Mr Ataur Rahman, Kolkata V. THE ITO, WD-54(4), KOLKATA, Kolkata

ITA 347/KOL/2016

• Counselvise Citation: [2018] 126 COUNSELVISE.COM (IT) 1360 (ITAT-KOLKATA)
• Duration Of Justice: 2 year(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-03-2018
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: C
• Assessment Year: 2009-2010
• Appeal Filed On: 03-03-2016
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: SHRI ARINDAM BHATTACHARJEE
• Assessee Lawyers: M TIWARI
• Keywords: Business income
• Section: 143(3); 133(6)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL D, BENCH KOLKATA BEFORE SHRI A. T. VARKEY, JM &DR. A.L.SAINI, AM ./ITA NO.347/KOL/2016 ( [ [ / ASSESSMENT YEAR: 2009-10) MR. ATAUR RAHMAN 2B JALA LANE, MOMINPUR, KOLKATA 700 027. VS. THE I.T.O, WD-54(4), KOLKATA RAFI AHMED KIDWAI ROAD, 3 RD FLOOR, KOLKATA 700 016. ./ ./PAN/GIR NO. : AEDPR 6801 H (APPELLANT) .. (RESPONDENT) ASSESSEE BY :SHRI M. TIWARI RESPONDENT BY:SHRIARINDAM BHATTACHARJEE, ADDL. CIT / DATE OF HEARING : 18/01/2018 /DATE OF PRONOUNCEMENT : 14/03/2018 / O R D E R PER DR. ARJUN LAL SAINI, AM: THE CAPTIONED APPEAL FILED BY THE ASSESSEE, PERTAINING TO ASSESSMENT YEAR 2009-10, IS DIRECTED AGAINST AN ORDER PASSED BY THE COMMISSIONER OF INCOME TAX (APPEALS)-21, KOLKATA, IN APPEAL NO.1008/ITO, WD- 22(4)/CIT(A)-21/KOL/2014-15, DATED 15.12.2015, WHICH IN TURN ARISES OUT OF AN ASSESSMENT ORDER PASSED BY THE ASSESSING OFFICER U/S 143(3) OF THE I.T. ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT), DATED 23.12.2011. 2.THE GROUNDS OF APPEAL RAISED BY THE ASSESSEE READS AS FOLLOWS: 1.THAT THE LEARNED COMMISSIONER OF INCOME TAX(APPEALS) HAS UNJUSTIFIABLY CONFIRMED THE ADDITION OF RS.15,21,500/- MADE BY ASSESSING OFFICER TREATING THE SAID AMOUNT AS UNEXPLAINED CASH OF THE APPELLANT FROM UNDISCLOSED SOURCES. 2. THAT THE LEARNED COMMISSIONER OF INCOME TAX(APPEALS) HAS ERRED IN NOT CONSIDERING LESSEE DEED OF THE PROPERTY AND CONSIDERING THE INCOME UNDER THE HEAD CAPITAL GAIN AND BUSINESS INCOME. 3. THAT THE APPELLATE ORDER AS PASSED IN AGAINST FACTS AND IS BAD IN LAW. MR. ATAUR RAHMAN ITA NO.347/KOL/2016 ASSESSMENT YEAR: 2009-10 PAGE | 2 3. THE BRIEF FACTS APROPOS THESE GROUNDS ARE THAT ASSESSEE FILED ITS RETURN OF INCOME ON 23.06.2009 DECLARING A TOTAL INCOME OF RS.1,27,681/-. THE ASSESSEES RETURN OF INCOME WAS PROCESSED U/S 143(1) OF THE ACT, ON 07.06.2010. LATER, THE ASSESSEES CASE WAS SELECTED FOR SCRUTINY U/S 143(2) OF THE ACT AND THE AO COMPLETED ASSESSMENT U/S 143(3) BY MAKING ADDITION U/S 69A ON ACCOUNT OF UNEXPLAINED MONEY OF RS.15,21,500/-. DURING THE