DCIT, New Delhi V. Sh Chander Prakash Babbar, Delhi

ITA 3651/DEL/2012

• Counselvise Citation: 365120114 RSA 2012
• Duration Of Justice: 2 year(s) 10 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-05-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 05-05-2015
• Assessment Year: 2005-2006
• Appeal Filed On: 12-07-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: K K JAISWAL
• Assessee Lawyers: K KAMPATH
• Keywords: Unexplained investment; Additional evidence
• Section: 142(1); 69; 148; 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: B NEW DELHI BEFORE SMT DIVA SINGH, JUDICIAL MEMBER AND SH. T.S.KAPOOR, ACCOUNTANT MEMBER I.T.A .NO.-3651/DEL/2012 (ASSESSMENT YEAR- 2005-06) DCIT, CIRCLE-19(1), ROOM NO.-301-G, VIKAS BHAWAN, I.P.ESTATE, NEW DELHI (APPELLANT) VS CHANDER PRAKASH BABBAR, 19/310, SHAHZADA BAGH, DAYA BASTI, DELHI. PAN-AARP9873H (RESPONDENT) APPELLANT BY SH.K.K.JAISWAL, SR. DR RESPONDENT BY SH.K. KAMPATH, ADV. ORDER PER DIVA SINGH, JM THIS IS AN APPEAL FILED BY THE REVENUE ASSAILING TH E ORDER OF THE CIT(A)- IX, NEW DELHI DATED 21.03.2012 PERTAINING TO 2005- 06 ASSESSMENT YEAR ON THE FOLLOWING GROUNDS:- 1. WHETHER ON THE FACTS AND CIRCUMSTANCES OF THE CASE , THE LD.CIT(A) HAS ERRED IN DELETING THE ADDITION OF RS. 20,00,000/- MADE BY THE AO ON ACCOUNT OF UNEXPLAINED INVESTMENT IN PROPERTY U/S 69 OF THE INCOME TAX ACT, 1961. 2. WHETHER ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) FAILED TO APPROPRIATE THE REMAND REPORT BY A O WHICH CLEARLY MENTIONED THAT THE ASSESSEE HAS FAILED TO P ROVIDE ANY EXPLANATION AS TO THE SOURCE OF THE INVESTMENT OF R S.20 LAKHS IN THE PROPERTY AND THE SAME IS NOT EXPLAINABLE FROM T HE RETURN OF INCOME FILED BY ASSESSEE. 2. THE RECORD SHOWS THAT THE ASSESSEE FILED A RETUR N DECLARING AN INCOME OF RS.2,78,731/-.AFTER BEING PROCESSED U/S 143(1) THE SAID RETURN WAS RE-OPENED ON THE BASIS OF INFORMATION RECEIVED AS PER INDIVID UAL TRANSACTION STATEMENT (HEREINAFTER REFERRED TO AS ITS) THAT THE ASSESSE E HAD PURCHASED PROPERTY AMOUNTING TO RS.20,00,000/-. AFTER MAKING ATTEMPTS TO SERVE NOTICE UPON THE ASSESSEE THE ASSESSING OFFICER (HEREINAFTER REFERRE D TO AS THE AO) PASSED ON EX- DATE OF HEARING 05.05.2015 DATE OF PRONOUNCEMENT 15 .05.2015 I.T.A .NO.