Sh. Jatinder Singh, Amritsar. V. The Income Tax Officer, Amritsar.

ITA 332/ASR/2016

• Counselvise Citation: [2019] 115 COUNSELVISE.COM (IT) 8387 (ITAT-AMRITSAR)
• Duration Of Justice: 3 year(s) 4 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-10-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 26-08-2019
• Assessment Year: 2005-2006
• Appeal Filed On: 06-06-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: PADAM BAHL LD
• Keywords: Unexplained investment; Additional evidence; Set aside
• Section: 234B; 69

Judgement Text

IN THE INCOME TAX APPELLATE TRIB UNAL AMRITSAR BENCH, AMRITSA R BEFORE SH. B.R. BASKARAN, ACCOUNTANT MEMBER A ND SH. N.K.CHOUDHRY, JUDICIAL MEMBER ITA NO.332/ASR/2016 ASSESSMENT YEAR:2005-06 SH. JATINDER SINGH KOTHI NO.22-23 GALI NO.1, PARTAP NAGAR AMRITSAR [PAN:ANJPS 2425H] VS. INCOME TAX OFFICER WARD-3(2), AMRITSAR (APPELLANT) (RESPONDENT) A N D ITA NO.301/ASR/2016 ASSESSMENT YEAR:2005-06 INCOME TAX OFFICER WARD-3(2) AMRITSAR VS. SMT. KULWANT KAUR KOTHI NO.22-23 GALI NO-1 PARTAP NAGAR, AMRITSAR [PAN:ATXPK 6309A] (APPELLANT) (RESPONDENT) ASSESSEES BY : SH. P ADAM BAHL (LD. CA) REVENUE DEPARTMENT BY : SH. CHARAN DASS (LD. DR) DATE OF HEARING: 26.08.2019 DATE OF PRONOUNCEMENT: 09.10.2019 ORDER PER N.K.CHOUDHRY, JM: THESE APPEALS HAVE BEEN PREFERRED BY THE ASSESSEES AGAINS T THE ORDERS DATED 15.02.2016 PASSED BY THE LD. CIT(A)-1 , AMRITSAR U/S 250(6) OF INCOME TAX ACT, 1961 (HEREINAFTER CALLED AS THE ACT) ITA N0.332 & 301/ASR/ 2016 (A.Y: 2005 -06 ) JATINDER SINGH VS. ITO & ITO VS. KUL WANT KAUR 2 WHEREBY THE LD. CIT(A) AFFIRMED THE ADDITION OF RS.9 1,51,000/- MADE AS SUBSTANTIVE ADDITION ON ACCOUNT OF UNEXPLAINED INVESTM ENT MADE IN PURCHASE OF LAND IN THE CASE OF JATINDER SINGH AND DELE TED THE ADDITION OF RS.91,51,000/- MADE BY THE ASSESSING OFFICER IN THE HANDS OF SMT. KULAWANT KAUR ON PROTECTIVE BASIS . 2 . BOTH THE CASE ARE BASED ON THE SAME FACTS AND INVOLV ED IDENTICAL ISSUES, THEREFORE FOR THE SAKE OF BREVITY AND CONVENIENCE HAVE BEEN TAKEN TOGETHER FOR ADJUDICATION BY THIS COMPOSITE ORDE R. LET US TO FIRST DECIDE ITA NO.332/ASR/2016, IN WHICH , THE ASSESSING OFFICER MADE THE ADDITION OF RS.91,51,000/- BY HOLDING THAT THE ASSESSEE HAS PURCHASED THE LAND MEASURING 41 KANAL, 17 MARLAS IN VIL LAGE SULTANWIND FOR RS.86,33,000/- ON POWER OF ATTORNEY A ND ALSO PAID RS.5,18,000/- AS STAMP DUTY EXPENSES. THE LD. ASSESSING OFFICER FURTHER HELD THAT THE EXPLANATION GIVEN BY THE ASSESSEE FOR INVESTMENT MADE IN PURCHASE OF SAID LAND MEASURING 41 KANAL, 17 M ARLAS IN VILLAGE SULTANWIND SUB URBAN AREA AMRITSAR VIDE VASIK A NO.6212 DATED 01.10.2004 FOR RS.86,33,000/- IS NOT SATISFACTORY. THE ASSESSEE HAS MADE THIS INVESTMENT OUT OF UNEXPLAINED SOURCES KNOWN TO HIM WHICH IS ASSESSABLE U/S. 69 OF THE INCOME TAX ACT, 1961. 