Anil Chaudhary, Ghaziabad V. ITO, Ward-72(5), New Delhi

ITA 4630/DEL/2017

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 6447 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 5 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-01-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2008-2009
• Appeal Filed On: 17-07-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S L ANURAGI
• Keywords: Fair market value; Valuation report

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCHES SMC : DELHI BEFORE SHRI AMIT SHUKLA, JUDICIAL MEMBER ITA.NO.4630/DEL/2017 ASSESSMENT YEAR 2008-09 ANIL CHAUDHARY, C-4/1101, OLIVE COUNTY, GH-9, VASUNDHARA, SECTOR 5, GHAZIABAD, DELHI. VS. INCOME TAX OFFICER WARD-72(5) NEW DELHI (APPELLANT) (RESPONDENT) FOR ASSESSEE : SHRI S ANJIV RAI MEHRA, CA FOR REVENUE : SHRI S.L. ANURAGI, SR. D.R. DATE OF HEARING : 13.11 .201 8 DATE OF PRONOUNCEMENT : 14 .01 .201 9 ORDER THE AFORESAID APPEAL HAS BEEN FILED BY THE ASSESSEE AGAINST IMPUGNED ORDER DATED 28.4.2017, PASSED BY LD. CIT(APPEALS) 32 NEW DELHI FOR THE QUANTUM OF ASSESSMENT PASSED U/S 143(3)/254 FOR THE ASSESSMENT YEAR 2008-09. 2. THE ASSESSEE IS MAINLY AGGRIEVED BY ADDITION OF RS. 10,35,000/- MADE U/S 68 ON ACCOUNT OF AMOUNTS DEPOSITED IN THE SAVING BANK ACCOUNT OF MOTHER OF THE ASSESSEE SMT. NIRMALA CHAUDHARY. THIS IS A SECOND ROUND OF PROCEEDINGS IN PURSUANCE OF ORDER DATED 12.7.2013, WHERE BY THE ITAT DIRECTED THE AO TO ADJUDICATE THE ISSUE AFRESH ON THE ISSUE OF CASH DEPOSITS. RELEVANT OBSERVATION OF THE TRIBUNAL READS AS UNDER:- 8. WE HAVE HEARD THE LD. DEPARTMENTAL REPRESENTATIVE AND HAVE GONE THROUGH THE MATERIAL PLACED ON RECORD. WE FIND THAT ASSESSEE ONLY ONCE APPEARED BEFORE THE LD. ASSESSING OFFICER AND EXPLAINED THE SOURCE OF DEPOSIT OF CASH FROM SALE. OF AGRICULTURAL LAND HELD BY HIS MOTHER. THE ASSESSING OFFICER OBSERVED THAT SALE CONSIDERATION WAS RECEIVED THROUGH CHEQUES, THEREFORE, CASH DEPOSIT WAS NOT EXPLAINED. ON FURTHER INQUIRY BY LD. ASSESSING OFFICER REGARDING CASH DEPOSIT, ASSESSEE DID NOT APPEAR DESPITE VARIOUS NOTICES. THE ASSESSING OFFICER THEN OBSERVED THAT AS PER SALE DEED THE ASSESSEE HAD RECEIVED SALE CONSIDERATION THROUGH CHEQUES AND, THEREFORE, CASH DEPOSITED IN DENA BANK WAS NOT EXPLAINED WITH THE SALE OF AGRICULTURAL LAND AND, THEREFORE, HE MADE THE ADDITION. THE LD. CIT (A) WITHOUT MAKING A FINDING OF FACT AND WITHOUT FINDING CASH ELEMENT IN THE SALE DEED DELETED THE ADDITION ON THE BASIS OF COMPUTATION OF INCOME OF HIS MOTHER WHERE THE SALE OF AGRICULTURAL LAND WAS DECLARED. HOWEVER, THE QUESTION REMAINED UNANSWERED AS TO WHETHER SALE DEED CONTAINED CERTAIN CASH COMPONENT ALSO OR NOT. THE LD. CIT (A) HAS NOT CONSIDERED THIS ASPECT. THEREFORE, IN THE INTEREST OF JUSTICE, WE ARE OF THE OPINION THAT THE CASE OF ASSESSEE BE RE-ADJUDICATED BY ASSESSING OFFICER. NEEDLESS TO SAY THAT NECESSARY OPPORTUNITY WILL BE GIVEN TO ASSESSEE OF BEING HEARD. 