ACIT Circle 4(1), Chandigarh V. Sh. Jagdish Rai, Chandigarh

ITA 409/CHANDI/2012

• Counselvise Citation: [2013] 140 COUNSELVISE.COM (IT) 68409 (ITAT-CHANDIGARH)
• Duration Of Justice: 1 year(s) 4 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-08-2013
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 14-08-2013
• Assessment Year: 2006-2007
• Appeal Filed On: 11-04-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: CHETAN JA IN

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL CHANDIGARH BENCHES B CHANDIGARH BEFORE SHRI T.R.SOOD, ACCOUNTANT MEMBER AND MS SUSHMA CHOWLA, JUDICIAL MEMBER ITA NO. 409/CHD/2012 ASSESSMENT YEAR:2006-07 THE ACIT, VS SHRI JAGDISH RAI, CIRCLE 4(1), HOUSE NO. 1304, CHANDIGARH. SECTOR 44-B, CHANDIGARH. PAN NO. AKFPR-1012A (APPELLANT) (RESPONDENT) APPELLANT BY: SHRI AKHILESH GUPTA RESPONDENT BY : SHRI CHETAN JA IN DATE OF HEARING : 14.08.2013 DATE OF PRONOUNCEMENT : 20.08.2013 O R D E R PER SUSHMA CHOWLA, J.M. THE REVENUE HAS FILED THE APPEAL AGAINST THE ORDER OF THE CIT(APPEALS), CHANDIGARH DATED 09.01.2012 RELATING TO ASSESSMENT YEAR 2006-07 AGAINST THE ORDER PASSED UNDER SECTION 143( 3) OF THE INCOME-TAX ACT, 1961 ( 'THE ACT' FOR SHORT). 2. THE REVENUE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL: 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE AND IN LAW, THE LD. CIT(A) HAS ERRED IN ALLO WING APPEAL OF THE ASSESSEE WITHOUT APPRECIATING THE FACTS OF THE CASE. 2, ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW, THE LD. CIT(A) HAS ERRED IN DELETING THE AD DITION MADE U/S 69B OF THE INCOME TAX ACT, 1961. 3 IT IS PRAYED THAT THE ORDER OF THE LD. CIT (A) BE SET ASIDE AND THAT OF THE ASSESSING OFFICER MAY BE RESTORED. 4. THE APPELLANT CRAVES LEAVE TO ADD OR AMEND ANY GROUNDS OF APPEAL BEFORE THE APPEAL IS HEARD OR DISPOSED OFF. 2 3. THE ONLY ISSUE RAISED IN THE PRESENT APPEAL IS A GAINST DELETION OF ADDITION MADE UNDER SECTION 69B OF THE ACT. THE FACTS RELATING TO THE ISSUE ARE THAT SURVEY WAS CONDUCTED AT THE PREM ISES OF M/S CHANDIGARH OVERSEAS LTD. ON 09.11.2005 AND ONE AGRE EMENT TO SELL WAS IMPOUNDED. AS PER AGREEMENT, THE SELLER IS ONE SHRI KARAM CHAND S/O SH. AMARNATH R/O RAWAL PINDI ROAD, GARHSH ANKAR, DISTT, HOSHIARPUR. SH. KARAM CHAND HAS SOLD A PLOT OF 409 SQ. YARDS SITUATED AT VILLAGE LOHGARH, TEHSIL DERABASSI, OWNE D BY HIM TO THE ASSESSEE SHRI JAGDISH RAI S/O SHRI NAUHRIA MAL R/O # 1304, SECTOR 44-B, CHANDIGARH. AS PER THIS AGREEMENT THE AGREED RATE WAS RS. 5,450/- PER SQ. YARDS AND SUM TOTAL WAS RS. 22, 29,050/-. THE ASSESSEE HAD PAID RS.3 LAC AS BIANA IN THE PRESENCE OF THE WITNESSES ON THE DATE OF AGREEMENT TO THE SELLER. THE ASSESS ING OFFICER DURING THE COURSE OF ASSESSMENT PROCEEDINGS, CONFRONTED TH E SAID AGREEMENT TO SELL TO THE ASSESSEE AND VIDE PARA 1.3 OBSERVED AS UNDER : 1 .3 IT IS RELEVANT TO MENTION THAT THE REAL PURCHASER OF THIS LAND WAS M/S GEE CITY BUILDERS (P) LTD., WHO HAD GIVEN TASK TO SUCH PERSONS TO CONTACT DIFFERENT LAND OWNERS AND TO MAKE AGREEMENT S WITH THEM SO AS TO POOL THE LAND AND SO AS TO GET THE FULL CH UNK OF THIS LAND BELONGING