3. ON APPEAL, THE LD. CIT(A) AFFIRMED THE ADDITION UND ER DISPUTE BY HOLDING AS UNDER. 6. I HAVE GONE THROUGH THE GROUNDS OF APPEAL , SUBMISSION AND THE ASSESSMENT ORDER. IN THIS CASE ASSESSMENT HAS BEEN MADE ON THE B ASIS OF TAX EVASION PETITION THAT THE ASSESSES HAS PURCHASED LAND AND P AID RS. 86,33,000/- ON 30.09.2004. FROM THE PERUSAL OF COPY OF REGISTRA TION DEED IT SEEN THAT AT LEAST INVESTMENT OF RS. 86,33,000/- HAS BEEN PAID B Y SH. JATINDER SINGH. FROM THE ASSESSMENT ORDER IT IS CLEAR THAT THE ASSE SSES HAS NO RELEVANT MATERIAL TO EXPLAIN THE INVESTMENT MADE. NO BANK A/ C DETAIL HAS BEEN PROVIDED BY THE ASSESSES VIDE NOTICE DATED 27.11.20 12. FURTHER THE ITA N0.332 & 301/ASR/ 2016 (A.Y: 2005 -06 ) JATINDER SINGH VS. ITO & ITO VS. KUL WANT KAUR 3 ASSESSEE WAS REQUIRED TO SUBMIT SALE DEED RELATED T O THE ABOVE PURCHASE BUT THE ASSESSEE AGAIN FAILED TO SUPPLY THE SAME. E VEN BEFORE ME NO SUBSTANTIAL EVIDENCE HAS BEEN PRODUCED TO SUBSTANTI ATE HIS CLAIM ABOUT SOURCE OF INVESTMENT. IN REPLY TO MY SPECIFIC REQUE ST TO PRODUCE THE CLAIMED SALE DEED DATED 10.10.2004. THE LEARNED CA OF THE A SSESSEE REPLIED THAT HE IS NOT ABLE TO FILE THESE DETAILS AND APPEAL MAY BE FINALIZED BASED ON DOCUMENT ON RECORD. THE ADDITIONAL EVIDENCE OF J FORM SUBMITTED BY ASSESSEE DOES NOT PERTAIN TO THIS YEAR. THUS IT IS CLEAR THAT THE ASS ESSEE HAS MADE THIS INVESTMENT OUT OF UNEXPLAINED SOURCES KNOWN TO HIM, WHICH IS ASSESSABLE UNDER SECTION 69 OF THE INCOME TAX ACT, 1961 AND TH E ADDITION OF RS.91,51,000/- (86,33,000 + 5,18,000) BY TREATING I T AS UNEXPLAINED INVESTMENT IS UPHELD. 7. I HAVE CONSIDERED THE ASSESSMENT ORDER AND T HE WRITTEN SUBMISSIONS OF THE APPELLANT AND THE GROUNDS OF APPEAL ARE DISP OSED OFF AS UNDER: I. THE GROUND OF APPEAL AT S.NO.3 IS DISMISSED. II. THE GROUND OF APPEAL AT S.NO.1,2,4,5,6 ARE GENERAL IN NATURE AND REQUIRED NO ADJUDICATION . 8. IN THE RESULT THE APPEAL IS DISMISSED. 4. HAVING HEARD THE PARTIES AND PERUSED THE MATERIAL AVAILABLE ON RECORD. AS PER IMPUGNED ORDER, IT IS OBSERVED BY THE LD . CIT(A) THAT EVEN BEFORE HIM NO SUBSTANTIAL EVIDENCE PRODUCED TO SUBSTANTIATE THE CLAIM ABOUT THE SOURCE OF INVESTMENT AND IN REPLY T O SPECIFIC REQUEST THE ASSESSEE FAILED TO PRODUCE THE CLAIMED SALE DEED DA TED 10.10.2004 . THE LD. CIT(A) FURTHER HELD THAT ADDITIONAL EVIDENCE OF J FORM SUBMITTED BY ASSESSEE DOES NOT PERTAIN TO THIS YEAR. THUS IT IS CLEAR THAT THE ASSESSEE HAD MADE THIS