ACIT, UDAIPUR V. Smt. Meena Karanpuria, UDAIPUR

ITA 473/JODH/2013

• Counselvise Citation: 47323314 RSA 2013
• Duration Of Justice: 1 year(s) 11 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-09-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 01-09-2015
• Assessment Year: 2009-2010
• Appeal Filed On: 03-10-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S L MAURYA
• Keywords: Deemed dividend

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL JODHPUR BENCH, JODHPUR JODHPUR BENCH, JODHPUR JODHPUR BENCH, JODHPUR JODHPUR BENCH, JODHPUR BEFORE SHRI BEFORE SHRI BEFORE SHRI BEFORE SHRI G.C. GUPTA G.C. GUPTA G.C. GUPTA G.C. GUPTA, , , , HONBLE HONBLE HONBLE HONBLE VICE VICE VICE VICE PRESIDENT AND PRESIDENT AND PRESIDENT AND PRESIDENT AND SHRI SHRI SHRI SHRI R.C. SHARMA R.C. SHARMA R.C. SHARMA R.C. SHARMA, , , , HON'BLE ACCOUNTANT HON'BLE ACCOUNTANT HON'BLE ACCOUNTANT HON'BLE ACCOUNTANT MEMBER MEMBER MEMBER MEMBER ITA NO ITA NO ITA NO ITA NO. .. .473/JODH/2013 473/JODH/2013 473/JODH/2013 473/JODH/2013 ASSESSMENT YEAR ASSESSMENT YEAR ASSESSMENT YEAR ASSESSMENT YEAR : : : : 2009 2009 2009 2009- -- -10 1010 10 ASSISTANT COMMISSIONER OF ASSISTANT COMMISSIONER OF ASSISTANT COMMISSIONER OF ASSISTANT COMMISSIONER OF INCOME TAX, INCOME TAX, INCOME TAX, INCOME TAX, CIRCLE CIRCLE CIRCLE CIRCLE- -- -I, I,I, I, UDAIPUR. UDAIPUR. UDAIPUR. UDAIPUR. VS. VS. VS. VS. SMT. MEENA KARANPURIA, SMT. MEENA KARANPURIA, SMT. MEENA KARANPURIA, SMT. MEENA KARANPURIA, 36, SAKAR BASEMENT, 36, SAKAR BASEMENT, 36, SAKAR BASEMENT, 36, SAKAR BASEMENT, CHETAK MARG, AMBAMATA SCHEME, CHETAK MARG, AMBAMATA SCHEME, CHETAK MARG, AMBAMATA SCHEME, CHETAK MARG, AMBAMATA SCHEME, UDAIPUR (RAJASTHAN). UDAIPUR (RAJASTHAN). UDAIPUR (RAJASTHAN). UDAIPUR (RAJASTHAN). PAN : ABLPM9862A. PAN : ABLPM9862A. PAN : ABLPM9862A. PAN : ABLPM9862A. (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI S.L. MAURYA, D.R. RESPONDENT BY : NONE. DATE OF HEARING : 01.09.2015 01.09.2015 01.09.2015 01.09.2015 DATE OF PRONOUNCEMENT: 04.09.2015 04.09.2015 04.09.2015 04.09.2015 ORDER ORDER ORDER ORDER PER G.C. GUPTA, VICE PRESIDENT PER G.C. GUPTA, VICE PRESIDENT PER G.C. GUPTA, VICE PRESIDENT PER G.C. GUPTA, VICE PRESIDENT : :: : THIS APPEAL BY THE REVENUE FOR THE ASSESSMENT YEAR 2009-10 IS DIRECTED AGAINST THE ORDER OF LEARNED CIT(A), UDAIP UR DATED 31 ST JULY, 2013. 2. AT THE TIME OF HEARING BEFORE US, NONE APPEARED ON BEHALF OF THE ASSESSEE-RESPONDENT AND, THEREFORE, THE APPEAL OF T HE REVENUE IS BEING DECIDED EX PARTE QUA THE ASSESSEE-RESPONDENT ON MERITS AFTER HEARING THE LEARNED DR. 3. THE ONLY GROUND OF APPEAL OF THE REVENUE IS AS U NDER:- ITA-473/JODH/2013 2 ON THE FACTS AND IN THE PRESENT CIRCUMSTANCES OF T HE CASE, THE LEARNED CIT(A) HAS ERRED IN DELETING THE ADDITION OF RS.11,51,650/- MADE U/S 2(22)(E) OF THE I.T. ACT. 4. LEARNED DR HAS RELIED ON THE ORDER OF THE ASSESS ING OFFICER. HE REFERRED TO THE RELEVANT PORTION OF THE ASSESSMENT ORDER IN SUPPORT OF THE CASE OF THE REVENUE. 