2. IN THE SET-ASIDE PROCEEDINGS, LD. AO HAS AGAIN REPEATED THE SAME ADDITION ON THE GROUND THAT THOUGH THE BANK ACCOUNT IS IN THE JOINT NAME ASSESSEE AND HIS MOTHER, WHO HAVE THE SOLD AGRICULTURAL LAND FOR SUM OF RS. 31 LACS. HOWEVER, AS PER THE CONVEYANCE DEED EXECUTED ON 25.3.2008, THE SALE CONSIDERATION SHOWN IS ONLY RS. 7 LACS RECEIVED THROUGH TWO CROSSED CHEQUES. NO SALE DEED IN RESPECT OF THE REST OF THE CONSIDERATION OF RS. 24 LACS WAS FILED. 3. IN THE FIRST APPELLATE PROCEEDINGS LD. CIT (A) TOO HAS CONFIRMED THE SAID ADDITION HOLDING THAT IT HAS NOT BEEN CONCLUSIVELY PROVE THAT ASSESSEES MOTHER HAS EARNED RS. 31 LACS FROM THE SALE OF THE LAND AND FROM THAT SOURCE SUM OF RS.10 LAC WAS DEPOSITED WHICH IS NOT DISCLOSED IN THE SALE DEED. ASSESSEE BEING THE FIRST HOLDER IN JOINT ACCOUNT, THE ONUS WAS UPON THE ASSESSEE TO PROVE THE CASH DEPOSIT IN THE ACCOUNT. 4. BEFORE US LD. COUNSEL SUBMITTED THAT, FIRST OF ALL ASSESSEE MOTHER IS SEPARATELY ASSESSED TO TAX HAVING PAN AND BEFORE THE AUTHORITIES BELOW SHE HAS FILED A CONFIRMATION THAT SHE HAD SOLD AGRICULTURAL LAND BELONGING TO HER FATHER AND RECEIVED MONEY FROM SALE OF CASH WHICH HAS BEEN DEPOSITED TO JOINT ACCOUNT IN THE BANK WHEREIN SHE HAS JOINT ACCOUNT HOLDER OF HER SON. SHE HAS ALSO FILED AN AFFIDAVIT DEPOSING ON OATH THE SAID TRANSACTION. FURTHER, IN SUPPORT THE COPY OF HER INCOME TAX RETURN WAS FILED AND OUR ATTENTION WAS DRAWN TOWARDS HER BANK ACCOUNT IN DENA BANK AND NAINITAL BANK, WHEREIN SALE PROCEEDS OF LAND HAS BEEN DEPOSITED IN HER VARIOUS BANK ACCOUNTS. FURTHER IN SUPPORT, HE HAS DRAWN OUR ATTENTION TO ALL HER BANK STATEMENTS WHEREIN SIMILAR CASH HAS BEEN DEPOSITED IN MARCH, 2008. THUS, NO ADDITION COULD HAVE BEEN MADE IN THE HANDS OF THE ASSESSEE. FURTHER ASSESSEE HAD ALSO FILED A VALUATION REPORT WHEREIN THE FAIR MARKET VALUE OF THE LAND SOLD HAS BEEN VALUED AT RS. 40 LACS ADMEASURING 641.26 SQ. MT. AND ONCE IT HAS BEEN STATED BY ASSESSEES MOTHER THAT SHE HAS SOLD LAND FOR RS. 31 LACS AND ALSO PRODUCED ENTIRE PASSBOOKS, THEN NO ADDITION SHOULD HAVE BEEN MADE IN THE CASE OF THE ASSESSEE. 5. ON THE OTHER HAND LD. DR STRONGLY RELIED UPON THE ORDER OF THE LD. CIT (A). 