Mrs. Sharma Tyagi, Muzaffarnagar V. ITO, Muzaffarnagar

ITA 347/DEL/2015

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 4787 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 7 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-08-2017
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC
• Next Hearing Date: 15-06-2017
• Assessment Year: 2007-2008
• Appeal Filed On: 16-01-2015
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: T VASANTHAN
• Keywords: Value adopted by valuation officer; Gift; Opportunity of being heard; Source of fund
• Section: 142(1); 69; 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCHES SMC: DELHI BEFORE SHRI BHAVNESH SAINI, JUDICIAL MEMBER ITA.NO.348, 347 & 349 /DEL./2015 ASSESSMENT YEARS 2008-2009, 2007-2008 & 2009-2010 MRS. SHARMA TYAGI, PROP. M/S. TIRUPATI BANQUET HALL, 486, INDIRA COLONY, ROORKEE ROAD, MUZAFFARNAGAR, U.P. PAN AGWPT3535B VS. THE INCOME TAX OFFICER, WARD1(1) MUZAFFARNAGAR. (APPELLANT) (RESPONDENT) FOR ASSESSEE : SHRI ANIL JAIN, ADVOCATE FOR REVENUE : SHRI T. VASANTHAN, SR. D.R. DATE OF HEARING : 09.08.2017 DATE OF PRONOUNCEMENT : 22.08.2017 ORDER ALL THE APPEALS BY ASSESSEE ARE DIRECTED AGAINST THE DIFFERENT ORDERS OF LD. CIT(A), MUZAFFARNAGAR DATED 21 ST OCTOBER, 2014 FOR A.YS. 2008-09, 2007-08 AND 2009-2010. 2. I HAVE HEARD THE LEARNED REPRESENTATIVES OF BOT H THE PARTIES AND PERUSED THE MATERIAL ON RECORD. THE ISS UES ARE COMMON IN ALL THESE APPEALS. THEREFORE, ALL THE APPEALS AR E HEARD TOGETHER AND I DISPOSE OF THE SAME THROUGH THIS COMMON CONSO LIDATED ORDER. THE APPEALS ARE DECIDED AS UNDER. 2 ITA.NO.347, 348 & 349/DEL./2015 MRS. SHARMA TYAGI, MUZAFFARNAGAR. U.P. ITA.NO.348/DEL./2015 (A.Y. 2008-2009) : 3. THE FACTS OF THE CASE ARE THAT IN THIS CASE AN ENQUIRY WAS CONDUCTED ON 29 TH MAY, 2009 AND IT WAS GATHERED THAT ASSESSEE WAS RUNNING A NEWLY CONSTRUCTED BANQUET HALL NAMELY, M/ S. TIRUPATI PALACE AT INDIRA COLONY, G.T. ROAD, MUZAFFARNAGAR. SINCE ASSESSEE WAS NOT ASSESSED TO TAX, THEREFORE, THE A.O. ISSUED NOTICE UNDER SECTION 142(1) OF THE I.T. ACT, REQUIRING THE ASSES SEE TO FURNISH RETURN OF INCOME. HOWEVER, NO COMPLIANCE WAS MADE. SUBSEQUENTLY, THE A.O. ISSUED NOTICE UNDER SECTION 148 OF THE ACT . IN RESPONSE THERE TO, ASSESSEE SUBMITTED THAT ORIGINAL RETURN F ILED ON 29 TH JANUARY, 2010 BE TREATED AS RETURN FILED IN COMPLIA NCE TO NOTICE UNDER SECTION 148 OF THE I.T. ACT. THUS, THE A.O. I SSUED DETAILED QUESTIONNAIRE SEEKING EXPLANATION OF THE ASSESSEE. THE ASSESSEE CONTENDED THAT THE CONSTRUCTION OF BANQUET HALL STA RTED FROM APRIL, 2006 AND COMPLETED ON 31 ST OCTOBER, 2008 AT LAND MEASURING 116.99 SQ. MTS. WHICH WAS PURCHASED ON 18 TH NOVEMBER, 2005 FOR A CONSIDERATION OF RS.15,48,000. FURTHER, ADJOINING LAND