ITO, New Delhi V. Smt. Himali Bansal, Delhi

ITA 3235/DEL/2013

• Counselvise Citation: 323520114 RSA 2013
• Duration Of Justice: 1 year(s) 2 month(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-08-2014
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: C
• Next Hearing Date: 11-08-2014
• Assessment Year: 2008-2009
• Appeal Filed On: 22-05-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SATPAL SINGH
• Assessee Lawyers: ASHWANI TANEJA
• Keywords: Sale consideration of property below Jantri Value; Corroborative evidences
• Section: 50C

Judgement Text

ITA NO. 3235/DEL/2013 1 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH C, NEW DELHI BEFORE SHRI R.S. SYAL, ACCOUNTANT MEMBER AND SHRI H.S. SIDHU, JUDICIAL MEMBER I.T.A. NO. 3235/DEL/2013 A.Y. : 2008-09 INCOME TAX OFFICER, WARD-45(1), ROOM NO. 204, D BLOCK, CIVIC CENTRE, NEW DELHI- 110 002 VS. SMT. HIMALI BANSAL, C/O RRA TAXINDIA, D-28, SOUTH EXTENSION, PART-I, NEW DELHI-49 (PAN: AJHPB6768G) (APPELLANT) (APPELLANT) (APPELLANT) (APPELLANT) (RESPONDENT) (RESPONDENT) (RESPONDENT) (RESPONDENT) DEPARTMENT BY : SH. SATPAL SINGH, SR. DR ASSESSEE BY : SH. ASHWANI TANEJA, ADV. ORDER ORDER ORDER ORDER PER PER PER PER H.S. SIDHU H.S. SIDHU H.S. SIDHU H.S. SIDHU : : : : J JJ JM MM M THIS APPEAL BY THE REVENUE IS DIRECTED AGAINST THE ORDER OF THE LD. COMMISSIONER OF INCOME TAX (APPEALS-XXX), NEW D ELHI DATED 28.3.2013 PERTAINING TO ASSESSMENT YEAR 2008-09. 2. THE GROUNDS RAISED READ AS UNDER:- 1) ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E, THE LD. CIT(A) HAS ERRED IN: I) DELETING AN ADDITION OF RS. 13,58,550/- MADE U/ S. 69B OF THE I.T. ACT MADE ON ACCOUNT OF ACCOUNT OF ITA NO. 3235/DEL/2013 2 UNDISCLOSED INVESTMENT IN PURCHASE OF (1/2 SHARE) PROPERTY. II) DELETING AN ADDITION OF RS. 5,00,000/- MADE ON ACCOUNT OF INVESTMENT FROM UNDISCLOSED SOURCES IN PURCHASE OF (1/2 SHARE) PROPERTY BY ADMITTING ADDIT IONAL EVIDENCE IN CONTRAVENTION OF RULE 46A OF THE IT RUL ES AND WITHOUT PROVIDING AN OPPORTUNITY TO THE AO AS REQUI RED UNDER THE RULE 46A(3) OF THE IT RULES. (2) THE APPELLANT CRAVES LEAVE TO ADD, ALTER, AMEND ANY GROUND(S) OF APPEAL RAISED ABOVE AT THE TIME OF HEA RING. 3. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESS EE FILED HER RETURN OF INCOME FOR THE ABOVE ASSESSMENT YEAR ON 21.7.2008 DECLARING TOTAL INCOME OF RS. 1,20,080/-. DURING T HE COURSE OF ASSESSMENT PROCEEDINGS, THE AO OBSERVED THAT ASSESS EE JOINTLY (WITH HER MOTHER SMT. SUDHA GARG) PURCHASED A PLOT MEASURING 1217 METER AT PARGANA LONI, GHAZIABAD, FOR A TOTAL CONSIDERATION OF RS. 10,00,000/-, VALUE OF WHICH WAS TAKEN BY THE RE GISTRAR OF PROPERTIES FOR STAMP VALUATION PURPOSES AT RS. 34, 09,000/-, AND STAMP DUTY WAS PAID OF RS. 3,08,100/-. THUS, ACCOR DING TO THE AO TOTAL AMOUNT PAID FOR THE SAID PLOT WAS