Smt. rama Saluja, New Delhi V. JCIT, New Delhi

ITA 4467/DEL/2015

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 3312 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 4 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-11-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: H
• Assessment Year: 2011-2012
• Appeal Filed On: 08-07-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ASHNA PAUL
• Assessee Lawyers: C S AGGARWAL; R P MALL
• Keywords: Unexplained cash credit; Unexplained expenditure
• Section: 69C; 143(3)

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH SMC, NEW DELHI BEFORE SHRI H.S. SIDHU, JUDICIAL MEMBER I.T . A . NO. 4467 /DEL/20 1 5 A.Y. 20 1 1 - 1 2 SMT. RAMA SALUJA, PROP. M/S PLASTIC PACKING HOUSE, B-31 (1 ST FLOOR), FLATTED FACTORY COMPLEX, JHANDEWALAN NEW DELHI 110 055 (PAN: AQPYS1695K) VS. JCIT, RANGE - 39, NEW DELHI (APPELLANT) (RESPONDENT) ASSESSEE BY : SH. CS AGGARWAL, SR. ADV. & SH. RP MALL, ADV. DEPARTMENT BY : MS. ASHNA PAUL, SR. DR ORDER THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF THE LD. COMMISSIONER OF INCOME TAX (APPEALS)-20, NEW DELHI DATED 08.5.2015 PERTAINING TO ASSESSMENT YEAR 2011-12 ON T HE FOLLOWING GROUND:- 1. THE LEARNED CIT (A) WAS NOT JUSTIFIED TO DISMISS THE APPEAL AND UPHOLD THE ADDITION OF RS 28,89,000/- TO THE INCOME OF THE APPELLANT AS PER DETAILS BELOW:- 2 (I) AMOUNT RECEIVED IN RESPECT OF TRANSFER OF F BOOKING RIGHTS IN PROPERTY NO. 618-A, SPAZE TOWERS, SOHNA ROAD, GURGAON : RS. 20,89,000/- (II) AMOUNT RECEIVED FROM SALE OF PLOT AT NANGLOI, NEW DELHI-110041. : RS. 5,00,000/- (III) AMOUNT RECEIVED FROM SALE OF OLD FURNITURE ETC . : RS. 3,00,000/- THE ADDITION OF RS. 28,89,000/- IS UNFOUNDED, UNCALLED FOR AND UNWARRANTED. 2. THE FOLLOWING OBSERVATIONS 1 FINDINGS OF THE LEARN ED CIT(A) ARE INCORRECT:- (A) THE APPELLANT HAS NOT FILED ANY DOCUMENTS TO SHOW THAT THE TRANSACTIONS CLAIMED BY HER, AS SOURCE OF INVESTMENT IN PROPERTY, WERE GENUINE. (B) NONE OF THE BANK STATEMENTS FROM WHERE THE WITHDRAWALS HAVE ALLEGEDLY BEEN MADE, HAVE BEEN FILE D TO CONFIRM THE GENUINENESS OF TRANSACTIONS. 3 (C) NO PHOTO IDENTIFICATION OF THE PERSONS HAVE BEE N FILED AND THE PERSONS HAVE NOT BEEN PRODUCED TO CONFIRM THE IDENTITY OF THE PERSONS. (D) THEIR PANS AND INCOME-TAX RETURNS AND BANK STATEMENTS HAVE NOT BEEN FILED TO CONFIRM THE GENUINENESS OF THE TRANSACTION AND THEIR CAPACITY TO PA Y. (E) THE APPELLANT HAS FAILED TO ESTABLISH THE GENUINENE SS, IDENTITY AND CREDITWORTHINESS OF THE THREE PERSONS AND GENUINENESS OF THE SALE TRANSACTIONS AGAINST WHICH TH E AMOUNTS HAVE BEEN RECEIVED, WHICH IN TURN HAS BEEN INVESTED IN THE PURCHASE OF UNIT NO. 914, SPAZE TOWER S FOR RS 28,89,000/-. (F) THE APPELLANT HAS BEEN UNABLE TO EXPLAIN THE SOU RCE FROM WHICH THE APPELLANT HAS ALLEGEDLY RECEIVED THE AMOUNTS IN ITS BANK ACCOUNT. (G) THE EXPLANATION OFFERED BY THE ASSESSEE ABOUT TH E NATURE AND SOURCE OF THE SUMS FOUND CREDITED IN THE BOOKS, WAS NOT SATISFACTORY. 