Appeal details
Counselvise Citation
37023314 RSA 2013
Assessee PAN
Bench
Appeal Number
Duration Of Justice
1 year(s) 4 month(s) 4 day(s)
Appellant
Respondent
Appeal Type
Income Tax Appeal
Pronouncement Date
09-10-2014
Appeal Filed By
Department
Order Result
Dismissed
Bench Allotted
DB
Next Hearing Date
24-09-2014
Assessment Year
2011-2012
Appeal Filed On
04-06-2013
Judgement Text
IN THE INCOME TAX APPELLATE TRIBUNAL JODHPUR BENCH, JODHPUR BEFORE SHRI HARI OM MARATHA , JUDICIAL MEMBER AND SHRI N.K.SAINI, ACCOUNTANT MEMBER ITA NO S . 369 & 370 / JU/ 20 1 4 [ ASSESSMENT YEAR S : 200 9 - 10 & 2010 - 1 1] THE A.C.I.T VS. SHRI SHANKAR L AL VERMA CENTRAL CIRCLE F - E - 39 , J.N.V COLONY BIKANER BIKANER PAN NO. AISPV 0858 P CO NO. 06/JU/2014 ITA NO. 370 /JU/2014 [ASSESSMENT YEAR: 2010 - 11] SHRI SHANKAR LAL VERMA VS. THE A.C.I.T F - E - 39 , J.N.V COLONY CENTRAL CIRCL E BIKANER BIKANER PAN NO. AISPV 0858 P (APPELLANT) (RESPONDENT) A SSESSEE B Y : SHRI P.C. PARWAL DEPARTMENT B Y : SHRI O.P. MEENA - CIT , DR DATE OF H EARING : 2 4 . 0 9 .201 4 DATE OF PRONOUNCEMENT : 09 . 1 0 . 201 4 2 ORDER PER HARI OM MARATHA , J .M. TH ESE TWO APPEAL S BY THE REVENUE FOR A.YS. 2009 - 10 AND 2010 - 11 ARE DIRECTED A GAINST THE COMMON ORDER OF THE CIT (A) DATED 2 8 .0 3 .201 3 . THE CROSS OBJECTION HAS BEEN FILED BY THE ASSESSEE ONLY FOR A.Y. 2010 - 11 . IN ALL THE SE MATTERS ON SELF SAME, FACTS EXACTLY IDENTICAL, IDENTICAL ISSUES ARE INVOLVED, THEREFORE, FOR THE SAKE OF CONGRUENCE, CONVENIENCE AND BREVITY WE ARE DISPOSING THEM OFF BY THIS COMMON ORDER. 2. IT WAS BROUGHT TO OUR NOTICE THAT THE CO FILED BY THE ASSESS EE IS TIME BARRED BY 111 DAYS AND AN APPLICATION FOR CONDONATION OF DELAY HAS BEEN DULY FILED STATING THEREIN THE REASONS FOR THIS DELAY. IT IS SUBMITTED IN THIS APPLICATION THAT THE ASSESSEE BEING ILLITERATE, WAS NOT AWARE ABOUT THE FILING OF ANY APPEAL OR CROSS OBJECTION AGAINST A PORTION OF SUSTAINED ADDITION. THAT ON RECEIPT OF THE NOTICE OF APPEAL BY THE REVENUE, ETC, THE ASSESSEE CONTACTED HIS CHARTERED ACCOUNTANT. THIS MISTAKE WAS DISCOVERED AND AT THE EARLIEST OPPORTUNITY, THE CROSS OBJECTION WAS FILED. 3 3. WE HAVE HEARD THE RIVAL SUBMISSIONS AND HAVE CAREFULLY PERUSED THE RELEVANT MATERIAL ON RECORD. THE HON'BLE SUPREME COURT HAS LONG BACK LAID DOWN A PERFECT GUIDELINE WHILE DECIDING THE CASE OF COLLECTOR, LAND ACQUISITION VS MST. KATIJI & OTHER S (167 ITR 471), IN THEIR PITH AND SUBSTANCE, THAT WHEN SUBSTANTIAL JUSTICE IS PITTED AGAINST PEDANTIC REASONS, THE CAUSE OF SUBSTANTIAL JUSTICE SHOULD