RADHEY SHYAM ARORA, NEW DELHI V. ITO, Jaipur

ITA 267/JPR/2017

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 1854 (ITAT-JAIPUR)
• Duration Of Justice: 8 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-12-2017
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC
• Assessment Year: 2008-2009
• Appeal Filed On: 07-04-2017
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: PUNAM RAI DCIT DHK
• Assessee Lawyers: H M SINGHVI
• Keywords: Reopening of assessment; Period of limitation; Reasonable cause; Tangible material; Difference of opinion; Condonation of delay; Bonafide mistake; Change of opinion; Reassessment proceedings
• Section: 80C; 54B; 147; 148; 54; 144

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES (SMC), JAIPUR JH FOT; IKY JKO ] U;KF;D LNL; DS LE{K BEFORE: SHRI VIJAY PAL RAO, JUDICIAL MEMBER VK;DJ VIHY LA-@ ITA NO. 267/JP/2017 FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2008-09 SHRI RADHEY SHYAM ARORA, 5-2GF,NRI COLONY MANDAKINI GREATER KAILASH -4, NEW DELHI. CUKE VS. INCOME TAX OFFICER, WARD 4(4), JAIPUR. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO.: ABRPA9965C VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY : SHRI H.M. SINGHVI (C.A.) JKTLO DH VKSJ LS@ REVENUE BY : SMT. PUNAM RAI (D.CIT) LQUOKBZ DH RKJH[K@ DATE OF HEARING : 12/10/2017 MN?KKS'K .KK DH RKJH[K @ DATE OF PRONOUNCEMENT : 13/12/2017 VKNS'K@ ORDER PER: VIJAY PAL RAO, J.M. THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST TH E ORDER DATED 22.06.2016 OF LD. CIT(A), JAIPUR FOR THE A.Y. 2008- 09. 2. THERE IS DELAY OF 209 DAYS IN FILING THE PRESENT APPEAL THE ASSESSEE HAS FILED A PETITION FOR CONDONATION OF DELAY WHICH HAS BEEN SUPPORTED BY THE AFFIDAVIT. ITA267/JP/17_ SHRI RADHEY SHYAM ARORA VS. ITO 2 3. I HAVE HEARD THE LD. AR AS WELL AS LD. DR AND CO NSIDERED THE EXPLANATION OF THE ASSESSEE AS STATED IN THE AFFIDA VIT FOR DELAY IN FILING THE APPEAL. THE LD. DR HAS VEHEMENTLY OPPOSED TO THE CO NDONATION OF DELAY. HAVING PERUSED THE CONTENTS OF THE AFFIDAVIT IT IS NOTED THAT THE ASSESSEE HAS EXPLAINED THE CAUSE OF DELAY THAT THE ASSESSEE HAS DULY SIGNED THE APPEAL PAPERS ON 17.08.2016 AND ALSO PAID THE APPEA L FEE ON THE SAME DAY AND THEREFORE, THE ASSESSEE TOOK ALL THE STEPS WITHIN THE PERIOD OF LIMITATION TO FILE THE APPEAL AGAINST THE IMPUGNED ORDER. HOWEVER, DUE TO INADVERTENCE AND OVER SIGHT ON THE PART OF THE CHAR TERED ACCOUNTANT OF THE ASSESSEE NAMELY SH. H.M. SINGHVI, THE APPEAL COULD NOT BE FILED IN TIME. THE ASSESSEE HAS ALSO FILED AN AFFIDAVIT OF SH. H.M . SINGHVI (C.A.) AN AUTHORIZED REPRESENTATIVE OF THE ASSESSEE WHEREIN H E HAS STATED THAT DUE TO OVER SIGHT AND INADVERTENCE THE APPEAL PAPERS R EMAINED IN THE OFFICE AND COULD NOT BE FILED IN THE REGISTRY OF THIS TRIB UNAL. THUS, THE ASSESSEE HAS EXPLAINED THAT IT IS A BANAFIDE AND INADVERTENT MISTAKE ON THE PART OF THE AUTHORIZED REPRESENTATIVE OF THE ASSESSEE WHO C OULD NOT FILED THE PRESENT APPEAL WITHIN THE PERIOD OF LIMITATION. I F IND THAT THE APPEAL FEE WAS PAID ON 17.08.2016 AND THIS FACT HAS NOT BEEN D ISPUTED BY THE REVENUE. THEREFORE, WHEN THE AUTHORIZED REPRESENTAT IVE OF THE ASSESSEE IN HIS AFFIDAVIT HAS ACCEPTED THE BONAFIDE MISTAKE AND OVERSIGHT FOR NOT FILING THE APPEAL WITHIN THE PERIOD OF LIMITATION DESPITE THE APPEAL WAS READY AND ITA267/JP/17_ SHRI RADHEY SHYAM ARORA VS. ITO 3 FEE WAS PAID IN TIME THEN IT WOULD BE A REASONABLE CAUSE FOR NOT PRESENTING THIS APPEAL WITHIN THE PERIOD OF LIMITAT ION. HAVING REGARDS TO THE FACTS AND CIRCUMSTANCES OF T HE CASE THAT THE ASSESSEE TOOK THE REQUISITE STEPS TO FILE THE APPEA L IN TIME AND ALSO DEPOSITED THE APPEAL FEE I AM SATISFIED THAT THE A SSESSEE HAD A REASONABLE CAUSE FOR NOT PRESENTING THE PRESENT AP PEAL IN TIME. ACCORDINGLY, THE DELAY OF 209 DAYS IN FILING THE PR ESENT APPEAL IS CONDONED. 4. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS:- 1. THAT THE LEARNED CIT(A) ERRED IN CERTAINNING TH E ACTION FOR IMITATION OF PROCEEDINGS U/S 147 BY A.O IN ORDER. 2. WHETHER ON THE FACTS AND CIRCUMSTANCES OF THE CA SE THE LEARNED CIT(A) WAS JUSTIFIED IN CONFIRMING THE ASSESSMENT M ADE U/S 144? 3. WHETHER ON THE FACTS AND CIRCUMSTANCES OF THE CA SE THE LEARNED CIT(A) WAS JUSTIFIED IN CONFIRMING THE ADDITION OF RS. 2054500/- MADE BY AO U/S 69A? 4. THE LEARNED CIT(A) HAS ERRED IN OVER LOOKING AND SUMMARILY REJECTED THE DETAILED SUBMISSION ALONG WITH AFFIDAV IT, DOCUMENTS AND EVIDENCE PLACED ON RECORD AND THE VARIOUS ORDERS OF ITAT, JAIPUR AND JUDGMENTS OF HIGH COURT. THE ASSESSEE HAS ALSO RAISED THE ADDITIONAL GROUNDS WHICH READS AS UNDER:- 1. THAT THE CIT(A) HAS MADE ENHANCEMENT NOT ALLOWI NG THE BENEFIT U/S 54 THEREBY DIRECTING THE AO TO CHARGING LONG TERM CAPITAL GAIN OF RS. 6202310/- ON SALE OF THE HOUSE WITHOUT GIVING ANY NOTICE FOR ENHANCEMENT. 2. THAT THE LEARNED CIT(A) WAS WRONG IN NOT ALLOWIN G THE BENEFIT U/S 54 FOR PURCHASE OF HOUSE AT DELI IN THE NAME OF ITA267/JP/17_ SHRI RADHEY SHYAM ARORA VS. ITO 4 THE WIFE SMT. RADHA RANI OUT OF THE CAPITAL GAIN ON THE SALE OF RESIDENTIAL HOUSE AT GRATER KAILASH COLONY, JAIPUR. 