Smt. Manju, Kurukshetra V. ITO-Ward-2, Karnal

ITA 36/CHANDI/2020

• Counselvise Citation: [2021] 109 COUNSELVISE.COM (IT) 2215 (ITAT-CHANDIGARH)
• Duration Of Justice: 1 year(s) 1 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-02-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 10-02-2021
• Assessment Year: 2011-2012
• Appeal Filed On: 09-01-2020
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ASHOK KHANNA CIT
• Keywords: Opportunity of being heard; Principle of natural justice; Additional evidence; Reasonable cause; Set aside
• Section: 147; 69; 148

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL, CHANDIGARH BE NCH B, CHANDIGARH .., ! '# .. , $ %& BEFORE: SHRI. N.K.SAINI, VP & SHRI , R.L. NEGI, JM ITA NO.35/CHD/2020 ASSESSMENT YEAR : 2011-12 SMT. USHA W/O SHRI PAWAN KUMAR, VPO- LUKHI, TEHSIL-THANESAR KURUKSHETRA-136119, HARYANA THE ITO WARD-2, KURUKSHETRA-13118 HARYANA PAN NO: AIOPU2161N APPELLANT RESPONDENT ITA NO.36/CHD/2020 ASSESSMENT YEAR : 2011-12 SMT. MANJU W/O SHRI SUSHIL KUMAR, VPO- LUKHI, TEHSIL-THANESAR KURUKSHETRA-136119, HARYANA THE ITO WARD-2, KURUKSHETRA-13118 HARYANA PAN NO: DWOPM7102N APPELLANT RESPONDENT !' ASSESSEE BY : SHRI AMITOZ SINGH KAMBOJ, CA #!' REVENUE BY : SHRI ASHOK KHANNA, ADDL. CIT $ %! & DATE OF HEARING : 10/02/2021 '()*! & DATE OF PRONOUNCEMENT : 18/02/2021 %'/ ORDER PER N.K. SAINI, VICE PRESIDENT THESE TWO APPEALS BY THE ASSESSEE ARE DIRECTED AGAINST THE SEPARATE ORDERS OF LD. CIT(A), KARNAL DATED 06/11/2019 AND 07/11/2019 R ESPECTIVELY. 2. SINCE THE ISSUE INVOLVED IN BOTH THE ABOVE APPEALS IS COMMON AND THE APPEALS WERE HEARD TOGETHER SO THESE ARE BEING DISPOSED OFF BY THIS CONSOLIDATED ORDER FOR THE SAKE OF CONVENIENCE AND BREVITY. 2 3. FIRSTLY WE SHALL DEAL WITH THE APPEAL IN ITA NO. 35/ CHD/2020 WHEREIN THE ONLY GROUND RAISED READ AS UNDER: 1. THE LD. CIT(A) HAVE ERRED IN LAWS AND ON THE FA CTS OF THE CASE BY CONFIRMING THE ADDITIONS MADE THE LD. A.O. AMOUNTING TO RS. 26,59, 670/- TO THE TOTAL INCOME OF THE ASSESSEE BY APPLYING THE PROVISIONS OF SECTION 69 O F THE INCOME TAX ACT, 1961, ON THE GROUND THAT THE ASSESSEE HAD MADE PAYMENTS FOR PURC HASE OF PROPERTY, WHEREAS IT WAS A FAMILY TRANSFER AND NO CONSIDERATION EXCHANGED HAND S. 4. FACTS OF THE CASE IN BRIEF ARE THAT THE CASE OF THE ASSESSEE WAS REOPENED UNDER SECTION 147 OF THE INCOME TAX ACT, 1961 (HEREINAFTER R EFERRED TO AS ACT) FOR THE REASONS THAT THE ASSESSEE HAD FAILED TO FURNISH THE SOURCE OF IN VESTMENT IN PURCHASE OF PROPERTY AMOUNTING TO RS. 77,32,000/- DURING THE YEAR RELEVANT T O THE ASSESSMENT YEAR UNDER CONSIDERATION. ACCORDINGLY, NOTICE UNDER SECTION 148 OF THE ACT WAS ISSUED TO THE ASSESSEE. IN RESPONSE THE ASSESSEE E-FILED THE RETUR N OF INCOME ON 23/06/2018 DECLARING NIL INCOME. THEREAFTER THE CASE WAS SELECTED FOR SCRUT INY AND THE A.O. ASKED THE ASSESSEE ABOUT THE SOURCE OF INVESTMENT IN THE PURCHASE OF PROPERTY AMOUNTING TO RS. 77,32,000/-. 