ITO, Jaipur V. SHRI TEJWANT SINGH, Jaipur

ITA 411/JPR/2012

• Counselvise Citation: 41123114 RSA 2012
• Duration Of Justice: 3 year(s) 2 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-07-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2008-2009
• Appeal Filed On: 30-04-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: P C SHARMA DHK
• Keywords: Opportunity of being heard; Cost of acquisition; Corroborative evidences
• Section: 143(3); 131

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES, JAIPUR JH VKJ-IH-RKSYKUH] U;KF;D LNL; ,OA JH VH-VKJ-EHUK] YS[KK LNL; DS LE{K BEFORE: SHRI R.P. TOLANI, JM & SHRI T.R. MEENA, AM VK;DJ VIHY LA-@ ITA NO. 411/JP/2012 FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2008-09 . THE INCOME TAX OFFICER, WARD 1(4), JAIPUR. CUKE VS. SHRI TEJWANT SINGH SHOP NO. 477/478, INDIRA BAZAR, JAIPUR. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO. AETPS 1520 G. VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT JKTLO DH VKSJ LS@ REVENUE BY : SHRI KAILASH MANGAL (JCIT) FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY : SHRI P.C. SHARMA (ADVOCATE) LQUOKBZ DH RKJH[K@ DATE OF HEARING : 14.05.2015. ?KKS'K .KK DH RKJH[K @ DATE OF PRONOUNCEMENT : 17/7/2015. VKNS'K@ ORDER PER SHRI T.R. MEENA, A.M. THIS IS AN APPEAL FILED BY THE REVENUE EMANATING FROM THE ORDER OF LD. CIT (A)-I, JAIPUR DATED 03.02.2012 FOR THE A.Y. 2008-09 . THE SOLE GROUND RAISED IN THE APPEAL IS AS UNDER :- ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT (APPEALS)-I, JAIPUR IS JUSTIFIED IN :- WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW THE LD. CIT (A) IS JUSTIFIED IN DELETING THE ADDITI ON OF RS. 10,50,000/- MADE BY THE AO ON ACCOUNT OF SALAMI MONEY PAID ON THE SA LE OF PROPERTY AT 92, GURUNANAK PURA, RAJA PARK, ADARSH NAGAR, JAIPUR EVE N THOUGH THE SALE DEED WAS EXECUTED ON 02.04.2007 AND AGREEMENT FOR P AYMENT OF SALAMI MONEY WAS MADE ON 19.05.2007. 2 ITA NO. 411/JP/2012 A.Y. 2008-09 ITO VS. SHRI TEJWANT SINGH, JAIPUR 2. THE AO OBSERVED THAT ASSESSEE HAS DECLARED NET T AXABLE INCOME OF RS. 1,52,697/- IN THE RETURN FILED ON 27.03.2009. THE ASSESSEE HAS SHOWN THE INCOME FROM JOB WORK RELATING TO DENTING AND WELDING WORK IN TH E NAME OF KASHMERI WELDING & DENTING, JAIPUR. THE CASE WAS SCRUTINIZED UNDER S ECTION 143(3) OF THE IT ACT. DURING THE YEAR UNDER CONSIDERATION, THE ASSESSEE HAS SOLD A HOUSE PROPERTY AT HOUSE NO. 92, GURUNANAKPURA, RAJA PARK, ADARSH NAGAR, JAIPUR ON 2 .4.2007 AS