5. GROUND NO. 1 IS REGARDING VALIDITY OF REOPENING OF ASSESSMENT U/S 147/148. THE ASSESSEE IS A RETIRED GOVERNMENT EMPLO YEE AND FILED ITS RETURN OF INCOME ON 31.07.2008 WHICH WAS PROCESSED U/S 143(1) OF THE ACT DECLARING TOTAL INCOME OF RS. 1,07,840/- FROM PENSI ON, INTEREST INCOME AFTER CLAIMING THE DEDUCTION U/S 80C & 80H. SUBSEQ UENTLY ON THE BASIS OF A LETTER RECEIVED FROM ITO, WARD -6(1) ON 25.04.201 1 REGARDING THE CASH DEPOSIT OF RS. 20,54,500/- IN THE BANK ACCOUNT OF T HE ASSESSEE THE AO PROPOSED TO REOPEN THE ASSESSMENT OF THE ASSESEE BY ISSUING A NOTICE U/S 148 ON 02.06.2011. THE AO COMPLETED THE REASSESSMEN T U/S 144 R.W.S. 147 OF THE ACT BY MAKING AN ADDITION U/S 69A OF THE INCOME TAX ACT OF RS. 20,54,500/-. THE ASSESSEE CHALLENGED THE ACTION OF THE AO BEFORE THE LD. CIT(A) AND RAISED OBJECTION OF VALIDITY OF INITIATI ON OF PROCEEDINGS U/S 147 COULD NOT SUCCEED. 6. BEFORE THE TRIBUNAL, THE LD. AR OF THE ASSESSEE HAS SUBMITTED THAT THE ASSESSING OFFICER HAS REOPENED THE ASSESSMENT W ITHOUT REACHING TO THE CONCLUSION OF THE CASH DEPOSIT IN THE BANK ACCO UNT REPRESENTS THE INCOME OF THE ASSESSEE ESCAPED ASSESSMENT. THE ASS ESSING OFFICER AT THE TIME OF INITIATION OF PROCEEDINGS U/S 147 OF THE I. T. ACT MUST HAVE REASONS TO BELIEVE THAT ANY INCOME CHARGEABLE TO TAX HAS ES CAPED ASSESSMENT. ITA267/JP/17_ SHRI RADHEY SHYAM ARORA VS. ITO 5 THUS, THE AO WAS WRONG IN TREATING THE TOTAL CASH D EPOSITS AS INCOME U/S 69A OF THE ACT. HENCE, THE INITIATION OF PROCEEDING S U/S 147 WAS ILLEGAL AND BAD IN LAW. IN SUPPORT OF HIS CONTENTION HE HAS REL IED UPON THE DECISION OF HONBLE DELHI HIGH COURT IN CASE OF UNITED ELECTRIC AL CO. (P) LTD. V. CIT 178 CTR 192 AND SUBMITTED THAT THE HONBLE HIGH COURT H AS HELD THAT EXISTENCE OF TANGIBLE MATERIAL FOR THE FORMATION OF OPINION IS PRE-REQUITE FOR INITIATION OF ACTION U/S 147 OF THE ACT. THERE SHOU LD BE FACTS BEFORE THE AO THAT REASONABLY GIVE RISE TO THE BELIEF, BUT THE FA CTS ON THE BASIS OF WHICH HE ENTERTAIN THE BELIEF NEED NOT AT THIS STAGE BE T ENTATIVE CONCLUSION. THE MATERIAL BEFORE THE AO MUST HAVE RATIONAL CONNECTIO N OR RELEVANT BEARING TO THE FORMATION OF THE BELIEF. THE LD. AR HAS FURT HER SUBMITTED THAT THE AO CANNOT MAKE A FISHING OR ROWING ENQUIRY INTO THE WHOLE QUESTION AS TO HOW THE INCOME WAS GENERATED CHARGEABLE TO TAX HAS ESCAPED ASSESSMENT. THE REASONS RECORDED FOR REOPENING OF A SSESSMENT DID NOT MAKE OUT OF A CASE THAT THE ASSESSEE WAS ENGAGED IN SOME BUSINESS AND INCOME FROM SUCH BUSINESS HAS NOT BEEN RETURNED BY THE ASSESSEE