ITO, New Delhi V. Lt Sh T.A. Subramani, Delhi

ITA 4935/DEL/2012

• Counselvise Citation: [2013] 120 COUNSELVISE.COM (IT) 2635 (ITAT-DELHI)
• Duration Of Justice: 6 month(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-04-2013
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: H
• Next Hearing Date: 08-04-2013
• Assessment Year: 2009-2010
• Appeal Filed On: 17-09-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: TARUN SEEN
• Keywords: Additional evidence

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH : H : NEW DELHI BEFORE SHRI A.D. JAIN, JUDICIAL MEMBER AND SHRI T.S. KAPOOR, ACCOUNTANT MEMBER ITA NO.4935/DEL/2012 ASSESSMENT YEAR : 2009-10 ITO, WARD 37(1), ROOM NO.409, VIKAS BHAWAN, IP ESTATE, NEW DELHI. VS. T.A. SUBRAMANI, THROUGH ARUN MANI (L/H) A-11, IFS APARTMENT, MAYUR VIHAR-I, DELHI. PAN : AKMPS4374H (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI K.V.S.R. KRISHNAN, CA REVENUE BY : SHRI TARUN SEEN, SR.DR ORDER PER A.D. JAIN, JUDICIAL MEMBER THIS IS AN APPEAL FILED BY THE DEPARTMENT FOR ASSESSMENT YEAR 2009-10 AGAINST THE ORDER DATED 12.07.2012 PASSED BY T HE CIT (A)- XXVIII, NEW DELHI. THE FOLLOWING EFFECTIVE GROUNDS HAVE BEEN TAKEN:- 1. THE LD. CIT (A) HAS ERRED IN DELETING THE ADDITIO N MADE BY THE ASSESSING OFFICER EVEN THOUGH THE ASSESSEE HAD NOT PRODUCED NECESSARY DOCUMENTARY EVIDENCE WITH RESPECT TO INVESTMENT MADE IN PURCHASE OF PROPERTY AND WITH RESPE CT TO SALE OF PROPERTY OF THE ASSESSEE. 2. THE LD. CIT (A) HAS ERRED IN DELETING THE ADDITION MA DE BY THE ASSESSING OFFICER ADMITTING THE ADDITIONAL EVIDENC E FILED BY THE ASSESSEE AND WITHOUT CALLING A REMAND REPORT FROM TH E ASSESSING OFFICER. 2. THE GRIEVANCE OF THE DEPARTMENT BEFORE US IS THAT EVEN THOUGH THE ASSESSEE DID NOT PRODUCE NECESSARY DOCUMENTARY EVIDEN CE ITA NO.4935/DEL/2012 2 CONCERNING INVESTMENT IN PURCHASE OF PROPERTY AND SALE THEREOF, THE LD. CIT (A) WRONGLY ADMITTED ADDITIONAL EVIDENCE AN D SET ASIDE THE ASSESSMENT ORDER WITHOUT EVEN CALLING FOR A REMAND REPO RT FROM THE ASSESSING OFFICER. 3. THE LD. CIT (A), IN THIS REGARD, HAS EXTRACTED FRO M THE ASSESSMENT ORDER, AS FOLLOWS:- AS PER AIR INFORMATION THE ASSESSEE HAS PURCHASED IMMOVABLE PROPERTY VALUED AT RS.66,07,000/- (COST OF PROPERTY RS.61,84,000/- + STAMP DUTY RS.4,23,000/-). AS PER ORDER SHEET ENTR Y DATED 14.12.2011 THE AR OF THE ASSESSEE WAS ASKED TO EXPLAIN THE SOU RCE OF INVESTMENT WITH DOCUMENTARY EVIDENCE IN THE PROPERTY. VIDE SR . NO.3 OF THE FINAL SHOW-CAUSE DATED 14.12.2011 THE AR OF THE ASSESSEE AS ASKED TO PRODUCE THE SOURCE OF INVESTMENT WITH DOCUMENTARY E VIDENCE WITH A COPY OF PURCHASE DEED OF SAID PROPERTY. THE AR OF THE ASSESSEE HAS NOT PRODUCED THE FULL SET OF PURCHASE DEED (PAGE NO .2 & 3) ONLY OF THE PURCHASE DEED HAS BEEN FILED). FROM THE BANK STATE MENTS IT IS NOTICED THAT THE FOLLOWING PAYMENTS HAVE BEEN MADE TO THE G AUR SONS INDIA LTD., BUILDER FROM WHOM THE PROPERTY HAS BEEN PURCH ASED. SR. NO. NAME OF THE BANK DATE OF PAYMENT AMOUNT ( ` ) 01. ICICI BANK 27.05.2006 1,00,000.00 02 -DO- 06.06.2006 5,18,400.00 03 -DO- 24.06.2006 6,18,400.00 04. -DO- 29.06.2006 19,47,200.00 05 -DO- 11.11.2008 2,50,000.00 TOTAL 34,34,000.00 (RS.2,50,000/- ON 11.11.2008 HAS BEEN WITHDRAWN IN CASH FROM ICICI BANK AT THE TIME OF EXECUTION OF PURCHASE DEED FOR STAMP DUTY AS SUBMITTED BY THE AR OF THE ASSESSEE.) NO SUBMISSION FOR BALANCE AMOUNT OF RS.31,73,000/- HAS BEEN FILED BY THE AR OF THE ASSESSEE. HENCE RS.31,73,000/- IS TR EATED AS THE AMOUNT HAVING BEEN PAID OUT OF UNDISCLOSED SOURCE OF INCOM E BY THE ASSESSEE FOR PURCHASE OF SAID PROPERTY. 