The ITO, Ward-2, Ratlam V. Shri Umakant Sharma, Jhabua

ITA 432/IND/2013

• Counselvise Citation: 43222714 RSA 2013
• Duration Of Justice: 2 year(s) 2 month(s) 10 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-08-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 02-07-2015
• Assessment Year: 2009-2010
• Appeal Filed On: 10-06-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: G S GAUTAM
• Keywords: Additional evidence
• Section: 131; 148

Judgement Text

UMAKANT SHARMA ITA NO. 432/IND/2013 1 IN THE INCOME TAX APPELLATE TRIBUNA L INDORE BENCH, INDORE BEFORE SHRI D.T. GARASIA, HONBLE JUDICIAL MEMBER AND SHRI B.C. MEENA, HONBLE ACCOUNTANT MEMBER ITA NO. 432/IND/2013 A.Y.2009-10 INCOME TAX OFFICER-2 RATLAM ::: APPELLANT VS UMAKANT SHARMA JHABUA PAN AVNPS 24781G ::: RESPONDENT CO NO. 86/IND/2013 ARISING OUT OF ITA NO. 432/IND/2013 UMAKANT SHARMA JHABUA ::: OBJECTOR VS INCOME TAX OFFICER-2 RATLAM ::: RESPONDENT APPELLANT BY SHRI G.S. GAUTAM RESPONDENT BY SHRI RAM GILDA DATE OF HEARING 30.7.2015 DATE OF PRONOUNCEMENT 20 .8.2015 UMAKANT SHARMA ITA NO. 432/IND/2013 2 O R D E R PER SHRI B.C. MEENA, AM THE APPEAL FILED BY THE REVENUE AND CROSS OBJECTION FILED BY THE ASSESSEE EMANATE FROM THE ORDER OF THE LEARNED CIT(A), UJJAIN, DATED 8.3.2013. 2. THE ASSESSEE IS A SALARIED EMPLOYEE WORKING AS SALES MANAGER IN MADHYA PRADESH HANDLOOM. THE ASSESSEE DID NOT FILE RETURN OF INCOME. HOWEVER, NOTICE U/S 148 OF THE ACT WAS ISSUED. THE ASSESSEE PURCHASED A HOUSE WITH SH RI PUSHPENDRA SINGH TOMAR ON 27.6.2008 IN WHICH THE ASSESSEES SHARE WAS 50%. THE ASSESSING OFFICER TREAT ED THE INVESTMENT ON BEHALF OF THE ASSESSEE AT RS. 41,36, 000/- THE ASSESSEE STATED THAT THE HOUSE WAS PURCHASED ONLY FO R RS. 31 LACS. HOWEVER, AS PER THE GOVERNMENT GUIDELIN ES THE VALUE OF SUCH HOUSE PROPERTY AT RS.82,72,000/- ON WHICH THE ASSESSEE WAS TO MAKE STAMP DUTY OF RS. 9,51,476/- AND IT WAS CLAIMED THAT THE TOTAL INVESTMENT ON UMAKANT SHARMA ITA NO. 432/IND/2013 3 BEHALF OF THE ASSESSEE WAS ONLY TO THE TUNE OF RS. 20,25,738/-. THE LEARNED CIT(A) DELETED THE ADDITIO N BY HOLDING AS UNDER :- 3.2.1 THE APPELLANT HAS MADE INVESTMENT IN PURCHASE OF HOUSE PROPERTY DURING THE YEAR UNDER CONSIDERATION. AS PER THE REGISTERED DEED MARKET VALUE OF THE PROPERTY WAS RS.82,72,000/-. THE APPELLANT HAS PURCHASED THE HOUSE ALONGWITH SHRI PUSHPENDRA SINGH TOMAR AND HE IS HAVING 50% SHARE IN THE PROPERTY. IT IS STATED BY THE APPELLAN T THAT PROPERTY WHICH WAS JOINTLY PURCHASED BY HIM WITH SHRI PUSHPENDRA SINGH TOMAR HAVING PURCHASE VALUE OF RS.31,00,000/- AND REGISTRATION AND OTHER CHARGES AT RS.9,51,476/- AND TOTAL VALUE OF THE PROPERTY WAS RS.40,51,476/-. HE IS HAVING 50% SHARE THEREFORE, RS.20,25,738/- WAS