PARMESHWARI DEVI, Jaipur V. ITO, Jaipur

ITA 315/JPR/2016

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 4882 (ITAT-JAIPUR)
• Duration Of Justice: 8 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-12-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: Not Allotted
• Assessment Year: 2008-2009
• Appeal Filed On: 05-04-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: POONAM RAI D DHK
• Keywords: Search and seizure
• Section: 143(3); 153A; 132

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 HKKXPUN] YS[KK LNL; DS LE{K BEFORE: SHRI BHAGCHAND, ACCOUNTANT MEMBER VK;DJ VIHY LA-@ ITA NO. 315/JP/2016 FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2008-09 SMT. PARMESHWARI DEVI C-57,RAGHU MARG, HANUMAN NAGAR KHATIPURA, JAIPUR CUKE VS. THE ITO WARD- 3 (5) JAIPUR LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO .: AZJPD 6175 D VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY:SHRI MANISH AGARWAL, CA JKTLO DH VKSJ LS@ REVENUE BY :SMT. POONAM RAI, DCIT-DR LQUOKBZ DH RKJH[K@ DATE OF HEARING : 01/12/2016 ?KKS'K .KK DH RKJH[K@ DATE OF PRONOUNCEMENT : 06/12/2016 VKNS'K@ ORDER PER BHAGCHAND, AM THE ASSESSEE HAS FILED AN APPEAL AGAINST THE ORDE R OF THE LD. CIT(A)-1, JAIPUR DATED 26-02-2016 FOR THE ASSESSME NT YEAR 2008-09 RAISING THEREIN FOLLOWING GROUNDS OF APPEAL:- 1. ON THE FACTS AND CIRCUMSTANCES LD. CIT(A) HAS GROSSLY ERRED IN SUSTAINING THE ADDITION OF RS. 20, 83,500/- MADE BY AO ARBITRARILY ON ACCOUNT OF UNDISCLOSED INVESTMENT MADE IN ACQUISITION OF IMMOVABLE PROPERT Y WITHOUT APPRECIATING THE SUBMISSIONS MADE, THUS ADD ITION MADE DESERVES TO BE DELETED. ITA NO. 315/JP/2016 SMT.PARMESHWARI DEVI VS. ITO WARD- 3(5), JAIPUR . 2 1.1 THE LD. CIT(A) HAS FURTHER ERRED IN IGNORING TH E AGE AND OCCUPATION OF ASSESSEE BEING AGRICULTURIST WHICH ITSELF EXPLAINS THAT ASSESSEE IS NOT AVAILING THE B ANKING SERVICES AND ALL THE INCOME EARNED IS IN CASH AND I S BEING KEPT AT HOME ONLY, THUS ADDITION MADE DESERVES TO B E DELETED. 1.2 THAT THE LD. CIT(A) HAS FURTHER ERRED IN UPHOLDING THE ASSUMPTIONS AND PRESUMPTIONS OF THE A O IN RELATION TO EXPENSES AND SAVINGS OF ASSESSEE, THUS ADDITION MADE DESERVES TO BE DELETED. 2. ON THE FACTS AND CIRCUMSTANCES LD. CIT(A) HAS GROSSLY ERRED IN UPHOLDING THE ACTION OF AO IN TREA TING THE AGRICULTURAL INCOME OF RS. 1,06,000/- AS INCOME FRO M UNDISCLOSED SOURCES SOLELY FOR THE REASON THAT THER E WERE NO BILLS AND VOUCHERS OF THE CROP SOLD BY GROSSLY IGNO RING THE FACT THAT ASSESSEE IS OWNER OF AGRICULTURAL LAND AN D IS REGULARLY HAVING AGRICULTURE INCOME, THEREFORE, THE INCOME DESERVES TO BE TREATED AS AGRICULTURAL INCOME. 3. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE LD. CIT(A) AS WELL AS AO HAVE GROSSLY ERRED IN IGNORING THE FACT THAT THE SUBJECT INVESTMENT HAS ALREADY BE EN ADMITTED AS MADE OUT UNDISCLOSED INCOME BY ASSESSEE 'S SON SHRI NARESH CHOUDHARY AND INCLUDED IN THE FUND FLOW STATEMENT PREPARED FOR COMPUTING THE ADDITIONAL UND ISCLOSED INCOME, THUS THE FURTHER ADDITION OF THE SAID INVES TMENT IN THE HANDS OF THE ASSESSEE TANTAMOUNTS TO DOUBLE ADD ITION AND THEREFORE, DESERVES TO BE DELETED. 2.1 APROPOS GROUND NO. 1.1 TO 1.2 OF THE ASSESSEE, BRIEF FACTS OF THE CASE ARE THAT THERE WAS SEARCH AND SEIZURE OPERATIO N U/S 132 OF THE ACT ON ITA NO. 315/JP/2016 SMT.PARMESHWARI DEVI VS. ITO WARD- 3(5), JAIPUR . 3 THE PREMISES OF MRS-CHANDAK GROUP AND ITS ASSOCIATE S ON 17-07-2013 IN WHICH THE RESIDENTIAL PREMISES OF SHRI NARESH CHOU DHARY I.E. SON OF THE ASSESSEE WAS ALSO COVERED AND THEREIN CERTAIN DOCUM ENTS WERE FOUND & SEIZED AND IT INCLUDED A COPY OF SALE AGREEMENT DAT ED 14-05-2007 EXECUTED BETWEEN THE ASSESSEE (BUYER) AND SMT. SUKH VINDER KAUR (SELLER) IN RESPECT OF LAND ADMEASURING 23 BIGHA 3 BISWAS L OCATED AT 2065 YK CHAK 24GB, TEHSIL SHRI VIJAY NAGAR, SRI GANGANAGAR FOR A PURCHASE CONSIDERATION OF RS. 20,83,500/-. THE AO MADE THE A DDITION IN THE HANDS OF THE ASSESSEE. 2.2 IN FIRST APPEAL, THE CONFIRMED THE ACTION OF TH E AO BY HOLDING AS UNDER:- (VII) IT IS RELEVANT TO MENTION HERE THAT SHRI NA RESH CHOUDHARY HAS NOT GIVEN THE BREAK UP OF RS. 41,97,0 39/- IN ITS RETURN OF INCOME FILED BY HIM. THE APPELLANT HAS NO T BROUGHT ON RECORD WHETHER SHRI NARESH CHOUDHARY HAS MADE ANY D ISCLOSURE U/S 132(4) OF THE ACT AND UNDER WHICH HANDS. IT IS PERTINENT TO MENTION HERE THAT THE ASSESSMENT ORDER IN THE CASE OF THE APPELLANT WAS MADE ON 12-01-2015 WHEREAS THE RETURN OF INCOME WAS FILED BY SHRI NARESH CHOUDHARY ON24-04-2015 I.E. AFTER TH E COMPLETIONOF THE ASSESSMENT IN THE CASE OF THE APPE LLANT. FURTHER, SHOWING THE INVESTMENT IN THE FUND FLOW STATEMENT O F SHRI NARESH CHOUDHARY DO NOT IPSO FACTOR LEADS TO THE CONCLUSIO N THAT THE SAME HAS BEEN ACCEPTED BY THE AO OF SHRI NARESH CHOUDHAR Y. ITA NO. 315/JP/2016 SMT.PARMESHWARI DEVI VS. ITO WARD- 3(5), JAIPUR . 4 (VIII) THEREFORE, IN THE TOTALITY OF FACTS AND CIRC UMSTANCES OF THE CASE IT IS HELD THAT THIS NEW PLEA OF THE APPEL LANT CANNOT BE ACCEPTED AND IT IS NOTHING BUT AN AFTER THOUGHT AS THE APPELLANT FAILED MISERABLY BEFORE THE AO EXPLAIN THE SOURCE OF INVESTMENT OF RS. 20,83,500/- IN PURCHASE OF THE LAND DURING THE YEAR UNDER CONSIDERATION. HENCE, THIS NEW PLEA OF THE APPELLAN T IS HEREBY REJECTED. 2.3 DURING THE COURSE OF HEARING, THE LD. AR OF THE ASSESSEE SUBMITTED THAT SON OF THE ASSESSEE HAD FILED THE RETURN OF IN COME U/S 153A OF THE ACT FOR THE ASSESSMENT YEAR 2008-09 WHEREIN THE INCOME OF RS. 41,97,039/- WAS OFFERED IN TERMS OF SECTION 132 (4) OF THE ACT. THE SON OF THE ASSESSEE SHRI NARESH CHOUDHARY SUBMITTED THE CASH F LOW STATEMENT REGARDING POSITIVE AND NEGATIVE INFLOW AND OUTFLOW OF THE CASH STATEMENTS. THE