-3651/DEL/2012 PAGE 2 OF 5 PARTE ORDER U/S 144 THEREBY MAKING THE ADDITION OF THE SAID AMOUNT. IN APPEAL BEFORE THE FIRST APPELLATE AUTHORITY, THE ASSESSEE ASSAILED THE ASSESSMENT ORDER PASSED U/S 144 ON THE GROUNDS OF LACK OF OPPO RTUNITY AND ALSO ASSAILED THE ADDITIONS MADE ON MERIT. THE SUBMISSIONS OF THE ASSESSEE ON MERIT ARE SET OUT IN PARA 4.2 & 4.3 THE IMPUGNED ORDER. THESE SU BMISSIONS ,DATED 26.08.2011 WERE ALSO FORWARDED TO THE AO WHOSE REMA ND REPORT ON 31.12.2012 WAS ALSO RECEIVED BY THE CIT(A). AS PER PARA 4.5, COPY OF THE REMAND REPORT WAS MADE AVAILABLE TO THE ASSESSEE FO R HIS OBJECTIONS. CONSIDERING THESE THE CIT(A) CAME TO THE CONCLUSION THAT THE ASSESSEES SHARE WAS ONLY RS.10,00,000/- AND THE REMAINING RS.10,00, 000/- WAS CONTRIBUTED BY THE CO-OWNER MR. MANOJ KUMAR SEHGAL AND ACCEPTING T HE ASSEESSS EXPLANATION THE ADDITION WAS DELTED. 3. AGGRIEVED BY THIS THE REVENUE IS IN APPEAL BEFOR E THE TRIBUNAL. 4. THE LD. SR. DR RELIES UPON THE ASSESSMENT ORDER AND THE REMAND REPORT FILED BY THE AO AND IT WAS HIS SUBMISSION THAT NO E VIDENCE HAS BEEN FILED SO AS TO CONCLUDE THAT MR. MANOJ KUMAR SEHGAL WAS ALSO CO -OWNER OF THE SAID PROPERTY. THE LD. AR IN REPLY APART FROM THE RELYI NG UPON THE SUBMISSIONS MADE BEFORE THE CIT(A) AND THE FINDING ARRIVED AT T HEREIN SUBMITTED THAT AS PER COPY OF THE SALE DEED AVAILABLE WITH THE DEPARTMENT , THE NAME OF THE ASSESSEE APPEARS ALONG WITH THE NAME OF SH.MANOJ KUMAR SEHGA L, AS CO-OWNER OF THE SAID PROPERTY; THE SAID EVIDENCE IT WAS SUBMITTED WAS ALWAYS AVAILABLE TO THE DEPARTMENT AS THE ADDITIONS ON FACTS HAD BEEN MADE BASED ON THIS VERY PURCHASE DEED. 5. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. A PERUSAL OF THE SAME SHOWS THAT THE AO IN THE REMAND REPORT HAS MERELY RE-ITERATED THE POSITION IN REGARD TO TH E FACT THAT THE ASSESSEE DID NOT APPEAR BEFORE HIM. CONSEQUENT TO WHICH THE ASS ESSMENT WAS FRAMED U/S 144. IT IS FURTHER SEEN THAT IN THE REMAND REPORT THE AO HOLDS THAT MORE THAN SUFFICIENT OPPORTUNITY WAS GIVEN TO THE ASSESSEE HO WEVER HE HAS NOT ADDRESSED THE STAND OF THE ASSESSEE THAT NOTICE U/S 142(1) AN D U/S 148 WERE NEVER RECEIVED BY THE ASSESSEE. ALTHOUGH THE SAID ISSUE IS NOT REQUIRED TO BE ADJUDICATED BY US, IN THE PRESENT PROCEEDING HOWEVE R, THE FACT REMAINS THAT SINCE THE ASSESSEE NEVER APPEARED THE OPPORTUNITY E VEN IF PROVIDED COULD I.T.A .NO.-3651/DEL/2012 PAGE 3 OF 5 OBVIOUSLY NOT BE AVAILED AS THE ORDER PASSED IS AN EX-PARTE PAST ORDER. THUS THE ADDRESSAL IDEALLY OUGHT TO HAVE BEEN MADE ON TH E MERITS OF THE EVIDENCE. A PERUSAL OF THE IMPUGNED ORDER FURTHER SHOWS THAT TH E CIT(A) REQUIRED THE ASSESSEE TO FURTHER SUPPORT ITS CLAIM AND THE ASSES SEE AS PER THE RECORD IS FOUND TO HAVE MADE THE FOLLOWING SUBMISSIONS:- 4.6. IN THE MEANTIME, THE APPELLANT WAS ASKED TO E STABLISH ITS CONTENTION THAT ITS SHARE IN THE PROPERTY PURCHASED WAS RS.10,00,000/- ONLY WHEREAS THE BALANCE AMOUNT OF RS.10,00,000/- WAS CONTRIBUTED BY THE CO-OWNER VIZ SHRI MANOJ KUMAR SEHGAL. IN THIS REGARD THE APPELLANT SUBMITTE D AS UNDER:- THIS IS IN CONTINUATION TO THE APPELLATE PROCEEDIN GS IN THE CAPTIONED CASE, WHEREIN AFTER A PERUSAL OF THE APPE LLANT REJOINDER TO THE REMAND REPORT, SUBMITTED ON 28.02. 