SHRI ASHOK KUMAR LAKHYANI, ALWAR V. DEPUTY COMMISSIONER OF INCOME TAX, ALWAR

ITA 30/JPR/2018

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 6272 (ITAT-JAIPUR)
• Duration Of Justice: 6 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 24-07-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2013-2014
• Appeal Filed On: 09-01-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: P P MEENA JCIT DHK
• Section: 133A

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 FOT; IKY JKWO] U;KF;D LNL; ,O A JH HKKXPUN ] YS[KK LNL; DS LE{K BEFORE: SHRI VIJAY PAL RAO, JM & SHRI BHAGCHAND, A M VK;DJ VIHY LA- @ ITA NO. 30/JP/2018 FU/KZKJ.K O'K Z @ ASSESSMENT YEARS : 2013-14. SHRI ASHOK KUMAR LAKHYANI, PROP. M/S. LAKHYANI KHAD BEEJ BHANDAR, VILLAGE MOTHUKA, KISHANGARH BAS, ALWAR. CUKE VS. THE DCIT, CIRCLE-1, ALWAR. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN NO. AAMPL 2171 P VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY : SHRI P.C. PARWAL (CA) JKTLO DH VKSJ LS@ REVENUE BY : SHRI P.P. MEENA (JCIT) LQUOKBZ DH RKJH[K@ DATE OF HEARING : 19.07.2018. ?KKS'K .KK DH RKJH[K @ DATE OF PRONOUNCEMENT : 24/07/2018. VKNS'K@ ORDER PER VIJAY PAL RAO, J.M. THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST TH E ORDER DATED 22 ND DECEMBER, 2017 OF LD. CIT (A), ALWAR FOR THE ASSESS MENT YEAR 2013-14. THE ASSESSEE HAS RAISED THE FOLLOWING GROUND AS UNDER : - 1. THE LD. CIT (A) HAS ERRED ON FACTS AND IN LAW IN CONFIRMING THE ADDITION OF RS. 5,75,000/- ON ACCOUNT OF UNEXPLAINE D INVESTMENT IN IMMOVABLE PROPERTY. 2. THE ASSESSEE CRAVES TO AMEND, ALTER AND MODIFY A NY OF THE GROUNDS OF APPEAL. 3. THE APPROPRIATE COST BE AWARDED TO THE ASSESSE E. 2. WE HAVE HEARD THE LD. A/R AS WELL AS THE LD. D/R AND CONSIDERED THE RELEVANT MATERIAL ON RECORD. THE ASSESSEE IS ENGAGED IN THE BUSINESS OF TRADING OF FERTILIZERS 2 ITA NO. 30/JP/2018 SHRI ASHOK KUMAR LAKHYANI, ALWAR. AND PESTICIDES. A SURVEY UNDER SECTION 133A OF THE I.T. ACT WAS CARRIED OUT AT THE BUSINESS PREMISES OF THE ASSESSEE ON 19 TH DECEMBER, 2012. DURING THE COURSE OF SURVEY ACTION, AN AGREEMENT TO SALE DATED 1 ST MARCH, 2012 EXECUTED BETWEEN SHRI HARISH KUMAR, THE SON OF THE ASSESSEE AND ONE SHRI DAYA KISHAN WAS FOUND FROM THE PREMISES OF THE ASSESSEE. AS PER THE SAID AGREEMEN T SHRI HARISH KUMAR AGREED TO PURCHASE THE PLOT OF LAND FROM SHRI DAYA KISHAN FOR A CONSIDERATION OF RS. 6,75,000/- AND A SUM OF RS. 1,00,000/- WAS PAID AS AN ADVANCE ON THE DATE OF AGREEMENT AND BALANCE OF RS. 5,75,000/- WAS TO BE PAID BY 10 TH MAY, 2012. ACCORDINGLY, THE ASSESSEE WHO IS THE FATHER OF SHRI HARISH KUMAR IN HIS STATEMENT RECORDED UNDER SECTION 133A SURRENDERED THE UNDISCLOSED INCOME INC LUDING THE INCOME OF RS. 5,75,000/- ON ACCOUNT OF INVESTMENT IN PLOT. AFTER THE SURVEY, THE ASSESSEE VIDE LETTER DATED 16.01.2013 INFORMED THE AO THAT THE AG REEMENT FOUND DURING THE SURVEY WAS CANCELLED BY HIS SON THOUGH THE ASSESSEE WAS NOT AWARE ABOUT THIS FACT AND, THEREFORE, THE