PREVAIL. RECENTLY, THE HON'BLE SUPREME COURT HAS REITERATED THE SAME PRINCIPLE WHILE DECIDING THE CASE OF IMPROVEMENT TRUST VS UJAGAR SINGH (2010) 6SCC 786 (S.C) [SOURCE WWW.ITATONLINE.ORG ] BY OBSERVING THAT JUSTICE CAN BE DONE ONLY WHEN THE MATTER IS FOUGHT ON MERITS AND IN ACCORDANCE WITH LAW RATHER THAN TO DISPO SE IT OFF ON SUCH TECHNICALITIES AND THAT TOO AT THE VERY THRESHOLD. IT WAS STRONGLY LAID THAT UNLESS MALAFIDES ARE WRIT LARGE ON THE FACE OF IT DELAY SHOULD BE CONDONED. IN THIS CASE, NO SUCH MALAFIDE IS EXHIBITED. T HE DELAY STANDS REASONABLY EXPLAINE D. HENCE, BY FOLLOWING THE DICTUM OF THE ABOVE DECISIONS, WE CONDONE THIS DELAY AND ADMIT THE CROSS OBJECTION AT ITS REGISTERED NUMBER GIVEN BY THE REGISTRY . 4. BRIEFLY STATED, THE FACTS OF THE CASE ARE THAT THE ASSESSEE , AGED 75 YEARS , RETIRED AS SUPER INTENDEN T ENGINEER FROM THE IRRIGATION D EPARTMENT, GOVERNMENT OF RAJASTHAN IN THE MONTH OF JULY 1994. AFTER 4 RETIREMENT, HIS ONLY SOURCE OF INCOME WAS PENSION INCOME AND INTEREST INCOME. THE ASSESSEE OWNED AN AGRICULTURAL LAND MEASURING 8 BIGHA AND 11 BISW A AT VILLAGE BORKHANDI, NAYA NOHRA, TEHSIL LADUPURA, KOTA. THIS LAND WAS RECEIVED BY HIM FROM THE WILL OF HIS MOTHER SMT. KUMANI DEVI DATED 20.06.1996. THE LAND WAS DULY TRANSFERRED IN THE NAME OF THE ASSESSEE IN THE REVENUE RECORDS AS PER THE ORDER OF THE TEHSILDAR ON 06.08.1998 , COPY PLACED AT PAGE 57 OF THE PAPER BOOK. THE ASSESSEE ENTERED INTO AN AGREEMENT DATED 06.02.2009 WITH SHRI RAVINDRA KUMAR SAHAI FOR SALE OF THIS LAND FOR RS. 1,38,80,000/ - . IN FACT, THE REAL PURCHASER OF THE LAND WAS GHANSHYAM K HUSWHA BUT SINCE ASSESSEE BELONGS TO SC/ST COMMUNITY AND AS PER THE STATE LAW, THE LAND BELONGING TO SUCH PERSON CAN BE PURCHASED ONLY BY ANOTHER PERSON OF THE SAME COMMUNITY, SHRI GHANSHYAM KHUSWHA ENTERED THE AGREEMENT IN THE NAME OF SHRI RAVINDRA SAHAI WHO IS OF THE SAME COMMUNITY. A S PER THE TERMS OF THE AGREEMENT, THE SALE CONSID ERATION WAS TO BE PAID AS UNDER: AT THE TIME OF SINGIN G OF AGREEMENT AS ON 06.02.2009 RS.15,00,000/ - BY 25.02.2009 RS.20,00,000/ - TOTAL RS. 35,00,000/ - THE REMAINING CONSIDERATION OF RS. 1,03,80,000/ - IS TO BE PAID AS FOLLOWS: - 5 INSTALMENT NO. AMOUNT (RS.) CHEQUE NO. AS ON FIRST 35,00,000/ - 296805 04.06.2009 SECOND 30,00,000/ - 296806 04.10.2009 THIRD 38,80,000/ - 296807 04.01. 