4 (H) THE APPELLANT FAILED TO DISCHARGE ITS ONUS TO PRODUCE LEGALLY ACCEPTABLE EVIDENCE OF GENUINENESS OF THE TRANSACTIONS. (I) THE APPELLANT HAS OFFERED NO CREDITABLE EXPLANA TION ABOUT THE AMOUNTS OF RS.28,89,000/- CREDITED IN THE BOOKS MAINTAINED BY THE ASSESSEE. 3. THE LEARNED CIT(A) FAILED TO APPRECIATE THAT :- (A) THE APPELLANT HAD FILED SUFFICIENT EVIDENCE IN RESPECT OF PURCHASE OF RIGHTS OF 618A, 'SPAZE-I, TECH PARK', SECTOR 49, SOHNA-GURGAON ROAD, WHICH WERE FOR A CONSIDERATION OF RS.20,89,0001- IN NOVEMBER 2009 AND TRANSFER THEREOF TO THE ORIGINAL ALLOTTEE, NAMELY, SANJIV BINDRA-HUF IN TERMS OF LETTER DATED 01.03.2011. (B) THE APPELLANT RECEIVED INVESTMENT RETURN OF RS.5,57,280/- FROM M/S. SPAZE TOWERS PVT. LTD., WHICH WAS SHOWN AS INTEREST INCOME UNDER THE HEAD, 'INCOME FROM OTHER SOURCES' IN HER INCOME- TAX RETURN. HOWEVER, THE APPELLANT INADVERTENTLY DECLARED INTEREST OF RS.5,01,552/- (NET AMOUNT AFTER DEDUCTING TDS) IN THE INCOME-TAX RETURN. THE 5 ASSESSEE DURING THE ASSESSMENT PROCEEDINGS, THEREFORE, REQUESTED THE LEARNED ASSESSING OFFICER TO ASSESS THE INTEREST INCOME AT RS.5,57,280/- INSTEAD OF RS.5,01,552/- AND THE RETURN FOR THE ASSESSMENT YEAR 2011-12 MAY PLEASE BE TREATED TO HAVE BEEN REVISED ACCORDINGLY. (C) THE APPELLANT FILED A COPY OF AGREEMENT TO SELL AND PURCHASE AND THE RECEIPT IN RESPECT OF SALE OF PLOT AT NANGLOI, DELHI. THE WORKING OF CAPITAL LOSS (LONG TERM) ON THE SALE OF THE PLOT WAS ALSO FILED. SINCE THE PLOT AT NANGLOI SOLD WAS AN AGRICULTURAL LAND AND HAD NOT BEEN NOTIFIED BY THE SUB REGISTRAR, ROHTAK ROAD, NANGLOI, NO SALE DEED IN RESPECT OF THIS LAND WAS ALLOWABLE. THE APPELLANT, THEREFORE, SOLD THE SAID PLOT THROUGH DOCUMENTS, SUCH AS, AGREEMENT TO SELL AND PURCHASE, POWER OF ATTORNEY, RECEIPT, ETC. THESE DOCUMENTS DULY PROVED THAT THE APPELLANT HAD RECEIVED FULL CONSIDERATION OF RS.5,00,000/--, WHICH WERE THROUGH ALC PAYEE CHEQUES. 6 (D) THE APPELLANT OWNED 1/4 TH SHARE IN THE HOUSE NO. 62, KIRTI NAGAR, NEW DELHI-L10015, WHICH WAS SOLD IN THE SUBSEQUENT YEAR I.E. ASSESSMENT YEAR 2012-13. HOWEVER, DURING THE ASSESSMENT YEAR 2011-12, SHE SOLD HER HOUSEHOLD GOODS AND FURNITURE ETC. FOR A SUM OF RS. 3,00,000/- TO SMT. SHASHI AGGARWAL AND FOR WHICH NECESSARY EVIDENCE HAD BEEN ADDUCED. 4. THE VARIOUS REASONS GIVEN BY THE LEARNED CIT (A) TO UPHOLD THE ADDITION OF RS.28,89,000/- TO THE INCOMER OF THE ASSESSEE ARE MISCONCEIVED AND INCORRECT, PARTICULARLY, WHEN THERE WAS NO SUCH INCOME EARNED OR EXPENDITURE INCURRED BY THE APPELLANT IN THE ASSESSMENT YEAR UNDER APPEAL. 5. THE APPELLATE ORDER IS CONTRARY TO THE FACTS AND LAW OF THE CASE. 6. THE APPELLANT CRAVES LEAVE TO ADD, AMEND OR ALTER ANY OF THE FOREGOING GROUNDS OF APPEAL AT THE TIME OF HEARING OF THE APPEAL. 