4.1. IN RESPONSE THE ASSESSEE FURNISHED THE COPY OF PURCHASE DEED, COPY OF DECREE DT. 24/11/1990 & AFFIDAVIT OF SHRI CHHAJU SINGH AND SUBM ITTED AS UNDER: ' THE ASSESSEE ALONGWITH SMT MANJIT W/O SH. SUSHIL KUMAR AND SMT. REENA RANI W/O SH. SAIINDER SINGH HAD GOT TRANSFERRED AGRICULTURAL LAN D MEASURING 61 KANAL AND 17 MARLAS IN THEIR NAME FROM SH. CHHAJU S/O SH. BABU RAM ALIAS B ANT RAM THROUGH SALE DEED NO. 14096, DATED 03.03.20. THIS LAND WAS ORIGINALLY BELONGED T O THE ASSESSEE'S FAMILY (SMT. BALA DEVI W/O SH MAHPAL SINGH) AND DUE TO SOME FAMILY REASONS IT WAS TRANSFERRED IN THE NAME OFSH. CHAJJU BY WAY OF CIVIL COURT DECREE DATED 24' NOV., 1990 PASSED IN CIVIL SUIT NO. 93 7 OF 1990. THE LAND WAS BEING CULTIVATED BY THE ASSESSEE FAMILY EVEN AFTER IT WAS DECREED IN THE NAME OF SH. CHAJJU. FURTHER, AFTER THE THOUGHTF UL DISCUSSION WITH HIS SISTER, SMT. BALA DEVI, SH. CHAJJU HAS DECIDED TO TRANSFER THE ABOVE SAID L AND IN THE NAME OF SMT. USHA DEVI WIFE OF'SH. PAWAN KUMAR S/O SH. MAHIPAL, SMT. MANJU W/O SH. SUSHIL KUMAR S/O SH. MAHIPAL AND SMT. REENA RANI W/O SH. SATINDER SINGH S/O SH. MAHI PAL WHO HAPPENS TO BE WIVES OF SONS OF SMT. BALA DEVI, BY WAY OF SALE DEED NO. 14096 DA TED 03.03.2011. 4.2 HOWEVER THE A.O. DID NOT FIND MERIT IN THE SUBMISSI ON OF THE ASSESSEE AND MADE THE ADDITION OF RS. 26,59,670/- BY OBSERVING AS UNDER: THE REPLY FILED BY (HE ASSESSEE HAS BEEN CONSIDERE D BUT NOT ACCEPTED. IN THIS CASE, FROM THE PERUSAL OF SALE DEED NO. 140 96 DATED 03.03.2011. IT 3 IS FOUND THAT THE ASSESSEE, SMT, USHA DEVI W/O SH.PAWAN KUMA R ALONGWITH OTHERS HAS GIVEN TOTAL SALE CONSIDERATION OF RS. 77 ,32,000/- IN CASH AT HOME TO SH CHAJJU SINGH, SELLER OF THE PROPERTY AND IT IS CLEARLY MENTIONED IN THE SALE DEED THAT NO AMOUNT OF SALE CONSIDERATI ON IS OUTSTANDING. FURTHER, THE ASSESSEE HAS NOT FURNISHED SOURCE OF S TAMP DUTY OF RS. 2,32.000/- AND REGISTRATION CHARGES RS. 15,000/- PA ID AT THE TIME OF EXECUTION OF SALE DEED. HENCE, THE TOTAL INVESTMENT IN PURCHASE OF PROPERTY MADE BY THE ASSESSEE ALONGWITH OTHERS IS C ALCULATED AT RS.79,79,000/- AND THE ASSCSSEE IS HAVING 1/3'' SHA RE IN PURCHASE OF PROPERTY. THUS, TOTAL INVESTMENT MADE BY THE ASSESS EE IN PURCHASE OF PROPERTY IS RS. 26.59,670/-. KEEPING IN VIEW THE FA CTS OF THE CASE AND SALE DEED, THE PLEA TAKEN BY THE ASSESSEE THAT NO CONSID ERATION IN PURCHASE OF PROPERTY IS MADE BY THE ASSESSEE IS NOT ACCEPTED AND ADDITION OF RS. 26.59.670/- IS MADE TO THE TAXABLE INCOME OF THE AS SESSEE AS THE ASSESSEE. 5. BEING AGGRIEVED THE ASSESSEE CARRIED THE MATTER TO THE LD. CIT(A) AND FURNISHED THE WRITTEN SUBMISSION WHICH HAS BEEN REPRODUCED BY THE LD. CIT(A) IN PARA 3.1 AT PAGE NO. 2 TO 10 OF THE IMPUGNED ORDER, FOR THE COST OF REPETITION THE SAME IS NOT REPRODUCED HEREIN. 