SHRI SATINDER JAINARAYAN SHARMA, MUMBAI V. INCOME TAX OFFICER WARD 2(2), THANE

ITA 4133/MUM/2018

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 7371 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 1 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-07-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: J
• Assessment Year: 2011-2012
• Appeal Filed On: 11-06-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: D G
• Keywords: Unexplained cash credit; Unexplained investment; Additional evidence; Condonation of delay; Bonafide mistake
• Section: 143(3); 144; 2

Judgement Text

IN THE INCOME-TAX APPELLATE TRIBUNAL E BENC H MUMBAI BEFORE SHRI G. S. PANNU, VICE- PRESIDENT AND SHRI PAWAN SINGH, JUDICIAL MEMBER ITA NO.4133/MUM/2018 (ASSESSMENT YEAR 2011-12) SATINDER JAINARAYAN SHARMA C-203, SONAM SANGEET PHASE-I, NEAR GOLDEN NEST POLICE CHOWKI, OLD GOLDEN NEST PHASE- I, BHAYANDER (EAST), MUMBAI-401105. P AN: ANUPS3562L VS. ITO WARD- 2(2) ROOM NO. 26, B-WING, 6 TH FLOOR, ASHAR IT PARK, WAGLE IND ESTATE, ROAD NO. 16- Z, THANE (WEST), MUMBAI-400604. APPELLANT RESPONDENT APPELLANT BY : SHRI PRADEEP SHARMA WITH SHRI PARESH SHAH (AR) RESPONDENT BY : SHRI D.G. PANSARI (SR.DR) & SH RAJEEV GOBATRA (SR DR) DATE OF HEARING : 14.06.2019 DATE OF PRONOUNCEMEN T : 26.07.2019 ORDER UNDER SECTION 254(1)OF INCOME TAX ACT PER PAWAN SINGH, JUDICIAL MEMBER; 1. THIS APPEAL BY ASSESSEE IS DIRECTED AGAINST THE ORD ER OF LD. COMMISSIONER OF INCOME-TAX (APPEALS)-1, THANE (THE LD. CIT(A) DA TED 27.02.2015, WHICH IN TURN ARISES FROM THE ASSESSMENT ORDER DATE D 06.03.2014 PASSED UNDER SECTION 144 OF THE ACT FOR ASSESSMENT YEAR 20 11-12. 2. BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE FILED HIS RETURN OF INCOME FOR ASSESSMENT YEAR 2011-12 ON 30.09.2011 DECLARING TAX ABLE INCOME AT RS. 3,53,050/-. THE RETURN OF INCOME WAS SELECTED FOR S CRUTINY. THE ASSESSMENT WAS COMPLETED ON 06.03.2014 UNDER SECTIO N 144 READ WITH ITA NO. 4133 MUM 201 8-SATINDER JAINARAYAN SHARMA 2 SECTION 143(3) ASSESSING TOTAL INCOME AT RS. 2,62,9 9,650/- THE ASSESSING OFFICER WHILE PASSING THE ASSESSMENT ORDER BESIDES THE ADDITION OF RS. 1.01 CRORE ON ACCOUNT OF UNEXPLAINED INVESTMENT IN PURCHASE OF PROPERTY AT BHYANDER WITH IN JURISDICTION OF SUB-REGISTRAR T HANE, ALSO MADE ADDITION OF RS. 1.57 CRORE ON ACCOUNT OF CASH CREDI T IN THE SAVING BANK ACCOUNT OF ASSESSEE. THE ASSESSING OFFICER MADE ADD ITION ON THE BASIS OF AIR INFORMATION THAT THE ASSESSEE HAS DEPOSITED CAS H OF RS. 1.57 CRORE IN HIS SAVING BANK ACCOUNT OF AXIS BANK, YAMUNA NAGAR HARYANA. BEFORE MAKING ADDITION OF RS. 1.57 CRORE, THE ASSESSEE WAS ASKED TO EXPLAIN THE SOURCE OF CASH DEPOSIT. THE ASSESSING OFFICER ALSO ISSUED NOTICE TO THE BANKER OF THE ASSESSEE. IN RESPONSE TO THE BANKER O F ASSESSEE I.E. AXIS BANK CONFIRMED THAT THE ASSESSEE HAS MADE CASH DEPO SIT OF RS. 1.57 CRORE. THE ASSESSING OFFICER RECORDED THAT NO COMPL IANCE TO THE SHOW CAUSE NOTICE WAS MADE BY ASSESSEE. THE ASSESSING O FFICER MADE ADDITION OF RS.1.57 CRORE ON ACCOUNT OF UNEXPLAINED CASH CRE DIT. 3. ON