MEASURING 89.405 SQ. WAS PURCHASED ON 28.03.2006 FOR RS.2,55, 000. THE ASSESSEE IN HER WRITTEN SUBMISSIONS ADMITTEDTAX LIA BILITY OF 3 ITA.NO.347, 348 & 349/DEL./2015 MRS. SHARMA TYAGI, MUZAFFARNAGAR. U.P. RS.53,470 FOR A.Y. 2006-07. IT WAS FURTHER SUBMITTE D THAT INVESTMENT IN CONSTRUCTION OF BANQUET HALL WAS AT R S.28 LAKHS AND SOURCE OF INVESTMENT WAS EXPLAINED AS UNDER : (I) OUT OF SAVING FROM A GRICULTURE INCOME RS. 3,00,000 (II) OUT OF SALE DEED DATED 18.11.2005 TO RAMESHO DEVI RS. 1,99,450 (III) WITHDRAWAL FROM SAVING BANK ACCOUNT RS. 2,62,000 (IV) LOAN FROM BANK RS. 6,50,000 (V) GIFT RECEIVED FROM RELATIVES RS.13,00,000 3.1. THE ASSESSEE DID NOT MAKE ANY RESPONSE WITH R EGARD TO MAINTENANCE OF THE BOOKS OF ACCOUNT FOR CONSTRUCTIO N OF BANQUET HALL. ACCORDING TO THE A.O. THE ASSESSEE HAS MADE I NVESTMENT IN THE LAND AT RS.18,03,000 AND THE INVESTMENT IN CONSTRUC TION OF BANQUET HALL WAS CLAIMED AT RS.28 LAKHS. THUS, THE TOTAL IN VESTMENT ON PURCHASE OF LAND AND CONSTRUCTION OF BANQUET HALL A GGREGATED TO RS.46,03,000. THE ASSESSEE HAD NEITHER DISCLOSED TH E INVESTMENT OF RS.46,03,000 TO THE DEPARTMENT NOR ANY RETURN OF IN COME WAS FILED TILL THE DATE OF ISSUE OF NOTICE UNDER SECTION 142( 1) OF THE ACT. 3.2. REGARDING CLAIM OF SOURCE OF INVESTMENT FROM AGRICULTURAL INCOME AT RS.3 LAKHS, IT WAS GATHERED BY THE A.O. T HAT ASSESSEE HAD SHOWN ONLY AGRICULTURAL HOLDINGS OF 20 BIGAS. IN TH E ABSENCE OF ANY 4 ITA.NO.347, 348 & 349/DEL./2015 MRS. SHARMA TYAGI, MUZAFFARNAGAR. U.P. DOCUMENTARY EVIDENCE, THE A.O. REQUIRED THE ASSESSE E TO FILE COPY OF KHATAUNI. FURTHER, THE A.O. ALSO CONFRONTED THE ASS ESSEE OF THE FACT THAT IN THE RETURN OF INCOME FILED ON 29 TH JANUARY, 2010, AGRICULTURE INCOME WAS NO DECLARED. FURTHER, NO DETAILS AND EVI DENCES WERE FURNISHED BY THE ASSESSEE IN RESPECT OF PAST SAVING S FROM AGRICULTURE INCOME. THUS THE ASSESSEE WAS REQUIRED TO EXPLAIN AS TO WHY THE INVESTMENT SHOWN FROM AGRICULTURE AT RS.3 L AKHS BE NOT ADDED UNDER SECTION 69 OF THE I.T. ACT. 3.3. THE ASSESSEE EXPLAINED THAT DUE TO MISTAKE, A GRICULTURE INCOME WAS LEFT OUT TO BE DECLARED IN THE RETURN OF INCOME FILED ON 29 TH JANUARY, 2010 BUT REQUESTED THE A.O. TO CONSIDER T HE SAME AT RS.55,000. IT WAS FURTHER SUBMITTED THAT THE AGRICU LTURAL LAND WAS ACQUIRED ON INHERITANCE AFTER THE DEATH OF HER HUSB AND ON 19 TH DECEMBER, 1999. AS PER THE ASSESSEE, AGRICULTURAL L AND WAS 20 BIGAS AND AS SUCH, PAST SAVINGS FROM AGRICULTURE IN COME STOOD EXPLAINED AND HENCE, COULD NOT BE TREATED AS UNEXPL AINED INVESTMENT IN CONSTRUCTION OF BANQUET HALL. 5 ITA.NO.347, 348 & 349/DEL./2015 MRS. SHARMA TYAGI, MUZAFFARNAGAR. U.P. 4. THE A.O. HOWEVER, NOTED THAT ASSESSEE HAS NOT F ILED RETURN OF INCOME VOLUNTARILY BUT FILED AFTER ISSUE