RS. 37,17,1 00/- (RS. 34,09,000 + RS. 3,08,100), AS AGAINST CLAIMED BY TH E ASSESSEE AND HER MOTHER RS. 10,00,000/- I.E. THE AMOUNT MENTIONE D IN THE SALE ITA NO. 3235/DEL/2013 3 DEED, AND ADMITTED BY THE SELLER OF THE PROPERTY. THE AO CONSIDERED THAT THE ASSESSEE HAS MADE INVESTMENT OF THE TUNE O F RS. 13,58,550/- (1/2 SHARE) IN THE SAID PLOT (RS. 3 7,17,100 10,00,000 = 27,10,100/- /2), AND THEREFORE, THE AO INVOKED THE PROVISIONS OF SECTION 69B OF THE ACT IN THE HANDS O F THE ASSESSEE. 3.1 THE AO FURTHER OBSERVED THAT THE AMOUNT PAID OF RS. 5,00,000/- BEING SHARE OF THE ASSESSEE FOR PURCHASE OF THE S AID PROPERTY IS ALSO AN INVESTMENT WHICH IS MADE IN CASH FROM OUT O F BOOKS FOR WHICH ASSESSEE HAD NO EXPLANATION, AND MADE THE IMP UGNED ADDITION IN THE HANDS OF THE ASSESSEE. 4. AGAINST THE ABOVE ORDER OF THE AO, ASSESSEE APPE ALED BEFORE THE LD. CIT(A), AND LD. CIT(A) AFTER ELABORATELY C ONSIDERED THE SUBMISSIONS DELETED THE ADDITIONS MADE BY THE AO. 5. AGAINST THE ABOVE ORDER THE REVENUE IS IN APPEA L BEFORE US. 6. WE HAVE HEARD BOTH THE COUNSEL AND PERUSED THE R ECORDS. WE FIND THAT SH. ASHWANI TANEJA, ADVOCATE FOR THE A SSESSEE RELIED UPON THE ORDER PASSED BY THE FIRST APPELLATE AUTHO RITY AND STATED THAT THE ASSESSEE HAS FILED THE COPY OF AGREEMENT D ATED 10.3.2008 RELATING TO SELL ON OF SHARE IN PROPERTY NO. 571L, SHASTRI NAGAR, MEERUT BY SMT. SUDHA GARG TO SH. RAM PRASAD S/O SH. HARPAL OF VILLAGE HABIBPUR DISTT. GAUTAM BUDH NAGAR. REGARDIN G HE SALE OF SHARE IN THE PROPERTY ALONGWITH THE LETTER DATED 4. 5.2010 WHICH THE ITA NO. 3235/DEL/2013 4 ASSESSEE HAS FILED AT PAGE NO. 3 OF THE PAPER BOOK AND AGREEMENT AT PAGES 13-15 OF THE PAPER BOOK CONTAINING PAGES 1 TO 57A. THE LD. COUNSEL OF THE ASSESSEE HAS ATTACHED VARIOUS DO CUMENTARY EVIDENCE SUPPORTING THE CLAIM OF THE ASSESSEE AS WE LL AS THE VARIOUS JUDGMENTS SUPPORTING THE CLAIM OF THE ASSESSEE. HE HAS STATED THAT THE LD. FIRST APPELLATE AUTHORITY HAS RIGHTLY DELETED THE ADDITIONS IN DISPUTE AND REQUESTED THAT APPEAL FILE D BY THE REVENUE MAY BE DISMISSED. 5.1 ON THE OTHER HAND, LD. DR RELIED UPON THE ORD ER OF THE AO. 5.2 WE FIND THAT LD. CIT(A) HAVE EXAMINED THE IMPU GNED ASSESSMENT ORDER AND THE AVERMENTS MADE BY THE AO T HEREIN. HE CONSIDERED THE WRITTEN SUBMISSIONS, PRECISE SUMMARY OF FACTS, AND THE EVIDENCES PLACED BY THE ASSESSEE IN THE PAPER B OOK. AFTER CONSIDERING ALL THESE HE WAS ALSO OF THE CONSIDERED OPINION THAT PROVISIONS OF SECTION 69B CANNOT BE INVOKED IN THE CASE OF THE ASSESSEE, AS NO BOOKS ARE MAINTAINED BY THE ASSESSE E. WE FIND THAT MOREOVER, IT IS NOT THE CASE, WHERE THE AO HAS BROU GHT ON RECORD ANY CONTRARY MATERIAL TO SUBSTANTIATE THAT ASSESSEE OR HER MOTHER SMT. SUDHA GARG HAS PAID ANY OTHER AMOUNT AS HAS BE EN MENTIONED IN THE SALE DEED EXECUTED BEFORE THE REGISTRAR