7 2. THE BRIEF FACTS OF THE CASE ARE THAT ASSESSEE FIL ED HER RETURN OF INCOME DECLARING INCOME OF RS. 6,59,638/- ON 21.3.2 012. THE RETURN OF THE ASSESSEE WAS PROCESSED U/S. 143(1) OF THE I.T. ACT, 1961 ON 09.6.2012. SUBSEQUENTLY, THE CASE OF THE ASS ESSEE WAS SELECTED FOR SCRUTINY. HOWEVER, THE ASSESSMENT HAS BEE N MADE AT AN INCOME OF RS. 36,04,367/- VIDE ASSESSMENT ORDER DATED 31.3.2014 PASSED U/S. 143(3) OF THE ACT BY MAKINGS TH E ADDITIONS OF RS. 28,89,000/-. AGGRIEVED WITH THE ASSESSMENT ORDER, ASSESSEE FILED THE APPEAL BEFORE THE LD. CIT(A) WHO VIDE HI S IMPUGNED ORDER DATED 08.5.2015 HAS DISMISSED THE APPEAL OF THE ASSE SSEE THEREBY UPHOLDING THE ADDITION MADE BY THE AO. 3. AGGRIEVED WITH THE IMPUGNED ORDER OF THE LD. CIT( A), THE ASSESSEE IS IN APPEAL BEFORE THE TRIBUNAL. 4. LD. COUNSEL OF THE ASSESSEE STATED THAT LD. CIT(A) WHILE UPHOLDING THE ADDITIONS IN DISPUTE HAS FAILED TO APPR ECIATE THAT THE ASSESSEE HAD FILED SUFFICIENT EVIDENCE IN RESPECT OF PURCHASE OF RIGHTS OF 618A, 'SPAZE-I, TECH PARK', SECTOR 49, SOH NA-GURGAON ROAD, WHICH WERE FOR A CONSIDERATION OF RS.20,89,000 /- IN NOVEMBER 2009 AND TRANSFER THEREOF TO THE ORIGINAL A LLOTTEE, NAMELY, SANJIV BINDRA-HUF IN TERMS OF LETTER DATED 01 .03.2011; THE ASSESSEE RECEIVED INVESTMENT RETURN OF RS.5,57,280/- F ROM M/S. 8 SPAZE TOWERS PVT. LTD., WHICH WAS SHOWN AS INTEREST I NCOME UNDER THE HEAD, 'INCOME FROM OTHER SOURCES' IN HER INCOME-T AX RETURN. HOWEVER, THE ASSESSEE INADVERTENTLY DECLARED INTERES T OF RS.5,01,552/- (NET AMOUNT AFTER DEDUCTING TDS) IN THE IN COME-TAX RETURN. THE ASSESSEE DURING THE ASSESSMENT PROCEEDI NGS, THEREFORE, REQUESTED THE LEARNED ASSESSING OFFICER TO ASSESS THE INTEREST INCOME AT RS.5,57,280/- INSTEAD OF RS.5,01,552/- AND THE RETURN FOR THE ASSESSMENT YEAR 2011-12 MAY PLEASE BE TREATED TO H AVE BEEN REVISED ACCORDINGLY; THE ASSESSEE FILED A COPY OF A GREEMENT TO SELL AND PURCHASE AND THE RECEIPT IN RESPECT OF SALE OF P LOT AT NANGLOI, DELHI. THE WORKING OF CAPITAL LOSS (LONG TERM) ON THE SALE OF THE PLOT WAS ALSO FILED. SINCE THE PLOT AT NANGLOI SOLD WA S AN AGRICULTURAL LAND AND HAD NOT BEEN NOTIFIED BY THE SUB REGISTRAR, ROHTAK ROAD, NANGLOI, NO SALE DEED IN RESPECT OF THIS LAND WAS A LLOWABLE. THE ASSESSEE, THEREFORE, SOLD THE SAID PLOT THROUGH DOCUME NTS, SUCH AS, AGREEMENT TO SELL AND PURCHASE, POWER OF ATTORNEY, RE CEIPT, ETC. THESE DOCUMENTS DULY PROVED THAT THE ASSESSEE HAD RECE IVED FULL CONSIDERATION OF RS.5,00,000/--, WHICH WERE THROUGH ALC PAYEE CHEQUES; THE ASSESSEE OWNED 1/4 TH SHARE IN THE HOUSE NO. 62, KIRTI NAGAR, NEW DELHI-L10015, WHICH WAS SOLD IN THE SUBSE QUENT YEAR I.E. ASSESSMENT YEAR 2012-13. HOWEVER, DURING THE ASS ESSMENT YEAR 2011-12, SHE SOLD HER HOUSEHOLD GOODS AND FURN ITURE ETC. FOR A 9 SUM OF RS. 3,00,000/- TO SMT. SHASHI AGGARWAL AND FOR WHICH NECESSARY EVIDENCE HAD BEEN ADDUCED. HENCE, HE SUBM ITTED THAT LD. CIT(A)S ACTION IN UPHOLDING THE ADDITION OF