6. THE LD. CIT(A) AFTER CONSIDERING THE SUBMISSIONS OF THE ASSESSEE REPRODUCED THE OBSERVATIONS OF THE A.O. IN PARA 2 TO OF THE ASSESSMENT ORDER AND THEREAFTER CONFIRMED THE ADDITION BY OBSERVING AS UNDER: THE APPELLANT, IN RESPONSE, HAS MERELY STATED THA T NO ACTUAL SALE TOOK PLACE AND HENCE THE QUESTION OF ACTUAL CONSIDERATION CHANGING HANDS DOES NOT ARISE AT ALL. IT HAS BEEN STATED THAT THE FIGURE AS MENTIONED IN THE SALE DEE D AND THE REGISTRATION OF THE SAME WAS DONE TO SAFEGUARD THE INTEREST OF BOTH PARTIES, VIZ . SH. CHHAJU (THE MATERNAL UNCLE OF THE APPELLANTS SPOUSE) AND THE ASSESSEE. THESE EXPLANATIONS ARE, AT BEST, FLIMSY AND THE ASS ESSEE CANNOT DENY THAT THE AGREEMENT WAS REGISTERED AND CASH CHANGED HANDS, MERELY BY ST ATING THAT IT WAS AN ARRANGEMENT WHERE NO TRANSACTION IN IMMOVABLE PROPERTY TOOK PLA CE. THIS EXPLANATION CANNOT SUFFICE, IN VIEW OF THE TANGIBLE EVIDENCE ON RECORD WHICH CANNO T BE IGNORED. THERE IS NO COGENT EVIDENCE BOUGHT BY THE ASSESSEE TO PROVE THAT NO SA LE TOOK PLACE. HENCE, THE ADDITION HAS BEEN RIGHTLY MADE AND I CON FIRM THE SAME. 7. NOW THE ASSESSEE IS IN APPEAL. 8. LD. COUNSEL FOR THE ASSESSEE SUBMITTED AN APPLICA TION UNDER RULE 29 OF THE INCOME TAX RULES 1963 FOR ADMISSION OF THE ADDITIONAL EVIDENCE STATING THEREIN AS UNDER: SUBJECT: APPLICATION FOR FILING OF ADDITIONAL EV IDENCE UNDER RULE 29 OF ITAT RULES, 1963 HON'BLE MEMBERS, 4 1. MOST RESPECTFULLY, THROUGH THIS APPLICATION UNDER R ULE 29 OF ITAT RULES, 1963, WE PRAY THAT THERE ARE CERTAIN DOCUMENTS NAMELY GIRDAVARIS OF LAND WHICH HAS MATERIAL BEARING ON THE IDENTICAL ISSUE TO BE DECIDED WHICH IS INVOLVED IN THE ABOVE-MENTIONED PRESENT APPEALS. 2. IN THIS RESPECT, IT IS SUBMITTED THAT THE ADDITION OF RS. 26,59,670/- WAS MADE BY APPLYING THE PROVISIONS OF SECTION 69 OF THE INCOME TAX ACT, 1961, ON THE GROUND THAT THE ASSESSEE HAD MADE PAYMENTS FOR PURCHASE OF AGRICULT URAL LAND, WHEREAS IT WAS A FAMILY TRANSFER AND NO CONSIDERATION EXCHANGED HANDS. 3. THAT IN OUR CASE, BRIEF FACTS OF THE CASE ARE THAT THE LAND IN QUESTION WAS EARLIER IN THE NAME OF ASSESSEE'S MOTHER IN LAW, SMT. BALA DEVI AN D IN YEAR 1990 THE SAME GOT TRANSFERRED IN THE NAME OF SH. CHAJJU (SMT. BALA DEVI'S BROTHER ) THROUGH CIVIL COURT DECREE AND THEREAFTER IN AY 2011-12 THE SAME GOT TRANSFERRED B ACK UNDER FAMILY SETTLEMENT IN THE NAME OF ASSESSEE AND OTHER TWO DAUGHTER IN LAWS OF SMT. BALA DEVI. DURING THE ASSESSMENT PROCEEDINGS AS WELL TIRST APP ELLATE PROCEEDINGS IT WAS PLEADED THAT THE SAID LAND HAS ALWAYS BEEN CULTIVATED BY THE ASS ESSEE'S FAMILY EVEN PRIOR TO DECREE OR THEREAFTER TILL THE ACTUAL TRANSFER IN AY 2011-12. 4. SAID ADDITIONAL EVIDENCE I.E GIRDAVARIS OF LAND WHI CH HAVE A SIGNIFICANT BEARING ON THE CASE WERE TO BE TAKEN FROM REVENUE AUTHORITIES / TEHSIL OFFICE AND BECAUSE OF NON- POSSIBILITY OF PROCUREMENT OF THE SAME FROM TEHSIL OFFICE, SAID EVIDENCE COULD NOT BE SUBMITTED DURING THE ASSESSMENT PROCEEDINGS OR FIRS T APPELLATE PROCEEDINGS. 