2010 TOTAL 1,03,80,000/ - AS PER THE AGREEMENT, IF THE CHEQUES GIVEN ARE DISHONORED OR THE AMOUNT IS NOT PAID IN CASH BY THAT DATE, THE AGREEMENT WOULD BE CANCELLED AND THE PERIOD OF AGREEMENT WOULD NOT BE EXTENDED. THE ADVANCE MONEY WOULD BE FORFEITED . IT IS ALSO STATED IN THE AGREEMENT THAT TILL THE FULL PAYMENT IS MADE THE POSSESSION OF LAND WOULD REMAIN WITH THE ASSESSEE. IT WAS ALSO AGREED THAT THE BUYER CAN TAKE NECESSARY STEPS FOR PLANNING A RESIDENTIAL COLONY ON THE SAID LAND AND THE SELLER WOUL D HAVE RIGHT TO KEEP 4 PLOTS MEASURING 2000 SQ. FEET FOR HIS RESIDENCE FOR WHICH PAYMENT WOULD BE MADE BY HIM AT THE RATE DETERMINED BY THE BUYER. 4.1 AGAINST THE SAID AGREEMENT, ASSESSEE RECEIVED THE FOLLOWING AMOUNT FROM TIME TO TIME: - 6 DATE AMOUNT 06 .02.2009 15,00,000/ - 25.02.2009 20,00,000/ - 08.08.2009 13,00,000/ - 31.08.2009 5,00,000/ - 31.10.2009 13,00,000/ - TOTAL 66,00,000/ - 4.2 AS THE PURCHASER HAD NOT PAID THE AMOUNT AS PER AGREEMENT, THE ASSESSEE GAVE A PUBLIC NOTICE ON 2 9 . 0 1.2010 FOR CAN CELLATION OF THE SAID AGREEMENT WHICH WAS PUBLISHED IN RAJASTHAN PATRIKA , COPY PLACED AT PAGES 35 - 36 OF THE PAPER BOOK . THEREAFTER, ON 19.02.2010 THE PURCHASER PAID FURTHER AMOUNT OF RS. 47,00,000/ - IN CASH AGAINST THE ABOVE AGREEMENT. WHEN THE ASSESSEE WA S AT HIS BANK WITH PNB, SHOPPING CENTER KOTA TO DEPOSIT THIS AMOUNT IN HIS SB ACCOUNT ALONG WITH AN AMOUNT OF RS. 7,67,000/ - EARLIER WITHDRAWN FROM HIS LOCKER WITH PNB, SHOPPING CENTER, KOTA, HE WAS INTERCEPTED BY POLICE AT THE BANK ALONG WITH COPY OF AGRE EMENT TO SALE , COPY PLACED AT PAGE 9 OF THE PAPER BOOK . THIS WAS INFORMED BY THE POLICE DEPARTMENT TO INCOME TAX AUTHORITIES WHO STARTED THE PROCEEDINGS U/S 132A OF THE ACT BY RE QUISITIONING THE AMOUNT OF RS. 54,67,000/ - . THEREAFTER , ON 20.02.2010, CASH OF RS 4,75,000/ - FROM THE LOCKER AT PNB, SHOPPING 7 CENTER AND RS. 15,04,000/ - FROM SBBJ, RAJ BHAWAN ROAD, KOTA WAS TAKEN OUT AND SEIZED. 4.3 THE ASSESSEE WENT IN CIVIL WRIT BY FILING A PETITION BEFORE THE HON'BLE JURISDICTIONAL HIGH COURT WHO DIRECTED THE CO MPETENT AUTHORITY TO DECIDE THE REPRESENTATION OF THE PETITIONER REGARDING RELEASE OF THE SEIZED MONEY/ASSET WITHIN THE PERIOD OF ONE MONTH FROM THE DATE OF ORDER, COPY OF THIS ORDER WAS PRODUCED BEFORE HIM. THIS PETITION WAS FILED BY ONE SHRI P.D. MAHES HWARI ON BEHALF OF SHRI SHANKER LAL VERMA U/S 132B(1)(I) OF THE ACT. NOTICE U/S 153A WAS ISSUED FOR A.Y. 2004 - 05 TO 2009 - 10 ALONGWITH NOTICE U/S 142(1) OF THE ACT FOR A.Y. 2010 - 11 ON 21.1.2011. THE ASSESSEE RESPONDED BY FILING RETURN OF INCOME DECLARING TOTAL INCOME OF RS. 2,06,930/ - ON 25.2.2011. DURING ASSESSMENT PROCEEDINGS, THE ASSESSEE PRODUCED HIS COMPUTERISED BOOKS OF ACCOUNT WHICH INCLUDED CASH BOOK, BANK BOOK AND LEDGER. THE