Shri Dhiren Kumar Sahoo, Dhenkanal V. ITO, Dhenkanal Ward, Dhenkanal, Dhenkanal

ITA 32/CTK/2019

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 6267 (ITAT-CUTTACK)
• Duration Of Justice: 3 month(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-06-2019
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC
• Assessment Year: 2012-2013
• Appeal Filed On: 18-02-2019
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Assessee Lawyers: D PATI
• Keywords: Unexplained investment; Application of stay

Judgement Text

, . . , , IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH , CUTTACK , BEFORE SHRI CHANDRA MOHAN GARG, JUDICIAL MEMBER STAY PETITION NO. 0 7 / CTK /20 1 9 (ARISING OUT OF ITA NO. 3 2 /CTK/2019) ( / ASSESSMENT YEAR : 20 1 2 - 20 1 3 ) SHRI DHIREN KUMAR SAHOO, PROP: - M/S KANCHAN JEWELLERY, MEENA BAZAR, DHENKANAL - 759001 VS. ITO, DHENKANAL WARD, DHENKANAL ./ ./ PAN/GIR NO. : A RH PS 7887 F ( / APPELLANT ) . . ( / RESPONDENT ) AND ITA NO.3 2 /CTK/2019 ( / ASSESSMENT YEAR :2012 - 2013 ) SHRI DHIREN KUMAR SAHOO, PROP: - M/S KANCHAN JEWELLERY, MEENA BAZAR, DHENKANAL - 759001 VS. ITO, DHENKANAL WARD, DHENKANAL ./ ./ PAN/GIR NO . : A RH PS 7887 F ( / APPELLANT ) .. ( / RESPONDENT ) /AS SESSEE BY : SHRI D.PATI , ADVOCATE /REVENUE BY : SHRI SUBHENDU DUTTA , DR / DATE OF HEARING : 1 3 / 0 6 /201 9 / DATE OF PRONOUNCEMENT 14 / 0 6 /201 9 / O R D E R THE STA Y PETITION FILED BY THE ASSESSEE SEEKING STAY OF DEMAND OF RS. 1 1 , 67 , 670 / - , WAS LISTED TODAY I.E. ON 13.06.2019, HOWEVER, THE LD. AR OF THE ASSESSEE SUBMITTED THAT THE APPEAL OF THE ASSESSEE MAY KINDLY BE HEARD ON MERITS, TO WHICH LD.DR HAS NO OBJECTION . ACCORDINGLY, THE STAY PETITION FILED BY THE ASSESSEE HAS BECOME INFRUCTUOUS AND WITH THE SP NO. 0 7 /CTK/2019 & ITA NO.3 2 /CTK/2019 2 CONSENT OF THE PARTIES, I PROCEED TO DECIDE THE APPEAL OF THE ASSESSEE ON MERITS. 2. THE ASSESSEE IN I TS APPEAL HAS RAISED THE SOLE GROUND WITH REGARD TO ADDITION CONFIRMED BY THE CIT(A), WHICH WAS MADE BY THE AO U/S.69 OF THE ACT. 3. FACTS IN BRIEF ARE THAT THE ASSESSEE IS A PROPRIETOR OF M/S KANCHAN JEWELLERS WHICH IS IN THE BUSINESS OF TRADING OF GOLD A ND SILVER ORNAMENTS. A SURVEY U/S.133A OF ACT WAS CONDUCTED AT THE BUSINESS PREMISES OF THE ASSESSEE ON 05.02.2013. DURING THE COURSE OF SURVEY IT WAS FOUND THAT THE ASSESSEE HAS PURCHASED LAND AND BUILDING AT R.L.PANDEY MARKET COMPLEX, KANCHAN BAZAR, DHE NKANAL ON 27.03.2012 OF RS.31,56,086/ - . HE