RS. 28,89,000/- TO THE INCOMER OF THE ASSESSEE ARE MISCONCEIVED AND INC ORRECT, PARTICULARLY, WHEN THERE WAS NO SUCH INCOME EARNED OR EXPENDITURE INCURRED BY THE ASSESSEE IN THE ASSESSMENT YEAR UNDER APPEAL. IN ORDER TO SUPPORT HIS CASE, LD. COUNSEL OF THE ASSES SEE HAS FILED A PAPER BOOK CONTAINING PAGES 1 TO 51 IN WHICH HE HAS ATTACHED THE COPY OF STATEMENT OF INCOME, PROFIT AND LOSS ACCOUNT AND BALANCE SHEET; COPY OF GENERAL POWER OF ATTORNEY DATED 23.12 .2010; COPY OF AGREEMENT TO SELL AND PURCHASE DATED 23.12.2010; COPY OF AFFIDAVIT; COPY OF REPLY TO QUESTIONNAIRE DATED 28.10. 2013; COPY OF BANK ACCOUNT DETAILS; COPY OF MEMO OF UNDERSTANDING DATED 12.9.2007; COPY OF LETTER DATED 16.11.2009 OF THE APP ELLANT TO M/S SPAZE TOWERS PVT. LTD; COPY OF AFFIDAVIT OF THE ALLO TTEE SH. SANJIV BINDRA KARTA OF SANJIV BINDRA (HUF); COPY OF THE RE CEIPT DATED 7.9.2007 ISSUED BY M/S SPAZE TOWERS PVT. LTD; COPY OF AFFIDAVIT OF THE APPELLANT; COPY OF THE AGREEMENT TO SELL AND PURCHAS E DATED 23.12.2010; COPY OF LETTER DATED 1.3.2011 OF SH. SA NJIV BINDRA KARTA OF SANJIV BINDRA (HUF) TO M/S SPAZE TOWERS PVT . LTD; COPY OF THE CHEQUE GIVEN BY THE ASSESSEE TO SH. SANJIV BIND RA KARTA OF SANJIV BINDRA (HUF); COPY OF RECEIPT OF THE CHEQUE I N RESPECT OF 10 SALE OF OLD FURNITURE; COPY OF THE AFFIDAVIT OF SH. B AL KISHAN VIJ ALONGWITH WILL FOR THE SALE OF LAND; AND COPY OF THE WRITTEN SUBMISSIONS FILED BEFORE THE LD. CIT(A). IN VIEW OF THE ABOVE, HE REQUESTED THAT ADDITIONS IN DISPUTE MAY BE DELETED A ND APPEAL OF THE ASSESSEE MAY BE ALLOWED. 5. ON THE CONTRARY, LD. DR RELIED UPON THE ORDERS OF THE AUTHORITIES BELOW AND STRONGLY OPPOSED THE REQUEST OF TH E LD. COUNSEL OF THE ASSESSEE. 6. I HAVE HEARD BOTH THE PARTIES AND PERUSED THE RELE VANT RECORDS, ESPECIALLY THE ORDER OF THE LD. CIT(A). I FIND THAT AO IN HIS ASSESSMENT DATED 31.03.2013 PASSED ULS 143(3) OF THE A CT HAS COMPUTED THE TOTAL INCOME OF THE ASSESSEE AT RS. 36,0 4,367/-, AS AGAINST THE INCOME RETURNED OF RS. 6,59,639/-- INTER-A LIA MAKING ADDITIONS OF: (A) ADDITION ULS 69C OF THE ACT OF RS. 28,89,000/- (B) INCOME FROM OTHER SOURCES (TO BE ADDED TO THE I NCOME AS PER ASSESSEE'S CONTENTION) OF RS. 55,728/-. THE S AID SUM IS NOT IN DISPUTE ANY MORE. THE ADDITION THUS DISPUTED IN THIS APPEAL IS ONLY OF RS . 28,89,000/- COMPRISES OF THE FOLLOWING SUMS:- 11 (I) AMOUNT RECEIVED IN RESPECT OF TRANSFER OF THE BOOKING RIGHTS IN PROPERTY NO. 618-A SPAZE TOWERS, SOHNA ROAD, GURGAON RS. 20,89,000/ - (II) AMOUNT RECEIVED FROM SALE OF PLOT AT NANGLOI, NEW DELHI 41 RS. 5,00,000/ - (III) AMOUNT RECEIVED FROM SALE OF OLD FURNITURE ETC. RS. 3,00,000/ - 6.1 I FIND THAT THE ASSESSEE GOT REGISTERED TWO PROPERTI ES, ONE FLAT NO. 1203, GREATER NOIDA AND ANOTHER OFFICE SPACE AT 914, TOWER A, SPAZE CORPORATION PARK, SECTOR 69-70, GURGAON. IN RES PECT OF THE FLAT NO. 1203, GREATER NOIDA, CONSIDERATION WAS PAID