2012, YOUR GOODSELF REQUISITIONED THE UNDERSIGNED TO PROV IDE THE IDENTITY AND PARTICULARS OF THE CO-BUYER OF PROPERT Y PLOT NO. 53, ON ROAD NO. 3, CLASS-3, PUNJABI BAGH, NEW DELHI FOR A CONSIDERATION OF RS.20,00,000/-. IT IS SUBMITTED TH AT IT WAS BROUGHT ON RECORD WITH CLINCHING EVIDENCE THAT THE APPELLANT HAD PAID TOWARDS HALF SHARE, IN THE AFORESAID PROPE RTY, OF THE SUM OF RS. 10,00,000/-. IT IS SUBMITTED THAT YOUR G OODSELF, THUS ENQUIRED TO KNOW THE INCOME TAX PARTICULARS AN D SOURCE OF CONTRIBUTION OF THE BALANCE SUM OF RS. 10,00,000 /- BY THE OTHER CO-OWNER SH. MANOJ KUMAR SEHGAL S/O SH. K. K. SEHGAL, R/O E-94, KIRTI NAGAR, NEW DELHI. IT IS SUBMITTED THAT SINCE THE AFORESAID PROPERTY, OF WHICH THE APPELLANT WAS A JOINT CO-OWNER, HAS BEEN SOLD, THE WHERE ABOUT OF SH. MANOJ KUMAR SEHGAL ARE CURRENTLY NOT KNOWN TO THE APPELLANT. A REQUEST FOR OBTAINING THE BANK ACCOUNT OF SH. MANOJ KUMAR SEHGAL WAS MADE, THROUGH HIS BANKER AND A COPY OF THE BANK A/C MAINTAINED BY MR. MANOJ KUMAR SEHGAL, BEARING A/C NO. 03631000006729 MAINTA INED WITH HDFC BANK LTD, KIRTI NAGAR NEW DELHI BRANCH HA S BEEN OBTAINED, WHICH IS PRODUCED IN ORIGINAL AND A PHOTO COPY IS BEING FILED FOR YOUR KIND PERUSAL. IT IS SUBMITTED THAT THE BANK A/C OF SH. MANOJ KUMAR SEHGAL INDICATES THE PR OOF OF PAYMENT TO THE SELLERS OF THE PROPERTY BY WAY OF FO R CHEQUE OF RS. 2,50, 000/- EACH VIDE CHEQUE NOS. 0118463, 0118 464, 0118465 AND 0118466 RESPECTIVELY TO EACH OF THE FOU R CO SELLERS. FOR YOUR KIND INFORMATION THE OTHER PARTIC ULARS OF SH. MANOJ KUMAR SEHGAL ARE DETAILED AS UNDER: NAME MANOJ KUMAR SEHGAL FATHER NAME SH. K. K. SEHGAL ADDRESS E-94, KIRTI NAGAR, NEW DELHI PAN BCKPS 0971B (COPY ENCLOSED)' 5.1 IT IS SEEN THAT ONLY AFTER CONSIDERING THIS THE CIT(A) CAME TO THE FOLLOWING CONCLUSIONS:- I.T.A .NO.-3651/DEL/2012 PAGE 4 OF 5 4.7 I HAVE CONSIDERED THE FINDINGS RECORDED BY THE ID. AD AS PER THE ASSESSMENT ORDER, THE SUBMISSIONS MADE BY THE I D. AR AND THE FACTS OF THE CASE ON RECORD. AS MENTIONED EARLIER, THE ID. AD ADDED AN AMOUNT OF THE 20 LAKH TO THE TOTAL INCOME OF THE APPELLANT HOLDING THE SAME TO BE UNEXPLAINED INVESTMENTS U/S 69 OF TH E ACT. DURING APPELLATE PROCEEDINGS, THE ID. AR SUBMITTED