The ITO, 4(3), Indore V. Smt. Gopidevi Jhurani, Indore

ITA 422/IND/2012

• Counselvise Citation: [2013] 120 COUNSELVISE.COM (IT) 1496 (ITAT-INDORE)
• Duration Of Justice: 7 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-02-2013
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2008-2009
• Appeal Filed On: 02-07-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: R A VERMA
• Assessee Lawyers: GIRISH AGRAWAL

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL INDORE BENCH, INDORE BEFORE SHRI JOGINDER SINGH, JUDICIAL MEMBER AND SHRI R.C. SHARMA, ACCOUNTANT MEMBER ITA NO. 422/IND/2012 A.Y 2008-09 INCOME TAX OFFICER 4(3) INDORE :: APPELLANT VS SMT. GOPIDEVI JHURANI INDORE PAN ADNPJ 2956J :: RESPONDENT APPELLANT BY SHRI R.A. VERMA RESPONDENT BY SHRI GIRISH AGRAWAL DATE OF HEARING 11.02.2013 DATE OF PRONOUNCEMENT 11.02.2013 O R D E R PER JOGINDER SINGH, JUDICIAL MEMBER THE REVENUE IS AGGRIEVED BY THE ORDER DATED 20.4. 2012 PASSED BY THE LEARNED FIRST APPELLATE AUTHORITY, IN DORE, WHEREIN THE ADDITION OF RS.13,30,000/- MADE ON ACCOUNT OF U NEXPLAINED INVESTMENT IN PROPERTY WAS DELETED. THE CRUX OF AR GUMENTS ON 2 BEHALF OF THE REVENUE IS THAT THE CONCLUSION DRAWN IN THE IMPUGNED ORDER IS CONTRARY TO FACTS AND THE ADDITIO N WAS DELETED MERELY BY HOLDING THAT NEITHER THE ASSESSING OFFICE R RECORDED ANY ADVERSE FINDING ON THE TRADING RESULTS NOR REFERRED ANY MATERIAL TO INFER THAT THE ASSESSEE PAID EXTRA CONSIDERATION OV ER AND ABOVE THE PRICE STATED IN THE REGISTERED SALE DEED. THE ASSESSMENT ORDER FOR MAKING SUCH ADDITION WAS DEFENDED. ON THE OTHER HAND, THE LEARNED COUNSEL FOR THE ASSESSEE STRONGLY SUPPO RTED THE IMPUGNED ORDER BY SUBMITTING THAT THE SALE PRICE ME NTIONED IN THE SALE DEED IS THE CORRECT VALUE AND THERE IS NO EVIDENCE IN ANY MANNER THAT ANY UNDERHAND MONEY WAS TRANSACTED. TH E PAYMENT WAS CLAIMED TO BE MADE THROUGH CHEQUE AND D ULY DISCLOSED THE STATEMENT OF AFFAIRS IN THE RETURN. 2. WE HAVE CONSIDERED THE ASSERTION MADE BY THE LEA RNED RESPECTIVE COUNSEL AND PERUSED THE MATERIAL AVAILAB LE ON RECORD. THE FACTS, IN BRIEF, ARE THAT THE ASSESSEE PURCHASE D AN IMMOVABLE PROPERTY SITUATED AT 509, CORPORATE HOUSE, 169, RNT MARG, INDORE, ON A TOTAL CONSIDERATION OF RS.25 LACS ALON G WITH OTHER EXPENSES LIKE STAMP DUTY, REGISTRATION, ETC. THE AS SESSEE BORROWED LOANS FROM HDFC BANK AND SUPPLIED THE BANK STATEMENT BEFORE THE REVENUE AUTHORITIES. THE ASSES SING OFFICER 3 WAS OF THE VIEW THAT THE PRICE OF THE PROPERTY IS M UCH HIGHER, THEREFORE, ADDITION OF RS. 13,30,000/- WAS MADE. O N APPEAL, THE LEARNED CIT(A) DELETED THE ADDITION WHICH IS UNDER CHALLENGE BEFORE THE TRIBUNAL. WE FIND THAT WHILE COMING TO A PARTICULAR CONCLUSION, THE LEARNED CIT(A) HAS DULY CONSIDERED THE SUBMISSIONS OF THE ASSESSEE WHICH HAVE BEEN EXTRACT ED AT PAGES 3 ONWARDS OF THE IMPUGNED ORDER ALONG WITH CERTAIN CASE LAWS. WE FURTHER FIND THAT THERE IS NO EVIDENCE ON RECORD THAT EITHER THE ASSESSEE AND THE SELLER AGREED FOR THE AMOUNT OF RS . 