IN EARLIER YEARS FROM ACCOUNTED SOURCES, HOWEVER IN THE INSTANT YEAR, A SSESSEE HAS INCURRED AN EXPENDITURE OF RS. 1,79,200/- AS STAMP DU TY CHARGES AND RS. 8,09,274/- AS MISCELLANEOUS CHARGES PAID TO UP TOWNSHIP, TURQUOISE CONSTRUCTION AND FALCON INFRABUILT P LTD. FU RTHER, IN RESPECT OF OFFICE SPACE AT 914, TOWER A, SPAZE CORPO RATION PARK, SECTOR 69-70, GURGAON, ASSESSEE GOT THE AFORESAID PRO PERTY REGISTERED FOR A SUM OF RS. 26,42,127/- DURING THE Y EAR. THE AFORESAID INVESTMENTS WERE MADE BY THE ASSESSEE OUT OF THE SUMS CREDITED IN ITS BANK ACCOUNT WHICH WAS SUBMITTED TO T HE AO (PLACED AT PAGE NO. 21-22 OF THE PB) AND HAS NOT BEEN DISPUTE D EITHER BY THE ASSESSEE OR BY THE REVENUE. SINCE ASSESSEE HAD M ADE AN INVESTMENT OF RS. 26,42,127/- AND NOT RS. 28,89,000/ - WHICH SUM WAS PAID BY HER TO SPAZE TOWER THROUGH A CHEQUE AND IS DULY 12 DEBITED IN HER BANK ACCOUNT ON 05.03.2011 (PLACED A T PAGE 22 OF THE PB). ON THE AFORESAID DATE, THE BALANCE IN THE AFO RESAID BANK ACCOUNT OF ASSESSEE WAS RS. 26,71,782.16. IT IS THU S MORE THAN CLEAR THAT THE AMOUNT OF INVESTMENT MADE WAS OF RS. 26 ,71,782/- AND NOT RS. 28,89,000/- AND THE SAME WAS ALSO MET OUT OF HER EXISTING BANK ACCOUNT WHICH SHOWS THE CREDIT BALANCE O F RS. 26,71,782.16. IN SUCH CIRCUMSTANCES, TO CONCLUD E THAT AN AMOUNT OF RS. 28,89,000/- WAS AN UNEXPLAINED EXPENDI TURE IS NOT SUSTAINABLE IN THE EYES OF LAW. 6.2 I FURTHER NOTE THAT ASSESSEE EXPLAINED THAT RS. 26, 71,782.16 WAS A SUM INVESTED BY HER OUT OF HER EXISTING ACCOUNT AND THAT THE AFORESAID SUM IS PAID OUT OF HER BALANCE IN THE ACCO UNT. IT WAS SUBMITTED THAT THE FIRST OF THE CREDIT OF RS. 20,89,0001 - (WHICH IS A SUM ADDED) REPRESENTED AN AMOUNT OF RECEIPT ON 01.0 3.2011 ON TRANSFER OF RIGHTS IN A SPACE WHICH HAD BEEN ACQUIRED BY HER FROM M/S SANJIV BINDRA HUF ON 16.11.2009. IT WAS EXPLAINE D THAT THE ASSESSEE HAD ACQUIRED SUCH RIGHT IN THE SPACE FROM M /S SANJIV BINDRA HUF ON 16.11.2009 (PAGE 27-28 OF PB) WHICH R IGHTS HAD BEEN ACQUIRED BY M/S SANJIV BINDRA HUF UNDER AN MOU DATED 12.09.2007 FROM M/S SPAZE TOWERS PVT. LTD. THUS THE CREDIT OF RS. 20,89,000/- APPEARING IN THE BANK ACCOUNT REPRESENTS A SUM OF RECEIPT WHICH IS FULLY AND SATISFACTORILY EXPLAINABL E AND IS SUPPORTED 13 BY EVIDENCE AND IS IN FACT A REFUND OF THE AMOUNT EAR LIER INVESTED ON 16.11.2009 (A Y 2010-11). IN SUCH CIRCUMSTANCES, IT I S EVIDENT THAT THE PAYMENT MADE BY THE ASSESSEE OF RS. 26,42,127/- C ANNOT BE REGARDED AS AN UNEXPLAINED EXPENDITURE BY ANY STRETCH OF IMAGINATION. TO SUPPORT THE RECEIPT FROM M/S SANJIV B INDRA HUF ON TRANSFER OF RIGHTS, THE ASSESSEE HAD PLACED ON RECORD THE FOLLOWING DOCUMENTARY EVIDENCES: S.NO. DATE PARTICULARS PAGES OF PAPER BOOK 1. 