APPEAL BEFORE THE LD. CIT(A), THE ASSESSEE CONTE NDED THAT THE ASSESSEE HAS SOLD HIS AGRICULTURE LAND OF 12 ACRE IN HARYAN A AND RECEIVED RS. 1.21 CRORE THROUGH CHEQUE AND CASH OF RS. 1.57 CRORE. T HE LD CIT(A) ASKED THE ASSESSEE TO SUBSTANTIATE HIS CONTENTION AND TO FURNISH THE DOCUMENTARY EVIDENCES. THE ASSESSEE FURNISHED THE N ECESSARY EVIDENCES, THE LD CIT(A)REFEREED THOSE EVIDENCES TO ASSESSING OFFICER FOR HIS REMAND REPORT. THE ASSESSING OFFICER WAS ALSO DIRECTED TO BE PRESENT DURING THE ITA NO. 4133 MUM 201 8-SATINDER JAINARAYAN SHARMA 3 HEARING BEFORE LD. CIT (A). THE LD. CIT (A) AFTER C ONSIDERING THE EXPLANATION AND THE EVIDENCES DELETED THE ADDITION OF RS.1.01 CRORE HOLDING THE AMOUNT INVESTED BY THE ASSESSEE IN PURC HASE OF THE PROPERTY WAS RECEIVED ON SALE OF AGRICULTURE LAND. HOWEVE R, THE ADDITION OF RS. 1.57 CRORE ON ACCOUNT OF CASH CREDIT WAS CONFIRMED BY LD. CIT(A) HOLDING THAT THE AUTHORISED REPRESENTATIVE (AR) OF ASSESSEE HAS NOT PRESSED THE GROUND OF APPEAL ON THE PRETEXT THAT TH E ASSESSEE SHOULD NOT BE SUBJECTED TO ANY PENALTY. AGGRIEVED BY THE ORDER OF LD. CIT(A), THE ASSESSEE HAS FILED THE PRESENT APPEAL BEFORE US CHA LLENGING THE ADDITION OF RS. 1.57 CRORE ON ACCOUNT OF CASH CREDIT. THE ASSE SSEE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL: 1.0N FACTS AND CIRCUMSTANCES OF THE CASE AND IN LA W, THE LEARNED AO HAS ERRED IN PASSING ORDER U/S 144 RENDERING ASSESSMENT NULL AND VOID. 2.0N FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW , THE LEARNED CIT(A) HAS ERRED IN IMPRESSION OF IMMUNITY AND THE ORDER HURRI EDLY. 3.0N FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW , THE LEARNED AO AND CIT (A) HAS ERRED IN IGNORING MATERIAL AT THEIR DISPOSA L AS WELL AS DENYING VERIFICATION OF FRESH EVIDENCE. 4.0N FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW , THE LEARNED AO HAS ERRED IN TREATING CASH DEPOSIT AS UNEXPLAINED CASH CREDIT . 5.ON FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW , THE LEARNED AO AND CIT(A) HAS ERRED IN NOT OFFERING OPPORTUNITY TO CRO SS CHECK MATERIAL/THIRD PARTY ON STATEMENTS THAT IS RELIED UPON. 4. PERUSAL OF RECORD REVEALS THAT THE FIRST APPEAL OF THE ASSESSEE WAS DECIDED BY LD CIT(A) ON 27.02.2015. HOWEVER, PRESENT APPEAL WAS FILED ONLY ON 05.07.2018. THUS, THE APPEAL IS FILED AFTER 1100 DA YS OF PRESCRIBED PERIOD ITA NO. 4133 MUM 201 8-SATINDER JAINARAYAN SHARMA 4 OF LIMITATION. THE APPLICANT / ASSESSEE HAS FILED A N APPLICATION FOR CONDONATION OF DELAY IN FILING THE PRESENT APPEAL. FOR APPRECIATION OF AVERMENT MADE IN THE APPLICATION FOR CONDONATION OF DELAY, WE HAVE EXTRACTED THE CONTENTS OF APPLICATION, WHICH ARE A S UNDER: 1. THAT I AM PROPRIETOR OF M/S S K FOUNDRY ENGAGED IN BUSINESS OF MANUFACTURING OF CI CASTING DIE CASTINGS. MY PAN IS : ANUPS3562L. 2. THAT I WAS ASSISTED AND UNDER GUIDANCE OF ONE CA RAJESH SHARMA. WE HAD ATTENDED NUMBER OF TIMES OFFICE OF ITA 2(2), THANE IN RESPONSE TO SCRUTINY PROCEEDINGS. CA RAJESH SHARMA WOULD ATTEND THE OFFI CER. I WAS UNDER THE IMPRESSION THAT MY PROPERTY TRANSACTIONS HAVE BEEN PROPERLY EXPLAINED. UNFORTUNATELY, ORDER WAS PASSED U/S 144 WITH HEAVY ADDITIONS. MY INCOME WAS ASSESSED AT RS. 2.63 CRORES AGAINST RETURNED IN COME OF RS. 3.53 LAKHS. DEMAND WAS OF RS. 1.08 CRORES. 