OF NOTICE UNDER SECTION 142(1) OF THE ACT. FURTHER, THE AGRICULTURE INCOME WAS NOT DECLARED IN THE RETURN OF INCOME FILED UNDER SECTIO N 142(1) OF THE ACT ON 29 TH JANUARY, 2010. THE EXPLANATION OF ASSESSEE WAS FOU ND AS AN AFTERTHOUGHT. FURTHER, IN THE ABSENCE OF ANY EVIDENCE OF EARNING OF AGRICULTURE INCOME OR PAST SAVINGS, A.O. ADDED RS.3 LAKHS UNDER SECTION 69 OF THE ACT. 5. REGARDING CLAIM OF INVESTMENT OUT OF GIFTS RECE IVED OF RS.13 LAKHS, IT WAS GATHERED BY THE A.O. THAT ASSES SEE HAD CLAIMED TO HAVE RECEIVED GIFTS FROM THE FOLLOWING PERSONS : (I) SHRI YASHVIR SINGH TYAGI, RS.3,00,000 (II) SHRI MUKESH TYAGI RS.1,00,000 (III) SMT. SHASHI RS.3,00,000 (IV) SHRI KARAM SINGH TYAGI RS.6,00,000 5.1. THE A.O. RECORDED THE STATEMENT ON OATH OF TH E DONORS. FROM THE STATEMENTS RECORDED ON OATH, IT WAS GATHER ED BY THE A.O. THAT DONORS FAILED TO SPECIFY THE DATE-WISE AMOUNT PAID TO THE 6 ITA.NO.347, 348 & 349/DEL./2015 MRS. SHARMA TYAGI, MUZAFFARNAGAR. U.P. ASSESSEE. FURTHER, THE AFORESAID DONORS HAVE NEVER GIFTED ANY AMOUNTS PREVIOUSLY. THE ASSESSEE HAD NEVER DISCLOSE D TO THE DEPARTMENT RECEIPT OF HUGE GIFTS. THE RETURN OF INC OME IS FILED AFTER NOTICE ISSUED UNDER SECTION 142(1) OF THE ACT. THER EFORE, GENUINENESS OF THE GIFTS WAS NOT FOUND GENUINE BY T HE A.O. THE A.O. ASKED THE ASSESSEE TO EXPLAIN WHY THE GIFTS OF RS.1 3 LAKHS MAY NOT BE TREATED AS UNEXPLAINED AND ADDED TO THE INCOME O F ASSESSEE. 5.2. IT WAS CONTENDED BY THE ASSESSEE THAT GIFTS W ERE RECEIVED FROM THE AFORESAID PERSONS WHO WERE REAL BROTHER AN D SONS OF REAL ANOTHER BROTHERS. COPIES OF THEIR LAND HOLDINGS AND ALONG WITH AFFIDAVITS WERE FURNISHED BEFORE THE A.O. IT WAS SU BMITTED THAT THE DONORS IN THEIR STATEMENTS ON OATH CONFIRMED GIVING GIFTS TO THE ASSESSEE. THE A.O. HOWEVER, REJECTED THE CONTENTION OF ASSESSEE BECAUSE INVESTMENT IN PROPERTY WAS NOT DISCLOSED TO THE DEPARTMENT. GIFTS WERE NOT VOLUNTARILY DISCLOSED TO THE DEPARTMENT. THE ASSESSEE ADMITTED INVESTMENT IN PROPERTY ONLY A FTER ISSUE OF NOTICE UNDER SECTION 142(1) OF THE ACT. TH A.O. MAD E ADDITION OF RS.13 LAKHS UNDER SECTION 69 OF THE I.T. ACT. 7 ITA.NO.347, 348 & 349/DEL./2015 MRS. SHARMA TYAGI, MUZAFFARNAGAR. U.P. 5.3. AS REGARDS ADDITION OF RS.3 LAKHS, ASSESSEE C ONTENDED BEFORE THE LD. CIT(A) THE SAME FACTS AS WERE EXPLAI NED BEFORE THE A.O. ON WHICH REMAND REPORT WAS CALLED FOR FROM THE A.O. IN WHICH A.O. EXPLAINED THAT ASSESSEE FAILED TO DISCLOSE AGR ICULTURE INCOME IN THE RETURN OF INCOME. THE ASSESSEE HAS NO EVIDENCE OF EARNING OF AGRICULTURE INCOME OR PAST SAVINGS. NO EVIDENCE OF EARNING ANY AGRICULTURE INCOME WAS FILED. THE LD. CIT(A) IN PRI NCIPLE ACCEPTED THE FINDINGS OF THE A.O. THAT NO EVIDENCE HAS BEEN PRODUCED FOR EARNING OF AGRICULTURE INCOME OR PAST SAVINGS, BUT GIVEN A BENEFIT OF RS.55,000 TO THE ASSESSEE. THEREFORE, OUT OF THE AD DITION OF RS.3 LAKHS, HE HAS CONFIRMED ADDITION OF RS.2,45,000. 