Rukshana Begum , Ghaziabad V. ITO, Ward- 2(2), Ghaziabad

ITA 3814/DEL/2018

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 8403 (ITAT-DELHI)
• Duration Of Justice: 7 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-01-2019
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: SMC
• Assessment Year: 2008-2009
• Appeal Filed On: 22-05-2018
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: AGAINST DATED PASSED
• Keywords: Sale consideration of property below Jantri Value; Corroborative evidences
• Section: 50C; 148

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: SMC, NEW DELHI BEFORE SH. H.S. SIDHU, JUDICIAL MEMBER ITA NO. 3814/DEL/2018 ASSESSMENT YEAR: 2008-09 SMT. RUKSHANA BEGUM, W/O SHRI KHALID, R/O 1059, CHURCH GALI, KAILA BHATTA, GHAZIABAD (PAN: AEFPB0220A) VS. ITO, WARD 2(2), GHAZIABAD CGO COMPLEX-II, KAMLA NEHRU NAGAR, HAPUR ROAD, GHAZIBAD (UP) (APPELLANT) (RESPONDENT) ORDER THIS APPEAL IS FILED BY THE ASSESSEE AGAINST THE OR DER DATED 30.3.2018 PASSED BY THE LD. CIT(A)-2, NOIDA RELATIN G TO ASSESSMENT YEAR 2008-09 ON THE FOLLOWING GROUNDS:- 1. THAT THE LD. CIT(A), ERRED IN LAW, ON FACTS AND IN SURROUNDING CIRCUMSTANCES IN DISMISSING THE APPEAL ARBITRARY BY OVERLOOKING INCURABLE FUNDAMENTAL ERRO RS OF LAW, LEADING TO MISCARRIAGE OF JUSTICE. 2. THAT THE LD. CIT(A), ERRED IN LAW, ON FACTS AND IN SURROUNDING CIRCUMSTANCES IN FAILING TO APPRECIATE THAT SINCE THE LD. A.O. WAS NOT HAVING ANY TANGIBLE AND SPECIFIC ASSESSEE BY SH. ANOOP SHARMA, ADVOCATE & SH. SANJAY PARASHAR, ADVOCATE DEPARTMENT BY SH. SL ANURAGI, SR. DR. 2 MATERIAL SUCH AS, THE SALE DEED IN QUESTION EXCEPT VAGUE AIR INFORMATION AT THE TIME OF FORMING OPINION, THE IMPUGNED BELIEF SO ENTERTAINED BY HIM IS NOT ONLY SPECULATIVE IN NATURE BUT ALSO INACCURATE PARTICULA R AND INCORRECT FACTS IN ASSESSMENT ORDER THEREBY RENDERI NG THE WHOLE ASSESSMENT VOID IN LAW, AB-INITIO. 3. THAT IN DOING SO, THE LD. CIT(A), ERRED IN LAW, ON FACTS AND IN SURROUNDING CIRCUMSTANCES IN FAILING TO APPR ECIATE THAT HIS APPELLATE ORDER TOO, BASED ON INACCURATE PARTICULARS/INCORRECT FACTS APPEARING IN REASONS AN D IN THE IMPUGNED ASSESSMENT ORDER, HAS ALSO BEEN RENDERED N ULL AND VOID ACCORDINGLY. 4. THAT THE LD. CIT(A), FURTHER ERRED IN LAW, ON F ACTS AND IN SURROUNDING CIRCUMSTANCES IN FAILING TO APPRECIA TE THAT ISSUANCE OF IMPUGNED NOTICE U/S 148 OF I.T. ACT AFT ER EXPIRY OF PERIOD OF MORE THAN 6 YEARS IS BARRED BY LIMITAT ION. 5. THAT THE LD. CIT(A), ALSO ERRED IN LAW, ON FACT S AND IN SURROUNDING CIRCUMSTANCES IN FAILING TO APPRECIATE THAT VALID SERVICE OF NOTICE U/S 148 OF I.T. ACT, WHEREA S NO SUPPORTING EVIDENCE HAS BEEN BROUGHT ON RECORD TO P ROVE VALIDITY OF SERVICE ,MERE ISSUANCE OF NOTICE ITSELF , DOES NOT TANTAMOUNT TO VALID SERVICE AS PER LAW. 6. THAT THE LD. CIT(A), ALSO ERRED IN LAW, ON FACT S AND IN SURROUNDING CIRCUMSTANCES IN FAILING TO APPRECIATE THE THAT 3 SALE CONSIDERATION IS TO THE TUNE OF RS. 1500000 AN D NOT RS. 3029000 (BEING ONLY A VALUE FOR STAMP DUTY PURP OSES). 