16.11.2009 PURCHASE RIGHTS IN UNIT NO. 618A, GURGAON, SOHNA ROAD, GURGAON FROM SANJIV BINDRA HUF WHO HAD ACQUIRED THE SAME FROM M/S SPAZE TOWERS PVT. LTD. FOR A SUM OF RS. 20,89,000/- AND PAID THE CONSIDERATION BY CHEQUE BEARING NO. 756677 DATED 10.11.2009 DRAWN ON PNB, KIRITI NAGAR, NEW DELHI PAGE 40 PHOTOCOPY OF THE CHEQUE ISSUED IN FAVOUR OF SANJIV BINDRA HUF 2. 16.11.2009 INTIMATION GIVEN TO M/S SPAZE TOWERS PVT. LTD. PAGES 27 - 28 3. 07.9.2009 PAYMENT DETAIL MADE BY SANJIV BINDRA HUF TO M/S SPAZE TOWERS PVT. LTD. OF RS. 20,64,000/- PAGE 31 4. AFFIDAVIT OF ASSESSEE AT THE PAGE 32 - 33 14 TIME OF THE EXECUTION OF THE AGREEMENT ACQUIRING BOOKING RIGHTS. 5. ENDORSEMENT MADE BY M/S SPAZE TOWERS PVT. LTD. IN FAVOUR OF ASSESSEE ON THE REVERSE OF THE RECEIPT. PAGE 31 REVERSE PAGE 6.3 IN VIEW OF THE ABOVE, IN MY CONSIDERED OPINION , THE ASSESSEE HAD RECEIVED A SUM OF RS. 20,89,000/- FROM M/S SAN JIV BINDRA HUF IN THE PROPERTY 618A, SOHNA ROAD, GURGAON, WHICH HAD BEEN ACQUIRED BY THE ASSESSEE AND HAD MADE A PAYMENT OF RS. 20,89,000/- ON 16.11.2009 RELEVANT TO THE ASSESSM ENT YEAR 2010-11. IN OTHER WORDS, THE RIGHTS ACQUIRED BY THE AS SESSEE ON 1.6.11.2009 WERE RETRANSFERRED TO M/S SANJIV BINDRA H UF AND WAS A FULLY EXPLAINED CREDIT. THUS SUCH RIGHTS AS HAD BEEN ACQUIRED BY THE ASSESSEE WERE THUS TRANSFERRED IN FAVOUR OF SANJIV BINDRA HUF ON 01.03.2011 WHEN THE ASSESSEE HAD RECEIVED RS. 20,89 ,000/- THROUGH BANK ACCOUNT AND IS DULY REFLECTED (PAGE 22 O F PB). TO SUPPORT THE AFORESAID TRANSFER OF SUCH RIGHTS IN FAVOU R OF SANJIV BINDRA HUF, THE ASSESSEE HAD FURNISHED THE FOLLOWING DOCUMENTARY EVIDENCE: 15 A. CONFIRMATION OF THE VENDEE TO THE MIS SPAZE TOWER P . LTD. READING AS UNDER: PAGE 38 'THIS IS TO INFORM YOU THAT, I HAVE PURCHASE THE ABOVE SAID UNIT NO. 618A IN SECTOR-49 ON SOHNA GURGAON ROAD, TEHSIL AND DISTRICT GURGAON FOR RS. 20,89,0001- (RUPEES TWENTY LAKH EIGHTY JVINE THOUSAND ONLY) AS TOTAL CONSIDERATION INCLUDING OTHER CHARGES PAID TO YOU ALSO. I HAVE MADE FULL PAYMENT TO MRS. RAMA SALUJA WLOF MR. RAM AVATAR SALUJA RIO H-63, KIRTI NAGAR, NEW DELHI -110015 IN HER SB ALE NO. 151321 WITH PNB, BRANCH KIRTI NAGAR, AND NEW DELHI THROUGH RTGS ON OFT MARCH' 2011. ' B. M/S SPAZE TOWER P. LTD. AS WOULD BE SEEN ACCORDINGLY ENDORSED THE BOOKING RIGHT. PAGE 39 6.4 KEEPING IN VIEW OF THE FACTS AND CIRCUMSTANCES OF THE CASE, IN MY OPINION, THE AO HAS INCORRECTLY MADE AN ADDITION OF THE AFORESAID SUM BY INVOKING THE PROVISION OF SECTION 6 9C OF THE INCOME TAX ACT. HOWEVER, THE ASSESSEE HAS NOT INCURRED EXPENDITURE IN RESPECT OF WHICH SHE HAS NOT BEEN ABLE TO EXPLAIN THE SOURCE OF SUCH EXPENDITURE AND HENCE THE ADDITION OF 16 RS. 20,89,000/- IS NOT TENABLE AS THE SAME AMOUNT OF RS.20,89,000/- SUM WHICH IS AN AMOUNT RECEIVED BY THE ASSESSEE AND IS THUS FULLY EXPLAINED AND ASSESSEE HAS LAID CO MPLETE DOCUMENTARY EVIDENCES TO ESTABLISH THE SAME AS SUCH, A DDITION MADE AND SUSTAINED IS WHOLLY UNSUSTAINABLE IN LAW. AP ART FROM ABOVE, THE IDENTITY OF THE CREDITOR AND EXISTENCE AND ID ENTITY CANNOT BE DOUBTED OR DISPUTED. FURTHER