5.4. AS REGARDS GIFTS, ASSESSEE REITERATED THE SAM E SUBMISSIONS BEFORE THE LD. CIT(A). THE A.O. IN THE REMAND REPORT SUBMITTED THAT ASSESSEE FAILED TO PROVE THE CREDITW ORTHINESS OF THE DONOR AND GENUINENESS OF THE TRANSACTION IN THE MAT TER. THE ASSESSEE ALSO EXPLAINED THAT THE ENTIRE GIFT WAS RE CEIVED IN DIFFERENT YEARS AND IN A.Y. 2008-09, THE TOTAL GIFTS WERE REC EIVED AT RS.6,75,000 OUT OF RS.13 LAKHS. THE LD. CIT(A) ACCE PTED THE SOME OF THE GIFTS AS GENUINE. HOWEVER, IN THE CASE OF SHRI KARAN SINGH 8 ITA.NO.347, 348 & 349/DEL./2015 MRS. SHARMA TYAGI, MUZAFFARNAGAR. U.P. TYAGI, THE ASSESSEE WAS NOT ABLE TO FURNISH ANY DET AILS OF WITHDRAWALS OF RS.1,50,000. THEREFORE, TO THAT EXTE NT, THE ADDITION WAS CONFIRMED CONSIDERING IT TO BE UNEXPLAINED GIFT OF RS.1,50,000. SIMILARLY, IN THE CASE OF SHRI MUKESH TYAGI THE DON OR DID NOT MAKE ANY WITHDRAWALS FOR MAKING GIFT TO THE ASSESSEE. TH EREFORE, IN THE ABSENCE OF THE SAME, ADDITION OF RS.72,000 WAS CONF IRMED. 5.5. DURING THE COURSE OF APPELLATE PROCEEDINGS, I T WAS GATHERED THAT THE DIFFERENCE BETWEEN THE FIGURES OF INVESTMENT IN CONSTRUCTION OF BANQUET HALL AS PER REPORT OF DVO A ND AS PER APPROVED VALUERS REPORT WAS WORKED OUT TO RS.3,24, 467 (RS.12,18,467 (-) RS.8,94,000). THEREFORE, ASSESSEE WAS ASKED TO SHOW CAUSE AS TO WHY THE INCOME TO THAT EXTENT BE N OT ENHANCED. THE ASSESSEE SUBMITTED THAT SHE BELONGS TO DISTRICT MUZAFFARNAGAR. HENCE, FOR THE PURPOSE OF ASCERTAINING THE VALUE OF CONSTRUCTION, THE RATES OF U.P. PWD MAY BE APPLIED. HOWEVER, THE LD. CIT(A), REJECTED THE CONTENTION OF ASSESSEE AND ENHANCED THE INCOME TO RS.3,24,467. 9 ITA.NO.347, 348 & 349/DEL./2015 MRS. SHARMA TYAGI, MUZAFFARNAGAR. U.P. 6. THE ASSESSEE IN THE APPEAL HAS RAISED SEVERAL G ROUNDS. GROUND NO.1 IS GENERAL AND NEED NO ADJUDICATION. ON GROUND NO.2, ASSESSEE CHALLENGED THE ADDITION OF RS.2,45,000 OUT OF ADDITION OF RS.3 LAKHS MADE BY THE A.O. AS UNEXPLAINED INVESTME NT FROM ACCUMULATED SAVINGS OF AGRICULTURE INCOME. LEARNED COUNSEL FOR THE ASSESSEE DID NOT SUBMIT ANY EVIDENCE OF EARNING OF ANY AGRICULTURE INCOME BY THE ASSESSEE IN ASSESSMENT YEAR UNDER APP EAL. NO AGRICULTURE INCOME WAS SHOWN IN THE RETURN OF INCOM E FILED ON ISSUE OF NOTICE UNDER SECTION 142(1) OF THE ACT. THE ASSE SSEE DID NOT HAVE ANY EVIDENCE OF ACCUMULATION OF PAST AGRICULTURE IN COME. MERELY BECAUSE ASSESSEE WAS HOLDING AGRICULTURAL LAND HOLD INGS OF 20 BIGAS WOULD NOT PROVE THAT ASSESSEE EARNED ANY AGRICULTUR AL INCOME OR HAS ANY PAST SAVINGS SO THAT TO MAKE ANY INVESTMENT IN THE PROPERTY. IN THE ABSENCE OF ANY EVIDENCE ON RECORD, NO FURTHER INTERFERENCE IS CALLED FOR IN THE MATTER. THE LD. C IT(A) HAS ALREADY GIVEN SUFFICIENT BENEFIT OF RS.55,000 TO THE ASSESS EE. THIS GROUND NO.2 OF APPEAL OF ASSESSEE IS DISMISSED. 