Smt. Anamika Vikas Nahar, Mumbai V. ITO, Ward-1, Bhilwara

ITA 286/JODH/2019

• Counselvise Citation: [2020] 109 COUNSELVISE.COM (IT) 9984 (ITAT-JODHPUR)
• Duration Of Justice: 1 year(s) 3 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-12-2020
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC
• Assessment Year: 2011-2012
• Appeal Filed On: 27-08-2019
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: A S YADAV LD
• Assessee Lawyers: RAJENDRA JAIN LD ARS
• Keywords: Opportunity of cross examination; Third party statement; Validity of assessment; Reassessment proceedings
• Section: 143(3); 148; 132

Judgement Text

1 ITA NO.286/JODH/2019 SMT. ANAMIKA VIKAS NAHAR ASSESSMENT YEAR: 2011-12 IN THE INCOME TAX APPELLATE TRIBUNAL JODHPUR BENCH , , BEFORE HONBLE SHRI SANDEEP GOSAIN, JM AND HONBLE SHRI MANOJ KUMAR AGGARWAL, AM (HEARING THROUGH VIDEO CONFERENCING MODE) ./ I.T.A. NO.286/JODH/2019 ( / ASSESSMENT YEAR: 2011-12) SMT. ANAMIKA VIKAS NAHAR C/O. RAJENDRA JAIN ADVOCATE 106, AKSHAY DEEP COMPLEX 5TH B ROAD, SARDARPURA, JODHPUR RAJASTHAN-342 001. / VS. INCOME TAX OFFICER - WARD - 1 BHILWARA RAJASTHAN ./ ./PAN/GIR NO. AFJPB-7843-Q ( /APPELLANT ) : ( / RESPONDENT ) ASSESSEE BY : MS. RAKSHA BIRLA (CA) & SHRI RAJENDRA JAIN (ADVOCATE) LD.ARS. REVENUE BY : SHRI A.S. YADAV- LD. SR. DR / DATE OF HEARING : 05/11/2020 / DATE OF PRONOUNCEMENT : 21/12/2020 / O R D E R MANOJ KUMAR AGGARWAL (ACCOUNTANT MEMBER): - 1. AFORESAID APPEAL BY ASSESSEE FOR ASSESSMENT YEAR [IN SHORT REFERRED TO AS AY] 2011-12 CONTEST THE ORDER OF L D. COMMISSIONER OF INCOME-TAX-(APPEALS), AJMER, [IN SHORT REFERRED TO AS CIT(A)], 2 ITA NO.286/JODH/2019 SMT. ANAMIKA VIKAS NAHAR ASSESSMENT YEAR: 2011-12 APPEAL NO.373/2018-19 DATED 10/06/2019 ON FOLLOWING EFFECTIVE GROUNDS:- 1. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE ID CIT (A) ERRED IN UPHOLDING THE VALIDITY & NOTICE U/S. 148 O F THE ACT. 2. THAT ON THE FACTS AND IN THE CIRCUMSTA NCES OF THE CASE, THE ID CIT (A) GROSSLY ERRED IN SUSTAINING THE ADDITION OF RS. 4,27,500/- IN RESPECT OF UNDISCLOSED INVESTMENT. 3. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE ID CIT (A) GROSSLY ERRED IN ARBITRARY IGNORING TH E VALID DOCUMENTARY EVIDENCE IN SUPPORT OF CLAIM MADE BY THE ASSESSEE WHICH CLEA RLY ESTABLISHED THE TRANSACTION MADE BY THE ASSESSEE IS GENUINE. 4. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE ID CIT (A) GROSSLY ERRED IN CONFIRMING THE ADDITION OF RS.4,27 ,500/- ONLY ON THE BASIS OF THIRD PARTY STATEMENT AS WITHOUT PROVIDING THE OPPO RTUNITY FOR CROSS VERIFICATION. 5. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF TH E CASE, THE ID CIT (A) GROSSLY ERRED IN UPHOLDING VARIOUS FINDINGS RECORDE D BY THE LD.AO IN THE ASSESSMENT ORDER BASED ON SURMISES, ASSUMPTION AND PRESUMPTIONS AS SUCH NO ADVERSE MATERIAL EVIDENCE FOUND IN RESPECT OF DO CUMENTS AVAILABLE ON RECORD. AS EVIDENT, THE ASSESSEE IS AGGRIEVED BY THE ADDITI ON OF UNDISCLOSED INVESTMENT FOR RS.4.27 LACS. THE ASSESS EE HAS ALSO CONTESTED THE VALIDITY OF REASSESSMENT PROCEEDINGS. 2. WE HAVE CAREFULLY HEARD THE RIVAL SUBMISSIONS AN D PERUSED RELEVANT MATERIAL ON RECORD INCLUDING WRITTEN SUBMI SSIONS AND DOCUMENTS PLACED IN THE PAPER BOOK. THE JUDICIAL PR ECEDENTS AS RELIED UPON DURING THE COURSE OF HEARING HAVE DULY BEEN DELIBERATED UPON. OUR ADJUDICATION TO THE SUBJECT MATTER WOULD BE AS GIVEN IN SUCCEEDING PARAGRAPHS. 3.1 AN ASSESSMENT WAS FRAMED AGAINST THE ASSESSEE U /S 143(3) R.W.S. 147 ON 11/12/2018 WHEREIN THE ASSESSEE WAS S ADDLED WITH IMPUGNED ADDITION OF RS.4.27 LACS. THE ORIGINAL RET URN FILED BY THE ASSESSEE WAS PROCESSED U/S 143(1). 