The I.T.O.-4(4), Agra V. Sh. Satya Narain Jain, Agra

ITA 387/AGR/2010

• Counselvise Citation: [2011] 140 COUNSELVISE.COM (IT) 50369 (ITAT-AGRA)
• Duration Of Justice: 1 year(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-10-2011
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 10-10-2011
• Assessment Year: 2006-2007
• Appeal Filed On: 17-09-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: K C AGARWAL
• Keywords: Unexplained investment
• Section: 154

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AGRA BENCH, AGRA BEFORE SHRI H.S. SIDHU, JUDICIAL MEMBER AND SHRI B.C. MEENA, ACCOUNTANT MEMBER ITA NO.387/AGR/2010 ASSESSMENT YEAR: 2006-07 INCOME TAX OFFICER 4(4), VS. SHRI SATYA N ARAIN JAIN, AGRA. 17, GOPAL KUNJ, NEW AGRA, AGRA. (PAN: ABPPJ 6188 E). (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI WASEEM ARSHAD, SR. D.R. RESPONDENT BY : SHRI K.C. AGARWAL, ADVOCATE DATE OF HEARING : 10.10.2011 DATE OF PRONOUNCEMENT : 10.10.2011 ORDER PER H.S. SIDHU, J.M. : THE REVENUE HAS FILED THE PRESENT APPEAL AGAINST TH E IMPUGNED ORDER DATED 02.06.2010 PASSED BY THE LD. CIT(A)-II, AGRA ON THE FOLLOWING GROUNDS OF APPEAL :- 1. THAT THE CIT(A)-II, AGRA HAS ERRED IN LAW AND O N FACTS IN DELETING THE ADDITION OF ` 10 LACS BEING UNDISCLOSED INVESTMENT IN PURCHASE OF PROPERTY AT BUDHERA FROM THE SELLER SHRI MANGE LAL WITHOUT APPRECIATING THE FACTS BROUGHT ON RECOR D BY THE ASSESSING OFFICER PARTICULARLY THE STATEMENT OF SEL LER OF PROPERTY, SHRI MANGE LAL IN WHICH HE HAD CLEARLY ST ATED THAT THE PROPERTY WAS SOLD TO ASSESSEE FOR ` 1.16 CRORES AND NOT FOR ` 25 LACS AS CLAIMED BY THE ASSESSEE. 2 2. THAT THE ORDER OF CIT(A)-II, AGRA BEING ERRONEOU S IN LAW AND ON FACTS TO BE VACATED AND THE ORDER OF ASSESSING O FFICER BE RESTORED. 3. THAT THE APPELLANT CRAVES LEAVE TO ADD OR DELETE OR ALTER OR MODIFY ANY ONE OR MORE GROUNDS DURING THE APPEAL PROCEEDINGS. 2. THE FACTS ARE NOT DISPUTED BY BOTH THE PARTIES, THEREFORE, NO NEED TO REPEAT THE SAME FOR THE SAKE OF CONVENIENCE. 3. AT THE TIME OF HEARING SHRI K.C. AGARWAL, LD. CO UNSEL FOR THE ASSESSEE STATED THAT THE ISSUE IN DISPUTE HAS ALREADY BEEN DECIDED IN FAVOUR OF THE ASSESSEE BY THIS BENCH IN THE ASSESSEES OWN CASE FOR THE ASSESSMENT YEARS 2005-06, 2005-06 & 2006-07 IN ITA NOS.215, 313 & 216/AGR/2009 IN THE C ASE OF D.C.I.T. CENTRAL CIRCLE, AGRA VS. SHRI SATYA NARAIN JAIN AND C.O. NO S.29 & 27/AGR/2009 IN THE CASE OF SHRI SATYA NARAIN JAIN VS. D.C.I.T. HE REQUESTE D THAT THE APPEAL FILED BY THE REVENUE MAY BE DISMISSED. 4. THE LD. DEPARTMENTAL REPRESENTATIVE RELIED UPON THE ORDER PASSED BY THE ASSESSING OFFICER. 5. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE R ELEVANT RECORDS AVAILABLE WITH US, ESPECIALLY, THE IMPUGNED ORDER AS WELL AS THE ORDER PASSED BY THIS BENCH IN ITA NOS.215, 313 & 216/AGR/2009 IN THE CASE OF D.C. I.T. VS. SHRI SATYA NARAIN 3 JAIN AND C.O. NOS.29 & 27/AGR/2009 IN THE CASE OF S HRI SATYA NARAIN JAIN VS. D.C.I.T. 6. WE FIND THAT IN THE IMPUGNED ORDER THE LD. FIRST APPELLATE AUTHORITY HAS DELETED THE ADDITION IN DISPUTE ON THE BASIS OF HIS OWN ORDER DATED 23.01.2009 WHICH HAS BEEN UPHELD BY THIS BENCH IN THE AFOREMEN TIONED CASE. FOR THE SAKE OF CONVENIENCE, THE RELEVANT PORTION OF THE IMPUGNED O RDER AT PAGE NO.3, PARAGRAPH NOS. 7 & 8 ARE REPRODUCED AS UNDER :- 7. I HAVE PERUSED THE RECORD AND THE ASSESSMENT OR DER PASSED ORIGINALLY BY THE ASSESSING OFFICER, THE APPELLATE ORDER PASSED BY ME DATED 23.1.2009 AND ALSO THE ORDER NOW PASSED BY TH E ASSESSING OFFICER UNDER SECTION 154 AND THE WRITTEN REPLY FIL ED BY THE APPELLANT. IN MY VIEW, THE APPELLANT DESERVES TO SUCCEED. IN APPELLATE ORDER DATED 23.1.2009 IN PARA 5 (VI) AT PAGE 11, I HAVE C ATEGORICALLY HELD AS UNDER : THUS LOOKING TO UNCONTROVERTED AFFIDAVIT OF MANGE LAL FILED BY THE APPELLANT, THE SO CALLED STATEMENT OF MANGE LAL HAS NOT BEEN CONFRONTED TO APPELLANT AND IN VIEW OF CAS E LAW OF SUPREME COURT RELIED ON BY THE APPELLANT AND FURTHE R NO OTHER EVIDENCE OF UNEXPLAINED INVESTMENT MADE BY THE APPE LLANT HAVING BEEN PLACED ON RECORD BY THE ASSESSING OFFIC ER, I HOLD THAT THE ASSESSING OFFICER WAS NOT JUSTIFIED IN MAK ING THE ADDITION OF ` 81,00,000/- AS UNEXPLAINED INVESTMENT IN THE PURCHASE OF THE PROPERTY AT BUDHERA BASAI AND THE A DDITION OF ` 81,00,000/- IS HEREBY DELETED. 8. IN VIEW OF THIS FINDING OF THE FACTS ALREADY GIV EN BY ME THAT THERE WAS NO EVIDENCE ON RECORD TO JUSTIFY THE ALLE GED UNEXPLAINED INVESTMENT MADE IN THE PURCHASE OF LAND, NOW THERE IS NO JUSTIFICATION FOR MAKING FURTHER ADDITION OF ` 10 LAKH. THUS, ADDITION OF ` 10 LAKH IS HEREBY DELETED. 4 7. THE AFOREMENTIONED ORDER PASSED BY THE LD. FIRST APPELLATE AUTHORITY HAS BEEN UPHELD BY THIS BENCH ON 18.03.20011 IN THE APP EAL FILED BY THE ASSESSEE FOR THE ASSESSMENT YEARS 2005-06, 2005-06 & 2006-07 IN ITA NOS.215, 313 & 216/AGR/2009 IN THE CASE OF D.C.I.T. CENTRAL CIRCLE , AGRA VS. SHRI SATYA NARAIN JAIN AND C.O. NOS.29 & 27/AGR/2009 IN THE CASE OF S HRI SATYA NARAIN JAIN VS. D.C.I.T. FOR THE SAKE OF CONVENIENCE, THE RELEVA NT PORTION OF THE SAME AT PAGE NOS. 36 & 37, PARAGRAPH NO.39 IS REPRODUCED AS UNDE R :- 39. WE HAVE HEARD THE RIVAL SUBMISSIONS AND HAVE C AREFULLY CONSIDERED THE SAME. WE FIND CONSIDERABLE SUBSTANCE IN THE CONTENTIONS OF THE LEARNED AR. IT IS NOTABLE THAT P AYMENT OF RS.25,00,000/- AS COST OF THE LAND MADE BY THE ASSE SSEE STANDS PROVED BY DOCUMENTARY EVIDENCE IN THE SHAPE OF REGISTERED SALE DEED OF PROPERTY, THE PAYMENT HAVING BEEN MADE THROUGH BANK ING CHANNEL, BANK STATEMENT OF THE SELLER, WHO DEPOSITED THE SAL E CONSIDERATION OF RS.25,00,000/- RECEIVED FROM THE ASSESSEE IN