3. THAT BEING AGGRIEVED, I EXPRESSED INABILITY TO P AY TAX. ON ADVICE AND GUIDANCE OF CA RAJESH SHARMA, I FILED APPEAL BEFORE CIT(A). AGAIN DURING APPEAL PROCEEDINGS, CA RAJESH SHARMA WOULD ATTEND T HE CIT(A). I WAS AGAIN GIVEN IMPRESSION THAT ALL ADDITIONS WERE UNJUSTIFIE D AND THAT SAME SHALL BE DROPPED. 4. THAT IN HIS APPELLATE ORDER, CIT(A) GAVE PART RE LIEF. ONE OF THE MAIN GROUND RAISED REGARDING SOURCE OF CASH DEPOSIT OF RS. 1.57 CRORES IS STATED TO NOT HAVE BEEN PRESSED. I SUBMIT THAT THIS IS TOTALLY INCORRE CT. I DENY TO HAVE AGREED TO TREAT SAID CASH DEPOSIT AS MY INCOME. I DID SIGN FE W DOCUMENTS PREPARED BY MY CA FROM TIME TO TIME AS I WAS UNDER HIS TRUST. I N FACT, THE SOURCE OF SAID CASH DEPOSIT HAS BEEN CLEARLY CONFIRMED BY NONE OTH ER THAN DDI HARYANA. THIS FURTHER CONFIRMS MY STAND ON HAVING RECEIVED C ASH FROM BUYERS OF MY AGRICULTURAL LAND. 5. THAT THE RECORDING BY CIT(A) OF MY NOT HAVING PR ESSED GROUND AS REFERRED ABOVE, I SUBMIT THAT SAME IS UNDER SOME MISREPRESEN TATION MADE BY MY COUNSEL TO WHOM I HAD NEVER GIVEN ANY SUCH INSTRUCT IONS. ITA NO. 4133 MUM 201 8-SATINDER JAINARAYAN SHARMA 5 6. THAT I SUBMIT THAT THERE IS NO REASON WHATSOEVER FOR ME TO FOREGO MY ANY GROUND OF APPEAL DURING THE APPELLATE PROCEEDINGS B EFORE CIT(A) AND THE SAME MAY THEREFORE BE TAKEN AS PRESSED. 7. THAT I HAVE AFFIRMED EARLIER THAT I DID NOT RECE IVE DUE COOPERATION FROM CA RAJESH SHARMA DURING APPELLATE PROCEEDINGS NOR FOR FILING 2ND APPEAL BEFORE HONORABLE ITA T. IT IS SUBMITTED THAT INSPITE OF MY REPEATED INSTRUCTIONS AND REQUESTS, HE HAS FAILED TO FILE THE APPEAL THOUGH H E GAVE ME THE IMPRESSION THAT THE APPEAL BEFORE THE HONORABLE IT AT HAS BEEN SUBM ITTED BY HIM. 8. THAT CA RAJESH SHARMA HAS BEEN ARRESTED FOR SOME ALLEGATIONS ON PROFESSIONAL MATTERS. 9. THAT I AM MAKING THIS AFFIDAVIT WITH A VIEW TO S UPPORT MY GROUND RAISED BEFORE ITAT, MUMBAI AND ALSO MY APPLICATION FOR CON DONATION OF DELAY IN FILING TAX APPEAL FOR A Y 2011-12. 5. IN SUPPORT OF CONDONATION OF DELAY, THE LD. AR OF T HE ASSESSEE SUBMITS THAT ASSESSEE HAS ENGAGED A WELL QUALIFIED CHARTED ACCOUNTANT (CA) FOR REPRESENTING HIM BEFORE THE LOWER AUTHORITIES. THE SAID C.A HAS NOT PROPERLY ADVISED THE ASSESSEE NOR ACTED IN ACCORDAN CE WITH HIS INSTRUCTION. THE ASSESSEE NEVER AGREED FOR NOT PRES SING THE ISSUE OF ADDITION OF RS. 1.57 CRORE ON ACCOUNT OF CASH CREDI T BEFORE THE LD. CIT(A). THE ASSESSEE IS A SMALL BUSINESSMAN AND HAS RELIED ON THE ADVICE OF THE C.A. THE SAID C.A NEITHER DISCLOSED THE OUTC OME OF APPEAL NOR ADVICE THE ASSESSEE TO FILE APPEAL IN TIME BEFORE T HE TRIBUNAL. THE ASSESSEE CAME TO KNOW ABOUT THE DISMISSAL OF APPEAL FOR THE YEAR UNDER CONSIDERATION, ONLY WHEN THE PENALTY PROCEEDINGS WE RE INITIATED BY ASSESSING OFFICER. THE LD. AR FOR THE ASSESSEE ALS O SUBMITS THAT WHEN THE ITA NO. 4133 MUM 201 8-SATINDER JAINARAYAN SHARMA 6 ASSESSEE TRIED TO APPROACH HIS CA, THE ASSESSEE CAM E TO KNOW THAT HE HAS COMMITTED SERIOUS PROFESSIONAL MISCONDUCT AND HE IS LODGED IN JAIL. THE LD. AR FOR THE ASSESSEE PRAYED THAT THE DELAY IN FI LING OF THE APPEAL MAY BE CONDONED AND THE APPEAL MAY BE DECIDE ON MERIT. IN SUPPORT OF HIS SUBMISSIONS THE LD. AR FOR ASSESSEE RELIED UPON THE DECISION OF HONBLE APEX COURT IN LAND ACQUISITION COLLECTOR VS. MST K ATIJI & ORS [167 ITR 471 (SC)]. 