THAT TH E PROPERTY UNDER QUESTION WAS PURCHASED BY THE APPELLANT IN JOINT OW NERSHIP WITH ONE SH. MANOJ KUMAR SEHGAL, AND THE TWO CO-OWNERS C ONTRIBUTED AN EQUAL AMOUNT OF RS.10 LAKHS EACH. THE ID. AR, THERE FORE, SUBMITTED THAT THE CONTRIBUTION OF THE APPELLANT WAS ONLY RS. 10 LAKHS. THE APPELLANT FILED A COPY OF THE BANK ACCOUNT WHEREIN THE SOURCES OF THE SAID AMOUNT OF RS.10 LAKHS AND ACCUMULATION THE REOF IS DULY REFLECTED. THE ADDITIONAL EVIDENCES FILED BY THE AP PELLANT UNDER RULE 46A WERE FORWARDED TO THE AO FOR REMAND REPORT. IN THE REMAND REPORT SUBMITTED, THE AO HAS REPEATED WHATEVER WAS STATED IN THE ASSESSMENT ORDER WITHOUT DISCUSSING THE EVIDENCES F ILED ON MERIT. HOWEVER, NOTHING ADVERSE HAS BEEN MENTIONED ABOUT B Y HIM ON THE SAID EVIDENCES IN THE REMAND REPORT. 5.2. IN THE ABOVEMENTIONED OVERALL FACTUAL MATRIX W HERE THERE IS NO REBUTTAL ON FACTS BY THE DEPARTMENT WE FIND OURSELVES UNABLE TO COME TO A CONTRARY FINDING WHERE NO INFIRMITY HAS BEEN BROUGHT OUT IN IMPUGNED ORDER AND THE FACTS REMAIN UNCONTROVERTED. FROM A PERUSAL OF THE COPY OF THE PURCHASE DEED AVAILABLE ON RECORD ITSELF IT IS SEEN THAT MR. MANO J KUMAR SEHGAL WAS THE CO- OWNER OF THE SAID PROPERTY THE MODE OF PAYMENT FOR THE STATED PROPERTY BY SPECIFIC CHEQUES ETC. ARE ALL AVAILABLE ON RECORD. THE ENQUIRY SO MADE IN FACT IS THE BASED ON THE PURCHASE OF PROPERTY OF RS. 20 LAK HS WERE ADMITTEDLY ASSESSES SHARE ON THE BASIS OF THE DOCUMENT ITSELF WAS ONLY RS. 10 LAKHS AND IDEALLY THE REVENUE ON FACTS SHOULD NOT HAVE AGITAT ED THE ISSUE ANY FURTHER. ACCORDINGLY IN THE ABSENCE OF ANY REBUTTAL ON THE P ART OF THE REVENUE ON FACTS THE DEPARTMENTAL GROUND IS DISMISSED. THE SAID ORDE R WAS PRONOUNCED IN THE PRESENCE OF THE PARTIES IN THE OPEN COURT. 8. IN THE RESULT THE APPEAL OF THE REVENUE IS DISMI SSED. THE ORDER IS PRONOUNCED IN THE OPEN COURT ON 15 TH OF MAY 2015. SD/- SD/- (T.S.KAPOOR) (DIVA SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 15/05/2015 *AMIT KUMAR/R.NAHEED* COPY FORWARDED TO: I.T.A .NO.-3651/DEL/2012 PAGE 5 OF 5 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR ITAT NEW DELHI DATE 1. DRAFT DICTATED ON 05.05.2015 PS 2. DRAFT PLACED BEFORE AUTHOR 07.05.2015 PS 3. DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER JM/AM 4. DRAFT DISCUSSED/APPROVED BY SECOND MEMBER. JM/AM 5. APPROVED DRAFT COMES TO THE SR.PS/PS .05.2015 PS/PS 6. KEPT FOR PRONOUNCEMENT ON PS 7. FILE SENT TO THE BENCH CLERK .05.2015 PS 8. DATE ON WHICH FILE GOES TO THE AR 9. DATE ON WHICH FILE GOES TO THE HEAD CLERK. 10. DATE OF DISPATCH OF ORDER.