HIS BA NK ACCOUNT NO. 1019933997 WITH STATE BANK OF INDIA, TAJGANJ, FATEH ABAD ROAD, AGRA. THE INVESTMENT OF RS.25,00,000/- IN THE PURCH ASE OF PROPERTY FURTHER STANDS SUPPORTED BY THE FACT THAT HALF OF T HE LAND WAS SOLD BY THE SAME SELLER TO OTHER PARTY SHRI MADHUSUDAN NIRM AN PVT. LTD. FOR A SALE CONSIDERATION OF RS.25,00,000/- ON THE SAME DA Y AND THE PAYMENT FROM THIS BUYER WAS ALSO DEPOSITED BY THE SELLER IN HIS SAME BANK ACCOUNT. THE ALLEGATION OF THE REVENUE THAT THE ASS ESSEE MADE INVESTMENT IN PURCHASE OF SAID LAND OF RS.1,16,00,0 00/- IS NOT FOUND SUPPORTED BY ANY CORROBORATING EVIDENCE EXCEPT THE ALLEGED STATEMENT OF THE SELLER, WHICH TOO HAS BEEN DENIED TO HAVE BE EN GIVEN BY SELLER BEFORE ANY OF THE TAX AUTHORITIES BY FILING AFFIDAV IT BEFORE THE CIT(A). IN THE REMAND REPORT SOUGHT BY THE CIT(A), NO ADVER SE COMMENTS HAVE BEEN GIVEN BY ASSESSING OFFICER. IT IS NOT IN DISPU TE THAT THE DEPARTMENT HAS NOT SUPPLIED THE COPY OF ANY SUCH ST ATEMENT TO THE ASSESSEE NOR GOT THE ASSESSEE CROSS EXAMINED WITH T HE STATEMENT MAKER BEFORE APPLYING THE ALLEGED STATEMENT AGAINST THE ASSESSEE. THEREFORE, SUCH STATEMENT, IN OUR OPINION, WOULD NO T IPSO FACTO MAKE OUT A CASE AGAINST THE ASSESSEE. THE EXPRESS DENIAL OF GIVING ANY SUCH STATEMENT BY THE STATEMENT MAKER IN HIS AFFIDAVIT A ND LACK OF CORROBORATING EVIDENCE WITH THE REVENUE TO SUPPORT THE ALLEGED STATEMENT, LEAD US TO PLACE CREDENCE ON THE CONTENT ION OF ASSESSEE THAT 5 HE MADE NO INVESTMENT IN THIS PROPERTY OVER AND ABO VE RS.25,00,000/- AND FOR WANT OF ANY EVIDENCE, THE ONUS THAT LAY ON THE REVENUE DOES NOT STAND DISCHARGED. IN PRESENCE OF THESE FACTS, W E FIND NO JUSTIFICATION TO INTERFERE WITH THE ORDER OF CIT(A) ON THIS COUNT. THIS GROUND OF REVENUE IS, THEREFORE, REJECTED. 8. AFTER GOING THROUGH THE AFORESAID ORDER PASSED B Y THIS BENCH AS WELL AS THE IMPUGNED ORDER PASSED BY THE LD. FIRST APPELLATE AU THORITY, WE ARE OF THE CONSIDERED OPINION THAT THE LD. FIRST APPELLATE AUT HORITY HAS DELETED THE ADDITION IN DISPUTE ON THE BASIS OF HIS OWN ORDER DATED 23.01.2 009 (SUPRA) WHICH HAS BEEN UPHELD BY THIS BENCH VIDE ORDER DATED 18.03.2011 (S UPRA). WE ARE OF THE CONSIDERED OPINION THAT THE ISSUE IN DISPUTE HAS AL READY BEEN DECIDED BY THIS BENCH IN FAVOUR OF THE ASSESSEE. THEREFORE, RESPECTFULLY FOLLOWING THE ORDER DATED 18.03.2011, WE DISMISS THE PRESENT APPEAL FILED BY THE REVENUE. 9. IN THE RESULT, APPEAL FILED BY THE REVENUE IS DI SMISSED. (ORDER PRONOUNCED IN THE OPEN COURT ON 10.10.2011) . SD/- SD/- (B.C. MEENA) (H.S. SIDHU) ACCOUNTANT MEMBER JUDICIAL MEMBER DATE: 10 TH OCTOBER, 2011 PBN/* COPY OF THE ORDER FORWARDED TO: APPELLANT/RESPONDENT/CIT CONCERNED/CIT(APPEALS) CO NCERNED/D.R., ITAT, AGRA BENCH, AGRA/GUARD FILE. BY ORDER ASSISTANT REGISTRAR INCOME-TAX APPELLATE TRIBUNAL, AGRA TRUE COPY