Sh. Brijech Kumar, New Delhi V. ITO, New Delhi

ITA 450/DEL/2013

• Counselvise Citation: 45020114 RSA 2013
• Duration Of Justice: 1 year(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-02-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 11-02-2014
• Assessment Year: 2006-2007
• Appeal Filed On: 24-01-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: Y KAKKARDR
• Assessee Lawyers: R S SINGH VIC A
• Keywords: Revised return
• Section: 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH A: NEW DELHI BEFORE SHRI R. P. TOLANI, JUDICIAL MEMBER AND SHRI J. S. REDDY, ACCOUNTANT MEMBER I.T.A.NO.450/DEL/2013 ASSESSMENT YEAR : 2006-07 BRIJECH KUMAR, VS. ITO 94, RAM VIHAR WARD-38(1) NEW DELHI. NEW DELHI. PAN: AMUPK2710R. (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI R. S. SINGH VI,C.A RESPONDENT BY : MS. Y. KAKKAR,DR. O R D E R PER J. S. REDDY, ACCOUNTANT MEMBER THIS IS AN APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS)-XX VIII, NEW DELHI DATED 03.12.2012. ON THE FOLLOWING GROUNDS: 1(I) THAT ON THE FACTS AND CIRCUMSTANCES OF THE CA SE, THE CIT (A) WAS NOT JUSTIFIED IN SUSTAINING ADDITION OF RS. 15,00,000/- BEING SALE PROCEEDS OF PROPERTY AS UNEXPLAINED CASH DEPOSIT EVEN THOUGH THE CAPITAL GAIN IN RESPECT OF THE SAID RECEIPT HAS DULY BEEN DECLARED AND ASSESSED IN THE YEAR UNDER R EFERENCE. (II) THAT THE ASSESSING OFFICER HAS INITIATED PROCE EDINGS U/S 148 WITH REFERENCE TO SALE PROCEEDS OF 15,00,000/- IN RESPECT TO WHICH CAPITAL GAIN WAS DULY BEEN DECLARED AND ASSES SED, THERE IS NO CASE OF ANY FURTHER ADDITION. 2 (III) THAT WHOLE BASIS OF ADDITION IS ILLEGAL, ARBI TRARY AND WITHOUT PROPER APPRECIATION OF FACTS AND EVIDENCE O N RECORD. 2. THAT ORDERS OF THE LOWER AUTHORITIES IN RESPECT OF ADDITION SUSTAINED ARE NOT JUSTIFIED ON FACTS AND UNDER THE LAW. 2. THE ASSESSEE IS AN INDIVIDUAL AND HAD FILED HIS RETURN OF INCOME ON 31 ST OCT. 2006 DECLARING INCOME OF RS.6,18,705/-. THE AS SESSEES CASE WAS REOPENED AND ASSESSEE DECLARED CAPITAL GAINS OF RS. 4,03,520/- IN THE REVISED RETURN OF INCOME. 3. THE ASSESSING OFFICER REJECTED THE CLAIM OF THE ASSESSEE THAT HE EARNED CAPITAL BY THE SALE OF PROPERTY. HE HELD THA T THE ASSESSEE COULD NOT FURNISH ANY DOCUMENTARY EVIDENCE IN SUPPORT HIS CON TENTION THAT SHE ACQUIRED PROPERTY AND HAD SOLD THE SAME. THUS, HE H ELD THAT THE CASH DEPOSITS IN THE BANK ACCOUNT ARE NOT EXPLAINED AND HENCE ADD ED AN AMOUNT OF RS.15,00,000/-. 4. THE LD. CIT (A) AFTER EXTRACTING THE SUBMISSIONS OF THE ASSESSEE, IN A BRIEF CONCLUSION AT PARA 3 PAGE 8 REJECTED THE CONT ENTIONS OF THE ASSESSEE. AGGRIEVED THE ASSESSEE IS BEFORE US. 5. THE LD. COUNSEL FOR THE ASSESSEE MR. R. S. SINGH VI SUBMITS THAT THE REOPENING HAS NOT BEEN CHALLENGED AND THE ASSESSEE FILED A REVISED RETURN, OFFERING CAPITAL GAINS. HE REFERRED TO THE LETTER D ATED 19.09.2001 WRITTEN BY THE ASSESSEE TO THE ASSESSING OFFICER AT PAGES 56 O F THE PAPER BOOK AND 3 SUBMITTED THAT REGISTERED DOCUMENTS EVIDENCING PURC HASE OF PROPERTY IN 2002 AND REGISTERED DOCUMENTS EVIDENCING SALE OF PR OPERTY IN THE YEAR 2005 WERE FILED AND THAT THE SALE CONSIDERATION RECEIVED WAS IN CHEQUES AND THAT ENTRIES IN THE BANK ACCOUNT WERE CORRESPONDING WITH THE CHEQUES RECEIVED BY THE SALE OF PROPERTY AND THAT THE ASSESSING OFFICER AS WELL AS THE LD. CIT (A) IGNORED THESE EVIDENCES AND MADE THE ADDITION. 