ASSESSEE HAD NOT FILED ORIGINAL RETURN U/S 139(1) OF THE ACT FOR THES E A.YS. THE A.O WANTED THE ASSESSEE TO SUBSTANTIATE ALL THESE TRANSACTIONS RECORDED IN HIS CASH BOOK ALONGWITH PROOF/EVIDENCE. THE A.O DID NOT FIND THE BOOKS SO PRODUCED AS REFLECTING TRUE AND CORRECT PICTURE OF THE FINANCIAL POSITION OF THE ASSESSEE. H E THEREFORE, INVOKED THE PROVISIONS OF SECTION 145(3) OF THE ACT. 8 4.3 STATEMENT OF THE ASSESSEE WAS RECORDED AT 5:00 PM ON 19.02.2010 (PB 12 - 18) AT POLICE STATION GUMANPURA, KOTA. IN THIS STATEMENT, ASSESSEE NARRATED ALL THE FACTS AND ALSO STATED ABOUT HIS 2 BANK LOCKERS. STATEMENT OF THE ASSESSEE WAS AGAIN RECORDED ON 22.02.2010 WHERE HE AGAIN EXPLAINED ALL THE FACTS. THEREAFTER, STATEMENT OF SHRI RAVINDRA KUMAR SAHAI WAS RECORDED ON 24.03.2010 WHERE HE ACCEPTED THAT HE IS EMPLOYED WITH SHRI GHANSHYAM KHU SWHA AND HE HAS EXECUTED AGREEMENT IN HIS NAME. STATEMENT OF SHRI GHANSHYAM KHUSWHA WAS ALSO RECORDED ON 19.02.2010 (PB 70 - 77) . THE FACTS STATED IN THIS STATEMENT CORROBORATES WITH THE FACTS STATED BY THE ASSESSEE AND SHRI RAVINDRA KUMAR SAHAI. 4.4 DURING ASSESSMENT PROCEEDINGS, THE ASSESSEE AGAIN EXPLAINED THE ENTIRE FACTS. HOWEVER, THE AO DISBELIEVED THE SAME AND CONSIDERED THE AMOUNT OF RS. 1,13,00,000/ - (66,00,000 + 47,00,000) AS UNDISCLOSED INCOME OF THE ASSESSEE DUE TO THE FOLLOWING REASONS: - (I) T HE VALIDITY PERIOD OF THE SALE AGREEMENT EXPIRED ON 05.01.2010 AND BY THAT DATE, FULL PAYMENT WAS NOT MADE BY THE PURCHASER AND NO NEW AGREEMENT WAS EXECUTED. THEREFORE, THE RECEIPT OF RS. 1,13,00,000/ - BY THE ASSESSEE CLAIMED AGAINST THE 9 SALE OF LAND ON T HE BASIS OF SUCH INVALID AGREEMENT CANNOT BE ACCEPTED. II) THERE IS DIFFERENCE BETWEEN THE LAND AREA AS PER THE AGREEMENT (1.37 HECTARE) AND AS PER THE REVENUE RECORD (1.25 HECTARE). ASSESSEE FAILED TO FILE THE COPY OF THE REGISTERED WILL AS MENTIONED IN THE JAMABANDI. THEREFORE, IT IS IMPRUDENT THAT ANY PERSON WOULD PURCHASE SUCH LAND WHERE THE DOCUMENTS OF THE FULL OWNERSHIP OF LAND ARE NOT AVAILABLE. (III) SHRI RAVINDRA KUMAR SAHAI HAS STATED TO HAVE EXECUTED ANOTHER AGREEMENT IN RESPECT OF THE SAID LA ND IN FAVOUR OF SHRI GHANSHYAM KHUSWHA WHO IS A MEMBER OF GENERAL CATEGORY. WHEN THERE IS A BAN ON PURCHASE OF THE PROPERTY OF A SC CATEGORY BY A GENERAL CATEGORY, WHY SHRI RAVINDRA SAHAI EXECUTED THE AGREEMENT IN FAVOUR OF GHANSHYAM KHUSWHA? THIS SHOWS TH AT THE REAL PURPOSE OF EXECUTING SUCH AGREEMENT WAS FOR NOT PURCHASING THE LAND BUT TO GIVE A COLOUR OF LAND TRANSACTION TO TRANSFER THE UNDISCLOSED FUND OF ASSESSEE FROM SHRI GHANSHYAM KHUSWHA. 