FURTHER CLAIMED THAT AN AMOUNT OF RS.6 LAKH WAS PAID THROUGH CHEQUE AND SOURCE OF PAYMENT OF THE BALANCE AMOUNT OF RS.25,56,0186/ - COULD NOT BE EXPLAINED BY THE ASSESSEE. SUBSEQUENT TO THE SURVEY, AO FRAMED THE AS SESSMENT U/S.143(3)/147 OF THE ACT MAKING ADDITION OF RS.2 5 , 56 , 086 / - U/S.69 OF THE ACT ON ACCOUNT OF UNEXPLAINED INVESTMENT. IN APPEAL BEFORE PREFERRED BY THE ASSESSEE, THE CIT(A) HAS ALSO IN AGREED TO THE OBSERVATIONS OF THE AO AND DISMISSED THE APPEAL OF THE ASSESSEE. NOW, THE ASSESSEE IS IN FURTHER APPEAL BEFORE THE TRIBUNAL. 4. LD. AR SUBMITTED THAT AS PER REPLY OF THE ASSESSEE THE ASSESSEE PURCHASED LAND AND BUILDING AGAINST TOTAL CONSIDERATION PAID RS. 27 , 45 , 170 / - INCLUDING COST OF LAND AND BUILDING AT RS. 25 , 65,370 / - , STAMP DUTY OF RS.1, 28 , 270 / - AND REGISTRATION FEES OF RS. 51 , 530 / - OUT OF WHICH THE ASSESSEE PAID RS.6 LAKHS TO THE SELLER AT THE TIME OF ON OR SP NO. 0 7 /CTK/2019 & ITA NO.3 2 /CTK/2019 3 BEFORE EXECUTION OF SALE DEED. LD.AR VEHEMENTLY POINTED OUT THAT OUT OF RS.6 LAKHS PAID TO THE SELLER, THE ASSESSEE PAID RS.3, 0 0,000/ - VIDE CHEQUE NO.665343/DATED 29.04.2011 AND RS.3,00,000/ - VIDE CHEQUE NO. 665344/DATED 09.04.2011 PAID OUT OF HIS PAST SAVINGS. 5. LD. AR VEHEMENTLY POINTED OUT THAT THE AUTHORITIES BELOW HAVE WRONGLY TAKEN TOTAL SAL E CONSIDERATION AS RS. 31 , 56 , 086 / - . LD.AR SUBMITTED THAT THE ADDITION BASED ON INCORRECT FACTS AND FIGURE MAY KINDLY BE DELETED. 6. REPLYING TO THE ABOVE, LD. DR SUBMITTED THAT ADDITION HAS BEEN MADE ON THE BASIS OF STATEMENT OF ASSESSEE RECORDED ON 05.0 2 .2 013 DURING THE COURSE OF SURVEY U/S.133A OF THE ACT, 1961 (FOR SHORT THE ACT) , WHEREIN REPLYING TO QUESTION NO. 9 THE ASSESSEE SUBMITTED THAT THE ASSESSEE HAS PAID RS.3,00,000/ - VIDE CHEQUE NO.665343/DATED 29.04.2011 AND RS.3,00,000/ - VIDE CHEQUE NO.6653 44/DATED 09.04.2011 PAID OUT OF HIS PAST SAVINGS . HOWEVER, HE COULD NOT CONTROVERT THE FIGURE AND FACT THAT AS PER REPLY OF ASSESSEE , THE TOTAL SALE CONSIDERATION, INCLUDING STAMP DUTY AND REGISTRATION WAS RS.27,45,170/ - AND, THUS, THE SALE CONSIDERATION T AKEN BY THE AUTHORITIES BELOW IS NOT CORRECT. 