37,16,000/- AS THE TOTAL TRANSACTION VALUE OR ANY EXTRA MONEY WAS TRANSACTED AS HAS BEEN ALLEGED BY THE REVENUE. THE PRESUMPTION OF THE ASSESSING OFFICER THAT THE ASSESSEE MIGHT HAVE PAID MORE IS WITHOUT ANY EVIDENCE ON RECORD. IT IS ALSO SEEN THA T THE ASSESSEE BORROWED THE AMOUNT OF RS.23,80,000/- FROM HDFC BAN K AS A HOUSING LOAN OUT OF THE SUM OF RS. 25 LACS. THE AS SESSEE ALSO PAID REGISTRATION CHARGES, ETC. AND DISCLOSED THE T OTAL COST OF THE PROPERTY AT RS. 28,51,730/- IN ITS STATEMENT OF AFF AIRS FILED WITH THE RETURN. WE HAVE PERUSED THE SALE DEED (PAGES 7 TO 14 OF THE PAPER BOOK) AND FIND THAT THE SALE VALUE HAS BEEN M ENTIONED TO THE TUNE OF RS.25 LACS ALONG WITH THE TOTAL AMOUNT OF RS. 2 LACS WHICH INCLUDES STAMP DUTY, CORPORATION DUTY AND PAN CHAYAT 4 DUTY, ETC. WE NOTE THAT THE ADDITION HAS BEEN MADE BY THE ASSESSING OFFICER MERELY ON THE BASIS OF PRESUMPTIO N. PRESUMPTION CANNOT TAKE THE SHAPE OF EVIDENCE HOWSO EVER STRONG IT MAY BE UNTIL AND UNLESS IT IS CORROBORATED WITH DOCUMENTARY EVIDENCE. IN THE CASE OF K.P. VARGHESE V. ITO; 131 ITR 597, THE HONBLE APEX COURT HELD THAT ONUS LIES ON THE REVEN UE TO ESTABLISH THAT ASSESSEE REALLY MADE PAYMENT OF THE SALE CONSIDERATION MORE THAN THE DISCLOSED IN THE DOCUME NTS. THE RATIO LAID DOWN IN CIT VS. CHANDNI BHUCHAR; 323 ITR 510 (P&H), CIT VS. SMT. SHWETA BHUCHAR; 192 TAXMAN 67, ACIT VS . SWAMI COMPLEX; 23 SOT 27 (JP) FURTHER SUPPORTS THE VIEW T AKEN IN THE IMPUGNED ORDER. EVEN BEFORE THE TRIBUNAL, NO ADVER SE MATERIAL IN ANY MANNER HAS BEEN BROUGHT ON RECORD CONTRADICT ING THE CONCLUSION DRAWN BY THE LEARNED CIT(A). EVEN OTHERW ISE, THE SALE PRICE DEPENDS ON SO MANY FACTORS LIKE NEED OF THE P ARTIES TO THE AGREEMENT, LOCATION OF THE PROPERTY, SIZE OF THE PR OPERTY, AVAILABILITY OF THE PROPERTY ALONG WITH PURCHASING POWER OF THE PURCHASING PARTIES AND NEED OF THE SELLER, ETC. IN THE ABSENCE OF 5 ANY ADVERSE MATERIAL, WE FIND NO INFIRMITY IN THE O RDER OF CIT(A). IT IS AFFIRMED. FINALLY, THE APPEAL OF THE REVENUE IS HAVING NO MER IT, THEREFORE, DISMISSED. THIS ORDER WAS PRONOUNCED IN THE OPEN COURT IN THE PRESENCE OF LD. REPRESENTATIVES FROM BOTH SIDES AT THE CONCLUSION OF THE HEARING ON 11.2.2013. SD SD (R.C.SHARMA) (JOGINDER SINGH ) ACCOUNTANT MEMBER JUDICIAL ME MBER DATED: 11.2.2013 COPY TO: APPELLANT, RESPONDENT, CIT, CIT(A), DR, GU ARD FILE DN/-111112