ITO, Kota V. SMT NAND KANWAR CHANDEL, Kota

ITA 282/JPR/2013

• Counselvise Citation: 28223114 RSA 2013
• Duration Of Justice: 2 year(s) 4 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-08-2015
• Appeal Filed By: Department
• Order Result: Partly Allowed
• Bench Allotted: B
• Assessment Year: 2009-2010
• Appeal Filed On: 18-03-2013
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: RAJ MEHTA
• Assessee Lawyers: SANDEEP JHANWAR CA DHK
• Keywords: Unexplained investment
• Section: 143(3)

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES, JAIPUR JH VKJ-IH-RKSYKUH] U;KF;D LNL; ,OA JH VH-VKJ-EHUK] YS[KK LNL; DS LE{K BEFORE: SHRI R.P. TOLANI, JM & SHRI T.R. MEENA, AM VK;DJ VIHY LA-@ ITA NO. 282/JP/2013 FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2009-10 THE INCOME-TAX OFFICER, WARD 1(2), KOTA. CUKE VS. SMT. NAND KANWAR CHANDEL, W/O SHRI GAJANAND VERMA, 573, BASANT VIHAR, KOTA. LFKK;H YS[KK LA-@THVKBZVKJ L A- @ PAN/GIR NO.: AGHPC 6398 Q VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT JKTLO DH VKSJ LS@ REVENUE BY : SHRI RAJ MEHTA (JCIT) FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY : SHRI SANDEEP JHANWAR, CA LQUOKBZ DH RKJH[K@ DATE OF HEARING : 14/07/2015 MN?KKS'K .KK DH RKJH[K @ DATE OF PRONOUNCEMENT : 11/08/2015 VKNS'K@ ORDER PER SHRI T.R. MEENA, A.M. THIS IS AN APPEAL BY THE REVENUE EMANATING FROM THE ORDER OF LD.CIT(A), KOTA DATED 18.01.2013 FOR THE ASSESSMENT YEAR 2009- 10. THE SOLE GROUND OF APPEAL IS AGAINST DELETING THE ADDITION OF RS. 30,0 0,000/- ON ACCOUNT OF UNEXPLAINED INVESTMENT MADE IN HOUSE PROPERTY. 2. THE AO OBSERVED THAT ASSESSEE IS DEALING IN BUILD ING MATERIAL. SHE FILED HER RETURN OF INCOME ON 17.03.2010 AT RS. 1,33,940/ -. THE ASSESSEE DECLARED INCOME AS PER PROVISIONS OF SECTION 44AF OF THE IT A CT. THE CASE WAS SCRUTINIZED 2 ITA NO. 282/JP/2013 A.Y. 2009-10 ITO VS. SMT. NAND KANWAR CHANDEL, KOTA. UNDER SECTION 143(3) OF THE ACT AS THERE WAS AN AIR INFORMATION THAT ASSESSEE HAD PURCHASED IMMOVABLE PROPERTY ON 16.05.2008 FOR RS. 30,00,000/-. THE ASSESSEE WAS GIVEN REASONABLE OPPORTUNITY OF BEING H EARD WHICH WAS AVAILED BY THE ASSESSEE. IT WAS SUBMITTED BY THE LD. A/R OF TH E ASSESSEE THAT THE REGISTRATION OF HOUSE NO. 573, BASANT VIHAR, KOTA WA S EXECUTED ON 16.05.2008 JUST FOR FORMALITY, BUT IN FACT NO SALE CONSIDERATI ON IN CASH WAS PASSED ON BY THE ASSESSEE TO THE POWER OF ATTORNEY HOLDER I.E. ASSES SEES HUSBAND SHRI GAJANAND VERMA. HOWEVER, IT WAS STATED THAT SAID HOUSE WAS PURC HASED BY THE ASSESSEE IN 1988 AND POSSESSION OF SAID HOUSE WAS TAKEN AT THAT POINT OF TIME. THE ASSESSEE FILED COPY OF EKRARNAMA DATED 19.08.1988, POWER OF A TTORNEY AND WILL. FURTHER PHOTOSTAT COPIES OF ELECTION COMMISSION OF INDIAS IDENTITY CARD, RATION CARD, ELECTRICITY BILL DATED 31.05.1990, WATER BILL DATED 24.05.1990 FILED TO PROVE THAT ADDRESS OF THE ASSESSEE