INVESTED BY UMAKANT SHARMA ITA NO. 432/IND/2013 4 HIM. THE APPELLANT HAS EXPLAINED THE SOURCE OF INVESTMENT AS UNDER:- A) FROM HIS OWN SAVINGS AT RS.5,25,738/- B) FROM FAMILY MEMBERS RS.9,30,000/- C) BALANCE AMOUNT TO BE PAID AT RS.5,70,000/- TOTAL = RS. 20,25,738/- 3.2.2 THE APPELLANT HAS EXPLAINED THAT HE HAS MADE INVESTMENT OF RS.5,25,738/- FROM HIS OWN SAVINGS FROM THE SALARY AND BALANCE AMOUNT WAS INVESTED FROM THE AGRICULTURAL INCOME OF HIMSELF AND HIS FAM ILY MEMBERS. IT IS FURTHER STATED BY THE APPELLANT THA T HE AND HIS THREE BROTHERS ARE HAVING AGRICULTURAL LAND OF 15.65 HECTARES I.E. 62.50 BIGHAS AND THE ANNUAL AGRICULTURAL INCOME IS APPROXIMATELY AT RS.10,57,300/-. OUT OF TOTAL INVESTMENT OF RS.20,25,738/- HE HAS YET TO PAY RS.5,70,000/- TO THE SELLER OF THE PROPERTY. SINCE THE APPELLANT HAS NOT UMAKANT SHARMA ITA NO. 432/IND/2013 5 FURNISHED ANY EVIDENCE IN SUPPORT OF AGRICULTURAL LAND, AGRICULTURAL INCOME AND AMOUNT RECEIVED FROM THE FAMILY MEMBERS AND HIS SAVING, THEREFORE, AO HAS TREATED INVESTMENT FROM UNDISCLOSED SOURCES AND ADDED RS.20,25,738/- IN THE TAXABLE INCOME OF THE APPELLANT U/S 69. THE AO HAS ALSO NOT ACCEPTED THE CONTENTION OF THE APPELLANT THAT HE HAS NOT MAD E PAYMENT OF RS.5,70,000/- TO THE SELLER OF THE PROPERTY. 3.2.3 DURING THE APPELLATE PROCEEDINGS THE APPELLAN T HAS EXPLAINED THE SOURCE OF INVESTMENT ALONG WITH EVIDENCES. SINCE THESE EVIDENCES WERE NOT FURNISHED DURING THE ASSESSMENT PROCEEDING, THEREFORE, REMAND REPORT AS PER RULE 46A IS CALLED FOR FROM THE AO. WITH REGARD TO INVESTMENT OUT OF HIS OWN SAVING, IT IS SUBMITTED BY THE APPELLANT THAT HE IS IN SERVICE WI TH MADHYA PRADESH HANDICRAFTS WEAVERS COOPERATIVE UMAKANT SHARMA ITA NO. 432/IND/2013 6 SOCIETY FOR THE LAST 24 YEARS AND ALSO HAVING AGRICULTURAL LAND. IN SUPPORT OF HIS CONTENTION HE HAS ENCLOSED KHASRA B-1 & P-II. IT IS FURTHER CONTENDE D BY THE APPELLANT THAT HIS WIFE SMT. SADHANA (UPASANA SHARMA) IS ALSO HOLDING 21 ACRE OF AGRICULTURAL LAND AS PER THE COPY OF KHASRA B-1 & P - II. FROM THIS AGRICULTURAL LAND, ESTIMATED AGRICUL TURAL INCOME IS RS.5,30,000/- PER ANNUM AFTER ALL EXPENSES. IN SUPPORT OF HIS CONTENTION HE HAS FILE D THE CERTIFICATE OF THE PATWARI. TOTAL SAVING FROM SALARY AND AGRICULTURAL INCOME WAS SHOWN AT RS.5,25,738/-. 3.2.4 THE APPELLANT HAS MADE INVESTMENT OF RS.9,30,000/- OUT OF THE AMOUNT RECEIVED FROM HIS THREE BROTHERS NAMELY SHRI MANOJ SHARMA, SHRI ANUP SHARMA AND SHRI KRISHAN DUTT SHARMA HOLDING 50 BIGHAS OF AGRICULTURAL LAND. THE APPELLANT HAS UMAKANT SHARMA ITA NO. 432/IND/2013 7 ENCLOSED PHOTOCOPIES OF FORM NOB-1 AND KHASRA IN FORM NO.P-II-2 OF ALL THE THREE BROTHERS. THE TOTA L AGRICULTURAL INCOME OF THE BROTHERS IS AT RS.12,90,000/- PER