WHICH REPRESENTS THE CASH DEPOSITS IN THE BANK ACCOUNT. T HE SOURCE OF DEPOSITS NEED NOT NECESSARILY BE INCOME OF THE ASSESSEE, THE REFORE, THE REASSESSMENT PROCEEDINGS CANNOT BE RESORTED WITH A PURPOSE TO EXAMINE THE FACTS UNLESS THERE WAS A REASON TO BELIEF RATHE R THAN SUSPECT THAT ITA267/JP/17_ SHRI RADHEY SHYAM ARORA VS. ITO 6 INCOME HAS ESCAPED ASSESSMENT. THE LD. AR HAS RELIE D UPON THE FOLLOWING DECISIONS:- SMT. KANTAMANI VENKATA SATYAVATHI V. ITO 64 ITR 516 BIR BAHADUR SINGH SINWALI V. ITO 69 SOT 197 (DELHI) (URO) AMRIK SINGH V. ITO 142 DTR 6 (AMR-TRB) DEEPAK SAREEN V. ITO IN ( ITAT, JAIPUR) ITA NO. 6 19/JP/09 CIT V. INTEZAR ALI (ALL.) APPEAL NO. 162 OF 2013 7. ON THE OTHER HAND, LD. DR HAS SUBMITTED THAT THE DEPOSIT OF CASH IN THE BANK ACCOUNT OF THE ASSESSEE IS A SUFFICIENT MA TERIAL ON THE BASIS OF WHICH THE AO HAS FORMED THE BELIEF THAT INCOME ASSE SSABLE TO TAX HAS ESCAPED ASSESSMENT. HE HAS FURTHER CONTENDED THAT T HE ASSESSEE HAS NOT DISCLOSED THIS TRANSACTION IN ITS RETURN OF INCOME AND THEREFORE, IN THE ABSENCE OF ANY SOURCE OF THE DESPOT, THE SAME WAS R IGHTLY BELIEVED TO THE INCOME OF THE ASSESSEE WHICH HAS ESCAPED ASSESSMENT . HE HAS RELIED UPON THE ORDERS OF THE AUTHORITIES BELOW. 8. I HAVE CONSIDERED THE RIVAL SUBMISSIONS AS WELL AS RELEVANT MATERIAL ON RECORD. IT IS NOT A CASE OF MERE TRANSACTION OF CASH DEPOSIT IN THE BANK ACCOUNT OF THE ASSESSEE BUT DURING THE ASSESSMENT P ROCEEDINGS IN THE CASE OF THE WIFE OF THE ASSESSEE THE AO FOUND THAT THE CASH DEPOSITED IN THE JOINT ACCOUNT OF THE ASSESSEE AND HIS WIFE BELO NGS TO THE ASSESSEE. THE WIFE OF THE ASSESSEE STATED THAT THE ENTIRE CAS H IN THE ACCOUNT WAS ITA267/JP/17_ SHRI RADHEY SHYAM ARORA VS. ITO 7 DEPOSITED BY THE ASSESSEE. THEREFORE, IN THE ABSENC E OF SHOWING THIS AMOUNT IN THE RETURN OF INCOME THE AO ON THE BASIS OF AN ENQUIRY CONDUCTED DURING THE ASSESSMENT PROCEEDINGS OF THE WIFE OF THE ASSESSEE FOUND THAT THIS TRANSACTION PERTAINS TO THE ASSESSE E WHICH CONSTITUTES A TANGIBLE MATERIAL TO BELIEF THAT THE INCOME ASSESSA BLE TO TAX AS ESCAPED ASSESSMENT. FURTHER, THERE IS NO ASSESSMENT AND THE RETURN OF INCOME WAS PROCESSED ONLY U/S 143(1) OF THE ACT, THEREFORE, IT IS NOT A CASE OF CHANGE OF OPINION. ONLY DURING THE COURSE OF ASSESSMENT PR OCEEDINGS THE AO CAME TO KNOW THAT THE ASSESSEE SOLD THE HOUSE. ACCO RDINGLY I DO NOT FIND ANY ERROR OR ILLEGALITY IN THE ACTION OF THE AO TO REOPEN THE ASSESSMENT U/S 147/148 OF THE IT ACT. THE DECISIONS RELIED UPON BY THE ASSESSEE ARE NOT APPLICABLE IN THE FACTS OF THE CASE AS PRIOR TO THE REOPENING OF THE ASSESSMENT THE ASSESSING OFFICER CONDUCTED AN ENQUI RY IN THE ASSESSMENT PROCEEDING OF THE WIFE OF THE ASSESSEE. 