7. ON GROUND NO.3, THE ASSESSEE CHALLENGED THE ADD ITION OF RS.1,50,000 AND RS.72,000 ON ACCOUNT OF GIFTS RECEI VED FROM SHRI 10 ITA.NO.347, 348 & 349/DEL./2015 MRS. SHARMA TYAGI, MUZAFFARNAGAR. U.P. KARAN SINGH TYAGI AND SHRI MUKESH TYAGI. THE ASSESS EE SUBMITTED THAT AFFIDAVITS OF THE DONORS ALONG WITH THEIR BANK ACCOUNTS HAVE BEEN FILED AND THEIR STATEMENTS HAVE BEEN RECORDED BY THE A.O. IN WHICH THEY HAVE CONFIRMED GIVING OF GIFTS TO THE AS SESSEE. HOWEVER, BOTH THE DONORS HAVE FAILED TO SPECIFY THE DATE-WIS E AMOUNT PAID DURING THE EXAMINATION/RECORDING OF THE STATEMENTS. THEREFORE, GENUINENESS OF THE TRANSACTIONS COULD NOT BE VERIFI ED. MERE FILING OF AFFIDAVIT OR LAND HOLDING DOCUMENTS WOULD NOT PROVE CREDITWORTHINESS OF THE DONORS. THE ASSESSEE FILED COPIES OF THE AFFIDAVITS OF THE DONORS, THEIR STATEMENTS AND PROO F OF OWNERSHIP OF THE LAND IN THE PAPER BOOK IN WHICH THEY HAVE VAGUE LY STATED THAT VARIOUS GIFTS HAVE BEEN GIVEN FROM APRIL, 2006 TO 3 1 ST OCTOBER, 2008. NO SPECIFIC DATE OF GIFTS HAVE BEEN POINTED I N THEIR BANK ACCOUNTS. THERE ARE SMALL WITHDRAWALS MADE BY THE D ONORS AND IN THEIR STATEMENTS DONORS HAVE STATED THAT THEY HAVE AGRICULTURE INCOME OUT OF WHICH THEY ARE MAINTAINING THEIR FAMI LY. THEREFORE, ASSESSEE FAILED TO PROVE THEIR CREDITWORTHINESS AND GENUINENESS OF THE TRANSACTION IN THE MATTER. NO SOURCE OF GIFTS H AVE BEEN FILED. EVEN NO GIFT DEED HAVE BEEN EXECUTED FOR GIVING ANY GIFT. NO 11 ITA.NO.347, 348 & 349/DEL./2015 MRS. SHARMA TYAGI, MUZAFFARNAGAR. U.P. OCCASION OF THE GIFTS DATE-WISE HAS BEEN EXPLAINED. THUS, THERE IS NOTHING ON RECORD TO SHOW AS TO WHAT WAS THE FINANC IAL CAPACITY OF THE DONORS AND THE CREDITWORTHINESS OF THE DONORS, WHAT KIND OF RELATIONSHIP THE DONORS HAD WITH THE ASSESSEE, WHAT WERE THE SOURCE OF FUNDS GIFTED TO THE ASSESSEE AND WHETHER THEY HAD ANY CAPACITY OF GIVING SUCH HUGE AMOUNT OF GIFT TO THE ASSESSEE. THUS, THE ASSESSEE FAILED TO PROVE THE BASIC INGREDIENTS OF GENUINENESS OF GIFTS IN THE MATTER. IT, THEREFORE, APPEARS THAT TH E ASSESSEE WHEN CORNERED BY THE REVENUE DEPARTMENT CAME UP WITH AN AFTERTHOUGHT STORY TO EXPLAIN INVESTMENT IN PROPERTY THROUGH THE GIFTS FROM THE RELATIVES. THEREFORE, IT IS CLEAR THAT GIFTS IN THE MATTER ARE NOT GENUINE. GIFTS ARE ARRANGED AFFAIRS OF THE ASSESSEE . THE ASSESSEE FAILED TO PROVE THE CREDITWORTHINESS OF THE DONORS AND GENUINENESS OF THE GIFTS IN THE MATTER. THE ADDITIONS WERE RIGH TLY MADE BY THE AUTHORITIES BELOW. I RELY UPON THE DECISION OF HON BLE DELHI HIGH COURT IN THE CASE OF CIT VS. ANIL KUMAR 292 ITR 