5. WE HAVE CONSIDERED THE SUBMISSIONS OF THE LEARNE D DR AND HAVE PERUSED THE ORDER OF THE ASSESSING OFFICER AND THE LEARNED CIT(A). THE CASE OF THE ASSESSEE WAS THAT THE AMOUNT OF `11,51, 650/- RECEIVED BY HER WAS ADVANCE AGAINST SALE OF PROPERTY AND THIS F ACT WAS INFORMED TO THE ASSESSING OFFICER VIDE LETTER OF THE ASSESSEE D ATED 29.11.2011 DURING THE COURSE OF ASSESSMENT PROCEEDINGS AND AGR EEMENT DATED 24.07.2004 WAS MISPLACED AND COULD NOT BE SUBMITTED DURING ASSESSMENT PROCEEDINGS. IT WAS PLEADED ON BEHALF O F THE ASSESSEE THAT SHE HAS LOST HER HUSBAND A FEW YEARS BACK ALL OF A SUDDEN AND, THEREFORE, SHE WAS A NEW ENTRANT TO THE BUSINESS AN D, THEREFORE, COULD NOT TRACE THE AGREEMENT IN QUESTION. HOWEVER, THE ASSESSEE WAS ABLE TO TRACE THE AGREEMENT TO SELL DATED 24.07.2004 AGA INST WHICH SHE HAS RECEIVED `11,51,650/- AS ADVANCE AND THE SAME WAS F ILED BEFORE THE LEARNED CIT(A) DURING THE FIRST APPELLATE PROCEEDIN GS. THE CIT(A) HAS CONFRONTED THE CONTENTS OF THE AGREEMENT DATED 24.0 7.2004 TO THE ASSESSING OFFICER AND HAS RECORDED A FINDING THAT T HE ASSESSING OFFICER HAS NOWHERE CONTROVERTED THE TRANSACTION OF ADVANCE AGAINST PURCHASE OF PROPERTY. THE ASSESSING OFFICER WAS ASKED TO FI LE A REMAND REPORT AND THE ASSESSING OFFICER HAS COMPLIED WITH THE SAM E BY FILING A REMAND REPORT AND THE LEARNED CIT(A) HAS RECORDED I N HIS ORDER THAT THE REPORT OF THE ASSESSING OFFICER NOWHERE DIFFERS WITH THE AGREEMENT TO SELL ON ANY VALID GROUND WHICH GOES TO SAY THAT THE ADVANCE GIVEN BY THE COMPANY TO SHAREHOLDER SMT. MEENA KARANPURIA (THE ASSESSEE) ITA-473/JODH/2013 3 AMOUNTING TO `11,51,650/- WAS PART CONSIDERATION AG AINST SALE OF HER PROPERTY TO THE COMPANY FOR `45 LAKHS. THE CIT(A) HAS CONCLUDED THAT THE SAME BEING COMMERCIAL TRANSACTION, THE ADVANCE WAS NOT LIABLE TO BE REPAID BY THE SHAREHOLDER AND IT WAS HER RIGHT T O RECEIVE THE SAME AS PART SALE CONSIDERATION OF HER PROPERTY DURING T HE YEAR UNDER CONSIDERATION AND COULD NOT BE DEEMED AS DEEMED DIV IDEND. IN THESE FACTS OF THE CASE, WE ARE OF THE VIEW THAT SINCE TH E AMOUNT WAS RECEIVED BY THE ASSESSEE AS PART OF THE SALE CONSID ERATION OF HER PROPERTY DURING THE RELEVANT PERIOD AND BEING A COM MERCIAL TRANSACTION EVIDENCED BY AN AGREEMENT, THE SAME COU LD NOT BE TREATED AS DEEMED DIVIDEND AND, ACCORDINGLY, THE ORDER OF L EARNED CIT(A) ON THIS ISSUE IS CONFIRMED AND GROUND OF APPEAL OF THE REVENUE IS DISMISSED. 6. IN THE RESULT, THE APPEAL OF THE REVENUE IS DISM ISSED. DECISION PRONOUNCED IN THE OPEN COURT ON 04.09.2015 . SD/- SD/- ( (( (R.C. SHARMA R.C. SHARMA R.C. SHARMA R.C. SHARMA) )) ) (G. (G. (G. (G.C. GUPTA C. GUPTA C. GUPTA C. GUPTA) )) ) ACCOUNTANT ACCOUNTANT ACCOUNTANT ACCOUNTANT MEMBER MEMBER MEMBER MEMBER VICE PRESIDENT VICE PRESIDENT VICE PRESIDENT VICE PRESIDENT VK. COPY FORWARDED TO: - 1. APPELLANT : ASSISTANT COMMISSIONER OF INCOME TAX, ASSISTANT COMMISSIONER OF INCOME TAX, ASSISTANT COMMISSIONER OF INCOME TAX, ASSISTANT COMMISSIONER OF INCOME TAX, CIRCLE CIRCLE CIRCLE CIRCLE- -- -I, UDAIPUR. I, UDAIPUR. I, UDAIPUR. I, UDAIPUR. 2. RESPONDENT : SMT. MEENA KARANPURIA, SMT. MEENA KARANPURIA, SMT. MEENA KARANPURIA, SMT. MEENA KARANPURIA, 36, SAKAR BASEMENT, 36, SAKAR BASEMENT, 36, SAKAR BASEMENT, 36, SAKAR BASEMENT, CHETAK MARG, AMBAMATA SCHEME, CHETAK MARG, AMBAMATA SCHEME, CHETAK MARG, AMBAMATA SCHEME, CHETAK MARG, AMBAMATA SCHEME, UDAIPUR (RAJASTHAN). UDAIPUR (RAJASTHAN). UDAIPUR (RAJASTHAN). UDAIPUR (RAJASTHAN). 3. CIT 4. CIT(A) 5. DR, ITAT ASSISTANT REGISTRAR