ANNUM AS PER THE CERTIFICATE ISSUED BY THE PATWARI. THE APPELLANT HAS ALSO ENCLOSED CONFIRMATION OF ALL THE THREE BROTHERS. I N CONFIRMATION ALL OF THEM HAD ADMITTED THAT THEY HAD GIVEN RS.5 LACS EACH TO HIS ELDER BROTHER FOR THE PURCHASE OF THE HOUSE AND THIS HOUSE WAS PURCHASED FOR THE FAMILY AND BEING ELDER SON IN THE FAMILY INVESTMENT WAS MADE IN HIS NAME. THE BALANCE PAYMENT OF RS.5,70,000/- WAS NOT MADE BY THE APPELLANT TILL DATE, THEREFORE, THE SELLER HAS GIVEN A NOTICE TO THE APPELLANT FOR RECOVERY ON 26.05.201 1 AND AGAIN A REMINDER ON 27.02.2012. IN SUPPORT OF HIS CONTENTION HE HAS ENCLOSED A COPY OF BOTH THE NOTICES DULY ATTESTED BY THE PUBLIC NOTARY. UMAKANT SHARMA ITA NO. 432/IND/2013 8 3.2.5 IN THE REMAND REPORT DATED 11.01.2013 THE AO HAS NOT ACCEPTED THE CONTENTION OF THE APPELLANT AN D OBJECTED TO ADMIT THE ADDITIONAL EVIDENCES FURNISHE D BY THE APPELLANT IN SUPPORT OF HIS CONTENTION. REMAND REPORT IS AGAIN CALLED FOR FROM THE AO U/S 254 AFTER MAKING NECESSARY ENQUIRY. THE AO HAS SUBMITTED HIS REPORT AFTER MAKING NECESSARY ENQUIRY ON 18.02.2013. HE HAS ISSUED SUMMONS U/S 131 ON 28.01.2013 TO THE APPELLANT AND HIS WIFE AND HIS THREE BROTHERS AND RECORDED THEIR STATEMENT ON 05.02.2013. THE AO HAS EXAMINED THE AVAILABILITY OF FUND OF RS.20,25,738/- WITH REFERENCE TO ADDITIONAL EVIDENCE FURNISHED IN THE FORM OF KHASRA (P-II) AND KHATONI (B-1) IN THE NAME OF SMT. SADHAN A SHARMA, W/O THE APPELLANT AND HIS THREE BROTHERS. ALL OF THEM HAVE FURNISHED EVIDENCES IN SUPPORT OF LAND HOLDING AND AGRICULTURAL INCOME AND BROTHERS O F UMAKANT SHARMA ITA NO. 432/IND/2013 9 THE APPELLANT HAVE ADMITTED THAT THEY HAD GIVEN ADVANCE OF RS.5 LACS EACH TO HIS BROTHER FOR THE PURCHASE OF THE HOUSE. THE STATEMENT OF ONE BROTHER SHRI MANOJ SHARMA COULD NOT BE RECORDED DUE TO ILL HEALTH OF THEIR MOTHER SMT. SARASWATI DEVI SHARMA, BUT APPELLANT HAS FURNISHED COPY OF KHASRA AND KHATONI IN RESPECT OF AGRICULTURAL LAND OWNED BY SH RI MANOJ SHARMA AND COPY OF CERTIFICATE OF THE PATWARI HAVING AGRICULTURAL INCOME OF RS.3,80,000/- PER ANNUM. THE AO HAS OBJECTED THAT NO REGULAR BOOKS OF ACCOUNT WERE MAINTAINED BY THEM AND NOT PRODUCED DURING THE REMAND PROCEEDINGS. THE CERTIFICATE FURNISHED FROM THE PATWARI WAS TREATED BY THE AO AS PRATIVEDAN AND OBSERVED THAT NO CERTIFICATE FROM TEHSILDAR WAS FURNISHED IN SUPPORT OF AGRICULTURAL INCOME. THE AO HAS OBJECTED THAT KHASRA AND UMAKANT SHARMA ITA NO. 432/IND/2013 10 KHATONI WHICH WAS FURNISHED IN SUPPORT OF LAND HOLDING OF HIS BROTHERS RELATED TO YEAR 2010-11. 