6. ON THE OTHER HAND, THE LD. DEPARTMENTAL REPRESENTAT IVE (DR) FOR THE REVENUE OPPOSED THE CONDONATION OF DELAY IN FILING THE APPEAL. THE LD. DR FURTHER SUBMITS THAT THERE IS AN ORDINARY DELAY IN FILING THE APPEAL. THE DELAY IS NOT PROPERLY EXPLAINED BY THE ASSESSEE. TH EREFORE, NO GROUND FOR CONDONING THE DELAY IS MADE OUT ON THE FACTS DISCLO SED BY ASSESSEE. 7. IN THE REJOINDER SUBMISSION, THE LD. AR OF THE ASSE SSEE SUBMITS THAT THERE WAS NO MALAFIDE INTENTION OR THERE IS NO BENEFIT FO R THE ASSESSEE IN FILING APPEAL BELATEDLY. THE NON-FILING OF APPEAL IN TIME WAS DUE TO BONAFIDE MISTAKE AND THAT THE ASSESSEE WAS NOT AWARE OF THE PASSING OF THE IMPUGNED ORDER. THE LD. AR OF THE ASSESSEE SUBMITS THAT HE HAS ALREADY FILED AFFIDAVIT OF ASSESSEE. THE LD. AR SUBMITS THA T HE HAS GOOD CASE ON MERIT AND IS LIKELY TO SUCCEED. 8. WE HAVE CONSIDERED THE SUBMISSION OF THE PARTIES AN D HAVE GONE THROUGH THE ORDERS OF AUTHORITIES BELOW. WE HAVE NOTED THAT THE FIRST APPEAL OF THE ASSESSEE WAS DISMISSED LD CIT(A) ON 27.02.2015. HOW EVER, THE APPEAL ITA NO. 4133 MUM 201 8-SATINDER JAINARAYAN SHARMA 7 WAS FILED ONLY ON 05.07.2018. THUS, THERE IS DELAY OF 1100 DAYS IN FILING THE PRESENT. IN SUPPORT OF HIS CONDONATION OF DELAY , THE ASSESSEE FILED HIS AFFIDAVIT EXPLAINING THE FACT THAT HE HAS ENGAGED R AJESH SHARMA, C.A. TO ATTEND THE PROCEEDING BEFORE THE ASSESSING OFFICER AS WELL AS TO PURSUE APPEAL BEFORE THE LD. CIT(A). IT IS THE CONTENTION OF LD. AR OF THE ASSESSEE THAT SHRI RAJESH SHARMA; C.A NEITHER DISCLOSED THE OUTCOME OF APPEAL BEFORE LD CIT(A) NOR FILED APPEAL BEFORE THE TRIBU NAL WITHIN TIME. THE LD. AR OF THE ASSESSEE ALSO CONTENDED THAT NOT FILI NG OF APPEAL IN TIME WOULD NOT BENEFIT THE ASSESSEE RATHER THE ASSESSEE IS FACING HARDSHIP AND HARASSMENT. 9. THE HONBLE SUPREME COURT IN B. MADHURI GOUD VS B . DAMODAR REDDY (2012) 12 SCC 693, BY REFERRING VARIOUS EARLIER DE CISIONS OF SUPERIOR COURTS HELD THAT WHILE CONSIDERING THE APPLICATION FOR CONDONATION OF DELAY THE FOLLOWING PRINCIPAL MUST BE KEPT IN MIND; (I) THERE SHOULD BE A LIBERAL, PRAGMATIC, JUSTICE O RIENTED, NON-PEDANTIC APPROACH WHILE DEALING WITH AN APPLICATION FOR COND ONATION OF DELAY, FOR THE COURTS ARE NOT SUPPOSED TO LEGALISE INJUSTICE BUT ARE OBLIGED TO REMOVE INJUSTICE. (II) THE TERMS SUFFICIENT CAUSE SHOULD BE UNDERS TOOD IN THEIR PROPER SPIRIT, PHILOSOPHY AND PURPOSE REGARD BEING HAD TO THE FACT THAT THESE TERMS ARE BASICALLY ELASTIC AND ARE TO BE APP LIED IN PROPER PERSPECTIVE TO THE OBTAINING FACT-SITUATION. (III) SUBSTANTIAL JUSTICE BEING PARAMOUNT AND PIVOT AL THE TECHNICAL CONSIDERATIONS