Smt. Shashi Sachdeva, New Delhi V. DCIT, New Delhi

ITA 49/DEL/2015

• Counselvise Citation: [2022] 105 COUNSELVISE.COM (IT) 3204 (ITAT-DELHI)
• Duration Of Justice: 7 year(s) 3 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-04-2022
• Appeal Filed By: Assessee
• Order Result: PartlyAllowed
• Bench Allotted: G
• Assessment Year: 2008-2009
• Appeal Filed On: 04-01-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: RAKESH GUPTA
• Section: 132; 234B; 153C

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH ‘G’ : NEW DELHI) BEFORE SHRI ANIL CHATURVEDI, ACCOUNTANT MEMBER and SHRI AMIT SHUKLA, JUDICIAL MEMBER ITA No.49/Del./2015 (ASSESSMENT YEAR : 2008-09) Smt. Shashi Sachdeva, vs. DCIT, Central Circle II, E – 434, Greater Kailash Part – II, New Delhi. New Delhi – 110 048. (PAN : AATPS3976J) (APPELLANT) (RESPONDENT) ASSESSEE BY : Dr. Rakesh Gupta, Advocate Shri Somil Agarwal, Advocate REVENUE BY : Shri H.K. Chaudhary, CIT DR Date of Hearing : 03.02.2022 Date of Order : 29.04.2022 O R D E R PER AMIT SHUKLA, JM The aforesaid appeal has been filed by the assessee against the impugned order passed by the ld. CIT (Appeals)-XXXI, New Delhi for the quantum of assessment passed under section 153C of the Income- tax Act, 1961 (for short ‘the Act’) for the Assessment Year 2008-09. 2. In the grounds of appeal, the assessee has taken the following grounds:- 2 ITA No.49/Del./2015 “1. That having regard to the facts and circumstances of the case, Ld. CIT (A) has erred in law and on facts in confirming the action of Ld. AO in framing the impugned assessment order u/s 153C without assuming jurisdiction as per law and without recording requisite satisfaction as per law and without obtaining requisite approval as per law and without complying with the other mandatory condition as envisaged under the Act. 2. That having regard to the facts and circumstances of the case, Ld. CIT(A) has erred in law and on facts in confirming action of Ld. AO in making addition of Rs.71,00,000/- on account of undisclosed long term capital gain and has further erred in enhancing the assessed income by Rs.2,73,00,000/- alleged to be unaccounted sales consideration of property at sainik farms and that too without bringing cogent adverse material on record and without appreciating the submissions of the assessee. 3. That in any case and in any view of the matter, action of Ld. CIT (A) in confirming the action of Ld. AO in making addition of Rs.71,00,000/- on account of long term capital gain and enhancing the assessed income by Rs.2.73 crores as unaccounted sales consideration and upholding the impugned assessment order is illegal, void ab initio, contrary to law and facts, beyond jurisdiction and deserves to be quashed. 4. That having regards to the facts and circumstances of the case, Ld. CIT (A) has erred in law and on facts in not reversing the action of Ld. AO in charging the interest u/s 234A and 234B of the Income Tax Act, 1961.” 3 ITA No.49/Del./2015 3. Facts, in brief, qua the issue raised on merits in grounds no.2 & 3 are that, a search and seizure operation u/s 132 of the Act was conducted at the business premises of M/s. Shiv Vani Group of cases and other business premises of the group company as well as at the residential premises of Directors on 06.01.2011. During the course of search, certain documents marked as Annexure A-1, party B-14 was found and page 77 of the said annexure reflected that M/s. Condor Technic Sales Private Ltd. had purchased one property at Sainik Farms for a sum of Rs.5,45,00,000/- from the seller, Smt. Shashi Sachdeva, (the assessee) and Mrs. Priya Suri. As per the sale deed dated 05.04.2007 executed in respect of this property, total sale consideration was shown at Rs.2,01,00,000/-. However, from the seized document Annexure A-1 (P-77) which was found and seized from the office of M/s. Shiv Vani, the amount was mentioned as Rs.2,72,00,000/-. Before the AO, it is brought on record that the assessee was the owner of 1385 sq.yds. only and another same measurement of land of 1385 sq.yds did not belong to the assessee but to her sister, Mrs. Priya Suri. It was explained that assessee had initially entered into an agreement to sell of this property at Rs.2,42,50,000/- but ultimately this land was sold for Rs.2,01,00,000/- only. The reason for lowering the sale price was 4 ITA No.49/Del./2015 explained in detail before the AO and ld. CIT (A), which in sum and substance due to unfortunate death of a child in this area of land. However, the AO on the basis of Annexure A-1 (P-77) assumed the sale of this property at Rs.2,72,00,000/- on the ground that this much amount is mentioned in this document and based on this document alone, he held that property must have been sold at Rs.2,72,00,000/- and not Rs.2,01,00,000/-. Accordingly, he added the difference amount of Rs.71,00,000/- as unexplained capital gain on the sale of the property. 