3.2.6 THE APPELLANT HAS FILED REJOINDER ON THE REMA ND REPORT AND STATED THAT HE AND HIS FAMILY MEMBERS POSSESSING OF 100 BIGHAS OF IRRIGATED LAND AND EVEN AT LEAST RS.25,000/- PER BIGHA ANNUAL INCOME IS ESTIMATED, THE FAMILY HAS AGRICULTURAL INCOME OF RS.25 LACS PER ANNUM. ALL THE FAMILY MEMBERS HAVE CONFIRMED BEFORE THE AO ON OATH TO HAVE RESPECTIVE AMOUNT IN CASH TO THE APPELLANT FOR THE PURCHASE OF RESIDENTIAL HOUSE IN THE NAME OF THE APPELLANT. TH E OBJECTION OF THE AO THAT BOOKS OF ACCOUNT AND INCOM E AND EXPENDITURE ACCOUNT AND VOUCHERS FOR AGRICULTURAL INCOME NOT MAINTAINED BY THE APPELLANT AND HIS FAMILY MEMBERS, THE APPELLANT STATED THAT EVEN AS PER THE ACT IT IS NOT MANDATORY FOR THE BUSINESSMAN TO MAINTAIN BOOKS OF ACCOUNTS UPTO THE UMAKANT SHARMA ITA NO. 432/IND/2013 11 TURNOVER OF RS.1 CRORE U/S 44AF, THEREFORE, IT IS N OT EXPECTED THAT ILLITERATE AGRICULTURALISTS WOULD MAINTAIN BOOKS OF ACCOUNT. 3.2.7 I HAVE CONSIDERED THE FACTS OF THE CASE AND FINDINGS OF THE AO CAREFULLY. THE APPELLANT IS A SALARIED EMPLOYEE AND HE IS HAVING AGRICULTURAL LAN D IN HIS OWN NAME AS WELL AS NAME OF HIS WIFE AND CONSIDERING THE LAND HOLDING OF THE APPELLANT AND H IS WIFE AND SAVING FROM THE SALARY INVESTMENT OF RS.5,25,738/- APPEARS TO BE JUSTIFIED. SIMILARLY, REMAINING INVESTMENT OF RS.9,30,000/- WAS MADE BY THE APPELLANT FROM THE AMOUNT RECEIVED FROM HIS BROTHERS WHO ARE HAVING AGRICULTURAL LAND OF APPROX . 50 BIGHAS AND ANNUAL INCOME AT RS.12,90,000/-. THE AO HAS RECORDED THE STATEMENT OF THE BROTHERS O F THE APPELLANT AND IN THE STATEMENT THEY HAVE ADMITTED THAT THEY HAD GIVEN AMOUNT IN CASH AT RS.5 UMAKANT SHARMA ITA NO. 432/IND/2013 12 LACS EACH TO HIS ELDER BROTHER FOR THE PURCHASE OF THE FAMILY HOUSE. THEY HAVE ALSO FILED THE CONFIRMATIO N AND EVIDENCES IN SUPPORT OF THEIR AGRICULTURAL LAND HOLDINGS. REMAINING RS.5,70,000/- WAS NOT PAID BY THE APPELLANT AND THIS FACT WAS ADMITTED BY THE SELLER OF THE PROPERTY ALSO WHOSE APPEAL IS ALSO PENDING BEFORE THE UNDERSIGNED. THE APPELLANT HAS ALSO FILED THE COPY OF THE LEGAL NOTICES IN SUPPORT OF HIS CONTENTION THAT AMOUNT OF RS.5,70,000/- WAS NOT PAID BY HIM. CONSIDERING THE ABOVE FACTS THE ADDITION MADE BY THE AO AT RS.20,25,738/- IS NOT SUSTAINABLE AND IT IS HEREBY DELETED. 3. WE HAVE HEARD BOTH THE SIDES. THE LEARNED DR COUL D NOT POINT OUT ANY DISCREPANCY OR MISTAKE IN THE ORDER OF THE LEARNED CIT(A) AS REPRODUCED ABOVE. THEREFORE, WE FIND NO MERIT IN THIS APPEAL OF THE REVENUE AND DISMISS THE SAME. UMAKANT SHARMA ITA NO. 432/IND/2013 13 4. CROSS OBJECTION WAS NOT PRESSED BY THE LEARNED COUNSEL FOR THE ASSESSEE, HENCE THE SAME IS DISMISSED FOR NON-PROSECUTION. 5. IN THE RESULT, THE APPEAL OF THE REVENUE AND CROSS OBJECTION OF THE ASSESSEE ARE DISMISSED. PRONOUNCED IN OPEN COURT ON 20 TH AUGUST, 2015 SD SD (D.T. GARASIA) (B.C. MEENA) JUDICIAL MEMBER ACCOUNTANT MEMBER 20 TH AUGUST 2015 DN/-