INVESTMENT OUT OF UNEXPLAIN ED SOURCES KNOWN TO HIM, WHICH IS ASSESSABLE U/S 69 OF THE INCOME TAX A CT, 1961 AND ADDITION OF RS.91,51,000/- (86,33,000/- + 5,18,000/ -) BY TREATING IT AS UNEXPLAINED INVESTMENT IS UPHELD . THOUGH, THE LD. CIT(A) ANALYZED THE FACTS OF THE CASE, HOWEVER SIMPLY REJECTED THE GROUNDS WIT HOUT GIVING ANY FINDING AND REASONS. THE LD. AR DURING THE COURSE O F ARGUMENT HAS SUBMITTED THAT THE LD. CIT(A) HAS GROSSLY ERRED IN I GNORING THE ITA N0.332 & 301/ASR/ 2016 (A.Y: 2005 -06 ) JATINDER SINGH VS. ITO & ITO VS. KUL WANT KAUR 4 CASH FLOW CHART FILED BEFORE HIM ALONG WITH BANK STATEM ENTS. FURTHER THE AUTHORITIES BELOW HAVING FAILED TO APPRECIATE THA T THE ASSESSEE ALONG WITH HIS FATHER, SON, WIFE AND MOTHER WAS HOLDIN G SUBSTANTIAL AGRICULTURAL LANDS AND HAD ANNUAL AGRICULTURAL INCOME O F RS.25 LACS APPROXIMATELY. FURTHER THE LD. CIT(A) HAS GROSSLY ERRE D IN REJECTING THE ENTIRE EXPLANATION OF THE ASSESSEE QUA SOURCES OF INV ESTMENT IN PURCHASE OF AGRICULTURAL LAND FILED VIDE LETTER DATED 13 TH JULY, 2015 ALONG WITH CASH FLOW CHART, HOWEVER, THE LD. CIT(A) W RONGLY HELD THAT NO SUBSTANTIAL EVIDENCE HAS BEEN PRODUCED BY THE ASSESSEE. WE REALIZE FROM THE ORDER THAT THOUGH THE LD. CIT(A ) ANALYZED THE FACTS OF THE CASE, HOWEVER, FROM THE ORDER IT DOE S NOT APPEARS TO HAVE EXAMINED THE CASH FLOW STATEMENT AND BANK STATEMEN T OF THE ASSESSEE. THE ASSESSEE HAS ALSO CHALLENGED THE CHARGING OF INTE REST U/S 234A AND 234B OF THE ACT VIDE GROUND NO.6 AND ALSO RAISED OTHER FIVE GROUNDS BEFORE THE LD. CIT(A), HOWEVER, FROM T HE DETERMINATION/CONCLUSION IT APPEAR APPARENTLY THAT NO REASON HAS BEEN GIVEN BY THE LD. CIT(A) WHILE DECIDING ANY OF T HE GROUND, HENCE CONSIDERING THE PECULIAR FACTS AND CIRCUMSTANCES WE ARE INCLIN ED TO SET ASIDE THE ORDER PASSED BY THE LD. CIT(A) AND REMAND T HE CASE TO ITS FILE FOR DECISION AFRESH, SUFFICE TO SAY WHILE AFFORDING REASONABLE OPPORTUNITIES OF BEING HEARD TO THE PARTIES. CONSEQUEN TLY THE APPEAL I.E. ITA NO.332/ASR/2016 FILED BY THE ASSESSEE IS LIABLE TO BE ALLOWED FOR STATISTICAL PURPOSES. 5. ITA NO.301/ASR/2016 THIS APPEAL HAS BEEN PREFERRED BY THE REVENUE DEPARTM ENT AGAINST THE DELETION OF PROTECTIVE ADDITION OF RS.91, 51,000/- BY THE LD. CIT(A) . BRIEF FACTS OF THE CASE ARE AS THAT AS PER ASSESSMENT ORDER, THE ASSESSEE STATED TO BE POWER OF ATTORNEY HOLDE R OF ITA N0.332 & 301/ASR/ 2016 (A.Y: 2005 -06 ) JATINDER SINGH VS. ITO & ITO VS. KUL WANT KAUR 5 AGRICULTURAL LAND ON BEHALF OF SMT. TEJ KAUR WHO WAS THE REAL OWNER OF THE LAND AND BY VIRTUE OF POWER OF ATTORNEY, SHE HAD EXECUTED THE SALE DEED ON 30.09.2004 IN FAVOUR OF SH. JATINDER SI NGH, S/O SH. AMREEK SINGH FOR A CONSIDERATION AMOUNT OF RS.86,33,00 0/-. THE ASSESSING OFFICER HAS MADE THE SUBSTANTIVE ADDITION OF RS.9 1,51,000/- IN THE HANDS OF SH. JATINDER SINGH ON ACCOUNT OF ALLEG ED UNEXPLAINED INVESTMENT MADE BY HIM FROM UNDISCLOSED SOURCES AND PROTE CTIVE ADDITION IN THE HANDS OF ASSESSEE. 