SURRENDER OF RS. 5,75,000/- ON ACCOUNT OF INVESTMENT IN THE PLOT WAS MISTAKENLY MADE DURING THE SURVEY. THE ASSESSE E FILED HIS RETURN OF INCOME DECLARING UNDISCLOSED INCOME OF RS. 24,50,000/- INC LUSIVE OF RS. 1,00,000/- ON ACCOUNT OF THE ADVANCE GIVEN FOR PURCHASE OF LAND. THE AO MADE AN ADDITION OF RS. 5,75,000/- WHICH WAS NOT OFFERED BY THE ASSESSEE TO TAX IN THE RETURN OF INCOME BUT WAS SURRENDERED DURING THE COURSE OF SURVEY PROCEED INGS. THE ASSESSEE CHALLENGED THE ACTION OF THE AO BEFORE THE LD. CIT (A) BUT COU LD NOT SUCCEED. 3. HAVING CONSIDERED THE RIVAL SUBMISSIONS AND THE RELEVANT MATERIAL ON RECORD, WE NOTE THAT THE ASSESSEE PRODUCED A SALE DEED DATE D 18.05.2012 WHEREBY THE OWNER OF THE LAND SHRI DAYA KISHAN SOLD THE SAID PL OT OF LAND TO THIRD PARTY MRS. NIRMALA DEVI AND, THEREFORE, ONCE THE SAID PLOT OF LAND WAS SOLD BY THE OWNER TO 3 ITA NO. 30/JP/2018 SHRI ASHOK KUMAR LAKHYANI, ALWAR. THIRD PARTY AND NOT TO THE ASSESSEE OR HIS SON, THE N THE QUESTION OF INVESTMENT OF RS. 5,75,000/- WHICH WAS TO BE PAID AT THE TIME OF SALE DEED DOES NOT ARISE. THE AO HAS MADE THE ADDITION ONLY ON THE BASIS OF SURRENDE R MADE BY THE ASSESSEE DURING THE COURSE OF SURVEY THOUGH THERE WAS AN AGREEMENT FOUND DURING THE SURVEY ACTION. AS PER THE SAID AGREEMENT ONLY RS. 1,00,000 /- WAS FOUND TO BE PAID BY THE SON OF THE ASSESSEE AS AN ADVANCE FOR PURCHASE OF T HE PLOT OF LAND AND, THEREFORE, TO THAT EXTENT THE ADDITION CAN BE MADE IF ASSESSEE HA S NOT SURRENDERED THE AMOUNT. SINCE THE ASSESSEE HAS ALREADY SURRENDERED THE AMOU NT OF RS. 1,00,000/-, THEREFORE NO FURTHER ADDITION CAN BE MADE ON ACCOUNT OF INVES TMENT IN THE LAND WHEN THE SAID AGREEMENT FOUND DURING THE COURSE OF SURVEY WAS NOT GIVEN EFFECT BY THE PARTIES AND THE PLOT OF LAND WAS SOLD BY THE OWNER TO SOME THIR D PARTY VIDE SALE DEED DATED 18 TH MAY, 2012. HENCE, WHEN THE FACTS WERE BROUGHT ON RE CORD BY THE ASSESSEE REGARDING THE SALE OF PLOT OF LAND TO THE THIRD PAR TY, THEN THE STATEMENT RECORDED UNDER SECTION 133A WHICH IS CONTRARY TO THE ACTUAL FACTS, CANNOT BE A BASIS OF ADDITION. ACCORDINGLY, IN THE FACTS AND CIRCUMSTANC ES OF THE CASE, THE ADDITION MADE BY THE AO IS NOT SUSTAINABLE IN LAW AND THE SAME IS DELETED. 4. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED . ORDER PRONOUNCED IN THE OPEN COURT ON 24/07/2018 . SD/- SD/- HKKXPUN FOT; IKY JKWO (BHAGCHAND) ( VIJAY PAL RAO ) YS[KK LNL;@ ACCOUNTANT MEMBER U;KF;D LNL;@ JUDICIAL MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 24/07/2018. DAS/ 4 ITA NO. 30/JP/2018 SHRI ASHOK KUMAR LAKHYANI, ALWAR. VKNS'K DH IZFRFYFI VXZSFKR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT-SHRI ASHOK KUMAR LAKHYANI, ALWAR. 2. IZR;FKHZ@ THE RESPONDENT-THE DCIT, CIRCLE-1, ALWAR. 3. VK;DJ VK;QDR@ CIT 4. VK;DJ VK;QDR@ CIT(A) 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ@ DR, ITAT, JAIPUR 6. XKMZ QKBZY@ GUARD FILE {ITA NO. 30/JP/2018} VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASST. REGISTRAR