Sunita Dabas, Delhi V. ITO, New Delhi

ITA 3303/DEL/2015

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 7054 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 3 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-09-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC 2
• Next Hearing Date: 14-09-2016
• Assessment Year: 2009-2010
• Appeal Filed On: 25-05-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S K JAIN
• Assessee Lawyers: RAJESH KHURANA
• Keywords: Business income
• Section: 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH : SMC-II, NEW DELHI BEFORE SHRI SUNIL KUMAR YADAV, JUDICIAL MEMBER ITA NO.3303/DEL/2015 ASSESSMENT YEAR : 2009-10 MRS. SUNITA DABAS, H-4, ARYA APARTMENTS, SECTOR 15, ROHINI, DELHI 110 085. PAN: AHWPD 8092J VS. THE INCOME TAX OFFICER, WARD 21(1), NEW DELHI. APPELLANT RESPONDENT APPELLANT BY : SHRI RAJESH KHURANA, CA RESPONDENT BY : SHRI S.K. JAIN, SR.DR DATE OF HEARING : 14.09.2016 DATE OF PRONOUNCEMENT : 21.09.2016 O R D E R THIS APPEAL IS PREFERRED BY THE ASSESSEE AGAINST THE ORDER DATED 18.03.2015 OF THE CIT(APPEALS)-13, NEW DELHI ON A S OLITARY GROUND THAT THE CIT(APPEALS) HAS ERRED IN LAW AND ON FACTS BY CONFI RMING THE ADDITIONS TO THE TUNE OF RS.24,92,000 IGNORING THE PERSONAL APPE ARANCES OF DEPOSITORS AND NON-DISPUTABLE ADMISSION OF FACTS BEFORE THE CI T(APPEALS). 2. THE FACTS IN BRIEF BORNE OUT FROM THE RECORD AR E THAT THE ASSESSEE HAS DECLARED BUSINESS INCOME ON ACCOUNT OF CABLE NE TWORK SERVICES. RETURN OF INCOME FOR THE AY 2009-10 WAS PROCESSED U /S. 143(1) OF THE INCOME-TAX ACT, 1961 ['THE ACT'] INITIALLY AND LATE R ON SCRUTINY ASSESSMENT ITA NO. 3303/DEL/2015 PAGE 2 OF 6 WAS PASSED AND INCOME WAS ASSESSED AT RS.26,86,790 AGAINST THE DECLARED INCOME OF RS.1,94,790. 3. THROUGH AIR INFORMATION, THE AO NOTICED THAT THE ASSESSEE HAS DEPOSITED A SUM OF RS.19 LAKHS IN THE INDIAN BANK, ROHINI, DELHI, AND ACCORDINGLY SHE WAS ASKED TO EXPLAIN THE SOURCE OF DEPOSITS. IN RESPONSE THERETO, IT WAS STATED ON BEHALF OF ASSESSEE THAT S HE HAS RECEIVED THE ADVANCES FOR SALE OF AGRICULTURAL LAND SITUATED IN GURGAON, OUT OF WHICH CASH WAS DEPOSITED IN THE BANK. IN SUPPORT OF HER CONTENTIONS, SHE HAS FILED 3 RECEIPTS OF SAID ADVANCES. 4. THE AO NOTICED THAT NO AGREEMENT FOR SALE WAS EX ECUTED BETWEEN THE PURCHASER AND THE SELLER AND THE PRESENT OWNER OF THE LAND IS THE BROTHER OF ASSESSEE. THOUGH THE AO HAS ISSUED SUMM ONS FOR APPEARANCE, THE BROTHER OF ASSESSEE DID NOT APPEAR BEFORE THE A O. HE ACCORDINGLY TREATED THE DEPOSITS OF RS.24,92,000 AS UNEXPLAINED CASH DEPOSITS U/S. 68 OF THE ACT. 5. THE ASSESSEE PREFERRED AN APPEAL BEFORE THE CIT( APPEALS) WITH THE SUBMISSIONS THAT ASSESSEE HAS FURNISHED THE COMPLET E DETAILS OF THE RECEIPT AS ADVANCE FROM PROSPECTIVE BUYERS. THE TR ANSACTIONS ARE NOT MADE WITH RELATED PARTIES AND ASSESSEE HAS EXPLAINE D THE SOURCE IN THE HANDS OF DEPOSITORS BY PRODUCING THEM BEFORE THE TA X AUTHORITIES. THE STATEMENT OF PROSPECTIVE BUYER, SHRI