6. FROM THE PERUSAL OF THE RELEVANT FINDINGS GIVEN IN THE IMPUGNED ORDERS AS WELL AS MATERIAL REFERRED TO BEFORE ME AT THE TIME OF HEARING, I FIND THAT RIGHT FROM FIRST STAGE ITSELF, ASSESSEE HAS BEEN CONTENDING THAT THE CASH DEPOSITED IN THE BANK ACCOUNT WAS FROM THE SALE PROCEEDS OF LAND SOLD BY HIS MOTHER WHICH BELONGED TO HER BY WAY OF INHERITANCE AND IS SEPARATELY ASSESSED TO TAX. SHE HAS DULY GIVEN HER CONFIRMATION TO THE AO ALONG WITH SWORN AFFIDAVIT CLEARLY STATING THAT ALL THE TRANSACTIONS DURING THE PERIOD 1.4.2007 TO 31.3.2008 BELONGS TO HER AND DOES NOT HAVE ANY RELATION WITH HER SON. SHE SOLD A PIECE OF LAND INHERITED BY HER FROM HER FATHER WHICH SHE DEPOSITED IN VARIOUS BANK ACCOUNTS DETAILS OF WHICH ARE AS UNDER :- S.NO. S. NO AMOUNT (RS.) CASH/ CHEQUE BANK 1 26/03/2008 10 , 00,000 . 00 CASH DENA BANK ACCOUN T NO . 8060 , 2 03/04/2008 2,00,000.00 CASH DENA BANK ACCOUN T NO . 8060 , 3 25/03/2008 5 , 00,000 . 00 CASH THE NAINITAL BAN K LTD . ACCOUNT NO . 20011 8 5 4 25/03/2008 2 , 00 , 000 . 00 CASH THE NAINITAL BAN K LTD . ACCOUNT NO . 20011 8 5 5 27/03/2008 3,50,000 . 00 CHEQUE THE NAINITAL BAN K LTD . ACCOUNT NO . 20011 8 5 6 25/03/2008 5 , 00,000.00 CASH THE UNION BANK OF I ND I A A C COUNT NO . 411602010002376 7 26/03/2008 3,50,000.00 CHEQUE THE UNION BANK OF I ND I A A C COUNT NO . 411602010002376 TOTAL CONSIDERATION RECEIVED 31,00,000.00 7. IN SUPPORT OF SUCH CASH DEPOSITS, COPY OF BANK HER BANK PASS BOOKS HAVE ALSO BEEN GIVEN IN THE PAPER BOOK. WHEN ASSESSEE HIMSELF IS A SALARIED EMPLOYEE GETTING A MEAGRE SALARY OF RS. 35,000/-, THEN IT IS VERY DIFFICULT TO ENVISAGE THAT HE MUST HAVE DEPOSITED SO MUCH OF CASH IN THE BANK ACCOUNT. THE LAND WHICH HAS BEEN SOLD HAS BEEN VALUED BY AN INDEPENDENT GOVERNMENT VALUER AT RS. 40 LACS FOR WHICH ASSESSEE HAS CLAIMED WAS SOLD FOR RS. 31 LACS AND THE ENTIRE SALE PROCEEDS HAS BEEN DEPOSITED IN HER OWN BANK ACCOUNT OR IN THE BANK ACCOUNT JOINTLY HELD BY HER WITH HER SON. THESE FACTS HAVE NOT BEEN DENIED OR REBUTTED. SIMPLY BECAUSE A CHEQUE AMOUNTING TO RS. 7 LACS HAS BEEN MENTIONED IN THE SALE DEED, THAT ITSELF CANNOT BE A GROUND TO PRESUME THAT THE CASH DEPOSITED IN THE JOINT ACCOUNT BELONGS TO THE ASSESSEE ONLY. ACCORDINGLY, IN VIEW OF FACTS AND MATERIAL ON RECORD AS DISCUSSED ABOVE, I DO NOT FIND ANY REASON TO CONFIRM. THE SAME IS DIRECTED TO BE DELETED. 8. IN THE RESULT APPEAL OF THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 14 TH JANUARY, 2019. SD/- (AMIT SHUKLA) JUDICIAL MEMBER DELHI, DATED 14 TH JANUARY, 2019 VEENA COPY TO 1. THE APPELLANT 2. THE RESPONDENT 3. CIT(A) CONCERNED 4. CIT CONCERNED 5. D.R. ITAT BENCH, DELHI 6. GUARD FILE.