The Income-tax Officer, Jalandhar V. Shri Thakur Dass (HUF), Jalandhar

ITA 457/ASR/2011

• Counselvise Citation: 45720914 RSA 2011
• Duration Of Justice: 3 year(s) 4 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-12-2014
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 26-11-2014
• Assessment Year: 2004-2005
• Appeal Filed On: 17-08-2011
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: BIREN DRA KUMAR SINGH
• Assessee Lawyers: K C SUMAN; BHAGAT
• Keywords: Additional evidence
• Section: 148

Judgement Text

- 1 - ITA NO.457/ASR/2011 IN THE INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH, AMRITSAR BEFORE SH. A.D. JAIN, HONBLE JUDICIAL MEMBER, AND SH. B.P. JAIN, HONBLE ACCOUNTANT MEMBER I.T.A. NO.457/ASR/2011 (ASSESSMENT YEA R: 2004-05) THE INCOME TAX OFFICER, WARD-1(4), JALANDHAR. (APPELLANT) VS. SHRI THAKUR DASS(HUF) C/O BAWA PREM DASS NIKKA RAM, BOOTA MANDI, JALANDHAR. PAN:AACHT1524Q(RESPONDENT) APPELLANT BY: SH. BIRENDRA KUMAR SINGH, DR RESPONDENT BY: SH. M.R. BHAGAT & K.C.SUMAN, AR DATE OF HEARIN G: 26.11.2014 DATE OF PRONOUN CEMENT: 30.12.2014 ORDER PER: B.P. JAIN (AM): THIS APPEAL OF THE REVENUE IS ARISING FROM THE ORD ER OF LEARNED CIT(A)-II, LUDHIANA, DATED 15.06.2011 FOR THE ASSES SMENT YEAR 2004-05. 2. THE REVENUE HAS RAISED THE FOLLOWING GROUNDS OF APP EAL. 1. ON THE FACTS & CIRCUMSTANCES OF THE CASE, WHICH IS DETAILED IN THE STATEMENT OF FACTS & FORMS AN INTEGRAL PART OF THE GROUNDS OF APPEAL, THE CIT(A) HAS ERRED IN LAW IN ACCEPTING AD DITIONAL EVIDENCE AT THE APPELLATE STAGE WITHOUT GIVING DUE OPPORTUNITY TO THE AO FOR RAISING HIS OBJECTION, IN VIOLATION OF R ULE 46A. 2. ON THE FACTS & CIRCUMSTANCES OF THE CASE, THE CI T(A) HAS ERRED IN ACCEPTING SELF SERVING DOCUMENTS IN THE FO RM OF AFFIDAVIT & GIVING PRECEDENCE TO IT OVER A PRIMARY EVIDENCE IN THE FORM OF SEIZED AGREEMENTS. 3. THAT IT IS PRAYED THAT THE ORDER OF THE CI T(A) BE SET ASIDE AND THE ASSESSMENT BE RESTORED TO THE FILE OF THE AO. - 2 - ITA NO.457/ASR/2011 4. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE CIT(A) HAS ERRED IN DIRECTING THE AO TO COMPUTE THE CAPITAL GA IN BY TAKING THE SALE CONSIDERATION OF RS.25 LACS INSTEAD OF RS.77,1 7,345/- . 5. THAT THE APPELLANT REQUESTS FOR LEAVE TO ADD OR AMEND OR ALTER THE GROUNDS OF APPEAL BEFORE THE APPEAL IS HEARD AN D DISPOSED OFF. 3. THE BRIEF FACTS OF THE CASE ARE THAT DURING THE COU RSE OF SEARCH OPERATION, BY THE INVESTIGATION WING, AT THE RESIDE NCE OF DR. S.P.S VIRK, TWO AGREEMENTS, DATED 04.10.2002 AND 10.04.2003, FO R SALE OF PLOT NO.662, G.T.B. NAGAR, JALANDHAR, WERE FOUND. AS PER AGREEMENT DATED 04.10.2002, SH. THAKUR DASS S/O SH. NIKKA RAM, R/O BOOTAN MANDI, JALANDHAR, SOLD THE ABOVE SAID PLOT, MEASURING 50X 90, TO SMT. BALBIR KAUR W/O SH. SURINDER PAL SINGH (DR. S.P.S. VIRK) A ND SH. SURINDER PAL SINGH AT THE RATE OF RS.3,55,000/- PER MARLA. THERE FORE, TOTAL CONSIDERATION FOR SALE OF THIS PLOT CAME TO RS.77,1 7,345/-. WHEN CONFRONTED BY THE ADIT(INV) JALANDHAR, DR. SPS