ASSESSMENT PROCEEDINGS, IT WAS FOUND FROM THE AIR INFORMATION THAT DURING THE F.Y 2008-09, THERE WAS A CASH DEPOSIT OF RS.15,21,500/- IN THE SAVING BANK ACCOUNT OF THE ASSESSEE, MAINTAINED WITH THE ICICI BANK. FROM THE COPY OF THE BANK STATEMENT FILED BY THE ASSESSEE, DURING THE COURSE OF ASSESSMENT PROCEEDINGS, IT WAS FOUND THAT THE SUM OF RS.15,21,500/- HAD BEEN DEPOSITED IN CASH ON DIFFERENT DATES. THE ASSESSEE WAS ASKED TO EXPLAIN THE SOURCE OF CASH DEPOSIT OF RS.15,21,500/-. IN RESPONSE TO THAT, THE ASSESSEE EXPLAINED TO THE AO THAT THE DEPOSIT OF RS.15,21,500/- WAS OUT OF SALE PROCEEDS OF HIS RESIDENTIAL FLAT AT 34A, MOMONPUR ROAD, KOLKATA 700 027 TO MR ASGAR ALI WARSI BABU FOR A CONSIDERATION OF RS.14,00,000/-. THIS FLAT WAS PURCHASED BY THE ASSESSEE FROM THE DEVELOPER FOUR YEARS BACK FOR A CONSIDERATION OF RS.10,75,000/- AND HE PAID THE AMOUNT IN CASH IN INSTALMENTS. THE ASSESSEE SUBMITTED THAT CASH IN SAVING BANK ACCOUNT WAS DEPOSITED, OUT OF THE SALE PROCEEDS OF RS.14,00,000/- WHICH HE RECEIVED IN CASH IN INSTALMENTS FROM THE BUYER OF HIS FLAT. HOWEVER, THE ASSESSEE WAS ASKED TO SUBMIT THE COPY OF THE SALE DEED OF THE FLAT AS THE DOCUMENT IN SUPPORT OF HIS CLAIM. THE ASSESSEE WAS ALSO ASKED TO SUBMIT THE COPY OF THE DEED OF PURCHASE OF THE PROPERTY BY HIM. DURING THE ASSESSMENT PROCEEDINGS, THE ASSESSEE SUBMITTED ONLY A COPY OF MONEY RECEIPTS BUT HE COULD NOT SUBMIT ANY OF THE DEEDS I.E. SALE DEED AND PURCHASE DEED ETC. THE ASSESSEE EXPLAINED TO THE AO THAT HE HAD ONLY THE POSSESSION RIGHT OF THE PROPERTY. THE ASSESSEE NEVER REGISTERED THE FLAT IN HIS NAME. HOWEVER, THE ASSESSEE SUBMITTED THAT NO PURCHASE DEED WAS MADE. SIMILARLY, ON SALE, HE ALSO TRANSFERRED THE POSSESSION RIGHT OF THE PROPERTY TO ITS BUYER. NO DEED WAS MADE THIS TIME ALSO. HOWEVER, THE AO ASKED THE ASSESSEE TO PRODUCE THE COPY OF AGREEMENT TO SALE OF THAT PROPERTY. DURING THE MR. ATAUR RAHMAN ITA NO.347/KOL/2016 ASSESSMENT YEAR: 2009-10 PAGE | 3 ASSESSMENT PROCEEDINGS, THE AO ALSO SENT A NOTICE U/S 133(6) TO MR. ASGAR ALI WARSI BABU, THE BUYER OF THE FLAT FOR CONFIRMATION OF THE TRANSACTION BUT NO REPLY WAS RECEIVED BY THE AO FROM MR. ALI BABU. THEREFORE, THE AO HELD THAT THE ASSESSEE COULD NOT SUBSTANTIATE THE FACT AND HIS CLAIM AND THEREFORE, HE MADE THE ADDITION U/S 69A AS AN UNEXPLAINED MONEY AT RS.15,21,500/- 4. AGGRIEVED BY THE ORDER OF THE AO, THE ASSESSEE FILED AN APPEAL BEFORE THE LD. CIT(A) WHO HAS CONFIRMED THE ADDITION MADE BY THE AO. BEFORE THE LD. CIT(A), THE ASSESSEE PRODUCED A PHOTOCOPY OF A LEASE DEED, A COPY OF HAND-MADE MEMO RECEIPT. THE