9. GROUND NO. 2 IS REGARDING ASSESSMENT MADE U/S 14 4. THE ASSESSEE DID NOT RESPONSE TO THE NOTICE ISSUED U/S 148 AND F URTHER, THE ASSESSEE HAS ALSO NOT FILED THE RETURN OF INCOME IN RESPONSE TO THE NOTICE ISSUED U/S 148 OF THE ACT. HOWEVER, THE ASSESSEE REQUESTED THE AO CONSIDER THE ORIGINAL RETURN OF INCOME AS RETURN FILED IN RESPON SE TO THE NOTICE ISSUED U/S 148 OF THE IT ACT. THEREAFTER, THE ASSESSE DID NOT APPEAR BEFORE THE ASSESSING OFFICER. ACCORDINGLY, WHEN THE ASSESSEE H AS CHOSEN NOT TO ITA267/JP/17_ SHRI RADHEY SHYAM ARORA VS. ITO 8 PARTICIPATE IN THE ASSESSMENT PROCEEDINGS THEN THE AO WAS LEFT WITH NO OPTION BUT TO COMPLETE THE ASSESSMENT U/S 144 OF TH E ACT. THE LD. CIT(A) WHILE CONSIDERING THIS ISSUE HAS TAKEN NOTE OF THE FACT THAT THE AO ISSUED NOTICES TO THE ASSESSEE AND FIXED THE HEARING, BUT THE ASSESSEE DID NOT APPEAR EITHER IN PERSON OR THROUGH REPRESENTATIVE. EVEN NO ADJOURNMENT REQUEST WAS FILED BEFORE THE ASSESSING OFFICER. ACC ORDINGLY, IN THE ABSENCE OF ANY CONTRARY FACT BROUGHT BEFORE THE TRIBUNAL I DO NOT FIND ANY REASON TO INTERFERE WITH THE ORDERS OF THE AUTHORITIES BEL OW QUA THIS ISSUE. 10. GROUND NO. 3 IS REGARDING THE ADDITION OF RS. 2 0,54,500/- MADE U/S 69A OF THE I.T. ACT. 11. I HAVE HEARD THE LD. AR AS WELL AS LD. DR AND C ONSIDERED THE RELEVANT MATERIAL ON RECORD. THE ASSESSEE HAS NOT D ISPUTED THE FACT OF DEPOSITING OF THIS AMOUNT IN CASH IN THE BANK ACCOU NT. THE ASSESSEE HAS EXPLAINED THE SOURCE OF THE DEPOSIT AS PURCHASE CON SIDERATION RECEIVED IN CASH OVER AND ABOVE THE CONSIDERATION SHOWN IN THE SALE DEED AND RECEIVED THROUGH CHEQUES. THE ASSESSEE SOLD HIS HOU SE ON 29.12.2007 FOR A CONSIDERATION OF RS. 25,51,000/- THE ASSESSEE CLA IMED THAT APART FROM THIS AMOUNT OF RS. 25,51,000/- HAS ALSO RECEIVED ON MONEY AS PART OF SALE CONSIDERATION OUT OF TOTAL CONSIDERATION OF RS. 71 ,00,000/-. THEREFORE, THE CASH WAS DEPOSITED OUT OF THE SALE CONSIDERATION RE CEIVED IN CASH HOWEVER, NO DOCUMENTARY EVIDENCE WAS FILED BY THE ASSESSEE E XCEPT HIS OWN ITA267/JP/17_ SHRI RADHEY SHYAM ARORA VS. ITO 9 ASCERTAIN. IN SUPPORT OF THE CLAIM OF ON MONEY RECE IPT OF SALE CONSIDERATION NEITHER THE CONFIRMATION OF THE PURCH ASER NOR ANY RECEIPT OR AN AGREEMENT UNDER WHICH ALLEGED CASH CONSIDERATION WAS RECEIVED HAS BEEN BROUGHT ON RECORD. IT MAY BE A CASE THAT THE SOURCE OF DEPOSIT IS THE CONSIDERATION RECEIVED IN CASH, HOWEVER