BE EXAMINED AND VERIFIED AT THE LEVEL OF THE AO. AS REGARDS THE RELIEF GRANTED BY THIS TRIBUNAL TO THE ASSESSEE WHILE PASSING THE ORDER DATED 14.11.2017, EXCEPT RS . 30 LACS, THE REVENUE DID NOT CHALLENGE THE SAID ORDER OF THE TRIBUNAL AND, THERE FORE, THE FINDING OF THE TRIBUNAL ON THE ISSUE RAISED BY THE REVENUE WHICH WERE DECID ED AGAINST THE REVENUE HAS ATTAINED THE FINALITY. 6. ACCORDINGLY, IN THE FACTS AND CIRCUMSTANCES OF T HE CASE WHEN THE ASSESSEE HAS NOW PRODUCED FRESH EVIDENCES IN SUPPORT OF THE CLAIM REGARDING 1 KG GOLD BRICK AS WELL AS RS. 30 LACS SHOWN AS CASH CREDIT, THE MA TTER IN RESPECT OF THESE TWO ISSUES REQUIRES TO BE RE-EXAMINED AT THE LEVEL OF THE AO A FTER CONSIDERING THE ADDITIONAL EVIDENCES FILED BY THE ASSESSEE AS WELL AS A FURTHE R ENQUIRY, IF ANY, BY THE AO AND THEN DECIDE THE SAME AFRESH. 6 ITA NOS. 238 & 249/JP/2017 SHRI RAGHUNANDAN GOYAL, ALWAR. 7. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES AND APPEAL OF THE REVENUE IS PARTLY ALLOWED FOR STATIST ICAL PURPOSES. ORDER IS PRONOUNCED IN THE OPEN COURT ON 17/05/2 019. SD/- SD/- ( JES'K LH- 'KEKZ ) ( FOT; IKY JKWO (RAMESH C. SHARMA ) (VIJAY PAL RAO) YS[KK LNL;@ ACCOUNTANT MEMBER U;KF;D LNL;@ JUDICIAL MEMBER JAIPUR DATED:- 17/05/2019. DAS/ VKNS'K DH IZFRFYFI VXZSF'KR@ COPY OF THE ORDER FORWARDED TO: 1. THE APPELLANT- SHRI RAGHUNANDAN GOYAL, ALWAR. 2. THE RESPONDENT THE ITO, WARD 1(1), ALWAR. 3. THE CIT(A). 4. THE CIT, 5. THE DR, ITAT, JAIPUR 6. GUARD FILE (ITA NO. 238 & 249/JP/2017) VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASSISTANT. REGISTRAR