AMOUNT OF RS. 21,58,840/- SPENT FOR PURCHASE OF AGRICULTURAL LAND AT 2065 YK CHAK 24GB, TEHSIL SHRI VIJAY NAGAR, SRI GANGANAGAR WAS ALSO TAKEN INTO CONSIDERATION WHILE DECLARING THE INCOME U/S 153A OF THE ACT. THE LD. AR OF THE ASSESSEE HAD DRAWN MY ATTENTION TOWARDS CASH FLOW STATEMENT AT PAGE 4 OF THE ASSESS EE'S PAPER BOOK WHICH IS INFLOW AND OUTFLOW OF THE STATEMENT PREPARED BY THE ASSESSEE ON THE BASIS OF SEIZED MATERIALS. HE ALSO SUBMITTED THE RE TURN OF INCOME FILED BY SHRI NARESH KUMAR CHOUDHARY, SON OF THE ASSESSEE U/ S 143 OF THE ACT WHICH HAS BEEN ACCEPTED. IT IS NOTED THAT THE ADDIT IONAL INCOME OF RS. ITA NO. 315/JP/2016 SMT.PARMESHWARI DEVI VS. ITO WARD- 3(5), JAIPUR . 5 41,98,450/- HAS BEEN SHOWN BY THE ASSESSEE AND THE AO HAD TAKEN INTO CONSIDERATION THE SAME WHILE PASSING THE ORDER U/S 143(3) READ WITH SECTION 153A OF THE ACT, THE COPY OF WHICH IS PLACE D AT PAGE 13 AND 14 OF THE ASSESSEE'S PAPER BOOK. 2.4 THE LD. DR RELIED ON THE ORDER OF THE LD. CIT(A ). 2.5 I HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIALS AVAILABLE ON RECORD. THIS IS A FACT SHRI NARESH KUM AR CHOUDHARY IS A SON OF THE ASSESSEE HAD FILED THE RETURN OF INCOME AND IN HIS PREMISES SEARCH OPERATION WAS CARRIED OUT. IN RESPONSE TO NOTICE IS SUED U/S 153A OF THE ACT, THE AMOUNT INVESTED IN AGRICULTURAL LAND IN T HE NAME OF THE ASSESSEE HAS BEEN OFFERED FOR TAXATION. THIS IS EVIDENT FROM THE CASH FLOW STATEMENT PLACED AT PAGE 4 OF THE PAPER BOOK. IN CA SE THE ADDITION IS SUSTAINED IN THE CASE OF THE ASSESSEE THEN IT WILL AMOUNT TO DOUBLE TAXATION ON THE SAME AMOUNT. THE RETURN OF INCOME OF SHRI NA RESH KUMAR CHOUDHARY FOR THE ASSESSMENT YEAR 2008-09 HAS BEEN SCRUTINIZED AND THEN THE SAME HAD BEEN ACCEPTED WHICH INCLUDES THE INVES TMENT IN THE AGRICULTURAL LAND IN THE NAME OF THE ASSESSEE. CONS IDERING ALL THESE FACTUAL ASPECTS, I DIRECT TO DELETE THE ADDITION MADE BY TH E AO. THUS GROUND NO. 1 OF THE ASSESSEE IS ALLOWED. ITA NO. 315/JP/2016 SMT.PARMESHWARI DEVI VS. ITO WARD- 3(5), JAIPUR . 6 3.1 APROPOS GROUND NO. 2 AND 3 OF THE ASSESSEE, THE FACTS AS EMERGES FROM THE ORDER OF THE LD. CIT(A) IS AS UNDER:- 3.3.2 (I) I HAVE DULY CONSIDERED THE SUBMISSIONS OF THE APPELLANT, ASSESSMENT ORDER AND THE MATERIAL PL ACED ON RECORD. THE AO DID NOT ACCEPT THE AGRICULTURE INCOM E OF RS. 1,06,000/- DECLARED BY THE APPELLANT IN HER RETURN OF INCOME. THE RELEVANT EXTRACT OF THE ORDER OF THE AO IS BEIN G REPRODUCED AS UNDER:- THE ASSESSEE HAS CLAIMED THAT SHE HAS AGRICULTURAL INCOME IS NOT ACCEPTABLE. THE ASSESSEE 'S A.R. PRODUCED COPIES OF GIRDAVARI REPORT OF LAST 10 YEAR IN HIS REPLY DATED 30-09-2014. ON PERUSAL OF THESE REPORT IT REVEALED THAT THE CROPS WEE SOLD BY SHRI MADAN SINGH INSTEAD OF SMT.PRAMESHWARI DEVI, NO BILLS OR VOUCHERS OF CROPS SALE WERE PRODUCED DURIN G THE COURSE OF