IT MAY BE EQUALLY POSSIBILITY THAT THE CASE WAS DEPOSITED INTO ACCOUNT TO PAY THE CONSIDERATION FOR PURCHASE OF NEW HOUSE AS IMMEDIATELY THEREAFTER ASS ESSEE HAS CLAIMED TO HAVE INVESTED THE ENTIRE CONSIDERATION IN PURCHASE OF THE NEW HOUSE. HOWEVER, THE PAYMENT MADE FOR THE PURCHASE OF NEW H OUSE HAS GONE FROM THE BANK ACCOUNT IN WHICH THE CASH WAS DEPOSI TED. EVEN OTHERWISE IF THE CONTENTION OF THE ASSESSEE IS ACCEPTED THAT HE HAS RECEIVED PART OF SALE CONSIDERATION IN CASH THEN APPLYING THE SAME A NALOGY THE PURCHASE CONSIDERATION PAID IN CASH FOR PURCHASE OF NEW HOUS E IS ALSO REQUIRED TO BE EXPLAINED BY THE ASSESSEE AND AT LEAST IN THE SAME RATIO THE PURCHASE CONSIDERATION IN CASH HAS NOT BEEN EXPLAINED BY THE ASSESSEE. THUS, IT IS CLEAR THAT CASH CONSIDERATION IF ANY RECEIVED BY TH E ASSESSEE, THE SAME HAS BEEN PAID FOR PURCHASE OF THE NEW HOUSE AND THEREFO RE, THE SOURCE OF CASH DEPOSIT IN THE BACK ACCOUNT REMAINED UNEXPLAINED. T HE ASSESSEE HAS RELIED UPON VARIOUS DECISIONS HOWEVER, IN THOSE DECISIONS THERE ARE SOME DOCUMENTS TO SUPPORT THE RECEIPT OF CASH CONSIDERAT ION. HENCE, THE ITA267/JP/17_ SHRI RADHEY SHYAM ARORA VS. ITO 10 ASSESSEE HAS FAILED TO EXPLAIN THE SOURCE OF RS. 20 ,54,500/- CASH DEPOSIT IN THE BANK. 12. AS REGARDS THE ADDITIONAL GROUND NO. 1 THE ASS ESSEE HAS CHALLENGED THE ENHANCEMENT OF ASSESSEE MADE BY THE LD. CIT(A) WITHOUT ISSUING THE SHOW CAUSE NOTICE. 13. I HAVE HEARD THE LD. AR AS WELL AS DR AND CONS IDERED THE RELEVANT MATERIAL ON RECORD. UNDISPUTEDLY THE ASSESSMENT WAS COMPLETED EX-PARTE U/S 144 R.W.S. 147 OF THE INCOME TAX ACT. IT IS APP ARENT THAT THE ASSESSEE DID NOT DISCLOSE THE TRANSACTION OF SALE OF HOUSE A ND THE AO COMPLETED THE ASSESSMENT BY MAKING THE ADDITION ON ACCOUNT OF CAS H DEPOSIT IN THE BANK ACCOUNT OF THE ASSESSEE. BEFORE THE LD. CIT(A) THE ASSESSEE CLAIMED THE BENEFIT OF SECTION 54 ON ACCOUNT OF INVESTMENT MADE IN PURCHASE OF NEW HOUSE. THE LD. CIT(A) DENIED THE CLAIM OF THE A SSESSEE ON THE GROUND THAT THE NEW HOUSE WAS PURCHASE IN THE NAME OF HIS WIFE. AT THE SAME TIME, THE LD. CIT(A) HAS OBSERVED THAT THE ENTIRE S ALE CONSIDERATION WILL BE ASSESSED AS CAPITAL GAIN. 14. THE LD. CIT(A) HAS DENIED THE CLAIM OF DEDUCTIO N U/S 54 BY FOLLOWING DECISION OF HONBLE JURISDICTION HIGH COURT IN CASE OF KALYA VS CIT (2012) 22 TAXMAN.COM 67 (RAJ). HOWEVER, THE HONBLE JURISD ICTION HIGH COURT IN THE LATEST DECISION DATED 07.11.2017 IN CASE OF LAX MI NARAYAN VS. CIT IN ITA NO. 20/2016,118/2017 & 136/2017 AFTER CONSIDERA TION ALL THE ITA267/JP/17_ SHRI RADHEY SHYAM ARORA VS. ITO 11 DECISIONS ON THIS POINT INCLUDING THE DECISION IN C ASE OF KALYA VS CIT (SUPRA) HAS HELD IN PARA 7.2 AND 7.3 AS UNDER:- 7.2 ON THE GROUND OF INVESTMENT MADE BY THE ASSESS EE IN THE NAME OF HIS WIFE, IN VIEW OF THE DECISION OF DELHI HIGH IN SUNBEAM AUTO LTD. AND OTHER JUDGMENTS OF DIFFERENT HIGH COU RTS, THE WORD USED IS ASSESSEE HAS TO INVEST IT IS NOT SPECIFIED THAT IT IS TO BE IN THE NAME OF ASSESSEE. 7.3 IT IS TRUE THAT THE CONTENTIONS WHICH HAVE BEEN RAISED BY THE DEPARTMENT IS THAT THE INVESTMENT IS MADE BY THE AS SESSEE IN HIS OWN NAME BUT THE LEGISLATURE WHILE USING LANGUAGE HAS NOT USED SPECIFIC LANGUAGE WITH PRECISION AND THE SECOND REA SON IS THAT VIEW HAS ALSO BEEN TAKEN BY THE DELHI HIGH COURT THAT IT CAN BE IN THE NAME OF WIFE. IN THAT VIEW OF THE MATTER, THE CONTE NTION RAISED BY THE ASSESSEE IS REQUIRED TO BE ACCEPTED WITH REGARD TO SECTION 54B REGARDING INVESTMENT IN TUBEWELL AND OTHERS. IN OUR CONSIDERED OPINION, FOR THE PURPOSE OF CARRYING ON THE AGRICUL TURAL ACTIVITY, TUBEWELL AND OTHER EXPENSES ARE FOR BETTERMENT OF L AND AND THEREFORE, IT WILL BE CONSIDERED A PART OF INVESTME NT IN THE LAND AND SAME IS REQUIRED TO BE ACCEPTED. IN VIEW OF THE ABOVE, ALL THE ISSUES ARE ANSWERED I N FOVOUR OF THE ASSESSEE AND AGAINST THE DEPARTMENT. ACCORDINGLY WHEN THE ENTIRE INVESTMENT FOR THE PURC HASE OF NEW HOUSE HAS GONE THROUGH THE ASSESSEES ACCOUNT THEN THE BENEFI T U/S 54 OF THE INCOME TAX ACT CANNOT BE DENIED ON THE GROUND THE N EW HOUSE WAS PURCHASED IN THE NAME OF WIFE. HENCE, THE CLAIM OF THE ASSESSEE U/S 54 OF THE INCOME TAX ACT IS ALLOWED. ITA267/JP/17_ SHRI RADHEY SHYAM ARORA VS. ITO 12 15. SINCE, THE CLAIM OF THE ASSESSEE U/S 54 OF THE IT ACT IS ALLOWED, THEREFORE, ANOTHER GROUND RAISED BY THE ASSESSEE OF ENHANCEMENT OF INCOME BY THE LD. CIT(A) BECOME INFRUCTUOUS. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS PARTL Y ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 13/12/2017. SD/- FOT; IKY JKO (VIJAY PAL RAO) U;KF;D LNL; @ JUDICIAL MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 13/12/2017 *SANTOSH VKNS'K DH IZFRFYFI VXZSFKR @ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ @ THE APPELLANT- SHRI RADHEY SHYAM ARORA, NEW DELHI. 2. IZR;FKH @ THE RESPONDENT- THE ITO, WARD-4(4), JAIPUR. 3. VK;DJ VK;QDR @ CIT 4. VK;DJ VK;QDRVIHY @ THE CIT(A) 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ @ DR, ITAT, JAIPUR 6. XKMZ QKBZY @ GUARD FILE (ITA NO. 267/JP/17) VKNS'KKUQLKJ @ BY ORDER, LGK;D IATHDKJ @ ASST. REGISTRAR