SHOULD NOT BE GIVEN UNDUE AND UNCALL ED FOR EMPHASIS. (IV) NO PRESUMPTION CAN BE ATTACHED TO DELIBERATE C AUSE OF DELAY BUT, GROSS NEGLIGENCE ON THE PART OF THE COUNSEL OR LITI GANT IS TO BE TAKEN NOTE OF. ITA NO. 4133 MUM 201 8-SATINDER JAINARAYAN SHARMA 8 (V) LACK OF BONA FIDES IMPUTABLE TO A PARTY SEEKING CONDONATION OF DELAY IS A SIGNIFICANT AND RELEVANT FACT. (VI) IT IS TO BE KEPT IN MIND THAT ADHERENCE TO STR ICT PROOF SHOULD NOT AFFECT PUBLIC JUSTICE AND CAUSE PUBLIC MISCHIEF BEC AUSE THE COURTS ARE REQUIRED TO BE VIGILANT SO THAT IN THE ULTIMATE EVENTUATE THERE IS NO REAL FAILURE OF JUSTICE. (VII) THE CONCEPT OF LIBERAL APPROACH HAS TO ENCAP SULATE THE CONCEPTION OF REASONABLENESS AND IT CANNOT BE ALLOWED A TOTALL Y UNFETTERED FREE PLAY. (VIII)THERE IS A DISTINCTION BETWEEN INORDINATE DEL AY AND A DELAY OF SHORT DURATION OR FEW DAYS, FOR TO THE FORMER DOCTRINE OF PREJUDICE IS ATTRACTED WHEREAS TO THE LATTER IT MAY NOT BE ATTRA CTED. THAT APART, THE FIRST ONE WARRANTS STRICT APPROACH WHEREAS THE SECOND CALLS FOR A LIBERAL DELINEATION. (IX) THE CONDUCT, BEHAVIOUR AND ATTITUDE OF A PARTY RELATING TO ITS INACTION OR NEGLIGENCE ARE RELEVANT FACTORS TO BE T AKEN INTO CONSIDERATION. IT IS SO AS THE FUNDAMENTAL PRINCIPL E IS THAT THE COURTS ARE REQUIRED TO WEIGH THE SCALE OF BALANCE O F JUSTICE IN RESPECT OF BOTH PARTIES AND THE SAID PRINCIPLE CANN OT BE GIVEN A TOTAL GO BY IN THE NAME OF LIBERAL APPROACH. (X) IF THE EXPLANATION OFFERED IS CONCOCTED OR THE GROUNDS URGED IN THE APPLICATION ARE FANCIFUL, THE COURTS SHOULD BE VIGI LANT NOT TO EXPOSE THE OTHER SIDE UNNECESSARILY TO FACE SUCH LITIGATIO N. (XI) IT IS TO BE BORNE IN MIND THAT NO ONE GETS AWA Y WITH FRAUD, IS REPRESENTATION OR INTERPOLATION BY TAKING RECOURSE TO THE TECHNICALITIES OF LAW OF LIMITATION. (XII) THE ENTIRE GAMUT OF FACTS IS TO BE CAREFULLY SCRUTINIZED AND THE APPROACH SHOULD BE BASED ON THE PARADIGM OF JUDICIA L DISCRETION WHICH IS FOUNDED ON OBJECTIVE REASONING AND NOT ON INDIVIDUAL PERCEPTION. (XIII) THE STATE OR A PUBLIC BODY OR AN ENTITY REPR ESENTING A COLLECTIVE CAUSE SHOULD BE GIVEN SOME ACCEPTABLE LATITUDE. 10. CONSIDERING THE AFORESAID LEGAL POSITION AND THE SU BMISSION OF LD. AR OF THE ASSESSEE THAT THE ASSESSEE THAT NON FILING OF T HE APPEAL BY ASSESSEE IN TIME HAS NOT GIVEN ANY BENEFIT TO THE ASSESSEE AND THE DELAY IN FILING APPEAL WAS DUE TO BONAFIDE REASONS AS EXPLAINED IN THE APPLICATION, WHICH WE HAVE NARRATED ABOVE. THE APPLICATION FOR CONDONA TION OF DELAY IS SUPPORTED BY AFFIDAVIT OF ASSESSEE. THEREFORE, KEEP ING IN VIEW THE ITA NO. 4133 MUM 201 8-SATINDER JAINARAYAN SHARMA 9 AFORESAID PRINCIPLE THAT WHEN SUBSTANTIAL JUSTICE A ND TECHNICALITIES ARE PITTED AGAINST EACH OTHER THE CONSIDERATION OF SUBS TANTIAL JUSTICE MUST PREVAILED. HENCE, KEEPING IN VIEW THE AFORESAID PRI NCIPLES THE DELAY IN FILING OF THE APPEAL OF THE PRESENT APPEAL IS CONDO NED. 11. WE HAVE HEARD THE SUBMISSIONS OF THE LD. REPRESENTA TIVES OF THE PARTIES ON MERIT AND ALSO PERUSED THE MATERIAL ON RECORD. ON M ERIT, THE LD. AR OF THE ASSESSEE SUBMITS