OF P ROPERTIES. IT IS ALSO NOT THE CASE OF THE AO THAT THERE IS ANY OTHER CONTRARY OR SUPPORTIVE EVIDENCE WHICH CORROBORATES THE STAND TA KEN BY THE AO ITA NO. 3235/DEL/2013 5 EXCEPT THE VALUE ADOPTED BY THE REGISTRAR OF PROPER TIES FOR PURPOSES OF STAMP VALUATION. WE FIND THAT LD. CIT(A) HAS STA TED IN HIS ORDER THAT NO INQUIRY WAS CONDUCTED BY THE AO BEFORE INVO KING THE PROVISIONS OF SECTION 69B OF THE ACT AND NO EVIDENC E IS BROUGHT ON RECORD BY THE AO THAT SOME EXTRA CONSIDERATION WAS PAID BY THE ASSESSEE FOR ACQUIRING THE PROPERTY OVER AND ABOVE THE AMOUNT OF SALES CONSIDERATION AS SHOWN IN THE SALE DEED. IT I S NOT UNDERSTOOD AS TO WHY THE VALUE TAKEN BY THE REGISTRAR OF PROPE RTIES FOR PURPOSE OF STAMP DUTY PAYABLE CAN BE CONSIDERED AS THE SOLE CONSIDERATION, AND NOT ANY AMOUNT HIGHER OR LOWER THAN THAT. PAYME NT OF STAMP DUTY CANNOT BE SOLE CRITERIA TO PRESUME THAT ASSESS EE MUST HAVE PAID THAT MUCH AMOUNT FOR PURCHASE OF THE PROPERTY. WE FIND THAT LD. CIT(A) HAS RIGHTLY OBSERVED THAT IN CASE, THERE WAS ANY DOUBT TO THE AO, HE SHOULD HAVE REFERRED THE MATTER TO THE V ALUATION OFFICER FOR VALUATION OF THE PROPERTY BEFORE INVOKING THE P ROVISIONS OF SECTION 69B OF THE ACT. WE FIND THAT LD. CIT(A) AL SO IN AGREEMENT WITH THE LD. AR THAT EVEN THE PROVISIONS OF SECTION 50C CANNOT BE INVOKED IN THE CASE OF THE ASSESSEE, AS ASSESSEE IS ONE OF THE PURCHASER OF THE PROPERTY, AND PROVISIONS OF SECTIO N 50C APPLIES TO THE SELLER OF PROPERTY. WE FIND THAT LD. CIT(A) HAS RIGHTLY OBSERVED THAT LD. AO HAS ALSO NOT BROUGHT ON RECORD TO SHOW THAT ANY CONTRARY VIEW WAS TAKEN BY THE ASSESSING OFFICER OF THE SELL ER FOR THE SAID PROPERTY. WE FIND THAT LD. CIT(A) HAS ALSO CONSIDER ED THE VARIOUS ITA NO. 3235/DEL/2013 6 JUDGMENTS RELIED UPON BY THE ASSESSEE, AND AFTER CO NSIDERING THOSE JUDGMENTS, LD. CIT(A) DID NOT FIND ANY REASON TO SU STAIN THE ADDITION MADE BY THE AO IN THE HANDS OF THE ASSESSEE, IN THE ABSENCE OF ANY CONTRARY OR CORROBORATIVE EVIDENCES BROUGHT ON RECO RD. WE FIND THAT LD. CIT(A) HAS RIGHTLY GET SUPPORT FROM THE JUDGME NT OF THE HON'BLE SC IN THE CASE OF KP VARGHESE VS ITO 131 ITR 597 (S C), AND THEREFORE, THE ADDITION MADE BY THE AO FOR AN AMOUN T OF RS. 13,58,550/- WAS RIGHTLY DELETED BY THE LD. CIT(A). IN THE BACKGROUND OF THE AFORESAID DISCUSSIONS AND PRECED ENT RELIED UPON, WE UPHOLD THE ORDER THE ORDER OF THE LD. CIT(A) ON THIS ISSUE AND DECIDE THE ISSUE AGAINST THE REVENUE. 