LD. CIT(A) ALSO OBSERVED THAT MR. ASGAR ALI BABU, THE BUYER OF THE FLAT HAD ALSO NOT CONFIRMED THE TRANSACTION AND DID NOT RESPONSE TO THE NOTICE U/S 133(6) OF THE ACT. BEFORE THE LD. CIT(A), THE ASSESSEE ALSO SUBMITTED THAT AT THE TIME OF FILING RETURN OF INCOME, THE ASSESSEE WAS IN SERIOUS MENTAL TRAUMA DUE TO THE DEATH OF HIS MINOR SON. THEREFORE, HE HAS FORGOT TO DISCLOSE HIS CAPITAL GAINS. THE LD. CIT(A) OBSERVED THAT ASSESSEE HAS APPEARED SEVERAL OCCASIONS BEFORE THE AO BUT HE HAS NOT PRODUCED ANY DOCUMENTS OR EXPLANATION TO SUBSTANTIATE HIS CLAIM. THEREFORE, THE LD. CIT(A) HELD THAT SINCE THE ASSESSEE HAS NOT EXPLAINED THE SOURCE OF CASH DEPOSIT IN THE SAID BANK ACCOUNT AND HENCE CONFIRMED THE ADDITION MADE BY THE AO. 5. NOT BEING SATISFIED WITH THE ORDER OF LD. CIT(A), THE ASSESSEE IS IN APPEAL BEFORE US. THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED BEFORE US THAT ASSESSEE PURCHASED AN UNREGISTERED FLAT UNDER AN AUTHORIZED SALE DEED IN CASH AT RS.8,25,000/- AT 34A, MOMINPUR ROAD, KOLKATA 700 023 AND SOLD THE SAID FLAT TO MR. ASGAR ALI WARSI BABU FOR RS.14,00,000/- IN CASH WITH A MONEY RECEIPT AND TRANSFERRED POSSESSION OF FLAT TO THE PURCHASER AND DEPOSITED THE ENTIRE CASH RECEIVED IN HIS BANK ACCOUNT. THE LEASE DEED IS DULY SIGNED BY BOTH PARTIES AND IS NOT REGISTERED. THE COUNSEL ALSO SUBMITTED THAT IN THE LOCALITY WHERE THE FLAT IS LOCATED, MOST OF THE PROPERTIES ARE NOT REGISTERED UNDER THE REGISTRATION ACT. MR. ATAUR RAHMAN ITA NO.347/KOL/2016 ASSESSMENT YEAR: 2009-10 PAGE | 4 6. ON THE OTHER HAND, THE LD. DR FOR THE REVENUE, HAS PRIMARILY REITERATED THE STAND TAKEN BY THE AO WHICH WE HAVE ALREADY NOTED IN OUR EARLIER PARA AND IS NOT BEING REPEATED FOR THE SAKE OF BREVITY. 7. WE HAVE GIVEN A CAREFUL CONSIDERATION TO THE RIVAL SUBMISSIONS AND PERUSED THE MATERIALS AVAILABLE ON RECORD, WE NOTE THAT DURING THE ASSESSMENT PROCEEDINGS, THE ASSESSEE HAS SUBMITTED BEFORE THE ASSESSING OFFICER THAT HE SOLD HIS RESIDENTIAL FLAT AT 34A, MOMINPUR ROAD, KOLKATA 700023 TO MR. ASGAR ALI WARSI BABU FOR A CONSIDERATION OF RS.14,00,000/- IN CASH. THE ASSESSEE ALSO STATED THAT THE SAID FLAT WAS PURCHASED BY HIM FROM THE DEVELOPER, FOUR YEARS BACK, FOR A CONSIDERATION OF RS.10,75,000/- AND HE PAID THE AMOUNT IN CASH IN INSTALMENTS. WHEN THE ASSESSING OFFICER ASKED THE ASSESSEE TO PRODUCE THE SALE DEED OF THE FLAT AND PURCHASE DEED OF THE SAID FLAT, THE ASSESSEE COULD NOT PRODUCE THE SAME BEFORE HIM. BEFORE THE LD. CIT(A), THE ASSESSEE SUBMITTED THAT DUE TO MENTAL TRAUMA BECAUSE OF DEATH OF HIS MINOR SON OF THE ASSESSEE, HE FORGOTTEN TO