7. THAT THE LD. CIT(A), FURTHER ERRED IN LAW, ON F ACTS AND IN SURROUNDING CIRCUMSTANCES IN FAILING TO APPRECIA TE THAT RS 3029000 (BEING ONLY A VALUE FOR STAMP DUTY PURPO SES) CANNOT BE TREATED AS SALE CONSIDERATION WITHOUT APP LYING THE PROVISIONS OF SECTION 50C OF I.T. ACT AND THAT TOO WITHOUT ADHERING TO THE PROCEDURE LAID DOWN THEREIN . 8. THAT WITHOUT PREJUDICE TO ABOVE LEGAL GROUNDS, THE LD. CIT(A), ON THE ISSUE OF INVESTMENT, ERRED IN LAW, O N FACTS AND IN SURROUNDING CIRCUMSTANCES IN FAILING TO APPR ECIATE THE HUMANE ASPECTS OF RELATIONSHIP BETWEEN HUSBAND AND WIFE. CONTRIBUTION BY HUSBAND FOR INVESTMENT IN QUE STION OUT OF EXPLAINABLE FUNDS, IS A SACRED TASK FOR AFFO RDING FINANCIAL SECURITY/FINANCIAL INDEPENDENCE, TO HIS W IFE IN HER OLD AGE AND IT CANNOT BE REGARDED AS A SIN OR UNE XPLAINED INVESTMENT. 9. THAT IN DOINGS SO, THE LD. CIT(A) ERRED IN LAW O N FACTS AND IN SURROUNDING CIRCUMSTANCES IN HOLDING, THE EN TIRE INVESTMENT OF RS. 3029000/- TO BE UNEXPLAINED IN TH E HANDS OF APPELLANT MERELY ON ILLOGICAL GROUND NO E VIDENCE IS FURNISHED FOR THE OTHER HALF INVESTMENT IN THE SAID PROPERTY. 4 THAT THE APPELLANT CRAVES LEAVE TO MODIFY/ AMEND OR ADD ANY ONE OR MORE GROUNDS. 2. THE BRIEF FACTS OF THE CASE ARE THAT AS PER AI R INFORMATION THE ASSESSEE PURCHASED AN IMMOVABLE PROPERTY FOR RS. 3 0,29,000/- DURING F.Y. 2007-08. DURING THE ASSESSMENT PROCEEDINGS, TH E AO SENT VARIOUS NOTICES TO THE ASSESSEE. THE ASSESSEE DID NOT FIL E ANY EXPLANATION TO THE AO DURING ASSESSMENT PROCEEDINGS. THE AO PASSED ORDER DATED 30.3.3016 PASSED U/S. 147/144 OF THE INCOME TAX ACT , 1961 (IN SHORT ACT) AND ASSESSED THE INCOME OF THE ASSESSEE AT RS. 30,29,000/- BY MAKING THE ADDITION OF RS. 30,29,000/- IN THE HANDS OF THE ASSESSEE. AGAINST THE ASSESSMENT ORDER, ASSESSEE APPEALED BEF ORE THE LD. CIT(A), WHO VIDE HIS IMPUGNED ORDER DATED 30.3.2018 HAS DI SMISSED THE APPEAL OF THE ASSESSEE. AGGRIEVED WITH THE IMPUGNED ORDER, ASSESSEE IS IN APPEAL BEFORE THE TRIBUNAL. 3. DURING THE HEARING, LD. COUNSEL FOR THE ASSESSEE HAS STATED THAT THE IMPUGNED ORDER IS ARBITRARY AND PASSED BY OVERLOOKI NG INCURABLE FUNDAMENTAL ERRORS OF LAW, LEADING TO MISCARRIAGE O F JUSTICE. IT WAS FURTHER SUBMITTED THAT A.O. WAS NOT HAVING ANY TANGIBLE AND SPECIFIC MATERIAL SUCH AS, THE SALE DEED IN QUESTION EXCEPT VAGUE AIR INFORMATION AT THE TIME OF FORMING OPINION, THE IMPUGNED BELIEF SO ENT ERTAINED BY HIM IS NOT ONLY SPECULATIVE IN NATURE BUT ALSO INACCURATE PART ICULAR