BALJIT SINGHS STATEMENT WAS ALSO RECORDED BY THE AO. THE DEPOSITION OF SHRI SULTAN SINGH WAS ALSO FILED ITA NO. 3303/DEL/2015 PAGE 3 OF 6 BEFORE THE CIT(APPEALS). IT WAS FURTHER CONTENDED THAT THE ASSESSEE WAS THE JOINT OWNER IN THE AGRICULTURAL LAND AND LATER ON SHE HAS RELINQUISHED HER RIGHTS IN THE AGRICULTURAL LAND IN FAVOUR OF HER BR OTHER, SHRI RAJ HANS KATARIA, WHO HAS TAKEN THE RESPONSIBILITY TO SETTLE THE DUES /LIABILITY OF THE ADVANCES RECEIVED BY THE ASSESSEE WITH THE PROSPECTIVE BUYER S. 6. THE CIT(APPEALS) WAS NOT CONVINCED WITH THE EXPL ANATION OF THE ASSESSEE AND HE CONFIRMED THE ADDITIONS. THE RELEV ANT OBSERVATIONS OF THE IS EXTRACTED HEREUNDER FOR THE SAKE OF REFERENCE:- 4.3 THE REASON GIVEN BY AO, SUBMISSION OF THE AP PELLANT AND THE ENQUIRY CONDUCTED BY MY LD. PREDECESSOR CIT(A)- XXII IN THIS CASE ARE CONSIDERED. DURING THE APPELLATE PROC EEDING, THE APPELLANT INTRODUCED ANOTHER NAME, SULTAN SINGH FRO M WHOM ABOUT RS.15,00,000/- WAS CLAIMED TO HAVE RECEIVED. SIMILARLY, OTHER AMOUNTS WERE CLAIMED TO HAVE RECEIVED FROM BA LJEET SINGH AND DAYANAND. IT IS ALSO SUBMITTED THAT THE APPELLA NT'S BROTHER MR. RAJ HANS KATARIA FINALLY SETTLED THE ADVANCE RECEIV ED FROM THESE PERSONS FOR SALE OF AGRICULTURAL LAND WHICH THE APP ELLANT NEVER HAD THE OWNERSHIP OR THE POSSESSION. THERE IS ALSO NO AGREEMENT TO SALE WITHOUT WHICH IT CANNOT BE EXPECTED THAT TH E POTENTIAL BUYER WILL ADVANCE SUCH A LARGE AMOUNT IN CASH. IN SUPPORT OF HER EXPLANATION, THE APPELLANT COULD SUBMIT ONLY A HAND WRITTEN STATEMENT FROM SULTAN SINGH DATED 14.12.2013 WHICH DOES NOT EVEN VERIFY THE SIGNATURE OF THE PERSON GIVING THE STATEMENT. THE RECEIPTS OF THE CASH SUBMITTED DURING THE ASSESSMEN T PROCEEDINGS ARE ONLY SELF SERVING WHICH HAS NO SIGNATURE OF THE PERSON MAKING THE PAYMENT. DESPITE A LOT OF OPPORTUNITY GIVEN BY THE AO, THE APPELLANT FAILED TO PRODUCE ANY DOCUMENTARY EVIDENC E OR THE PERSONAL DEPOSITION OF THE EVIDENCES. THUS, AT THE APPELLATE STAGE, SUCH EVIDENCES CANNOT BE ACCEPTED U/R 46A IRRESPECT IVE OF ITS EVIDENTIARY VALUE. SUCH CASH TRANSACTIONS CANNOT BE ACCEPTED AS LEGAL CHANNEL EVEN IF THE THEORY OF AGRICULTURAL LA ND AND AGRICULTURIST BUYER OR SELLER IS PROPOUNDED. THE LO CATION OF THE EVENT IN GURGAON OR ROHINI AND IN THE YEAR OF 2008 THAT CANNOT BE CONSIDERED AS SO REMOTE A PLACE IN THE COUNTRY WHER E THE ITA NO. 3303/DEL/2015 PAGE 4 OF 6 TRANSACTING PARTIES CAN BE EXPECTED TO BE UNAWARE O F BANKING CHANNELS AND REQUIREMENT OF LEGAL DOCUMENTS IN TRAN SFER OF PROPERTY. IN THESE FACTS AND CIRCUMSTANCES OF THE C ASE, IN THE ABSENCE OF COHESIVE AND PLAUSIBLE EXPLANATION AS WE LL AS RELIABLE DOCUMENTARY EVIDENCE, THE ADDITION MADE IS CONFIRME D AND THE GROUND OF APPEAL IS DISMISSED. 