THAT THE ASSESSING OFFICER PASSED THE ASSESSMENT ORDER UNDER SECTION 143(3) RWS 144 DATED 06.03.2014. DURI NG THE FIRST APPELLATE STAGE THE ASSESSEE FURNISHED DETAILS OF THE AMOUNT RECEIVED BY THE ASSESSEE ON SALE OF AGRICULTURE LAND IN HARYANA. TH E ASSESSEE RECEIVED SALE CONSIDERATION OF RS. 1.21 CRORE BY CHEQUES AND RS. 1.57 CRORE IN CASH. THE ADDITION OF RS. 1.01 CRORE ON ACCOUNT OF UNEXPLAINED INVESTMENT WAS DELETED BY THE LD CIT(A) THE ASSESSE E WAS ALSO GRANTED BENEFIT OF SECTION 54. HOWEVER, WITH REGARD TO ANOT HER CASH CREDIT THE LD CIT(A) FORWARDED THE SUBMISSIONS AND THE EVIDENCE FURNISHED BY THE ASSESSEE TO THE ASSESSING OFFICER FOR HIS REMAND. THE ASSESSING OFFICER ISSUED A COMMISSION UNDER SECTION 131(1)(D) OF THE ACT. THE REPORT OF COMMISSION WAS SENT THROUGH DDIT(INV.), AMBALA, VID E THEIR REPORT DATED 18.03.2015. BEFORE, THE REPORT OF COMMISSION COULD BE RECEIVED THE LD CIT(A) PASSED THE IMPUGNED ORDER, WITHOUT WAIT ING OF REMAND. THE ASSESSEE CAME TO KNOW ABOUT THE REPORT FURNISHED BY DDIT (INV.), AMBALA DURING THE RE-ASSESSMENT PROCEEDING FOR ASSE SSMENT YEAR 2009- ITA NO. 4133 MUM 201 8-SATINDER JAINARAYAN SHARMA 10 10. THE LD. AR FURTHER SUBMITS THAT THE ASSESSING O FFICER, WHO PASSED THE ASSESSMENT ORDER FOR ASSESSMENT YEAR 2009-10 UNDER SECTION 144 R.W.S. 147 MADE THE SAID REPORT AS A PART OF ASSESSMENT OR DER DATED 19.12.2016, COPY OF WHICH IS PLACED ON RECORD. 12. THE LD. AR FURTHER SUBMITS THAT THE ASSESSEE HAS AL READY FILED AN APPLICATION FOR ADMITTING ADDITIONAL EVIDENCE. IN T HE APPLICATION FOR ADDITIONAL EVIDENCE, THE ASSESSEE INTENDS TO PLACE ON RECORD THE REPORT OF DDIT(INV.), AMBALA DATED 18.03.2015. THE SAID REPOR T IS ALREADY AVAILABLE WITH THE ASSESSING OFFICER. THE CONTENTS OF SAID REPORT/ COMMISSION HAVE DIRECT BEARING QUA THE IMPUGNED ADD ITION UNDER CHALLENGE IN THE PRESENT APPEAL. THE LD. AR SUBMITS THAT DURING THE RELEVANT PERIOD RELEVANT TO THE ASSESSMENT PERIOD U NDER CONSIDERATION, THE ASSESSEE HAD SOLD AGRICULTURAL LAND (ADMEASURING 91 CANAL AND 1 MARLA EQUALLENT TO 12 ACRE) AT HIS NATIVE PLACE AT VILLAG E NAGLA JAGIR, DISTRICT- YAMUNA NAGAR HARYANA. THIS FACT WAS CONFIRMED BY TH E PURCHASER AND IS DULY REFLECTED IN THE REPORT OF DDIT (INV.), AMBALA . THE LD. AR FURTHER SUBMITS THAT THE PURCHASER OF LAND WAS EXAMINED BY INVESTIGATION WING AND THEIR IDENTITY IS ESTABLISHED. THE PURCHASERS H AVE ALSO CONFIRMED THE CONSIDERATION PAID TO THE ASSESSEE. THE PURCHASER C ONFIRMED THAT THE SALE PROCEED WAS PAID BY THEM FROM THE COMPENSATION OF R S. 2.12 CRORE, RECEIVED FROM HARYANA URBAN DEVELOPMENT AUTHORITY ( HUDA), THEREFORE, THE SAID REPORT CLEARLY ESTABLISHES THE IDENTITY AND ITA NO. 4133 MUM 201 8-SATINDER JAINARAYAN SHARMA 11 CREDITWORTHINESS OF THE PARTIES. GENUINENESS OF TRA NSACTION WAS ALSO PROVED AS THE CREDIT IN THE BANKS ACCOUNT IS THE SA LE CONSIDERATION OF THE LAND. THE LD. AR FOR THE ASSESSEE SUBMITS THAT THE ADDITIONAL EVIDENCE MAY BE ADMITTED AND IN VIEW OF THE FACTS ESTABLISHE D FROM THE REPORT OF DDIT (INVESTIGATION) THE ENTIRE ADDITIONS BE