4. Ld. CIT (A) not only confirmed the action of the AO but also went further and assumed that this property has been sold by the assessee at Rs.5,45,00,000/- based on some rough notings at pages 132 & 133 of Annexure A-3. In fact, he has taken two Khasras which belonged to another owner Mrs. Priya Suri, who is sister of the assessee. Thus, he has presumed entire sale consideration in the hands of the assessee which has led to enhancement of Rs.2,73,00,000/-. His reasoning has been given from paras 4.3.17 to 4.3.25. Relevant observation of the ld. CIT (A) in this regard from paras 4.3.23 to 4.3.25 are reproduced as under :- “4.3.23 It is also seen that as noted by me in the letter dated 30.09.2014, the sale price of Rs.5.45 crores has been clearly mentioned against 1385 Sq. Yards of area falling in Khasra No.282 and.297. 5 ITA No.49/Del./2015 Further, the “50%” mentioned before the names Om Metal and Winsom are also very relevant. In addition the noting "50% - Winsom = Rs.2,72,50,000/- do indicate that the property sold by the assessee was for Rs.5.45 crores. The noting (on page 77) of Mr. Brij Mohan Goel clearly supports this. It has been mentioned very clearly that the noting belongs to the property purchased from Smt, Shashi Sachdeva (on the left hand side, bottom of the Page-77). Not only that the 50% mentioned against Winsom has been stated at Rs. 2,72,50,000/-. Further Winsom had also paid Rs.12,50,000/- in cash & another Rs.12.5 lakh in cheque. There is no mention of this cash in the final sale deed though the same cheque issued by Winsorn has been mentioned in the final deed which ultimately has been purchased in the name of a group concern of Shiv Vani. The cheque amount and cheque details mentioned in the said note very much tally with the figures mentioned not only in the final agreement but also in the first agreement dated 08.01.2006. 4.3.24 Mr. Brij Mohan Goel, the author of the note, is none other than the person who has signatory on behalf of Condor Technic Sales Pvt. Ltd. and his name also appears in the agreement dated 08.01.2006 which has been signed by the assessee also. The assessee had made available copy of seized documents in the paper book which did not contain all the portion of the seized document. 4.3.25 It is also noted here that it has been admitted that all the figures mentioned at left hand side of seized page no. 133 of Annexure A-1, correlate with the figures mentioned in the final agreement. The amounts written on the right hand side add up to Rs.5.45 crores. The name Mr. Brij Mohan Goel appearing on the said page also tallies with the name of the authorized signatory of Condor Technic Sales Pvt. Ltd. as mentioned in agreement dated 08.01.2006. All these factors show that the property in question was sold by the assessee for Rs. 5.45 crores and not for Rs.2.01 crores as claimed. Therefore, the addition 6 ITA No.49/Del./2015 made by the AO is hereby confirmed and the assessed income is enhanced by Rs.2,73,00,000/-.” 5. Before us, ld. counsel for the assessee, Dr. Rakesh Gupta, after clarifying the facts which were placed before the AO as well as ld. CIT (A), pointed out that even though agreement to sell for this property was entered for Rs.2,42,50,000/- for the portion of the property wherein the assessee was the owner; and clarified that there were two properties being Khasra No.282 & 297 both admeasuring 1385 sq.yds., for which the assessee was co-owner along with her sister, Mrs. Priya Suri. Portion of the assessee was agreed to be sold at Rs.2,42,50,000/- but ultimately it was sold at Rs.2,01,00,000/-. The AO has wrongly presumed the sale of this property at Rs.2,72,00,000/- based on Annexure A-1 (P-77). Insofar as the basis for addition of Rs.2,72,00,000/-, the same has no consequence because it was not found from the possession of the assessee nor it indicates that assessee might have agreed to sale this property for this amount. The agreement to sell categorically provided that the property was sold at Rs.2,01,00,000/-. 