7. PLACING REJOINDER TO THE ABOVE, LD.AR SUBMITTED THAT THE FINAL STATEMENT OF THE ASSESSEE WAS RECORDED IN A HASTY MANNER WITHOUT ALLOWING OPPORTUNITY TO GO THROUGH THE PARTNERS PAPERS AND OTHER FACTS RELEVA NT TO THE PURCHASE OF LAND AND BUILDING, THEREFORE, PAYMENT OF RS.6 LAKHS MAY KINDLY BE ACCEPTED AGAINST PURCHASE OF LAND AND BUILDING. SP NO. 0 7 /CTK/2019 & ITA NO.3 2 /CTK/2019 4 8. ON CAREFUL CONSIDERATION OF THE ABOVE RIVAL SUBMISSIONS, FIRST OF ALL, I AM OF THE VIEW THAT THE TOTAL SALE CONSIDER ATION INCLUDING STAMP DUTY AND REGISTRATION FEES IS RS. 27,4 5 , 1 70 / - WHICH IS DISCERNIBLE FROM THE COPY OF THE SALE DEED DATED 27.03.2012. SO FAR AS PAYMENT AT THE TIME OF ON OR BEFORE EXECUTION OF SALE DEED IS CONCERNED, IN THE STATEMENT RECORDED DURING THE SURVEY THE ASSESSEE STATED TO HAVE MADE PAYMENT OF RS.3,00,000/ - VIDE CHEQUE NO.665343/DATED 29.04.2011 AND RS.3,00,000/ - VIDE CHEQUE NO.665344/DATED 09.04.2011 TOTALLING TO RS.6,00,000/ - PAID OUT OF HIS PAST SAVINGS AND OTHER FUNDS CANNOT BE DISCARDED A ND DISMISSED AT THE THRESHOLD AND, THUS, THE SAME IS ACCEPTED. FINALLY, I HOLD THAT THE ASSESSEE HAS PAID RS.6,00,000/ - ON OR BEFORE EXECUTION OF SALE DEED ON 27.03.2012 AND THE TOTAL COST OF LAND AND BUILDING PURCHASED WAS RS.2 7 , 4 5 , 1 70 / - . THEREFORE, AFTE R REDUCTION OF RS.6 LAKHS, THERE IS NO EXPLANATION FROM THE ASSESSEE REGARDING REMAINING INVESTMENT OF RS. 21 , 45 , 1 70 / - AND WHEN THERE IS NO SATISFACTORY EXPLANATION REGARDING SOURCE OF SAID INVESTMENT THEN THE SAME DESERVES TO BE TREATED AS UNEXPLAINED INVE STMENT OF THE ASSESSEE U/S.69 OF THE ACT AND, THUS, THE ADDITION MADE BY THE AO AND CONFIRMED BY THE CIT(A) IS RESTRICTED TO RS. 21 , 45 , 1 70 / - . ACCORDINGLY, THE SOLE GROUND OF ASSESSEE IS PARTLY ALLOWED AND THE AO IS DIRECTED TO RECALCULATE THE ADDITION AS PER DIRECTION GIVEN HEREINABOVE. THUS, APPEAL OF THE ASSESSEE IS PARTLY ALLOWED. SP NO. 0 7 /CTK/2019 & ITA NO.3 2 /CTK/2019 5 9. SINCE WE HAVE HEARD AND DECIDED THE APPEAL OF THE ASSESSE E IN THE EARLIER PART OF THIS ORDER, THEREFORE, THE STAY PETITION FILED BY THE ASSESSEE HAS BECOME INFRUCTUOUS AND THE SAME IS DISMISSED. 10 . IN THE RESULT, STAY PETITION OF THE ASSESSEE IS DISMISSED AND APPEAL OF THE ASSESSEE IS PARTLY ALLOWED. O RDER PR ONOUNCED IN THE OPEN COURT ON 14 / 0 6 / 201 9 . SD/ - ( CHANDRA MOHAN GARG ) / JUDICIAL MEMBER CUTTACK ; DATED 14 / 0 6 /201 9 . . / PKM , S R.P.S. / COPY OF THE ORDER FORWARDED TO : / BY ORDER, ( SENIOR PRIVATE SECRETARY ) , / ITAT, CUTTACK 1. / THE APPELLANT - . SHRI DHIREN KUMAR SAHOO, PROP: - M/S KANCHAN JEWELLERY, MEENA BAZAR, DHENKANAL - 759001 2. / THE RESPONDENT - ITO, DHENKANAL WARD, DHENKANAL 3. ( ) / THE CIT(A), 4. / CIT 5. , , / DR, ITAT, CUTTACK 6. / GUARD FILE. //TRUE COPY//