POWER OF ATTORNEY HOLDER OF THE PROPERTY. THE AO GAVE SHOW CAUSE NOT ICE FOR CALCULATION OF CAPITAL GAIN ON SALE OF THE IMMOVABLE PROPERTY. AS ASSESSEE AVAI LED THE OPPORTUNITY OF BEING HEARD, FILED LETTER DATED 20.12.2010. THE AO ALSO CONSIDER ED THE ASSESSEES REPLY. THE ASSESSEE HAS CLAIMED COMMISSION PAYMENT OF RS. 90,0 00/- AND SALAMI MONEY OF RS. 10,50,000/- AGAINST THE CAPITAL GAIN. THE ASSESSEE WAS ASKED TO GIVE THE EVIDENCE FOR CLAIMING THESE EXPENSES. BUT ASSESSEE HAS NEITHER P RODUCED ANY DOCUMENTARY EVIDENCE IN SUPPORT OF HIS CLAIM NOR PRODUCED THE CONCERNED PERSONS FOR EXAMINATION. THEREFORE, HE HAD NOT ALLOWED SALAMI MONEY AGAINST THE CAPITAL GAIN AS COST OF ACQUISITION. 3. BEING AGGRIEVED BY THE ORDER OF AO, ASSESSEE CAR RIED THE MATTER BEFORE LD. CIT (A) WHO HAD ALLOWED THE APPEAL AS UNDER :- 4.6. I HAVE CAREFULLY PERUSED THE ORDER OF THE AO , SUBMISSIONS OF THE AR, REMAND REPORT OF THE AO AND EVIDENCE ON RECORD. I CONCUR WITH THE AR ON THE FOLLOWING GROUNDS :- I. THERE IS SUFFICIENT EVIDENCE ON RECORD BY WAY OF TH E AGREEMENT SIGNED BY THE THREE RECIPIENTS OF THE SALAMI MONEY AND THE 3 ITA NO. 411/JP/2012 A.Y. 2008-09 ITO VS. SHRI TEJWANT SINGH, JAIPUR STATEMENTS TAKEN BY THE AO ON OATH WHEREIN THEY HAV E CATEGORICALLY ACCEPTED TO HAVING RECEIVED THE SAID AMOUNT. II. AS THEY WERE PETTY LABOURERS IT CANNOT BE SAID THAT IT WAS IMPERATIVE FOR THEM TO HAVE A PAN OR BANK A/C AS EV IDENCE FOR THE TRANSACTIONS. III. FURTHERMORE, THE DATE ON THE STAMP PAPER AND THE DE TAILS OF CASH WITHDRAWALS FROM THE BANK A/C OF THE APPELLANT ARE FURTHER SUPPORTING EVIDENCE IN HIS FAVOUR THAT THE MONEY WA S ACTUALLY PAID TO THEM AFTER EXTENDED NEGOTIATIONS. IN VIEW OF THE ABOVE DISCUSSION THE IMPUGNED DIS ALLOWANCE OF RS. 10,50,000/- FOR CALCULATION OF THE SHORT TERM GAI N IS DELETED. 4. NOW THE REVENUE IS BEFORE US. THE LD. D/R VEHEM ENTLY SUPPORTED THE ORDER OF THE AO AND ARGUED THAT THE ALLEGED PAYMENT FOR SALA MI MONEY HAS BEEN PAID IN CASH. THE RECIPIENTS ARE NOT ASSESSED TO TAX. THIS AMOUNT HAS NOT BEEN DEPOSITED IN ANY BANK ACCOUNT BY THE RECIPIENTS. THEREFORE, HE ARGUED THA T THE ASSESSEE HAS NOT INCURRED ANY EXPENSES ON TRANSFER OF THIS IMMOVABLE PROPERTY. T HE RECIPIENTS DID NOT HAVE ANY PAN. AN AGREEMENT BETWEEN TENANTS AND THE ASSESSEE WAS E XECUTED ON 19.05.2007 WHEREAS SALE OF THE SAID PROPERTY WAS ON 2.4.2007. NO RENT WAS PAID TO THE OWNER OF THE PROPERTY. THUS THE ORDER OF THE AO MAY BE CONFIRME D. 5. AT THE OUTSET, THE