6. THE LD. DEPARTMENTAL REPRESENTATIVE MS. Y. KAKKA R ON THE OTHER HAND, SUBMITTED THAT THE ASSESSEE HAD VOLUNTARILY D ISCLOSED THIS AMOUNT AS INCOME DURING SURVEY OPERATIONS DURING THE PERIOD. THAT NO EVIDENCE WHATSOEVER WAS FILED IN SUPPORT OF THE CLAIM THAT T HE ASSESSEE HAS EARNED CAPITAL GAINS. SHE RELIES ON THE CASE LAW REPORTED IN 236 ITR 246 (DEL). FURTHER SHE SUBMITTED THAT THE ASSESSING OFFICER WA S ONLY GIVING EFFECT TO THE DIRECTIONS OF THE LD. CIT (A) WHO DISPOSED OFF THE APPEAL FOR THE ASSESSMENT YEAR 2007-08. SHE ALSO RELIED ON THE CAS E LAW REPORTED IN 243 ITR 19 (KER). 7. AFTER HEARING RIVAL CONTENTIONS, WE FIND THAT TH E AMOUNT IN QUESTION I.E. RS. 15,00,000/- WAS EXPLAINED TO HAVE BEEN REC EIVE AS FOLLOWS: THE DETAILS AND SOURCE OF DEPOSIT OF RS. 15,00,00 0/- IS GIVEN HEREUNDER: 4 A) IN RESPECT OF SALE OF BASEMENT FOR RS.3 LAC VIDE SA LE DEED DATED 07/10/05 I) CH NO. 870654 DT28/08/2005 DRAWN ON ICICI BANK LTD . 1,00,000/- II) P. O. 090585 DT 06/10/2005 DRAWN ON ALLAHABAD B ANK 1,00,000/- III) CH. NO. 398627 DT 07/10/2005 DRAWN ON PNB 1,0 0,000/- B) IN RESPESCT OF SALE OF 1 ST FLOOR FOR RS.12 LAC VIDE SALE DEED DATED 07/10/2005 IV) P. O. 128819 DT 06/10/2005 DRAWN ON ICICI BANK LTD. 11,00,000/- V) CH. NO. 398626 DT 07/10/2005 DRAWN ON PNB 1,00 ,000/- ---------------------------------------------- -------- TOTAL RS.15,00,000/- 7. WHILE THE AMOUNTS WERE RECEIVED BY WAY OF CHEQUE S AND POSTAL ORDERS, THE ASSESSING OFFICER HAS COMMITTED A FACTU AL MISTAKE BY HOLDING THAT THE AMOUNTS WERE RECEIVED BY WAY OF CASH. THES E ARE NOT CASH DEPOSITS. ON 19.09.2011 THE ASSESSEE HAS FURNISHED COPIES OF REGISTERED SALE DEEDS, REGISTERED AGREEMENT OF SALE OF BOTH PURCHASES AND SALE OF BASEMENT FLOOR AND FIRST FLOOR. THE ASSESSING OFFICER AS WELL AS L D. CIT (A) TOTALLY IGNORED THESE EVIDENCES AND IN A PRE CONCEIVED MANNER, WITH OUT ANY BASIS MADE THE ADDITION OF RS. 15,00,000/-. 8. THE LD. CIT (A) FROM PAGES 2 TO 8 HAS EXTRACTED THE SUBMISSIONS OF THE ASSESSEE BUT HAS NOT DEALT WITH ANY OF THE CONT ENTIONS, MUCH LESS THE 5 EVIDENCE PRODUCED. TO SAY THE LEAST, THIS IS NOT EX PECTED OF A SENIOR OFFICER, DISCHARGING A QUASI JUDICIAL FUNCTION. 9. THE EVIDENCES PRODUCED BY THE ASSESSEE ARE AS FO LLOWS : (A) COPY OF SALE DEED (FOR PURCHASE) OF BASEMENT FL OOR DATED 04.10.2002 FOR RS.2,00,000/-. (B) COPY OF SALE DEED (FOR PURCHASE) OF FIRST FLOOR DATED 04.10.2002 FOR RS.7,00,000/-. (C) COPY OF AGREEMENT TO SALE OF BASEMENT FLOOR DAT ED 07.10.2005 FOR RS.12,00,000/-. (D) COPY OF SALE DEED OF FIRST FLOOR DATED 07.10.20 05 FOR RS.9,00,000/-. 10. A PERUSAL OF THE COPIES OF THESE REGISTERED DOC UMENTS DEMONSTRATES THAT THE ASSESSEE RECEIVED THE SALE CONSIDERATION B Y WAY OF CHEQUES AND POSTAL ORDERS AND THESE WERE CORRESPONDING TO THE C REDITS IN THE BANK ACCOUNTS. 11. COMING TO THE ARGUMENTS OF THE LD. DEPARTMENTAL REPRESENTATIVE ON THE DECLARATION DURING THE SURVEY WE HOLD THAT NO A DDITION CAN BE MADE WHEN THE EVIDENCES IN QUESTION IN CONTRARY TO SO CALLED ADMISSION MADE DURING THE COURSE OF SURVEY. THE CBDT HAS A NUMBER OF OCCASION S ADVISED ITS OFFICERS 6 TO MAKE ADDITIONS ONLY ON BASIS OF EVIDENCE FOUND D URING THE COURSE OF SEARCH OR SURVEY OPERATIONS AND THAT NO AMOUNT SHOU LD BE BASED ON SURRENDER. IN ANY EVENT HONBLE KERALA HIGH COURT I N THE CASE OF PAUL MATHEW AND SONS VS. CIT REPORTED IN 263 ITR 101 HAS HELD THAT STATEMENT RECORDED DURING SURVEY IS NOT VALID. UNDER THE CIRC UMSTANCES THE ADDITION IN QUESTION IS HEREBY DELETED. IN THE RESULT THE APPEAL OF THE ASSESSEE IS ALLOWE D. PRONOUNCED IN THE OPEN COURT ON 19 TH FEBRUARY, 2014 SD/- SD/- (R. P. TOLANI) (J. S. REDDY) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 19 TH FEBRUARY, 2014. COPY OF THE ORDER FORWARDED TO:- 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR BY ORDER DEPUTY REGISTRAR, ITAT. S. SINHA