10 (IV) ASSESSEE FAILED TO PRODUCE EITHER SHRI RAVINDRA SAHAI O R SHRI GHANSHYAM KHUSWHA IN ASSESSMENT PROCEEDINGS. THESE PERSONS WERE NOT ABLE TO EXPLAIN THE SOURCES OF FUNDS OF RS.113 LACS STATED TO BE PAID TO THE ASSESSEE AGAINST SALE OF THE LAND IN POST SEARCH PROCEEDING. (V) EVEN WHEN THE CHEQUE OF RS. 35,00,000/ - WAS DISHONORED BY BANK, ASSESSEE HAD NOT TAKEN ANY ACTION FOR SUCH DEFAULT WHICH PROVES THAT PURPOSE BEHIND EXECUTING THE IKRARNAMA WAS NOT SELLING THE LAND. (VI) THE ENTIRE PAYMENT OF RS. 113 LACS WAS MADE IN CASH TO AVOID THE TRANSACTIONS THROUGH BANK ING CHANNELS. THIS SHOWS THAT THE INTENTION WAS TO TRANSFER THE UNACCOUNTED FUNDS FROM ONE HAND TO ANOTHER HAND. NO EVIDENCE WAS PRODUCED THAT THE AMOUNT PAID BY SHRI GHANSHYAM KHUSWHA IS FROM HIS DISCLOSED SOURCES. (VII) OTHERWISE ALSO, AFTER THE VIOLATI ON OF TERMS & CONDITIONS OF THE AGREEMENT, RS. 113 LACS GETS FORFEITED WHICH IS A REVENUE RECEIPT LIABLE TO TAX. 11 4.5 THE L D. CIT(A) AFTER CONSIDERING THE SAME AND SIMILAR SUBMISSIONS OF THE ASSESSEE HAS DELETED THE ADDITION OF RS. 35 LAKHS MADE BY THE AO IN A.Y. 2009 - 10 AND RS. 78 LAKHS IN A.Y. 2010 - 11. ONE MORE AMOUNT OF RS. 3 LAKHS WA S ADDED BY THE A.O ON ACCOUNT OF EXTRA PAYMENT/COMPENSATION RECEIVED BY THE ASSESSEE WHICH WAS NOT OFFERED FOR TAXATION AND WAS ADDED BY THE A.O . THIS AMOUNT HAS ALSO BEEN DELETED BY THE LD. CIT(A) FROM TH E ASSESSMENT ORDER MADE FOR A.Y. 2010 - 1. THE REVENUE IS AGGRIEVED AGAINST THE IMPUGNED DELETION AND HAS COME IN APPEAL BEFORE THE TRIBUNAL. 5. WE HAVE HEARD THE RIVAL SUBMISSIONS AND HAVE CAREFULLY PERUSED THE RELEVANT MATERIAL ON RECORD. IT WAS ASCERTAINED AND FOUND FOR A FACT THAT THE ASSESSEE HAS GOT NO OTHER SOURCE OF INCOME E XCEPT PENSION AND INTEREST FROM BANK. IT IS ALSO A FACT THAT THE AGREEMENT WAS FOUND DURING SEARCH AND THE FIGURES AS NARRATED ABOVE WERE TO BE PAID TO THE ASSESSEE UNDER THIS AGREEMENT ON THE GIVEN DATES. IT IS ALSO A FACT THAT THE ASSESSEE WAS INTERCEPTED W HILE DEPOSITING THE CASH IN EITHER THE BANK ACCOUNT OR HIS LOCKER. THE ASSESSEE OWNED AGRICULTURAL LAND MEASURING 8 BIGHA S AND 11 BISWA S AT VILLAGE BORKHANDI, NAYA NOHRA, TEHSIL LADUPURA, KOTA. THIS LAND WAS RECEIVED BY HIM FROM THE WILL OF HIS MOTHER SMT. KUMANI DEVI DATED 20.06.1996. 