WAS MENTIONED AS 573, BASANT VIHAR, KOTA, WHICH IS THE HOUSE FOR WHICH MATTER IS UNDER ASSESSMENT. THIS HOU SE WAS UNDER POSSESSION OF THE ASSESSEE SINCE 1988. THE AO RECORDED THE ST ATEMENTS OF SMT. NAND KANWAR CHANDEL, ASSESSEE, SHRI RAVINDRA KUMAR GOYAL, SELLER OF PLOT, SHRI GAJANAND VERMA, POWER OF ATTORNEY HOLDER ON VARIOUS DATES. THE CONTENTS OF STATEMENTS HAD BEEN REPRODUCED BY THE AO AT PAGES 2 , 3 & 4 OF HIS ORDER. AFTER CONSIDERING ALL THE EVIDENCES AND STATEMENTS, THE A O OBSERVED THAT ON ONE HAND THE ASSESSEE HAD PURCHASED THE SAID PLOT ON 19.08.1 988 FOR RS. 45,000/- FROM 3 ITA NO. 282/JP/2013 A.Y. 2009-10 ITO VS. SMT. NAND KANWAR CHANDEL, KOTA. SHRI RAVINDRA KUMAR GOYAL I.E. SELLER AND ON THE OT HER HAND THE FOR THE SAID PLOT ON THE SAME DATE I.E. 19.08.1988 THE SELLER HAD GIV EN THE POWER OF ATTORNEY IN FAVOUR OF THE HUSBAND OF THE ASSESSEE SHRI GAJANAND VERMA AND ALSO SHRI RAVINDRA KUMAR GOYAL EXECUTED THE WILL OF THE SAID PLOT ON THE EVEN DATE IN FAVOUR OF THE HUSBAND OF THE ASSESSEE. IT IS FURTH ER HELD THAT ON PERUSAL OF THESE DOCUMENTS, IT WAS FOUND THAT ALL THE DOCUMENTS ARE R ELATING TO THE PLOT ONLY AND RELATING TO THE ASSESSEE AS WELL AS HER HUSBAND ARE CONTRADICTORY TO EACH OTHER BECAUSE HOW IT WAS POSSIBLE THAT ON THE SAME DATE THE SELLER HAD SOLD THE SAID PLOT TO THE ASSESSEE AND ON THE EVEN DATE HE HAD GI VEN POWER OF ATTORNEY FOR SELLING THE PLOT AS WELL AS EXECUTED THE WILL IN FAV OUR OF THE HUSBAND OF THE ASSESSEE. ALL THESE THINGS CANNOT BE MADE SIMULTAN EOUSLY. HENCE IN ABSENCE OF REGISTERED DOCUMENT OWNERSHIP OF THE ASSESSEE ON THE SAID PLOT HAD NOT BEEN PROVED. WHATEVER EVIDENCES SUBMITTED TO PROVE THE ADDRESS OF VARIOUS DOCUMENTS ARE FROM THE SAME ADDRESS WAS ALSO NOT FO UND CONVINCING TO THE AO AS THESE EVIDENCES CAN BE CREATED BY THE TENANT ALS O. HENCE POSSESSION AND OWNERSHIP BOTH HAD NOT BEEN PROVED FROM THESE DOCUME NTS. THE AO FURTHER REPRODUCED CERTAIN CLAUSE OF THE REGISTERED DOCUMEN T DATED 16.05.2008 AT PAGE 5 OF HIS ORDER TO PROVE THAT THE TRANSACTION WAS CAR RIED OUT ON 16.05.2008 AT RS. 30,00,000/- IN CASH. HE FURTHER REPRODUCED THE ORD ER OF DEPUTY SECRETARY, UIT, KOTA THAT PLOT NO. 573, BASANT VIHAR, KOTA GOT TRAN SFERRED ON 16.05.2008. THE 4 ITA NO. 282/JP/2013 A.Y. 2009-10 ITO VS. SMT. NAND KANWAR CHANDEL, KOTA. ASSESSEE ALSO INCURRED THE REGISTRATION CHARGES OF RS. 1,84,270/-. THEREFORE, TOTAL INVESTMENT IN HER PROPERTY AT RS. 31,84,270/- WAS TREATED AS UNEXPLAINED INVESTMENT IN THE HANDS OF THE ASSESSEE. 