6. ON APPEAL, THE LD. CIT(A) DELETED THE ADDITION AGA INST WHICH THE REVENUE DEPARTMENT HAS PREFERRED THIS APPEAL AND RAISE D THE SOLE GROUND TO THE EFFECT THAT THE LD. CIT(A) HAS ERRED I N LAW IN DELETING THE ADDITION OF RS.91,51,000/- MADE BY THE AO ON PRO TECTIVE BASIS U/S.69 AS UNEXPLAINED INVESTMENT SINCE, ADDITION OF RS.91 ,51,000/- MADE IN THE CASE OF SH. JATINDER SINGH ON SUBSTANTIVE B ASIS HAS BEEN CONFIRMED BY LD. CIT(A) VIDE ORDER DATED 15/02/2016 AND THE ASSESSEE HAS FILED THE APPEAL AGAINST THE ORDER OF THE L D. CIT(A) BEFORE HONBLE ITAT, AMRITSAR BENCH, WHICH IS STILL PEN DING FOR ADJUDICATION. 7. HAVING HEARD THE PARTIES AND PERUSED THE ORDER AND MA TERIAL AVAILABLE ON RECORD. THE LD. CIT(A) DELETED THE ADDI TION BY HOLDING THAT JUST HOLDING A POWER OF ATTORNEY ON BEHALF OF SOMEONE DOES NOT MEAN THAT THE SAID PERSON IS A REAL OWNER OF THE PROPERT Y . THE LD. CIT(A) FURTHER HELD THAT SUBSTANTIVE ADDITION HAS BEEN MADE IN THE HANDS OF SH. JATINDER SINGH, HENCE, THERE IS NO GROUND TO MAKE P ROTECTIVE ADDITION IN THE HANDS OF THE ASSESSEE . WE WHILE DECIDING ITA NO.332/ASR/2016 IN THE CASE OF SH. JATINDER SINGH, VIDE PARA NO. 4 OF THIS ORDER, HAS SET ASIDE THE ORDER ITA N0.332 & 301/ASR/ 2016 (A.Y: 2005 -06 ) JATINDER SINGH VS. ITO & ITO VS. KUL WANT KAUR 6 DATED 15/02/2016 PASSED BY THE LD. CIT(A) WHEREBY THE ADDITION OF RS.91,51,000/- MADE BY THE AO ON SUBSTANTIVE BASIS WAS A FFIRMED BY THE LD. CIT(A), AND REMANDED THE CASE TO THE FILE OF LD. CIT(A) FOR DECISION AFRESH. EVEN OTHERWISE WHILE APPLYING OUR INDE PENDENT MIND, WE DO NOT FIND ANY PERVERSITY, ILLEGALITY AND/OR IMP ROPRIETY AND ANY SUBSTANTIVE MATERIAL TO REVERSE THE DECISION OF THE LD. CIT(A) IN THE INSTANT CASE, HENCE THE APPEAL UNDER CONSIDERATION IS LIA BLE TO BE DISMISSED. 8. IN RESULT , THE APPEAL I.E. ITA NO.332/ASR/2016 FILED BY THE ASSESSEE STAND ALLOWED FOR STATISTICAL PURPOSES AND ITA NO. 301/ASR/2016 FILED BY THE REVENUE DEPARTMENT STANDS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 09/1 0/2019. SD/- SD/- (B.R.BASKARAN) (N.K.CHOUDHRY) ACCOUNTANT MEMBER JU DICIAL MEMBER DATED: 09/10/2019. /PK/ PS. COPY FORWARDED TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT 4. THEN CIT(APPEALS) 5. SR DR, I.T.A.T. AMRITSAR 6. GUARD FILE TRUE COPY BY ORDER