6. WITH REGARD TO ISSUE REGARDING ADDITION OF RS. O F RS. 5,00,000/- ON ACCOUNT OF INVESTMENT MADE IN PURCHASE OF PROPER TY OUT OF ADVANCE TAKEN BY THE MOTHER (SMT. SUDHA GARG) OF TH E ASSESSEE AGAINST SALE OF HER PROPERTY IS INVESTMENT OF THE A SSESSEE FROM UNDISCLOSED SOURCES. WE FIND THAT ON THIS ISSUE, LD. CIT(A) ALSO CONSIDERED THE SUBMISSIONS MADE BY THE ASSESSEE AND PRECISE SUMMARY OF FACTS SUBMITTED DURING THE COURSE OF APP ELLATE PROCEEDINGS. HE FIND THAT THE ASSESSEE SUBMITTED A COPY OF THE AGREEMENT TO SELL DATED 10.3.2008 WHICH IS DULY NOT ARIZED, ENTERED BETWEEN SMT. SUDHA GARG, (MOTHER OF THE APPELLANT), AND SHRI RAM PRASAD, FOR SALE OF HOUSE NO.. L-581, 3, SHASHTRI N AGAR, MEERUT, FOR A TOTAL CONSIDERATION OF RS. 20,00,000/- AGAINST WHIC H SMT. SUDHA GARG ITA NO. 3235/DEL/2013 7 HAD RECEIVED A SUM OF RS. 11,00,000/- IN CASH I.E. RS. 6,00,000/- ON 20.2.2008 AND RS.5,OO,000/- ON 10.3.2008. THIS SALE DEED IS ENTERED INTO BY SMT. SUDHA GARG MOTHER OF THE ASSES SEE. PROPERTY MENTIONED THEREIN FOR SALE IS NOT DISPUTED THAT IT DOES NOT BELONG TO SMT. SUDHA GARG. WE FIND THAT NEITHER IT IS A CASE OF THE AO THAT SMT. SUDHA GARG IS NOT THE MOTHER OF THE ASSESSEE, NOR IT IS DISPUTED THAT THE AMOUNT OF RS. 11,00,000/- WAS NOT RECEIVED BY SMT. SUDHA GARG ON THE DATES MENTIONED ABOVE. WE FIND THAT I T IS ALSO SEEN FROM THE IMPUGNED ORDER, THAT THERE IS NO DISCUSSIO N BY THE AO THAT SMT. SUDHA GARG OR THE PURCHASER OF THE PROPERTY SH RI RAM PRASAD WAS EVER CALLED BY HIM BEFORE TAKING ANY CONTRARY V IEW OR TO DISBELIEVE THE AGREEMENT TO SELLJN THE PRESENT CASE , ASSESSEE NEVER SAID THAT SHE HAD MADE ANY PAYMENT FOR PURCHASE OF THE PLOT WHICH HAS BEEN PURCHASED BY HER MOTHER IN JOINT NAME OF T HE ASSESSEE, AGAINST A SALE CONSIDERATION OF RS. 10,00,000/-. SI NCE NO PAYMENT IS CLAIMED TO HAVE MADE BY THE APPELLANT TO MAKE INVES TMENT IN THE PLOT PURCHASED BY HER MOTHER IN HER JOINT NAME, AND NO CONTRARY EVIDENCES ARE BROUGHT ON RECORD BY THE AO BEFORE CO NCLUDING THAT ASSESSEE MADE ANY INVESTMENT OUT OF UNDISCLOSED SOU RCES, AND WHAT THOSE SOURCES ARE, LD. CIT(A) DID NOT FIND A NY REASON TO SUSTAIN THE ADDITION MADE BY THE AO FOR AN AMOUNT O F RS. 5,00,000/- WHICH IS NOT SUPPORTIVE BY ANY CORROBORATIVE EVIDEN CE. THEREFORE, LD. CIT(A) HAS RIGHTLY DELETED THE ADDITION OF RS. 5,00,000/-. IN THE ITA NO. 3235/DEL/2013 8 BACKGROUND OF THE AFORESAID DISCUSSIONS, WE UPHOLD THE ORDER OF THE LD. CIT(A) ON THIS ISSUE AND DECIDE THE ISSUE AGAIN ST THE REVENUE. 7. IN THE RESULT, THE APPEAL FILED BY THE REVENUE STANDS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 13/8/2014. SD/- SD/- [ [[ [R.S. SYAL R.S. SYAL R.S. SYAL R.S. SYAL] ]] ] [ [[ [H.S. SIDHU H.S. SIDHU H.S. SIDHU H.S. SIDHU] ]] ] ACCOUNTANT MEMBER ACCOUNTANT MEMBER ACCOUNTANT MEMBER ACCOUNTANT MEMBER JUDICIAL JUDICIAL JUDICIAL JUDICIAL MEMBER MEMBER MEMBER MEMBER DATE 13/8/2014 SRBHATNAGAR SRBHATNAGAR SRBHATNAGAR SRBHATNAGAR COPY FORWARDED COPY FORWARDED COPY FORWARDED COPY FORWARDED TO: TO: TO: TO: - -- - 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT (A) 5. DR, ITAT TRUE COPY BY ORDER, ASSISTANT REGISTRAR, ITAT, DELHI BENCHES ITA NO. 3235/DEL/2013 9