LD. A/R OF THE ASSESSEE REITE RATED THE ARGUMENT MADE BEFORE THE LD. CIT (A). THE STATEMENTS OF THE PERSONS HAD BEEN RECORDED UNDER SECTION 131 OF THE IT ACT WHEREIN THEY CATEGORICALLY ADMITTED HAVI NG RECEIVED RS. 3.50 LACS EACH FOR VACATING THE PROPERTY IN QUESTION. IN THEIR STATEM ENTS THEY ALSO EXPLAINED HOW THESE FUNDS HAVE BEEN UTILIZED BY THEM. THE RECIPIENTS A RE LABOUR CLASS PEOPLE AND DOING 4 ITA NO. 411/JP/2012 A.Y. 2008-09 ITO VS. SHRI TEJWANT SINGH, JAIPUR PETTY JOB WORK AND ALSO HAD NEVER APPLIED FOR PAN. HE FURTHER RELIED THAT THE LD. CIT (A) HAS APPRECIATED ALL THE EVIDENCES IN HER ORDER. THEREFORE, THE ORDER OF LD. CIT (A) MAY PLEASE BE CONFIRMED. 6. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIAL ON RECORD. THE PROPERTY WAS IN POSSESSION OF THREE TENANTS. FOR PE ACEFUL VACATION OF IMMOVABLE PROPERTY THE ASSESSEE HAD PAID RS. 3.5 LACS EACH TO THREE TENANTS. IT IS HELD THAT SALE DEED WAS EXECUTED ON 2.4.2007 WHEREAS AGREEMENT AMO NG THE TENANTS AND ASSESSEE WAS EXECUTED ON 19.5.2007. THE FACTS AND CIRCUMSTAN CES AS NARRATED BY LD. CIT (A) AND ARGUED BY ASSESSEE SHOWS THAT ASSESSEE WAS NEGOTIAT ING THE PAYMENT WITH THEM. IT TOOK TIME AND FINALLY EXECUTED AN AGREEMENT ON 19.5 .2007. THE AO HAD EXAMINED ALL THE THREE TENANTS WHO RECEIVED SALAMI MONEY FOR PEA CEFUL VACATION OF THE IMMOVABLE PROPERTY. THEY HAD ADMITTED TO HAVE RECEIVED RS. 3 .5 LACS EACH FROM THE ASSESSEE. THE ISSUE OF SALAMI MONEY HAS BEEN THOROUGHLY EXAMI NED BY THE LD. CIT (A) IN HER ORDER. THE LD. D/R HAD NOT CONTROVERTED THE FINDING GIVEN BY LD. CIT (A). THEREFORE, WE UPHOLD THE ORDER OF LD. CIT (A). 7. IN THE RESULT, APPEAL OF THE REVENUE IS DISMISS ED. ORDER PRONOUNCED IN THE OPEN COURT ON 17.07.2015. SD/- SD/- VKJ-IH-RKSYKUH VH-VKJ-EHUK (R.P.TOLANI) (T.R. MEENA) U;KF;D LNL;@ JUDICIAL MEMBER YS[KK LNL;@ ACCOUNTANT MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 17 TH JULY, 2015 DAS/ 5 ITA NO. 411/JP/2012 A.Y. 2008-09 ITO VS. SHRI TEJWANT SINGH, JAIPUR VKNS'K DH IZFRFYFI VXZSFKR @ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ @ THE APPELLANT- THE ITO, WARD 1(4), JAIPUR. 2. IZR;FKHZ @ THE RESPONDENT- SHRI TEJWANT SINGH, JAIPUR. 3. VK;DJ VK;QDR @ CIT 4. VK;DJ VK;QDRVIHY @ THE CIT(A) 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ @ DR, ITAT, JAIPUR 6. XKMZ QKBZY @ GUARD FILE (ITA NO. 411/JP/2012) VKNS'KKUQLKJ @ BY ORDER, LGK;D IATHDKJ @ ASST. REGISTRAR 6 ITA NO. 411/JP/2012 A.Y. 2008-09 ITO VS. SHRI TEJWANT SINGH, JAIPUR