DELETE D. 13. THE LD. AR FOR THE ASSESSEE FURTHER SUBMITS THAT TH E SALE CONSIDERATION OF 12 ACRE OF LAND WAS AGREED @ RS. 23,25,000/- ( RUPE E TWENTY THREE LAKHS AND TWENTY THREE THOUSAND) PER ACRE I.E. TOTAL SALE CONSIDERATION OF RS. 2,79,00,000/- (TWO CRORE SEVENTY NINE LAKHS). THE P URCHASER AT THE TIME OF EXECUTION OF AGREEMENT ON 03.08.2010 PAID RS. 50 ,00,000/- (FIFTY LAKHS) IN CASH. ON THE DATE OF EXECUTION OF SALE DE ED ON 16.08.2010 A SUM OF RS. 1,21,00,000/- (ONE CRORE TWENTY ONE LAKH) WA S PAID BY WAY OF CHEQUE DRAWN ON PNB PREM MARKET YAMUNA NAGAR AND RE MAINING OF RS. 108,00,000/- (ONE CRORE EIGHT LAKH) WAS PAID IN CAS H. TO SUPPORT HIS CONTENTION THE LD. AR FOR THE ASSESSEE FILED THE CO PY OF THE AGREEMENT TO SALE DATE 03.08.2010, COPY OF THE AFFIDAVIT OF SAND EEP KUMAR S/O SH. LAXMAN SINGH OF VILLAGE DHARAMKOT TEHSIL BILASPUR, DISTRICT YAMUNA NAGAR, AND SH. RANDHIR TYAGI S/O DESH RAJ R/O VILLA GE MIMDI, TEHSIL JAGADHARI, DISTRICT YAMUNANAGAR, WITNESSES OF THE T RANSACTION. THE LD. AR WOULD SUBMITS THAT THESE EVIDENCES ARE CLEARLY E STABLISHED THE FACT THAT THE ASSESSEE RECEIVED CASH MONEY FROM THE PURC HASER OF THE LAND. ITA NO. 4133 MUM 201 8-SATINDER JAINARAYAN SHARMA 12 14. THE LD. AR PRAYED FOR DELETING THE ENTIRE ADDITION. THE LD. AR ALSO SUBMITS THAT THE ASSESSEE NEVER CONSENTED FOR MAKIN G ADDITION DURING THE FIRST APPELLATE STAGE AS RECORDED BY LD CIT (A) IN HIS IMPUGNED ORDER. THE ASSESSEE HAS ALREADY FILED HIS AFFIDAVIT THAT HE NE VER GAVE SUCH CONSENT TO HIS REPRESENTATIVE WHO WAS REPRESENTING HIM BEFORE LD. CIT (A). 15. ON THE OTHER HAND, THE LD. DR FOR THE REVENUE SUPPO RTED THE ORDER OF LOWER AUTHORITIES. THE LD. DR FURTHER SUBMITS THAT THE ASSESSEE HAS RELIED ON EVIDENCE WHICH IS FILED FOR THE FIRST TIME BEFOR E THE TRIBUNAL. THEREFORE, THE IN CASE THE ADDITIONAL EVIDENCES FUR NISHED BY THE ASSESSEE IS ADMITTED THE GROUNDS OF APPEAL MAY BE RESTORED T O THE FILE OF ASSESSING OFFICER FOR VERIFICATION OF FACT AND TO DECIDE THE ISSUE AFRESH. ON THE MERIT OF THE CASE THE LD DR FOR THE REVENUE SUPPORTED THE ORDER OF THE LD CIT(A). IT WAS ARGUED THAT THE FACTS NOW PLEADED BY THE ASSESSEE WAS NOT EXAMINED BY THE LOWER AUTHORITIES THEREFORE NEEDS T O BE EXAMINED BY THE LOWER AUTHORITIES. 16. WE HAVE CONSIDERED THE SUBMISSION OF THE PARTIES AN D GONE THROUGH THE ORDERS OF AUTHORITIES BELOW. WE HAVE NOTED THAT THE ASSESSEE HAS FILED APPLICATION FOR ADMISSION OF THE ADDITIONAL EVIDENC ES I.E THE REPORT OF DDIT (INVESTIGATION) AMBALA, WHICH IS THE PART OF T HE ASSESSMENT ORDER FOR ASSESSMENT YEAR 2009-10. WE HAVE FURTHER NOTED THAT THE SAID REPORT OF DDIT (INV.) WAS SENT TO ASSESSING OFFICER BY THE DDIT (INV.) AMBALA, VIDE THEIR REPORT DATED 18.03.2015. WE MAY FURTHER NOTE THAT THE REMAND ITA NO. 4133 MUM 201 8-SATINDER JAINARAYAN SHARMA 13 REPORT WAS SENT IN COMPLIANCE OF DIRECTION OF LD CI T(A). BEFORE, THE SAID REPORT COULD BE RECEIVED THE LD CIT(A) PASSED THE I MPUGNED ORDER ON 27.02.2015. THOUGH, THE LD CIT(A) DELETED THE ADDIT ION OF RS.1.01 CRORE. HOWEVER, THE OTHER ADDITION OF RS. 