552 , DECISION OF HONBLE SUPREME COURT IN THE CASE OF CIT VS. P. MOH AN KALA 291 ITR 278, DECISION OF PUNJAB & HARYANA HIGH COURT IN THE CASE OF YASHPAL GOEL VS. CIT 310 ITR 75. CONSIDERING THE AB OVE DECISIONS, I 12 ITA.NO.347, 348 & 349/DEL./2015 MRS. SHARMA TYAGI, MUZAFFARNAGAR. U.P. AM OF THE VIEW THAT THE ASSESSEE FAILED TO ESTABLIS H THE CREDITWORTHINESS OF THE DONORS AND GENUINENESS OF T HE GIFTS IN THE MATTER. THEREFORE, NO INTERFERENCE IS CALLED FOR. T HIS GROUND NO.3 OF APPEAL OF ASSESSEE IS DISMISSED. 8. ON GROUND NO.4 ASSESSEE CHALLENGED THE ADDITION OF RS.3,24,467 BEING DIFFERENCE ON ACCOUNT OF INVESTME NT IN COST OF CONSTRUCTION OF BANQUET HALL AS PER DVO REPORT. THE ASSESSEE PLEADED BEFORE THE LD. CIT(A) THAT FOR THE PURPOSE OF ASCERTAINING THE VALUE OF CONSTRUCTION, RATES OF UP PWD MAY BE A PPLIED, WHICH AUTHORITIES BELOW HAVE FAILED TO APPLY IN THE MATTE R. LEARNED COUNSEL FOR THE ASSESSEE RELIED UPON THE DECISION O F HONBLE ALLAHABAD HIGH COURT IN THE CASE OF CIT VS. RAJ KUM AR182 ITR 436 IN WHICH THE TRIBUNAL WHILE FIXING THE COST OF CONS TRUCTION, HAS TAKEN INTO CONSIDERATION VARIOUS FACTORS I.E., THE RATES TO BE APPLIED FOR THE PURPOSE OF ESTIMATION OF COST OF CONSTRUCTI ON AND APPLIED UP PWD RATE AND NOT THE CENTRE PWD RATES. THE HONBLE HIGH COURT DISMISSED THE REFERENCE APPLICATION. LEARNED COUNSE L FOR THE ASSESSEE SUBMITTED THAT THE MATTER MAY BE REMANDED TO THE A.O. FOR APPLYING THE UP PWD RATES. 13 ITA.NO.347, 348 & 349/DEL./2015 MRS. SHARMA TYAGI, MUZAFFARNAGAR. U.P. 8.1. CONSIDERING THE FACTS OF THE CASE IN THE LIGH T OF DECISION OF HONBLE ALLAHABAD HIGH COURT IN THE CASE OF CIT VS. RAJ KUMAR (SUPRA), I SET ASIDE THE ORDERS OF THE AUTHORITIES BELOW AND RESTORE THIS ISSUE TO THE FILE OF A.O. WITH A DIRECTION TO APPLY UP PWD RATES FOR THE PURPOSE OF ASCERTAINING THE COST OF CONSTRU CTION OF INVESTMENT IN CONSTRUCTION OF BANQUET HALL. THE A.O . SHALL RE-DECIDE THIS ISSUE AFTER GIVING REASONABLE, SUFFICIENT OPPO RTUNITY OF BEING HEARD TO THE ASSESSEE. GROUND NO.4 OF APPEAL OF ASS ESSEE IS TREATED AS ALLOWED FOR STATISTICAL PURPOSES. 9. GROUND NO.5 IS CHALLENGING THE REOPENING OF ASS ESSMENT UNDER SECTION 148 OF THE I.T. ACT, WHICH IS NOT PRE SSED BY THE LEARNED COUNSEL FOR THE ASSESSEE. THEREFORE, GROUND NO.5 OF APPEAL OF ASSESSEE IS DISMISSED. 10. IN THE RESULT, APPEAL OF ASSESSEE IS PARTLY AL LOWED AS INDICATED ABOVE. ITA.NO.347/DEL./2015 (A.Y. 2007-2008) : 11. GROUND NO.1 IS GENERAL, NEED NO ADJUDICATION. ON GROUND NO.2, ASSESSEE CHALLENGED THE ADDITION OF RS.2,15,0 00 BEING 14 ITA.NO.347, 348 & 349/DEL./2015 MRS. SHARMA TYAGI, MUZAFFARNAGAR. U.P. UNEXPLAINED DEPOSIT IN THE BANK ACCOUNT, CONSIDERIN G THEM AS INCOME FROM UNDISCLOSED SOURCE AND ALSO DISALLOWING THE