12 THE LAND WAS DULY TRANSFERRED IN THE NAME OF THE ASSESSEE IN THE REVENUE RECORDS AS PER THE ORDER OF THE TEHSILDAR ON 06.08.1998 , COPY PLACED AT PAGE 57 OF THE PAPER BOOK. THE ASSESSEE ENTERED INTO AN AGREEMENT DATED 06.02.2009 WITH SHRI RAVINDRA KUMAR SAHAI FOR SALE OF THIS LAND FOR RS. 1,38,80,000/ - . IN FACT, THE REAL PURCHASER OF THE LAND WAS GHANSHYAM K HUSWHA BUT SINCE ASSESSEE BELONGS TO SC/ST COMMUNITY AND AS PER THE STATE LAW, THE LAND BELONGING TO SUCH PERSON CAN BE PURCHASED ONLY BY ANOTHER PERSON OF THE SAME COMMUNITY, SHRI GHANSHYAM KHUSWHA ENTERED THE AGREEMENT IN THE NAME OF SHRI RAVINDRA SAHAI WHO IS OF THE SAME COMMUNITY. IT IS STATED IN THE AGREEMENT THAT TILL FULL PAYMENT WAS MADE, POSSESSION OF LAND WAS TO REMAIN WITH THE ASSESSEE. THE STATEMENTS OF ALL THE CONCERNED PA R TIES WERE RECORDED EVEN DURING SEARCH PROCEEDINGS. ALL OF THEM HAVE C ONFIRMED THE TERMS AND CONDITIONS LAID DOWN IN THIS AGREEMENT. THE MAIN ISSUE INVOLVED IN THESE TWO APPEALS IS THAT AS TO WHETHER RS. 113 LAKHS WERE RECEIVED BY THE ASSESSEE AGAINST SALE CONSIDERATION OF THIS LAND OR NOT. FROM THE RECORDS, IT IS PROVED THAT THIS AMOUNT OF RS. 113 LAKHS W AS RECEIVED BY THE ASSESSEE AGAINST THE SALE AGREEMENT REGARDING SALE OF AGRICULTURAL LAND WHICH WAS ACQUIRED BY HIM UNDER THE FORCE OF A WILL OF HIS MOTHER. THE IRRELEVANT OBSERVATIONS MADE BY THE A.O THAT WHY THE PURCH ASER WOULD NOT TAKE POSSESSION OF LAND AFTER 13 PAYING HEFTY AMOUNT TO THE SELLER IS OF NO AVAIL IN THE GIVEN FACTS AND IN THE CIRCUMSTANCES OF THIS CASE. THE FACT REMAINS THAT RS. 113 LAKHS WERE RECEIVED BY THE ASSESSEE IN TERMS OF THIS AGREEMENT AND NOT F ROM ANYWHERE ELSE. THIS AMOUNT IS THE SALE CONSIDERATION ARISING ON THE SALE OF AGRICULTURAL LAND AND THEREFORE, IT IS NOT SUBJECT TO TAX UNDER THE ACT. THEREFORE, THE ADDITION SO MADE IN TWO A.YS. BY THE A.O IS UNJUSTIFIED AND UNWARRANTED. IN OUR CONSI DERED OPINION, THE LD. CIT(A) HAS CORRECTLY DELETED THE ENTIRE ADDITION IN TWO A.YS. WE ACCORDINGLY CONFIRM HIS FINDING AND CANNOT ALLOW THE MAIN GROUND RAISED BY THE REVENUE IN THESE TWO APPEALS. 6. AS A RESULT, APPEAL FOR A.Y. 2009 - 10 STANDS DISMISSED BECAUSE ONLY ONE GROUND RELATING TO DELETION OF RS. 35 LAKHS [OUT OF ADDITION OF RS. 113 LAKHS] FALLING IN THIS A.Y. HAS BEEN RAISED. 7. IN A.Y. 2010 - 2011, FIRST GROUND IS COMMON WHICH RELATES TO DELETION OF ADDITION OF RS. 78 LAKHS . IN VIEW OF OUR FIND ING IN GROUND NO. 1 RAISED IN A.Y. 2010 - 11, THIS GROUND STANDS DISMISSED. 