AND INCORRECT FACTS IN ASSESSMENT ORDER THEREBY RENDERING THE WHO LE ASSESSMENT VOID IN LAW, AB-INITIO. IT WAS FURTHER SUBMITTED THAT THE I MPUGNED NOTICE U/S 148 OF I.T. ACT WAS ISSUED AFTER EXPIRY OF PERIOD OF MO RE THAN 6 YEARS WHICH IS 5 BARRED BY LIMITATION. IT WAS FURTHER STATED THAT LD . CIT(A), ALSO FAILED TO APPRECIATE THAT VALID SERVICE OF NOTICE U/S 148 OF I.T. ACT, WHEREAS NO SUPPORTING EVIDENCE HAS BEEN BROUGHT ON RECORD TO P ROVE VALIDITY OF SERVICE MERE ISSUANCE OF NOTICE ITSELF, DOES NOT TA NTAMOUNT TO VALID SERVICE AS PER LAW. IT WAS FURTHER SUBMITTED THAT L D. CIT(A) HAS FAIELD TO APPRECIATE THAT THE ENTIRE INVESTMENT OF RS. 302900 0/- TO BE UNEXPLAINED IN THE HANDS OF APPELLANT MERELY ON ILLOGICAL GROUN D NO EVIDENCE IS FURNISHED FOR THE OTHER HALF INVESTMENT IN THE SAI D PROPERTY. HENCE, HE REQUESTED TO CANCEL THE ORDERS OF THE AUTHORITIES BELOW AND ALLOW THE APPEAL OF THE ASSESSEE. 4. ON THE OTHER HAND, LD. DR RELIED UPON THE ORDERS OF THE AUTHORITIES BELOW. 5. I HAVE HEARD BOTH THE PARTIES AND PERUSED THE RE CORDS ESPECIALLY THE IMPUGNED ORDER. I NOTE THAT THE NOTICE U/S. 148 OF THE ACT WAS ISSUED AFTER TAKING PRIOR APPROVAL OF THE COMPETENT AUTHOR ITY AND THE SAME WAS SERVED ON THE ASSESSEE ON THE ADDRESS AVAILABLE ON THE SALE DEED. HENCE, LD. CIT(A) HAS RIGHTLY HELD THAT THE NOTICE U/S. 14 8 OF THE ACT WAS ISSUED AND SERVED UPON THE ASSESSEE WITHIN THE TIME LIM IT PRESCRIBED. IT IS ALSO NOTED THAT THE ENTIRE SOURCE OF INVESTMENT IN THE IMPUGNED PROPERTY IS OUT OF THE MONEY RECEIVED FROM HER HUSBAND AND T HE ASSESSEE HAS FAILED TO EXPLAIN THE SOURCE OF INVESTMENT. THE AS SESSEE HAS FAILED TO PROVE THE NEXUS BETWEEN THE CASH AVAILABLE TO HER H USBAND AND THE CASH USED BY HER FOR THE INVESTMENT IN THE IMPUGNED PROP ERTY. IT WAS FURTHER 6 NOTED THAT THE HUSBAND OF THE ASSESSEE HAS DEPOSITE D AN AMOUNT OF RS. 10 LACS IN CASH IN HIS BANK ACCOUNT. IN ANY CASE AN Y MONEY AVAILABLE WITH HER HUSBAND HAS NOTHING TO DO WITH THE INVESTMENT M ADE BY THE ASSESSEE. SINCE NO EVIDENCE WAS FURNISHED FOR THE OTHER HALF INVESTMENT IN THE SAID PROPERTY, THE ENTIRE INVESTMENT TO RS. 30,29,000/- WAS RIGHTLY CONSIDERED TO BE UNEXPLAINED IN THE HAND OF THE ASS ESSEE. THEREFORE, LD. CIT(A) HAS RIGHTLY CONFIRMED THE ADDITION IN DISPUT E, WHICH DOES NOT NEED ANY INTERFERENCE ON MY PART, THEREFORE, I UPHOLD TH E ACTION OF THE LD. CIT(A) ON THE ISSUE IN DISPUTE AND REJECT THE GROUN DS RAISED BY THE ASSESSEE. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS DISMISSED. ORDER PRONOUNCED ON 01-01-2019. SD/- [H.S. SIDHU] JUDICIAL MEMBER DATE:01/01/2019 SRBHATNAGAR COPY FORWARDED TO: - 1. APPELLANT 2. RESPONDENT 3. CIT 4.CIT (A) 5. D R, ITAT TRUE COPY BY ORDER, ASSISTANT REGISTRAR, ITAT, DELHI BENCHES 7