1.57 CRORE WAS U PHELD HOLDING THE ASSESSEE FAILED TO PROVE RECEIPT OF CASH FROM THE B UYER, THE BUYERS WERE NOT PRODUCED NOR THEIR CONFIRMATION WAS FILED. THE LD CIT(A) ALSO RECORDED THAT THE ASSESSEE DID NOT PRESSED THE GROU NDS, THUS, THE UNEXPLAINED CASH DEPOSIT WAS CONFIRMED. IT IS ALSO MATTER OF FACT THAT THE ASSESSING OFFICER PASSED THE ASSESSMENT ORDER ON 06 .03.2014 UNDER SECTION 143(3) RWS 144 OF THE ACT. 17. CONSIDERING THE RELEVANCY OF DOCUMENTS FILED THAT THE REPORT OF DDIT (INVESTIGATION) AMBALA HAS DIRECT RELEVANCE ON THE GROUNDS OF APPEAL BEFORE US. THEREFORE, WE ADMIT THE ADDITIONAL EVIDE NCE FILED BY ASSESSEE. THE PERUSAL OF THE REPORT OF DDIT (INV.) DATED 18.0 3.2015, (WHICH IS THE PART OF THE ASSESSMENT ORDER FOR AY 2009-10 DATED 1 9/12/2016) SHOWS THAT THE PURCHASER NAMELY PRAVEEN KUMAR, RAJ KUMAR AND VARINDER KUMAR ENTERED IN AGREEMENT WITH ASSESSEE FOR PURCHA SE OF A AGRICULTURE LAND ADMEASURING 91 KANAL 1 MARLA (12 ACRE), CONSEQ UENT ON THE AGREEMENT THE SALE DEED OF THE LAND WAS EXECUTED ON 16.08.2010, ON THE DAY OF EXECUTION OF SALE DEED THE ASSESSEE RECEIVED RS. 1.21 CRORE THROUGH CHEQUE. THE SAID REPORT ALSO PROVES THE GEN UINENESS OF THE TRANSACTION AND THE CREDITWORTHY OF THE PURCHASER. ITA NO. 4133 MUM 201 8-SATINDER JAINARAYAN SHARMA 14 18. FROM THE REPORT OF DDIT (INVESTIGATION) THE STAND O F THE ASSESSEE APPEARS TO BE PLAUSIBLE THAT THE CREDIT IN HIS BANK ACCOUNT WA S ON ACCOUNT OF THE SALE PROCEEDS OF AGRICULTURE LAND SOLD BY ASSESSEE. IN A NY CASE, SINCE THIS MATERIAL WAS NOT BEFORE THE ASSESSING OFFICER, AND IT INVOLV ES A FACTUAL APPRECIATION OF AFFAIRS, THE MATTER IS REQUIRED TO BE VERIFIED B Y THE ASSESSING OFFICER. THEREFORE, CONSIDERING THE OTHER DOCUMENTARY EVIDEN CES FILED BY THE ASSESSEE WHICH CONSIST OF COPY OF THE AGREEMENT TO SALE DATE 03.08.2010, COPY OF THE AFFIDAVIT OF SANDEEP KUMAR S/O SH. LAXM AN SINGH OF VILLAGE DHARAMKOT TEHSIL BILASPUR, DISTRICT YAMUNA NAGAR, A ND SH. RANDHIR TYAGI S/O DESH RAJ R/O VILLAGE MIMDI, TEHSIL JAGADHARI, D ISTRICT YAMUNAAGAR, WITNESSES OF THE TRANSACTION WHICH CLEARLY SHOWS TH AT THE PURCHASER OF THE LAND PAID TOTAL SUM OF RS.2.79 CRORE TO THE ASSESSE E, WE RESTORE THIS GROUND OF APPEAL TO THE FILE OF ASSESSING OFFICER TO VERIF Y THE FACTS AND GRANT NECESSARY RELIEF TO THE ASSESSEE IN ACCORDANCE WITH LAWS. NEEDLESS TO SAY BEFORE PASSING THE ORDER, THE ASSESSING OFFICER SHA LL GRANT SUFFICIENT OPPORTUNITY TO THE ASSESSEE OF BEING HEARD. THE ASS ESSEE IS ALSO DIRECTED TO PROVIDE ALL NECESSARY INFORMATION AND EVIDENCE TO T HE ASSESSING OFFICER WITHOUT ANY FURTHER DELAY. 19. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FO R STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT ON 26/ 07/2019. SD/ SD/- G.S. PANNU PAWAN SINGH VICE-PRESIDENT JUD ICIAL MEMBER MUMBAI, DATE: 26.07.2019 SK ITA NO. 4133 MUM 201 8-SATINDER JAINARAYAN SHARMA 15 COPY OF THE ORDER FORWARDED TO : 1. ASSESSEE 2. RESPONDENT 3. THE CONCERNED CIT(A) 4. THE CONCERNED CIT 5. DR E BENCH, ITAT, MUMBAI 6. GUARD FILE BY ORDER, DY./ASST. REGISTRAR ITAT, MUMBAI