14 8. GROUND NO. 2 OF REVENUES APPEAL IN A.Y. 2010 - 11 PERTAINS TO DELETION OF ADDITION OF RS. 3 LAKHS MADE BY THE A.O ON ACCOUNT OF EXTRA PAYMENT/COMPENSATION RECEIVED BY THE ASSESSE E WHICH ACCORDING TO THE A.O HAS NOT BEEN OFFERED FOR TAXATION IN ANY A.Y. 9. BRIEFLY STATED, THE FACTS OF THE CASE ARE THAT SH RI GHANSHYAM KHUSWHA IN HIS STATEMENT DATED 19.02.2010 IN REPLY TO QUESTION NO. 10 STATED THAT HE HAS MADE THE PAYMENTS IN ADDI TION TO THE CONSIDERATION AS PER THE S ALE AGREEMENT OF WHICH RS. 2 LAKH S WAS PAID IN CASH ON 21.10.2009 AND RS. 1 LA KH WAS DEPOSITED IN HIS BANK ACCOUNT. THE A.O, THEREFORE , TREATED IT AS INCOME FROM UNDISCLOSED SOURCES AND MADE THE ADDITION. THE LD. CIT( A) AT PARA 8.4 OF THE ORDER OBSERVED THAT SH RI GHANSHYAM KHUSWHA IN HIS STATEMENT DATED 19.02.2010 ADMITTED THAT EXTRA PAYMENT OF RS. 15 LA KHS WAS TO BE MADE TO THE ASSESSEE FOR NOT AGREEING TO THE PAYMENT SCHEDULE AS PER SALE AGREEMENT DATED 06.02.2009 AN D ACCORDINGLY HE PAID RS. 3 LA KHS TO THE ASSESSEE. HOWEVER, HE HELD THAT SUCH CONSIDERATION RECEIVED IN CONSEQUENCE OF SALE AGREEMENT ON ACCOUNT OF DELAY IN PAYMENT IS OF CAPITAL NATURE WHICH SHOULD BE A PART OF SALE CONSIDERATION FOR DETERMINING THE CAPIT AL GAIN LIABILITY IN A.Y. 20 11 - 12 AND , THEREFORE , HE DELETED THE ADDITION. 15 10. AFTER HEARING BOTH THE SIDES, WE HAVE FOUND THAT THE ASSESSEE WAS NEVER CONFRONTED WITH THIS STATEMENT OF SHRI GHANSHYAM KHUSWHA AND WE FIND FORCE IN THE SUBMISSIONS OF TH E LD. A.R THAT OTHERWISE ALSO, THIS STATEMENT IS INCORRECT BECAUSE ON 21.10.2009, SHRI GHANSHYAM KHUSWHA HAD PAID RS. 13 LAKHS TO THE ASSESSEE WHICH IS DULY RECORDED BY THE ASSESSEE ON THE BACK OF THE AGREEMENT. A COPY OF THIS RECORDING HAS BEEN PLACED ON RECORD. ACCORDING TO THE LD. A.R, HAD HE PAID ANOTHER SUM OF RS. 3 LAKHS AS STATED BY HIM, THE SAME SHOULD HAVE BEEN RECORDED LIKE THAT. WE FIND FOR C E IN THIS SUBMISSION OF THE LD. A.R AND BECAUSE THERE IS NO OTHER MATERIAL IN THE POSSESSION OF THE A.O TO ESTABLISH THAT HE HAD GIVEN RS. 3 LAKHS TO THE ASSESSEE ON 21.10.2009 AS CLAIMED, HENCE WE ARE IN AGREEMENT WITH THE LD. CIT(A)S FINDING AND CONFIRM THE IMPUGNED DELETION OF RS. 3 LAKHS. ACCORDINGLY , WE DISMISS GROUND NO 2 OF REVENUES APPEAL IN A.Y. 2010 - 11. WITH THE ABOVE FINDING, THE APPEAL OF THE REVENUE IN ITA NO. 370/JU/2013 FOR A.Y. 2010 - 11 STANDS DISMISSED. 11. IN THE CROSS OBJECTION, THE ASSESSEE HAS RAISED GROUND AGAINST CONFIRMATION OF ADDITION OF RS. 7,67,000/ - FOUND ON THE DATE OF SEARCH IN THE POSSESSION OF THE ASSESSEE AND WHICH HAS BEEN TREATED AS INCOME FROM UNDISCLOSED SOURCES AS THE A.O HAS NOT ACCEPTED THE EXPLANATION 16 OF THE ASSESSEE THAT THE SOURCES OF THIS AMOUNT IS ALSO OUT OF ADVANCE RECEIVED AGAINST SALE OF THE SAME PROPERTY. AFTER CONSIDERING THE RIVAL SUBMISSIONS, WE HAVE FOUND THAT THE ASSESSEE