VIRK CONFIRMED THE AGREEMENT DATED 04.10.2002 AND ALSO CONFIRMED THE P AYMENT MADE IN ACCORDANCE WITH THE SAID AGREEMENT DATED 4.10.2002. THE RELEVANT PART OF HIS STATEMENT IS AS UNDER:- Q. 26 PLEASE GIVE DETAILS OF PAYMENTS MADE IN RESP ECT OF PLOT NO.662, GTB NAGAR, JALANDHAR TO SHRI THAKUR DASS(SELLER). ANS: THE PAYMENT WAS MADE THROUGH CHEQUES AS REFLEC TED IN THE REGISTRY AND THE REMAINING AMOUNT AS SHOWN IN THE AGREEMENT DATED 04.10.2002., AS PER OTHER AGREEMENT DATED 10.04.2003, THE SAID P LOT WAS SOLD FOR TOTAL CONSIDERATION OF RS.25,00,000/-. - 3 - ITA NO.457/ASR/2011 ON THE BASIS OF THIS INFORMATION AND THE FACT THE ASSESSEE HAD NOT FURNISHED HIS RETURN OF INCOME FOR THE ACCOUNT YEAR RELEVANT TO THE ASSESSMENT YEAR 2007-08 IN THE STATUS OF HUF, ASSES SMENT PROCEEDINGS WERE INITIATED U/S.147 OF THE INCOME TAX ACT, BY TH E AO BY RECORDING REASONS AND NOTICE DATED 26.12.2008 U/S. 148 WAS IS SUED AND SERVED ON THE ASSESSEE ON 26.12.2008. THE AO DID NOT ACCEPT THE EXPLANATION OF THE ASSESSEE THAT THE AGREEMENT DATED 10.04.2003 MENTIO NS THE PAYMENT THROUGH CHEQUES OF RS.2,00,000/- AND RS.23,00,000/- ONLY AND THERE IS NO MENTION OF ANY CASH PAYMENT RECEIVED. WHEREAS AS PE R AGREEMENT DATED 4.10.2002, THE ASSESSEE HAS RECEIVED THE CASH WHICH AMOUNT HAS BEEN MENTIONED AT THE BACK OF THE AGREEMENT AMOUNTING TO RS.13,00,000/-, AND RS.5,00,000/-. THEREFORE, THE AO TOOK THIS SALE CON SIDERATION AT RS.77,17,345/- AND COMPUTED THE NET TAXABLE GAIN. 4. BEFORE THE LEARNED CIT(A), THE ASSESSEE MADE THE SUBMISSIONS AND AN AFFIDAVIT WAS SUBMITTED WHICH WAS SENT TO THE AO AND REMAND REPORT WAS CALLED FOR. AFTER CONSIDERING THE SUBMISSION OF THE ASSESSEE AND THE REMAND REPORT THE LEARNED CIT(A) OBSERVED AS UNDER: 7. I HAVE GONE THROUGH THE CONTENTION OF THE APPEL LANTS COUNSEL AND ALSO PERUSED THE RIVAL SUBMISSIONS FILED IN THI S REGARD AS WELL AS ASSESSMENT ORDER PASSED BY THE A.O. THE APPELLAN T HAS ALSO FILED AFFIDAVIT DATED 18.03.2010 STATING THEREIN THAT THE PLOT WAS SOLD FOR RS.25,00,000/- ONLY. THE ASSESSING OFFICER HAS NOT OBJECTED TO PRODUCTION OF AFFIDAVIT AS ADDITIONAL EVIDENCE. THE ASSESSING - 4 - ITA NO.457/ASR/2011 OFFICER HAS NOT EVEN REBUTTED THE CONTENTS OF THE A FFIDAVIT BY PRODUCING ANY MATERIAL OR RELYING UPON ANY EVIDENCE . EVEN THE CONTENTS OF THE AFFIDAVIT THAT THE APPELLANTS SIGN ATURE ON THE ALLEGED AGREEMENT DATED 04.10.2002 WERE FORGED TO B LACK MAIL HIM. THE AO HAS NEITHER REBUTTED THE ARGUMENTS OF THE AP PELLANT NOR BROUGHT ANY TANGIBLE/DOCUMENTARY EVIDENCE BASED ON ANY ENQUIRY TO SUPPORT HIS CONTENTION. THE ASSESSING OFFICER HAS N EITHER DURING THE ASSESSMENT PROCEEDINGS NOR DURING APPELLANT PROCEED INGS TAKEN ANY STEPS TO PROVE THAT AGREEMENT DATED 04.10.2002 WAS EXECUTED BETWEEN PARTIES OR WAS SIGNED BY THE PARTIES AND OT HERS. EVEN THE ASSESSING OFFICER WAS ALLOWED A NUMBER OF OPPORTUNI TIES BUT HE FAILED TO PRODUCE THE ORIGINAL AGREEMENT DATED 04.1 0.2002 OR HIMSELF APPEAR AT THE APPELLATE STAGE TO DEFEND THE ASSESSMENT ORDER. IN SUCH CIRCUMSTANCES THE ASSESSMENT BASED M ERELY ON UNSUBSTANTIATED AGREEMENT CANNOT BE UPHELD. 