5. SO, WE HEREBY PRAY THAT THESE DOCUMENTS BE ALLOWED AS ADDITIONAL EVIDENCE AS PER RULE 29 OF ITAT RULES, 1963 FOR THE PROPER ADJUDICA TION OF THE ISSUE AND IN THE INTEREST OF JUSTICE AND COULD NOT BE OBTAINED BY THE ASSESSEE E ARLIER DUE TO THE CIRCUMSTANCES BEYOND HIS CONTROLS, THUS THERE BEING A REASONABLE CAUSE FOR SUBMITTING THIS EVIDENCE BEFORE THIS HON'BLE BENCH. 6. LIST OF DOCUMENTS, BEING SUBMITTED AS ADDITIO NAL EVIDENCE, ARE ENCLOSED HEREWITH AND THE INDEX FOR ADDITIONAL EVIDENCE IS AS UNDER: 9. LD. COUNSEL FOR THE ASSESSEE REITERATED THE CONTENT S OF THE AFORESAID APPLICATION AND SUBMITTED THAT THESE NEW EVIDENCES IN THE FORM OF CO PY OF GIRDAWARI, COURT DECREE OF AGRICULTURE LAND HAVE A SIGNIFICANT BEARING O N THE PRESENT CASE. IT WAS FURTHER SUBMITTED THAT DURING THE COURSE OF ASSESSMENT PROCEED ING AND FIRST APPELLATE PROCEEDINGS THESE DOCUMENTS COULD NOT BE PROCURED FRO M REVENUE AUTHORITIES BUT THESE GO TO THE ROOT OF THE MATTER, SO THESE MAY BE ADM ITTED AND THE MATTER MAY BE SET ASIDE TO THE FILE OF THE A.O. FOR FRESH ADJUDICAT ION AFTER CONSIDERING THESE ADDITIONAL EVIDENCES. S. NO. PARTICULARS PAGE NO. 1 COPY OF GIRDAVARI OF THE AGRICULTURAL LAND IN GUEST ION FOR THE PERIOD 1986 TO 1996 AS WELL AS FROM 2006 TO 2011 1-12 2 ENGLISH TRANSLATION OF THE GIRDAVARI OF THE AGRIC ULTURAL LAND IN GUESTION 13-27 5 10. LD. DR ALTHOUGH SUPPORTED THE ORDERS OF THE AUTHO RITIES BELOW BUT COULD NOT CONTROVERT THE AFORESAID PREPOSITION OF THE LD. COUNSEL FOR THE ASSESSEE. 11. WE HAVE CONSIDERED THE SUBMISSIONS OF BOTH THE PARTI ES AND CAREFULLY GONE THROUGH THE MATERIAL AVAILABLE ON THE RECORD. IN OUR O PINION THE ADDITIONAL EVIDENCE NOW FURNISHED BY THE ASSESSEE IN THE FORM OF COPY OF KHASR A GIRDAWARI, COURT DECREE DT. 24/11/2019 GO TO THE ROOT OF THE MATTER, SO THESE NEW ADDITIONAL EVIDENCES ARE ADMITTED. HOWEVER THE ADDITIONAL EVIDENCES, FURNISHED B Y THE ASSESSEE WERE NOT AVAILABLE TO THE AUTHORITIES BELOW. WE THEREFORE BY K EEPING IN VIEW THE PRINCIPLES OF NATURAL JUSTICE, DEEM IT APPROPRIATE TO SET ASIDE THI S ISSUE BACK TO THE FILE OF THE A.O. TO BE ADJUDICATED AFRESH IN ACCORDANCE WITH LAW AFTER DU E AND REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE AND BY CONSIDERING THE NE W EVIDENCES NOW FURNISHED BY THE ASSESSEE. 12. IN ITA NO. 36/CHD/2020 I.E; IN THE CASE OF SMT. M ANJU, THE FACTS ARE IDENTICAL AS WERE INVOLVED IN ITA NO. 35/CHD/2020 IN THE CASE OF SM R. USHA, THEREFORE OUR FINDINGS GIVEN IN THE FORMER PART OF THIS ORDER SHALL APPLY MUTAT IS MUTANDIS IN THIS CASE ALSO. 13. IN THE RESULT, APPEALS OF THE ASSESSEES ARE ALLOWE D FOR STATISTICAL PURPOSES. (ORDER PRONOUNCED IN THE OPEN COURT ON 18/02/2021 ) SD/- SD/- .. .., (R.L. NEGI ) ( N.K. SAIN I) $ %&/ JUDICIAL MEMBER ! / VICE PRESIDENT AG DATE: 18/02/2021 (+! ,-.- COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT 3. $ / CIT 4. $ / 01 THE CIT(A) 5. -2 45&456789 DR, ITAT, CHANDIGARH 6. 8:% GUARD FILE