MERELY BECAUSE, SUCH PERSON ON ACCOUNT OF MEDICAL GROUND DID NOT APPEAR, BUT HAD DU LY FILED ALL NECESSARY DETAIL, NO ADVERSE INFERENCE CAN BE DRAWN AGAINST THE ASSESSEE, AS THE POWER TO ENFORCE THE ATTENDANCE OF A WITNESS IS WITH THE AO. IN FACT IT IS SETTLED LAW THAT IF A CREDITO R IGNORE THE SUMMONS OR DON'T APPEAR BEFORE THE AO COULD NOT BE A GROUND TO DRAW ADVERSE INFERENCE AGAINST THE ASSESSEE. IN VIEW OF ABOVE, THE ADDITION OF RS. 20,89,000/- IN DISPUTE IS HEREBY D ELETED. 6.5 WITH RESPECT TO ADDITION AMOUNTING TO RS. 5,00,00 0/- RECEIVED ON 04.01.2011 FROM SALE OF PLOT AT NANGLOI, NEW DELHI 110041 IS CONCERNED, I FIND THAT THERE IS NO EXPENDITURE INCUR RED BY THE ASSESSEE BUT REPRESENT A CREDIT APPEARING IN THE BAN K ACCOUNT OF THE ASSESSEE OF RS. 5 LAKHS. IT WAS NOTED THAT IN THE BANK ACCOUNT OF THE ASSESSEE, A SUM OF RS. 5,00,000/- WAS CREDITED ON 0 4.01.2011 (PAGE 22B OF PB), WHICH HAS BEEN ADDED BY THE AO AS AN UNEXPLAINED EXPENDITURE, WHICH HAS BEEN UPHELD BY TH E LEARNED 17 CIT(A). I FURTHER NOTE THAT THE ASSESSEE ON 30.12.199 4 HAS PURCHASED AN AGRICULTURAL LAND SITUATED IN THE REVENU E ESTATE OF VILLAGE NANGLOI JAT, NEW DELHI FOR A TOTAL CONSIDERATIO N OF RS. 1,90,000/-. THE AFORESAID AGRICULTURAL LAND HAD BEEN ACQUIRED FROM SHRI BAL KISHAN VIJ WHICH IS DULY SUPPORTED BY AN AFFIDAVIT AND ALSO SO STATED IN THE WILL (PAGE 42-43 OF THE PB). TH E CONSIDERATION FOR THE SAME WAS ALSO ACKNOWLEDGED BY THE SELLER (PAG E 44 OF THE PB). THE AFORESAID LAND AS HAD BEEN ACQUIRED AS AF ORESAID WAS TRANSFERRED ON 23.12.2010 TO SHRI. AMAR NATH GOYAL FO R A TOTAL CONSIDERATION OF RS. 5,00,000/-, WHEN THE FOLLOWING DOCUMENTS HAD BEEN EXECUTED: 1. GENERAL POWER OF ATTORNEY (PAGE 6-8 OF PB) 2. AGREEMENT TO SELL AND PURCHASE (PAGE 9-11 OF P B) 3. AFFIDAVIT (PAGE 12-13 OF PB) 4. POSSESSION LETTER (PAGE 15 OF PB) 6.6 THUS, THE AFORESAID SUM OF CONSIDERATION HAD BEEN RECEIVED AGAINST THE TRANSFER MADE BY THE ASSESSEE THROUGH ACCO UNT PAYEE CHEQUE AND SAME WAS ALSO ACKNOWLEDGED BY THE ASSESSE E (PAGE 14 OF THE PB). HENCE, THE ENTIRE RECEIPT IS WELL EXPLAI NED AND HAS NOT BEEN DOUBTED AS AN UNEXPLAINED CREDIT. THE AO HAS AGA IN MADE NO 18 ATTEMPT TO DISPUTE THE RECEIPT THROUGH BANK ACCOUNT OF THE VENDEE TO WHOM THE LAND WAS TRANSFERRED WHICH FACT HAS DULY B EEN ADMITTED BY THE TRANSFEREE. IN VIEW OF THE ABOVE, THE ADDITION IN DISPUTE IS HEREBY DELETED. 6.7 WITH RESPECT TO ADDITION OF RS. 3,00,000/- RECEI VED FROM SALE OF OLD FURNITURE ETC. IS CONCERNED, I FIND THAT ASSESSE E HAS RECEIVED A SUM OF RS. 3,00,000/- ON 08.01.2011 BY ACCOUNT PAYEE CHEQUE FROM MRS. SASHI AGGARWAL IN RESPECT OF THE SALE OF TH E OLD FURNITURE, AND TO SUPPORT THE AFORESAID TRANSACTION, ASSESSEE HAS ALSO FILED THE CONFIRMATION FROM MRS. SASHI AGGARWAL WHO HAS DULY CONFIRMED THE PURCHASE OF THE FURNITURE FROM THE APPELLANT. COPY OF THE RECEIPT OF THE CHEQUE FROM SMT. SASHI AGGARWAL HAS BEEN PLACED AT PAGE 41 OF THE PAPER BOOK. AS PER RECORD THE ASSESSEE WAS A CO- OWNER OF 1/4TH SHARE IN HOUSE NO. 62, KIRTI NAGAR, NEW DELHI W HICH HOUSE PROPERTY WAS SOLD FOR AN AGGREGATE CONSIDERATION OF RS . 