3 ITA NO.286/JODH/2019 SMT. ANAMIKA VIKAS NAHAR ASSESSMENT YEAR: 2011-12 3.2 THE REASSESSMENT PROCEEDINGS WERE TRIGGERED PUR SUANT TO SEARCH OPERATIONS U/S 132 ON RAJESH LIFE-SPACE GROU P OF COMPANIES ON 10/03/2016. DURING SEARCH ACTION, THE STATEMENT OF KEY PERSONS OF THE GROUP WERE RECORDED U/S 132(4) W HEREIN ADMISSION WAS MADE THAT THE GROUP ACCEPTED CASH COM PONENT ON SALE OF FLATS. THE ASSESSEE WAS STATED TO BE PURCHA SER OF ONE SUCH FLAT AND SEARCH FINDINGS INDICATED THAT THE ASSESSE E MADE CASH PAYMENT OF RS.8.55 LACS AS ON-MONEY WHILE BOOKING A FLAT IN RAJ LEGACY-II PROJECT. ACCORDINGLY, THE ASSESSEES CASE WAS REOPENED AS PER DUE PROCESS OF LAW AND THE ASSESSEE WAS SHOW -CAUSED AS TO WHY THE AFORESAID ON-MONEY WAS NOT TO BE ADDED TO THE INCOME OF THE ASSESSEE. 3.3 HOWEVER, THE ASSESSEE DENIED HAVING MADE ANY SU CH CASH PAYMENT AND SUBMITTED THAT AGREEMENT VALUE OF RS.72 .20 LACS WAS PAID THROUGH ACCOUNT PAYEE CHEQUES FROM HOME LOAN T AKEN FROM SBI. IT WAS ALSO POINTED OUT THAT THE ASSESSEE WAS CO-OWNER IN EQUAL SHARE WITH HER HUSBAND. HOWEVER, GOING BY THE SEARCH FINDINGS, LD. AO MADE AN ADDITION OF RS.4.27 LACS O N ACCOUNT OF UNDISCLOSED INVESTMENT ON ACCOUNT OF ASSESSEES S HARE. THE ACTION OF LD. AO, UPON CONFIRMATION BY LD. CIT(A), IS UNDER CHALLENGE BEFORE US. 4. UPON CAREFUL CONSIDERATION OF FACTUAL MATRIX AS ENUMERATED IN THE PRECEDING PARAGRAPHS, IT IS NOTICEABLE THAT THE WHOLE BASIS OF MAKING THE ADDITIONS IN THE HANDS OF ASSESSEE IS SE ARCH FINDINGS. THERE IS NO CORROBORATIVE MATERIAL ON RECORD TO SUB STANTIATE THE FACT THAT THE ASSESSEE, IN FACT, PAID ANY ON-MONEY AGAINST THE PURCHASE 4 ITA NO.286/JODH/2019 SMT. ANAMIKA VIKAS NAHAR ASSESSMENT YEAR: 2011-12 OF FLAT. THE ASSESSEE ALL ALONG MAINTAINED THAT THE AGREEMENT VALUE WAS PAID THROUGH ACCOUNT PAYEE CHEQUES AND NO MONEY WAS PAID OVER AND ABOVE THE SAME. HOWEVER, NO EVIDENCE HAS B EEN BROUGHT ON RECORD BY LD. AO TO DISPROVE THE SAME AND ESTABL ISH THAT THE ASSESSEE ACTUALLY MADE ANY CASH PAYMENT. IN OUR OPI NION, THE PRIMARY ONUS WAS ON REVENUE TO CONTRADICT THE STAND OF ASSESSEE BY BRINGING ON RECORD ADVERSE MATERIAL. THE FAILURE TO DO SO WOULD MAKE THE ADDITIONS UNSUSTAINABLE IN THE EYES OF LAW . THEREFORE, WE DO NOT FIND SUFFICIENT MATERIAL ON RECORD TO SUSTAI N THE IMPUGNED ADDITIONS. THE SAME STAND DELETED AND THE GROUNDS T HUS RAISED STAND ALLOWED. 5. THE ASSESSEE HAS ALSO CHALLENGED THE VALIDITY OF ASSESSMENT PROCEEDINGS. HOWEVER, THERE IS NOTHING ON RECORD WH ICH WOULD INDICATE THAT THE PROCEEDINGS WERE VITIATED, IN ANY MANNER. THE LD. AO WAS CLINCHED WITH SPECIFIC INFORMATION WHICH IND ICATED POSSIBLE ESCAPEMENT OF INCOME IN THE HANDS OF THE ASSESSEE. NOTHING MORE WAS REQUIRED AT THAT STAGE TO REOPEN THE ASSESSMENT PROCEEDINGS PARTICULARLY WHEN THE ORIGINAL RETURN WAS PROCESSED U/S 143(1). THE LEGAL GROUND STAND DISMISSED. 6. THE APPEAL STAND PARTLY ALLOWED IN TERMS OF OUR ABOVE ORDER. ORDER PRONOUNCED U/R 34(4) OF INCOME TAX (APPELLATE TRIBUNAL) RULES, 1963. S SD/- SD/- (SANDEEP GOSAIN) (MA NOJ KUMAR AGGARWAL) / JUDICIAL MEMBER / ACCOUNTANT MEMBER MUMBAI; DATED : 21/12/2020 SR.PS:-JAISY VARGHESE 5 ITA NO.286/JODH/2019 SMT. ANAMIKA VIKAS NAHAR ASSESSMENT YEAR: 2011-12 ! / COPY OF THE ORDER FORWARDED TO : 1. ' / THE APPELLANT 2. #$' / THE RESPONDENT 3. % ( ) / THE CIT(A) 4. % / CIT CONCERNED 5. &'#( ) , ) , / DR, ITAT, JODHPUR 6. '+,- / GUARD FILE / BY ORDER, / (DY./ASSTT.REGISTRAR) , / ITAT, JODHPUR.