6. Another important fact he has submitted that, during the assessment proceedings, the AO issued notice u/s 133 (6) to M/s. Condor Technic Sales Pvt. Ltd., the purchaser of the property and the 7 ITA No.49/Del./2015 reply of which has been reproduced in the assessment order in which the purchaser has also admitted that the property was purchased at Rs.2,01,00,000/-. Mainly because agreement to sell was on a higher price that does not mean it was actually sold in same price and it is a matter of fact that ultimately sale has been made at Rs.2,01,00,000/- for which detailed reasons have been given to authorities below as to why the property was sold on lower price, accordingly the addition made by the AO cannot be sustained. 7. Insofar as enhancement made by the ld. CIT (A), he submitted that it is a factual error, because ld. CIT (A) has even taken the half portion of two khasras which belonged to Mrs. Priya Suri and the same could not be added in the hands of the assessee. 8. On the other hand, ld. DR for the Revenue on merits has strongly relied upon the order of the AO and ld. CIT (A). 9. We have heard rival submissions and also perused the relevant findings given in the impugned order as well as the material referred to before us. The sole reason for addition by the AO was that, according to the seized document found, the price consideration of sale of property was mentioned at Rs.2,72,00,000/-, whereas as per the sale deed the sale price was Rs.2,01,00,000/- therefore, he presumed that 8 ITA No.49/Del./2015 the balance amount of Rs.71,00,000/- is undisclosed capital gain on the sale of the said property. Whereas the ld. CIT (A) even enhanced this amount on some wrong presumption by taking the sale consideration received by another co-owner, Mrs. Priya Suri which is out-rightly incorrect, because as per records the property was owned by two sisters and both have received half the share and hence it cannot be clubbed in hands of assessee. Even this not the case of the Assessing Officer nor there is anything in record. Therefore, the enhancement made by the ld. CIT (A) at the threshold is deleted. 9. Now, coming to the addition made by the AO of Rs.71,00,000/-, we find that the entire basis of addition is based on the seized paper (supra) wherein the amount mentioned was Rs.2,72,00,000/- as against the amount mentioned in the sale deed at Rs.2,01,00,000/-. Once the assessee had given the reasons as to why the amount received by the assessee was lower than the agreed sale price and not only that, when the AO has made his enquiry directly from the purchaser u/s 133 (6), who has also confirmed that it has purchased the property at the same price i.e. Rs.2,01,00,00/-, then we do not find any reason as to why the addition should be made on such seized document. Apart from that, agreement to sell mentions Rs.2,42,50,000/- and not Rs.2,72,00,000/-. Now, whether the 9 ITA No.49/Del./2015 property was agreed to be sold at Rs.2,01,00,000/- or Rs.2,72,00,000/- (as per seized document), but fact of the matter is that property was actually sold at Rs.2,01,00,000/- which has been declared by the assessee in the computation of income as long term capital gain which has also been admitted by the purchaser. Thus, there cannot be any presumption till any contrary material is found form the purchaser also that there was payment over and above the agreed price in the sale deed. Accordingly, on merits, grounds no.2 & 3 are allowed. 10. Insofar as the legal issue raised by ground no.1, though exhaustive submissions made by both the parties including the written submissions, the same are not dealt with as we have already deleted the addition on merits, the legal ground has been rendered purely academic and the same is dismissed as infructuous. 11. Ground No.4 qua levy of interest u/s 234A and 234B of the Act need no specific finding being consequential in nature. 12. In the result, the appeal filed by the assessee is partly allowed. Order was pronounced on this 29 th day of April, 2022. Sd/- sd/- (ANIL CHATURVEDI) (AMIT SHUKLA) ACCOUNTANT MEMBER JUDICIAL MEMBER Dated: 29.04.2022/TS 10 ITA No.49/Del./2015 Copy forwarded to: 1.Appellant 2.Respondent 3.CIT 4.CIT(A)-XXXI, New Delhi. 5.CIT(ITAT), New Delhi. AR, ITAT NEW DELHI.