3. BEING AGGRIEVED BY THE ORDER OF AO, ASSESSEE CAR RIED THE MATTER BEFORE LD. CIT (A) WHO HAD ALLOWED THE APPEAL OF THE ASSESSEE BY OBSERVING THAT THERE ARE SUFFICIENT EVIDENCE TO ESTABLISH THAT THERE WAS A HO USE AT 573, BASANT VIHAR, KOTA IN THE YEAR 1989 OR EARLIER AND ASSESSEE WAS RESIDIN G THERE. THE STATEMENT GIVEN BY THE VARIOUS PERSONS BEFORE THE AO ALSO STATED TH AT PROPERTY WAS PURCHASED IN 1988 BUT GOT REGISTERED IN THE YEAR 2008. NORMALLY WHEN A PERSON PURCHASES A PROPERTY, WHICH, DUE TO TECHNICALITIES, CANNOT BE TR ANSFERRED IN HIS/HER NAME THEN AS A PRECAUTION HE GETS HIS POWER OF ATTORNEY AND WI LL ETC. TO PROTECT HIS/HER INTEREST. CONSIDERING THE ENTIRETY OF FACTS, HE HEL D THAT TRANSFER OF PROPERTY UNDER SECTION 53A OF THE T.P. ACT GOT COMPLETED IN FINANCI AL YEAR 1988-89 AND SAME WAS REGISTERED IN F.Y. 2008-09. APPARENTLY THE CONS IDERATION AS PER PRESCRIBED RATE WAS MENTIONED TO COMPLETE THE FORMALITIES. AS PER LD. CIT (A) NO CONSIDERATION WAS PAID BY THE ASSESSEE TO HER HUSBAN D (AS POWER OF ATTORNEY HOLDER OF SELLER). THEREFORE, ADDITION OF RS. 30,00 ,000/- IS DELETED. 4. THE ASSESSEE HAS, HOWEVER, FAILED TO PROVE THE SOU RCE OF RS. 1,84,270/- WHICH WAS INCURRED ON REGISTRATION. HE CONFIRMED THE ADDITION TO THAT EXTENT. 5 ITA NO. 282/JP/2013 A.Y. 2009-10 ITO VS. SMT. NAND KANWAR CHANDEL, KOTA. 5. NOW THE REVENUE IS IN APPEAL BEFORE US. THE LD. D /R VEHEMENTLY SUPPORTED THE ORDER OF AO. 5.1. AT THE OUTSET, THE LD. A/R OF THE ASSESSEE REI TERATED THE ARGUMENT MADE BEFORE THE AO AS WELL AS LD. CIT (A). HE HAS DRAWN OUR ATTENTION ON AGREEMENT DATED 19.08.1988 BETWEEN SHRI RAVINDRA KUMAR GOYAL A ND SMT. NAND BAI TO PROVE THAT PLOT WAS SOLD TO HER AND POSSESSION WAS AL SO GIVEN TO HER. ANY DEMAND ON ACCOUNT OF THIS PLOT WILL BE PAID BY THE A SSESSEE AND THE REGISTRY OF THIS PLOT WOULD BE DONE AFTER CONSTRUCTION WHICH WAS C ARRIED OUT BY THE PURCHASER HERSELF. THE CONSIDERATION WAS RS. 45,000/ - IN THIS AGREEMENT. THE LD. A/R ALSO HAS DRAWN OUR ATTENTION ON POWER OF ATTORN EY DATED 19.08.1988 GIVEN BY SHRI RAVINDRA KUMAR GOYAL IN FAVOUR OF SHRI GAJA NAND VERMA TO LOOK AFTER THIS PLOT, TO APPEAR BEFORE ANY COURT OR OFFICE AND OTHE R PURPOSES AND FOR REGISTRY, CONSTRUCTION, WATER CONNECTION, ELECTRICITY CONNECTI ON. THE LD. A/R FURTHER HAS DRAWN OUR ATTENTION ON PAGE 9 OF PAPER BOOK TO SHOW THAT SMT. NAND BAI W/O SHRI GAJANAND VERMA HAD ELECTION IDENTITY CARD AT T HE ADDRESS 573, BASANT VIHAR, TEHSIL LADPURA, DISTRICT KOTA. FURTHER, RATI ON CARD IN THE NAME OF SHRI GAJANAND VERMA WAS ALSO ISSUED AT THE ADDRESS OF 573 , MATUNDA HOUSE, BASANT VIHAR, KOTA IN WHICH ASSESSEES NAME I.E. NAND KANWAR W/O GAJANAND CHANDEL WAS ALSO MENTIONED. THEREFORE, IT WAS SUBMITTED THAT THIS WAS FORMALITY OF PASSING THE TITLE IN THE NAME OF SMT. NAND KANWAR TH ROUGH REGISTRY, SHE IS THE 6 ITA NO. 282/JP/2013 A.Y. 2009-10 ITO VS. SMT. NAND KANWAR CHANDEL, KOTA. ACTUAL OWNER OF THE PLOT SINCE 19.08.1988. HE FURTHE R RELIED UPON THE ORDER OF LD. CIT (A) AND REQUESTED TO CONFIRM THE ORDER OF LD. CI T (A). 