7.1. CONSIDERING THE TOTALITY OF THE FACTS OF THE CASE AND LEGAL POSITION AS DISCUSSED IN DETAIL BY THE LEARNED ARS OF THE APPELLANT, I AM INCLINED TO AGREE WITH HIM. THE DEPARTMENT HAS NOT BROUGHT ANYTHING ON RECORD TO PROVE THAT AGREEMENT DATED 10 .04.2003 WAS NOT CORRECT RATHER THAT AGREEMENT APPEARS CORRECT B ECAUSE SALE DEED WAS EXECUTED AS PER THAT AGREEMENT. FURTHER, T HERE IS NO ADVERSE MATERIAL ON RECORD EVEN FROM STAMP VALUATIO N AUTHORITY. KEEPING IN VIEW THE ABOVE, THE AO IS DIRECTED TO CO MPUTE CAPITAL - 5 - ITA NO.457/ASR/2011 GAIN BY TAKING THE SALE CONSIDERATION AT RS.25,00,0 00/-, THEREFORE, THIS GROUND OF THE APPELLANT IS HEREBY ALLOWED. 5. THE LEARNED DR RELIED UPON THE ORDER OF THE AO A ND ARGUED THAT THE AFFIDAVIT IS SELF SERVING DOCUMENT AND NO OPPORTUNI TY OF BEING HEARD WAS GIVEN TO THE AO AND PRIMARY EVIDENCE BEING THE AGRE EMENT DATED 04.10.2002 MENTIONED AT THE RATE OF RS.3,55,000/- P ER MARLA WHICH GIVES TOTAL CONSIDERATION OF RS.77,17,345/- HAS BEEN IGNO RED BY THE LEARNED CIT(A). 6. ON THE OTHER HAND, LEARNED AR RELIED UPON THE OR DER OF THE CIT(A). 7. WE HAVE PERUSED THE FACTS OF THE CASE, THE LEARN ED CIT(A) HAS NOT GIVEN THE FINDING WITH REGARD TO THE AGREEMENT DATE D 4.10.2002 WHICH MENTIONS THAT THE RATE OF SALE OF LAND AT RS.3,55,0 00/- PER MARLA TOTALING TO RS.77,17,345/- AND HAS PREFERRED TO RELY UPON TH E AGREEMENT DATED 10.04.2003, AND HAS IGNORED THE PAYMENT RECEIVED I N CASH REFERRED TO HAVE BEEN RECEIVED IN AGREEMENT DATED 04.10.2002. N O ENQUIRY IN THIS REGARD HAS BEEN MADE BY THE LEARNED CIT(A). THEREFO RE, IT IS PREMATURE FOR THE LEARNED CIT(A) TO DECIDE THE ISSUE WITHOUT MAKING PROPER ENQUIRY. IN THE CIRCUMSTANCES AND FACTS OF THE CASE AND THE INTEREST OF JUSTICE MATTER IS SET ASIDE TO THE FILE OF THE LEAR NED CIT(A), WHO WILL CONDUCT THE ENQUIRY ABOUT AGREEMENT DATED 04.10.200 2 WHICH MENTIONS THE PAYMENT IN CASH AND VERACITY OF THE AFFIDAVIT PRODU CED BEFORE LEARNED CIT(A) AS WELL AS AFTER TAKING A REMAND REPORT FROM THE AO AND AFTER PROVIDING ADEQUATE OPPORTUNITY BEING HEARD TO THE A SSESSEE AND DECIDE THE - 6 - ITA NO.457/ASR/2011 ASSESSEE DE NOVO. IN THE CIRCUMSTANCES AND FACTS OF THE CASE MATTER IS SET ASIDE TO THE FILE OF THE LEARNED CIT(A) WITH THE DI RECTION HEREIN ABOVE. ACCORDINGLY, ALL THE GROUNDS OF THE REVENUE ARE ALL OWED FOR STATISTICAL PURPOSES. 8. IN THE RESULT, THE APPEAL FILED BY THE REVENUE I S ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 30 TH DECEMBER, 2014. SD/- SD/- (A.D. JAIN) (B.P. JAIN) JUDICIAL MEMBER ACCOUNTANT MEMB ER DATED: 30.12.2014 PK. PS COPY OF THE ORDER FORWARDED TO: 1. THE ASSESSEE: SHRI THAKUR DASS (HUF) 2. THE INCOME TAX OFFICER, WARD -1(4), JALANDHAR. 3. THE CIT(A), 4. THE CIT, 5. THE SR DR, I.T.A.T., TRUE COPY BY ORDER (ASSISTANT REGISTRAR) INCOME TAX APPELLATE TRIBUNAL, AMRITSAR BENCH: AMRITSAR.