TO DIFFERENT OWNERS ULTIMATELY IN THE NAM E OF THE COMPANY. IT IS EVIDENT THAT SH. JAGDISH RAI HAD ACTED AS CONDUIT A S ULTIMATELY THIS LAND WAS TRANSFERRED BY SH. KARARN CHAND IN THE NAME OF M/S GEE CITY BUILDERS (P) LTD., IN COMPLIANCE OF THE ONE OF THE CLAUSE OF THE AGREEMENT MADE BETWEEN SH. KARAM CHAND AND THE ASSESSEE. THE SALE CONSIDERATION AS PER THE REGISTERED DEED DATED 28-07-2005 IS SHOWN A T RS. 10,23,500/-. AS PER ANOTHER DOCUMENT IMPOUNDED DURI NG THE COURSE OF THIS SURVEY WHICH IS ALSO AN AGREEMENT DATED 29-06- 2005, THE AGREED RATE FOR THE LAND AGREED BY THE PARTIES M/S PARSAV COLONISER (P) LTD., (PARTY 1), SH. SHEKHAR CHAWLA A ND SH. GULSHAN RAI & OTHERS (PARTY 2) IS RS. 3,65,00,000/-. SO IT IS EVI DENT THAT AN AMOUNT OF RS. 12,05,550/- HAS BEEN POCKETED BY THE ASSESSEE. 3 4. THE ASSESSEE WAS ASKED TO EXPLAIN THE PROPERTY T RANSACTION AND THE REPLY OF THE ASSESSEE WAS THAT HE HAD NEVER ENT ERED INTO ANY AGREEMENT FOR THE PURCHASE OF ANY IMMOVABLE PROPERT Y. IT WAS ALSO EXPLAINED THAT THE SAID DOCUMENT WAS CLAIMED TO HAV E NEVER BEEN EXECUTED BY THE ASSESSEE. THE ASSESSING OFFICER, R EJECTING THE EXPLANATION OF THE ASSESSEE TREATED THE SAID INVEST MENT AS UNEXPLAINED AND MADE AN ADDITION OF RS. 12,05,550/- UNDER SECTION 69B OF THE ACT. 5. THE CIT(APPEALS), AFTER CONSIDERING THE SUBMISSI ON OF THE ASSESSEE VIDE PARA 2.3 OBSERVED AS UNDER : 2.3 I HAVE CONSIDERED THE SUBMISSION OF THE LD. CO UNSEL. THE ASSESSING OFFICER WAS ASKED TO VERIFY THE CONTE NTION OF THE APPELLANT FROM IMPUGNED IMPOUNDED DOCUMENTS MENTION ED IN PARA 1.2 OF THE ASSESSMENT ORDER. THE ASSESSING OFF ICER HAS GIVEN A COPY OF THE SAID IMPUGNED DOCUMENT, WHICH IS AN AGREEMENT TO SELL AND IT IS SEEN THAT SIGNATURE OF THE APPELLANT DOES NOT FIND PLACE ON THIS DOCUMENT. THU S, IT CANNOT BE SAID THAT THE APPELLANT EVER ENTERED INTO THIS AGREEMENT TO PURCHASE THE SAID PROPERTY. IT IS QUIT E POSSIBLE THAT THE AGREEMENT WAS MADE BY THE SELLERS ON THEIR OWN. BE AT IT MAY, SINCE THE APPELLANT HAS NOT SIGNED THIS DOCUME NT, IT WILL NOT BE PROPER TO DRAW ADVERSE INFERENCE ON THE BASIS OF TH IS DOCUMENT IN THE CASE OF THE APPELLANT AND AS THE ENTIRE ADDITIO N IS BASED ON THIS DOCUMENT, THE SAME CANNOT BE UPHELD IPSO-FA CTO. THE ENTIRE ADDITION MADE IS ACCORDINGLY DELETED AND ALL THE GROUNDS OF APPEAL TAKEN BY THE APPELLANT ARE ALLOWED. 6. THE LD. DR FOR THE REVENUE PLACED RELIANCE ON TH E ORDER OF ASSESSING OFFICER. THE LD. AR FOR THE ASSESSEE PLA CED RELIANCE ON THE ORDER OF THE CIT(APPEALS). HOWEVER, THE LD. DR FOR THE REVENUE HAS FAILED TO CONTROVERT FINDINGS OF THE CIT(APPEAL S). IN VIEW 4 THEREOF, WE FIND NO MERIT IN THE GROUNDS OF APPEAL RAISED BY THE REVENUE. THE SAME ARE DISMISSED. 7. IN THE RESULT, APPEAL OF THE REVENUE IS DISMISSE D. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 20 TH DAY OF AUGUST, 2013. SD/- SD/- (T.R.SOOD) (SUSHMA CHOWLA) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED 20 TH AUGUST,2013 POONAM COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT 4. THE CIT(A) 5. THE DR BY ORDER ASSISTANT REGISTRAR, ITAT, - CHANDIGARH