DISCLOSE THE CAPITAL GAIN. MEANING THEREBY THAT THE HOUSE BELONGS TO THE ASSESSEE WHICH HAD BEEN SOLD TO MR. ASGAR ALI WARSI BABU AND IT WAS NOT ON LEASE BASIS. HOWEVER, BEFORE US, THE LD. COUNSEL FOR THE ASSESSEE TOOK THE STAND, BY WAY OF SUBMITTING STATEMENT OF FACTS, THAT THE ASSESSEE PURCHASED THE FLAT UNDER AN UNREGISTERED LEASE DEED AT RS.8,25,000/- AND SOLD THE SAID FLAT TO MR. ASKAR ALI BABU AT RS.14,00,000/-. THE LD. COUNSEL ALSO SUBMITTED THAT ASSESSEE HAS IN HIS POSSESSION THE DOCUMENTARY EVIDENCEOF LEASE DEED AND RECEIPTS OF MONEY TO SUBSTANTIATE HIS CLAIM. THE ASSESSEE HAS POSSESSION RIGHTS OF THE SAID PROPERTY. THEREFORE, WE NOTE THAT THERE ARE CONTRADICTIONS IN RESPECT TO THE STAND TAKEN BY THE ASSESSEE BEFORE THE LOWER AUTHORITIES AND BEFORE US, AS TO WHETHER THE PROPERTY WAS ON LEASE BASIS OR ON OWNERSHIP BASIS. IT IS A QUESTION OF FACT AS TO WHETHER THE PROPERTY IN QUESTION IS OWNED OR LEASEHOLD PROPERTY OF THE ASSESSEE WHICH HAS NOT BEEN ADJUDICATED PROPERLY FOR THE CONTRADICTORY STAND OF THE ASSESSEE, FOR WHAT SO EVER REASON. THEREFORE, IN THE INTEREST OF JUSTICE AND FAIR PLAY, WE THINK IT PROPER TO REMIT THE SAID ISSUE TO THE FILE OF THE ASSESSING OFFICER TO EXAMINE THE DOCUMENTS. THE LD DR FOR THE REVENUE DID NOT HAVE MR. ATAUR RAHMAN ITA NO.347/KOL/2016 ASSESSMENT YEAR: 2009-10 PAGE | 5 RAISED ANY OBJECTION IF THE SAID ISSUE IS REMITTED BACK TO THE FILE OF THE ASSESSING OFFICER, THEREFORE, WE SET ASIDE THE ORDER OF LD CIT(A) AND RESTORE THE ISSUE TO THE FILE OF THE ASSESSING OFFICER AND WE DIRECT THE ASSESSING OFFICER TO VERIFY THE DOCUMENTS AND EXPLANATION SUBMITTED BY THE ASSESSEE AND AFTER GIVING PROPER OPPORTUNITY TO THE ASSESSEE OF BEING HEARD, DE NOVO ADJUDICATE THE ISSUE AS PER PROVISIONS OF LAW. THE ASSESSEE IS AT LIBERTY TO FURNISH DOCUMENTS TO SUBSTANTIATE HIS CASE. NEEDLESS TO SAY THE AO TO DECIDE THE ISSUE ON MERITS UNTRAMMELED BY ANY OBSERVATIONS MADE BY US WHILE PASSING THIS ORDER, THEREFORE, WE ALLOW THIS APPEAL FOR STATISTICAL PURPOSES. 8. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE, IS ALLOWED FOR STATISTICAL PURPOSES. ORDER IS PRONOUNCED IN THE OPEN COURT ON 14/03/2018. SD/- (A. T. VARKEY) SD/- (DR. A.L.SAINI) / JUDICIAL MEMBER / ACCOUNTANT MEMBER /KOLKATA; DATED 14/03/2018 [ RS SPS] / COPY OF THE ORDER FORWARDED TO : TRUE COPY TRUE COPY BY ORDER SENIOR PRIVATE SECRETARY, HEAD OF OFFICE/D.D.O, I.T.A.T, KOLKATA BENCHES, KOLKATA . 1. / THE ASSESSEE MR. ATAUR RAHMAN 2. / THE RESPONDENT-THE I.T.O, WD-54(4), KOLKATA 3. ( ) / THE CIT(A), KOLKATA. 4. / CIT 5. , , / DR, ITAT, KOLKATA 6. [ / GUARD FILE.