SOURCE OF INVESTMENT OF RS.2 LAKHS. THE A.O. HAS MADE ADDITIO N OF RS.2,15,000 BEING UNEXPLAINED DEPOSITS IN THE BANK ACCOUNT ON THE GROUND THAT ASSESSEE COULD NOT FURNISH ANY DETAILS AND EVIDENCE TO ESTABLISH THE GENUINENESS OF SUCH CASH DEPOSITS. TH E ASSESSEE SUBMITTED THAT SOME OF THEM WERE GIFTS FROM HIS BRO THER AND NEPHEWS WHICH HAVE NOT BEEN ACCEPTED. THEREFORE, TH E LD. CIT(A) CONFIRMED THE ADDITION. DURING THE COURSE OF HEARIN G, LEARNED COUNSEL FOR THE ASSESSEE, COULD NOT EXPLAIN THE SOU RCE OF DEPOSIT OF RS.2,15,000. THEREFORE, NO INTERFERENCE IS CALLED F OR. GROUND NO.2 OF APPEAL OF ASSESSEE IS ACCORDINGLY DISMISSED. 12. ON GROUND NO.3, ASSESSEE CHALLENGED THE ADDITI ON OF RS.4,11,000 HOLDING THEM AS UNEXPLAINED GIFTS OUT O F THE ADDITION OF RS.5,11,000. IN THIS YEAR, ASSESSEE CLAIMED TO HAVE RECEIVED GIFTS AGGREGATING TO RS.5,11,000 FROM SHRI KARAN SINGH (B ROTHER), RS.1,66,000, SHRI YASHVEER SINGH (NEPHEW) RS.1,00,0 00, SMT. SHASHI TYAGI (NIECE) RS.2,17,000 AND SHRI MUKESH TY AGI (NEPHEW) RS.28,000. THE ASSESSEE FURNISHED THE EVIDENCE IN R ESPECT OF GIFTS 15 ITA.NO.347, 348 & 349/DEL./2015 MRS. SHARMA TYAGI, MUZAFFARNAGAR. U.P. RECEIVED FROM SHRI YASHVEER SINGH (NEPHEW) OF RS.1 LAKHS, TO THAT EXTENT, THE ADDITION WAS DELETED. IN THE ABSENCE OF ANY OTHER EVIDENCE, GIFTS OF RS.4,11,000 WAS CONFIRMED. 12.1. LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED T HAT THE ISSUE IS SAME AS HAS BEEN CONSIDERED IN A.Y. 2008-0 9. FOLLOWING THE REASONS FOR DECISION FOR A.Y. 2008-09, I DISMIS S THIS GROUND NO.3 OF APPEAL OF ASSESSEE. 13. ON GROUND NO.4, ASSESSEE CHALLENGED THE ADDITI ON OF RS.80,100 OUT OF ADDITION OF RS.2,34,000. REGARDING ADDITION OF RS.2,34,000, ASSESSEE HAS CONTENDED THAT IN THE YEA R UNDER REFERENCE, SHE HAD CASH ACCUMULATION OF RS.2,03,900 OUT OF DAIRY BUSINESS, BANK INTEREST, FAMILY PENSION, AGRICULTUR E INCOME AND PAST SAVINGS, OUT OF WHICH RS.50,000 WAS SPENT FOR HOUSE HOLD PURPOSE. THEREFORE, BALANCE AMOUNT OF RS.1,53,900 R EMAINED IN THE HANDS OF THE ASSESSEE. THE LD. CIT(A) GAVE BENEFIT TO ASSESSEE AT RS.1,53,900 AND MADE THE ADDITION OF RS.80,100. 13.1. THE LEARNED COUNSEL FOR THE ASSESSEE DID NOT PRODUCE ANY EVIDENCE OF SOURCE TO EXPLAIN THE ADDITION OF R S.80,100. EVEN 16 ITA.NO.347, 348 & 349/DEL./2015 MRS. SHARMA TYAGI, MUZAFFARNAGAR. U.P. ASSESSEE DID NOT EXPLAIN THIS ADDITION BEFORE LD. C IT(A). THEREFORE, IN THE ABSENCE OF ANY EVIDENCE, THE ADDITION OF RS. 80,100 IS CONFIRMED. THIS GROUND NO.4 OF APPEAL OF ASSESSEE I S DISMISSED. 14. ON GROUND NO.5, THE ASSESSEE CHALLENGED THE AD DITION OF RS.4,63,906 BEING DIFFERENCE ON ACCOUNT OF INVESTME NT IN COST OF CONSTRUCTION OF BANQUET HALL AS PER DVO REPORT. 