1 CRORES AND ASSESSEE SHARE BEING 1/4 TH RECEIVED A SUM OF RS. 25 LAKHS BEING 1/4 TH OF THE TOTAL CONSIDERATION WHICH WAS CREDITED IN HER ACCOUNT ON 12.08.2011 WHEN THE SALE DEED WAS REGISTERED (COP Y OF THE SALE DEED AND BANK ACCOUNT IS PLACED ON RECORD). APART FR OM THE AFORESAID, THE ASSESSEE HAS ALSO RECEIVED RS. 3 LAKH S TOWARDS THE SALE OF HOUSEHOLD GOODS SUCH AS FURNITURE, CABINS, BOARDS, DRAWING TABLES, SOFAS ETC WHICH WERE LYING IN THE SAID HOUSE. THE AO HAS NOT 19 DISPUTED THE AFORESAID SALE OF THE PROPERTY, IN SUCH CIRCUMSTANCES, HAVING ACCEPTED THE SALE OF AFORESAID HOUSE PROPERT Y, REVENUE WAS NOT JUSTIFIED BY ANY LOGIC TO DISPUTE THE CONSIDERATI ON RECEIVED BY THE ASSESSEE OF RS. 3 LAKHS TOWARDS THE SALE OF HOUSE HOLD ITEMS FROM MRS. SASHI AGGARWAL, WHO HAS CONFIRMED THE PURC HASE OF HOUSE HOLD ITEMS AND IS A TAX ASSESSEE HAVING PAN AAAPA3587 A. IN FACT, THE AO HAS ISSUED SUMMONS ULS 131 OF THE ACT WHICH SUM MONS WERE DULY SERVED AND WERE ALSO COMPLIED AS SUCH, HE COULD NOT HAVE THUS MADE THE ADDITION, AS PER SETTLED LAW. I FURTHER NO TE THAT IN RESPONSE TO THE SUMMONS ISSUED U/S 131 OF THE ACT, MR S. SASHI AGGARWAL DULY CONFIRMED THE AFORESAID TRANSACTION AND ALSO FILED HER COPY OF ITR. HOWEVER, REQUESTED TO EXCUSE HER PRESEN CE ON MEDICAL GROUNDS AND IN SUPPORT ALSO FILED THE MEDICAL CERTI FICATES. THE COPY OF THE AFORESAID REPLY HAS NOT BEEN MADE AVAILABLE T O THE ASSESSEE AND SAME IS ON THE RECORD OF THE AO HAS ALSO BEEN N OTED BY THE AO IN HIS ORDER AT PAGE 6. IN SUCH CIRCUMSTANCES, IN MY VIEW, NEITHER THE IDENTITY OF THE CREDITOR NOR THE CREDITWORTHINESS CAN BE DISPUTED. FURTHER MERELY BECAUSE, SUCH A PERSON ON ACCOUNT OF MEDICAL GROUND DID NOT APPEAR IN RESPONSE TO SUMMONS, BUT FI LE ALL NECESSARY DETAIL, NO ADVERSE INFERENCE CAN BE DRAWN AGAINST THE ASSESSEE, AS POWER TO ENFORCE THE ATTENDANCE OF A WITNE SS IS WITH THE AO, AS PER SETTLED LAW. IN FACT, IT IS SETTLED LAW THAT IF A CREDITOR 20 IGNORE THE SUMMONS OR DON'T APPEAR BEFORE THE AO COUL D NOT BE A GROUND TO DRAW ADVERSE INFERENCE AGAINST THE ASSESSEE . IN VIEW OF THE IN MY OPINION, SINCE THE ASSESSEE HAS DISCHARGED ITS BURDEN AND NOT AN IOTA OF MATERIAL HAS BEEN BROUGHT ON RECORD, EX CEPT OF HARBORING THE SUSPICION, ADDITION MADE BY THE AO AN D SUSTAINED BY THE LEARNED CIT(A) IS NOT TENABLE, HENCE, THE SAME IS DELETED. 7. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE STANDS ALLOWED. ORDER PRONOUNCED ON 27/11/2017. SD/- (H.S. SIDHU] JUDICIAL MEMBER DATE 27/11/2017 SRBHATNAGAR COPY FORWARDED TO: - 1. APPELLANT - 2. RESPONDENT - 3. CIT 4. CIT (A) 5. DR, ITAT TRUE COPY BY ORDER, ASSISTANT REGISTRAR, ITAT, DELHI BENCHES