6. WE HAVE HEARD RIVAL CONTENTIONS AND PERUSED THE MATERIAL ON RECORD. THE PLOT NO. 573, BASANT VIHAR, KOTA WAS ORIGINALLY ALLO TTED IN THE NAME OF SHRI RAVINDRA KUMAR GOYAL BY THE UIT, KOTA VIDE ALLOTMENT NO. F.11/VIKRAY/1303 DATED 09.06.1987 FOR 99 YEARS LEASE. THE DEMAND RA ISED IN RESPECT OF ALLOTMENT OF PLOT HAD BEEN DEPOSITED BY SHRI RAVINDRA KUMAR G OYAL TO THE UIT, KOTA AND LEASE DEED IN THE NAME OF SHRI RAVINDRA KUMAR GOYAL WAS GOT REGISTERED WITH SUB REGISTRAR ON 27.03.1997. THE UIT KOTA HAD ALLOWED TO SELL THIS PLOT VIDE LETTER NO. F/VIKRAY/1587 DATED 03.10.2006. THE GENE RAL POWER OF ATTORNEY ALSO GOT REGISTERED WITH DEPUTY REGISTRAR, KOTA ON 19.08. 1988 IN FAVOUR OF SHRI GAJANAND VERMA, SELLER OF THE PLOT. THUS IT IS EVID ENT THAT THIS PLOT INCLUDING RESIDENTIAL HOUSE ON IT WAS GOT TRANSFERRED FROM SHR I GAJANAND VERMA, HUSBAND OF THE ASSESEE (POWER OF ATTORNEY HOLDER) TO ASSESSE E ON 16.05.2008 FOR A CONSIDERATION OF RS. 30,00,000/-. THE UIT KOTA HAD A LLOWED TO TRANSFER THIS PLOT NO. 573, BASANT VIHAR, KOTA VIDE ITS ORDER NO. 569- 70 DATED 22.07.2008 BY CHARGING URBAN TAX @ 25% IN THE NAME OF ASSESSEE. IT IS PROVED THAT PLOT WAS REALLY PURCHASED BY THE ASSESSEE IN 1988. HOWEVER, T HERE IS NO EVIDENCE REGARDING INVESTMENT MADE IN CONSTRUCTION OF THE HO USE AS WELL AS PAYMENT OF URBAN TAX @ 25% PAID TO THE UIT, KOTA. THUS THIS ISSUE IS SET ASIDE TO THE AO 7 ITA NO. 282/JP/2013 A.Y. 2009-10 ITO VS. SMT. NAND KANWAR CHANDEL, KOTA. TO RECONSIDER THIS ASPECT. THE SALE DEED REGISTERED ON 16.05.2008 BY SHRI GAJANAND VERMA IN FAVOUR OF THE ASSESSEE IS MERE TE CHNICAL FORMALITY AND THE AO HAD NOT BROUGHT ON RECORD ANY EVIDENCE THAT ASSESSE E HAD PASSED ON ANY CONSIDERATION IN CASH TO HER HUSBAND FROM UNACCOUNT ED SOURCES. THEREFORE, REVENUES APPEAL ON THIS ACCOUNT IS DISMISSED. HOWEV ER, ABOVE OBSERVATION REQUIRED TO BE VERIFIED BY THE AO BY ALLOWING OPPORT UNITY TO THE ASSESSEE, BEING THE FINDING OF LAST FACT FINDING AUTHORITY I.E. ITA T. THE ASPECT OF CONSTRUCTION MADE ON THIS PLOT AND URBAN TAX @ 25% PAID BY THE AS SESSEE TO THE UIT, KOTA NEED TO BE VERIFIED AFTER ALLOWING REASONABLE OPPORT UNITY OF BEING HEARD TO THE ASSESSEE. FOR LIMITED PURPOSE, THIS CASE IS SET AS IDE TO THE AO. 7. IN THE RESULT, APPEAL OF THE REVENUE IS PARTLY A LLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 11/8/2015. SD/- SD/- VKJ-IH-RKSYKUH VH-VKJ-EHUK (R.P.TOLANI) (T.R. MEENA) U;KF;D LNL;@ JUDICIAL MEMBER YS[KK LNL;@ ACCOUNTANT MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 11 TH AUGUST, 2015 *DAS 8 ITA NO. 282/JP/2013 A.Y. 2009-10 ITO VS. SMT. NAND KANWAR CHANDEL, KOTA. VKNS'K DH IZFRFYFI VXZSFKR @ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ @ THE APPELLANT- THE ITO WARD 1(2), KOTA. 2. IZR;FKHZ @ THE RESPONDENT- SMT. NAND KANWAR CHANDEL, KOTA. 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 282/JP/2013) VKNS'KKUQLKJ @ BY ORDER, LGK;D IATHDKJ @ ASST. REGISTRAR 9 ITA NO. 282/JP/2013 A.Y. 2009-10 ITO VS. SMT. NAND KANWAR CHANDEL, KOTA.