14.1. IN A.Y. 2008-2009, IT IS DIRECTED THAT UP PW D RATE MAY BE APPLIED FOR ASCERTAINING THE COST OF CONSTRUCTIO N. FOLLOWING THE ORDER FOR A.Y. 2008-09, I SET ASIDE THE ORDERS OF T HE AUTHORITIES BELOW AND RESTORE THIS ISSUE TO THE FILE OF A.O. WI TH A DIRECTION TO APPLY UP PWD RATE FOR ESTIMATING THE COST OF INVEST MENT IN CONSTRUCTION OF BANQUET HALL. GROUND NO.5 OF APPEAL OF ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. 15. GROUND NO.6 IS REGARDING REOPENING OF THE ASSE SSMENT IS NOT PRESSED AND HENCE, THE SAME IS DISMISSED. 16. IN THE RESULT, ITA.NO.347/DEL./2015 OF THE ASS ESSEE PARTLY ALLOWED AS INDICATED ABOVE. 17 ITA.NO.347, 348 & 349/DEL./2015 MRS. SHARMA TYAGI, MUZAFFARNAGAR. U.P. ITA.NO.349/DEL./2015 A.Y. 2009-2010 : 17. THIS APPEAL WAS EARLIER DISMISSED FOR DEFAULT. HOWEVER, EXPARTE ORDER WAS SET ASIDE AND APPEAL WAS REFIXED FOR HEARING ON MERIT. 18. GROUND NO.1 IS GENERAL IN NATURE AND NEED NO ADJUDICATION. GROUND NOS. 3 AND 5 WITH REGARD TO AD DITION OF RS.2,72,575 AND REOPENING OF THE ASSESSMENT UNDER S ECTION 148 ARE NOT PRESSED. THEREFORE, THESE GROUND NOS. 3 AND 5 A RE DISMISSED. 19. ON GROUND NO.2, ASSESSEE CHALLENGED THE ADDITI ON OF RS.1,54,000 ON ACCOUNT OF UNEXPLAINED GIFT FROM SHR I KARAN SINGH TYAGI. LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED T HAT THIS ISSUE IS SAME AS HAVING CONSIDERED IN A.Y. 2008-2009 IN WHIC H THE ADDITION ON ACCOUNT OF INCOME OF THE GIFT HAS BEEN CONFIRMED . FOLLOWING THE REASONS FOR THE DECISION FOR A.Y. 2008-2009, I DISM ISS GROUND NO.2 OF APPEAL OF ASSESSEE. 20. ON GROUND NO.4, ASSESSEE CHALLENGED THE ADDITI ON OF RS.1,73,227 ON ACCOUNT OF DIFFERENCE IN INVESTMENT IN COST OF 18 ITA.NO.347, 348 & 349/DEL./2015 MRS. SHARMA TYAGI, MUZAFFARNAGAR. U.P. CONSTRUCTION FROM DVO REPORT. IN A.Y. 2008-2009 IT IS DIRECTED THAT UP PWD RATE MAY BE APPLIED FOR THE PURPOSE OF ASCER TAINING THE COST OF CONSTRUCTION. THE ORDERS OF THE AUTHORITIES BELOW ARE SET ASIDE AND A.O. IS DIRECTED TO FOLLOW THE ORDER FOR A.Y. 2008-09 BY APPLYING THE UP PWD RATES FOR ASCERTAINING THE COST OF CONSTRUCTION AND RE-DECIDE THIS ISSUE BY GIVING REASONABLE, SUFF ICIENT OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. THIS GROUND IS ALLO WED FOR STATISTICAL PURPOSES. 21. IN THE RESULT, ITA.NO.349/DEL./2015 OF THE ASS ESSEE IS PARTLY ALLOWED AS INDICATED ABOVE. 22. IN THE RESULT, ALL THE APPEALS OF THE ASSESSEE ARE PARTLY ALLOWED AS INDICATED ABOVE. ORDER PRONOUNCED IN THE OPEN COURT. SD/- (BHAVNESH SAINI) JUDICIAL MEMBER DELHI, DATED 22 ND AUGUST, 2017. VBP/- 19 ITA.NO.347, 348 & 349/DEL./2015 MRS. SHARMA TYAGI, MUZAFFARNAGAR. U.P. COPY TO 1. THE APPELLANT 2. THE RESPONDENT 3. CIT(A) CONCERNED 4. CIT CONCERNED 5. D.R. ITAT SMC BENCH 6. GUARD FILE // BY ORDER // ASST. REGISTRAR ITAT : DELHI BENCHES : DELHI.