WAS INTERCEPTED BY THE POLICE WITH CASH OF RS. 54,67,000/ - ON 19.2.2010. OUT OF IT, RS. 47 LAKHS WAS RECEIVED IN CASH FROM SHRI GHANSHYAM KHUSWHA ON THAT DATE AND THIS FACT WE HAVE ACCEPTED AS CORRECT WHILE GIVING MAIN FINDING IN TH E TWO APPEALS OF THE DEPARTMENT, FOR THE R EMAINING CASH OF RS. 7,67,000/ - IT WAS STATED BY THE ASSESSEE THAT HE OPERATED BANK LOCKER OPENED WITH PUNJAB NATIONAL BANK ON 25.1.2010 AND WITH THE SBBJ ON 28.01 .2010. THE ASSESSEE HAS STATED THAT HE WITHDREW THIS AMOUNT FROM THE LOCKERS AND WHEN IT WAS NOT NEEDED , H E BROUGHT THIS AMOUNT BACK AGAIN TO DEPOSIT THIS AMOUNT. THE A O HAS NOT AGREED WITH THE ASSESSEE ONLY BECAUSE, ACCORDING TO HIM, NOBODY WOULD KEEP T HIS AMOUNT WITH HIM IN HIS NAME, AND THEREFORE, THIS MUST BE FROM S OME OTHER UNDISCLOSED SOURCES. SINCE WE HAVE ALREADY MENTIONED AND FOUND THAT THE ASSESSEE HAS GOT NO OTHER SOURCE OF INCOME AND THE PARTIES TO THE AGREEMENT HAVE BEEN EXAMINED IN DETAIL B Y THE A.O AND NO O W N MONEY PAYMENT HAS BEEN FOUND OR DETECTED IN THIS CASE. THEREFORE, WE DO NOT FIND ANY REASON TO DISBELIEVE THE VERSION GIVEN BY THE ASSESSEE. IT IS NOT AN UNUSUAL TASK THAT ANYBODY TAKES SOME MONEY FROM BANK LOCKER FOR HIS ANOTHER WOR K AND DUE TO SOME REASON OUT OF 17 WITHDRAWAL SO MADE HE WAS LEFT WITH SOME MONEY AND THIS HE MAY BRING TO DEPOSIT ON THE SAME DAY WHEN REMAINING AMOUNT WAS PAID BY THE PURCHASER AND IT WAS TO BE DEPOSITED. RATHER, IT SEEMS TO BE A PLAUSIBLE EXPLANATION OF T HE ASSESSEE. BEFORE THE POLICE AUTHORITIES THE ASSESSEE CLEARLY EXPLAINS THIS POSITION. IN HIS STATEMENT DATED 19.2.2010 MADE BEFORE THE A.O, HE AGAIN ASSERTED THIS FACT. THE FACT THAT THE ASSESSEE HAD OPERATED HIS BANK LOCKER ON 25.1.2010 IS ALSO PROVE D ON RECORD. THE ASSESSEE HAVING NO OTHER KNOWN SOURCE OF INCOME, IN THE GIVEN FACTS AND CIRCUMSTANCES OF THIS CASE, THIS AMOUNT HAS TO BE TREATED AS PART OF THE TOTAL SALE CONSIDERATION. ACCORDINGLY, WE HOLD THAT THIS AMOUNT IS ALSO EXPLAINED AND ORDER DELETION THEREOF. 12 . IN THE RESU LT, BOTH THE APPEAL S OF THE REVENUE IN ITA NO S . 369 & 370 /JU/2014 FOR A.Y S . 2009 - 10 AND 2010 - 11 STAND DISMISSED WHEREAS THE CROSS OBJECTION OF THE ASSESSEE CO NO. 06/JU/20114 FOR A.Y. 2010 - 11 STANDS ALLOWED. ORDER PRO N OUNCED IN THE COURT ON 09 TH OCTOBER , 2014. SD/ - SD/ - (N.K.SAINI) [HARI OM MARATHA] ACCOUNTANT MEMBER JUDICIAL MEM B ER DATED : 09 TH OCTO BER , 201 4 VL/ - 18 COPY TO: 1. THE A PPELLANT 2. THE RESPONDENT 3. THE CIT BY ORDER 4. THE CIT(A) 5. THE DR SENIOR PRIVATE SECRETARY ITAT, JODHPUR