7. AGGRIEVED, THE ASSESSEE HAS PREFERRED THIS APPEA L BEFORE THE TRIBUNAL WITH THE SUBMISSION THAT THE ASSESSEE HAS FURNISHED THE COMPLETE DETAILS OF THE RECEIPT OF ADVANCES FROM THE PROSPEC TIVE BUYERS. THOUGH THE ASSESSEE HAS PRODUCED THE PROSPECTIVE BUYER WHO HAS ADMITTED IN HIS STATEMENT WITH RESPECT TO PAYMENT OF ADVANCES, BUT THE DEPOSITION OF THE PROSPECTIVE BUYERS WAS NOT ACCEPTED BY THE REVENUE AUTHORITIES. SINCE THE ASSESSEE HAS PLACED ALL THE RELEVANT MATERIAL TO EX PLAIN THE SOURCE OF DEPOSITS, IT SHOULD HAVE BEEN ACCEPTED BY THE REVEN UE. 8. THE LD. DR, ON THE OTHER HAND, BESIDES PLACING R ELIANCE UPON THE ORDER OF THE CIT(APPEALS) HAS CONTENDED THAT NO SAL E OF AGREEMENT WAS EXECUTED BETWEEN THE ASSESSEE AND PROSPECTIVE BUYER S AND IN THE PRESENT TIMES NOBODY WILL MAKE HUGE ADVANCES OF RS.19 LAKHS WITHOUT EXECUTING A SALE AGREEMENT. MOREOVER, TILL DATE THIS AMOUNT WA S NOT RETURNED BACK TO PROSPECTIVE BUYERS. EXCEPT ORAL STATEMENTS, NO DOC UMENTARY EVIDENCE IS PLACED ON RECORD BY THE ASSESSEE. 9. HAVING CAREFULLY EXAMINED THE ORDERS OF LOWER AU THORITIES IN THE LIGHT OF RIVAL SUBMISSIONS, I FIND THAT THOUGH THE ASSESS EE HAS CLAIMED THAT SHE HAS RECEIVED CASH FROM THE AFORESAID PROSPECTIVE BU YERS, BUT NO SALE AGREEMENT HAS BEEN EXECUTED, WHICH IS QUITE UNREALI STIC AS NO ONE GIVES ITA NO. 3303/DEL/2015 PAGE 5 OF 6 SUCH A HUGE AMOUNT OF RS.19 LAKHS AS ADVANCE TOWARD S PURCHASE OF AGRICULTURAL LAND, EVEN WITHOUT HAVING EXECUTED THE SALE AGREEMENT. THE ASSESSEE HAS PROJECTED A STORY THAT THE SALE COULD NOT BE MATERIALIZED BY THE ASSESSEE, THEREFORE SHE RELINQUISHED HER RIGHTS IN FAVOUR OF HER BROTHER, WHO HAS TAKEN THE RESPONSIBILITY OF SETTLING THE DU ES. BUT NO EVIDENCE HAS BEEN PLACED ON RECORD IN THIS REGARD. THE STATEMEN TS OF CONCERNED PERSONS WHO ARE INVOLVED IN THIS TRANSACTION COULD NOT BE RECORDED BY THE REVENUE AUTHORITIES IN ORDER TO TESTIFY THEIR TESTI MONY. THE ASSESSEE HAS PLACED ONLY THE STATEMENT OF SHRI BALJIT SINGH, THO UGH OTHER PROSPECTIVE BUYERS ARE ALSO INVOLVED WHO HAVE MADE ADVANCES TO THE ASSESSEE. EVEN THE BROTHER OF ASSESSEE WAS NOT EXAMINED. ONLY HIS CONFIRMATION WAS FILED. IN LIGHT OF THESE EVIDENCE, I AM OF THE VIEW THAT T HIS ISSUE REQUIRES FURTHER VERIFICATION. ACCORDINGLY, I SET ASIDE THE ORDER O F CIT(APPEALS) AND RESTORE THE MATTER TO THE FILE OF THE ASSESSING OFFICER WIT H A DIRECTION TO EXAMINE ALL CONCERNED PEOPLE WHO ARE INVOLVED IN THIS TRANSACTI ON AND ALSO VERIFY WHETHER THE ADVANCES RECEIVED BY THE ASSESSEE WAS F INALLY RETURNED BACK TO THE PROSPECTIVE BUYERS OR DUES ARE SETTLED IN SO ME OTHER MODE. I ALSO DIRECT THE ASSESSEE TO PRODUCE THE CONCERNED PEOPLE BEFORE THE AO TO ESTABLISH HER CASE THAT IN FACT ASSESSEE HAS RECEIV ED ADVANCES ON ACCOUNT OF SALE OF AGRICULTURAL LAND, OUT OF WHICH CASH WAS DEPOSITED IN THE BANK. ACCORDINGLY, THIS APPEAL STANDS ALLOWED FOR STATIST ICAL PURPOSES. ITA NO. 3303/DEL/2015 PAGE 6 OF 6 PRONOUNCED IN THE OPEN COURT ON THIS 21 ST DAY OF SEPTEMBER 2016. SD/- (SUNIL KUMAR YADAV ) JUDICIAL MEMBER NEW DELHI, DATED, THE 21 ST SEPTEMBER, 2016. /D S/ COPY TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR, ITAT, NEW DELHI. ASSISTANT REGISTRAR, ITAT, NEW DELHI.