ASSESSMENT PROCEEDINGS, THEREFORE, TH E CLAIM OF THE ASSESSEE THAT SHE IS HAVING AGRICULTUR AL INCOME OF RS. 1,06,000/- IS DISALLOWED AND ADDED TO THE TOTAL INCOME OF THE ASSESSEE.. (II) IT IS EVIDENT FROM THE ABOVE EXTRACT THAT THE AO HAS GIVEN VERY CATEGORICAL FINDINGS IN RESPECT OF SALE PROCEEDS OF AGRICULTURE PRODUCE, WHICH WERE NOT IN THE NAME OF THE APPELLANT. DURING THE APPELLATE PROCEEDINGS , NOTHING HAS BEEN BROUGHT ON RECORD TO CONTROVERT THE FINDIN GS OF THE AO. (III) IN VIEW OF THE ABOVE DISCUSSION, IT IS HELD T HAT THE AO WAS JUSTIFIED IN NOT ACCEPTING THE AGRICULTU RE INCOME OF RS. 1,06,000/- DECLARED BY THE APPELLANT IN HER RETURN OF INCOME AND RIGHTLY ASSESSED IT AS INCOME FROM OTHE R SOURCES. HENCE, THIS GROUND OF APPEAL IS REJECTED. ITA NO. 315/JP/2016 SMT.PARMESHWARI DEVI VS. ITO WARD- 3(5), JAIPUR . 7 3.2 I HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIALS AVAILABLE ON RECORD. IT IS NOTED FROM THE RECORDS T HAT THE ASSESSEE HAD PURCHASED THE AGRICULTURAL LAND ON 14-05-2007 AT S RI GANGANAGAR WHICH INDICATES THAT THE ASSESSEE WAS HAVING AGRICULTURAL INCOME FROM RABI AND KHARIF CROPS. THE ASSESSEE HAD SHOWN THE AGRICULTUR AL INCOME OF RS. 1.06 LACS AND THE SAME HAD ALSO BEEN SHOWN IN THE RETURN OF INCOME. THE AO DID NOT ACCEPT THIS AMOUNT OF RS. 1.06 LACS AS AGRI CULTURAL INCOME OF THE ASSESSEE AS THE ASSESSEE HAD NOT PRODUCED THE BILLS AND VOUCHERS FOR SALE OF CROPS AND THE SAME HAD ALSO BEEN CONFIRMED BY TH E LD. CIT(A). IT IS ALSO NOTED FROM THE RECORDS THAT THE ASSESSEE HAD S UBMITTED THE COPIES OF GIRDAWARI RECORDS ESTABLISHING THE GROWING OF CROP S FROM THE LANDS OWNED BY THE ASSESSEE. IT IS NOTED THAT THE ASSESSE E HAD GOOD PIECE OF LAND I.E. 23 BIGHA AND 3 BISWAS ON WHICH CROPS ARE GROWN BY THE ASSESSEE. IT MAY BE TAKEN INTO CONSIDERATION THAT THE AGRICULTUR AL INCOME IS EXEMPT FROM TAX AND THERE IS NO NEED TO MAINTAIN BOOKS OF ACCOUNT OR BILLS/ VOUCHERS. LOOKING TO THE FACTS AND CIRCUMSTANCES OF THE CASE, I DIRECT TO DELETE THE ADDITION OF RS. 1.06 LACS MADE BY THE A O. THUS GROUND NO. 2 & 3 OF THE ASSESSEE ARE ALLOWED. ITA NO. 315/JP/2016 SMT.PARMESHWARI DEVI VS. ITO WARD- 3(5), JAIPUR . 8 4.0 IN THE RESULT, THE APPEAL OF THE ASSESSEE IS A LLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 06/12/2 016 SD/- HKKXPUN ( BHAGCHAND) YS[KK LNL;@ ACCOUNTANT MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 06/12/ 2016 *MISHRA VKNS'K DH IZFRFYFI VXZSF'KR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT- SMT. PARMESHWARI DEVI, JAIPUR 2. IZR;FKHZ@ THE RESPONDENT- THE ITO, WARD- 3(5), JAIPUR 3. VK;DJ VK;QDRVIHY@ CIT(A). 4. VK;DJ VK;QDR@ CIT, 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ@ DR, ITAT, JAIPUR 6. XKMZ QKBZY@ GUARD FILE (ITA NO. 315/JP/2016) VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ @ ASSISTANT. REGISTRAR