4. BEFORE THE LD. CIT (A), THE ASSESSEE MAINTAINED THAT : OUT OF RS.61,84,000/- FOR PURCHASE OF HOUSE PROPERTY AND ANOTHER RS.4,23,000/- FOR STAMP DUTY, RS.34,34,000/- W AS PAID BY THE ASSESSEE OUT OF HIS BANK ACCOUNT WHICH HAVE BEE N ADMITTED BY ASSESSING OFFICER AND REST RS.30,00,000/- BY RAISING ITA NO.4935/DEL/2012 3 A LOAN FROM BIRLA HOME FINANCE LTD. AND BALANCE OF S TAMP DUTY RS.1,73,000/- OUT OF CASH IN HAND/FROM DRAWINGS. DR AWING RS.18,04,162/- FROM FIRM AS PER COPY OF CAPITAL ACCO UNT ATTACHED. 5. THE LD. DR HAS DRAWN OUR ATTENTION TO THE OBSERVAT IONS OF THE LD. CIT (A), AT PAGE 6 OF THE IMPUGNED ORDER, WHICH ARE AS FOLLOWS:- I HAVE CAREFULLY CONSIDERED THE SUBMISSION OF THE AP PELLANT, WHEREIN IT IS SUBMIT THAT RS.30,00,000/- WAS A LOAN FRO M BIRLA HOME FINANCE LTD., WHICH WAS DEPOSITED BY CHEQUE BY L ENDER AS PER TRIPARTITE AGREEMENT DT. 30.06.2006. FOLLOWING DOCUMENTS ARE THERE FOR EVIDENCE OF LOAN - COPY OF RECEIPT OF RS.30.00 LACS ISSUED BY BUILDERS. - COPY OF TRIPARTITE AGREEMENT. - COPY OF CHEQUE ISSUED BY FINANCIER IN FAVOUR OF BUI LDERS. - DISBURSEMENT LETTER OF LOAN IN VIEW OF THE ABOVE STATED FACTS AND EVIDENCE PLACED O N RECORD, THE ASSESSING OFFICER IS NOT JUSTIFIED IN MAKING AN AD DITION OF RS.3000000/- WHICH IS A HOME LOAN TO THE INCOME OF TH E APPELLANT. I DELETE THE ADDITION OF RS.3000000/-. 6. THE LD. DR CONTENDS THAT IT IS APPARENT FROM THE A BOVE, THAT NO OPPORTUNITY WHATSOEVER WAS GRANTED TO THE ASSESSING OFFI CER BY THE LD. CIT (A) BEFORE ADMITTING THE DOCUMENTS IN EVIDEN CE. 7. THE LD. COUNSEL FOR THE ASSESSEE, ON THE OTHER HAND, HAS PLACED STRONG RELIANCE ON THE IMPUGNED ORDER, CONTENDING TH AT ALL THE NECESSARY EVIDENCE WAS ALREADY ON RECORD BEFORE THE ASSE SSING OFFICER, WHICH FACT HAS RIGHTLY BEEN TAKEN INTO CONSI DERATION WHILE GRANTING RELIEF TO THE ASSESSEE. 8. HAVING HEARD THE RIVAL CONTENTIONS IN THE LIGHT O F THE MATERIAL ON RECORD, WE FIND THAT THERE IS NO ERROR WHATSOEVER IN THE ORDER OF THE LD. CIT (A) IN THIS REGARD. THE PORTION OF THE ASSESSMENT O RDER AS EXTRACTED IN THE IMPUGNED ORDER, SHOWS THAT THE LD. C IT (A), ON EXAMINING THE MATTER, FOUND THAT THERE WAS EVIDENCE BEFORE THE ITA NO.4935/DEL/2012 4 ASSESSING OFFICER REGARDING THE BALANCE PURCHASE CONSIDE RATION OF ` 30 LAC. SO FAR AS REGARDS THE CONCLUDING PORTION OF THE CIT (A)S ORDER, REFERRING TO THE DOCUMENTS CONSTITUTING EVIDENCE OF L OAN, THIS PORTION OF THE ORDER HAS TO BE READ ALONG WITH AND IN CONTIN UATION OF THE EARLIER PORTION THEREOF, WHEREIN, AS OBSERVED, THE LD. CIT (A ) HAS FOUND THAT THIS EVIDENCE WAS PRESENT, FILED BEFORE THE ASSESSING OFFI CER DURING THE ASSESSMENT PROCEEDINGS. NOTHING CONTRARY HAS BEEN BROUGH T TO OUR NOTICE. THAT BEING SO, SINCE THERE WAS NO ADDITIONAL EVIDENCE FILED, THERE WAS NO REQUIREMENT FOR A REMAND REPORT TO BE C ALLED FOR BY THE CIT (A) FROM THE ASSESSING OFFICER. THE GRIEVANCE SOUG HT TO BE RAISED BY THE DEPARTMENT IS, THEREFORE, WITHOUT MERIT AND I S REJECTED AS SUCH. 9. IN THE RESULT, THE APPEAL FILED BY THE DEPARTMENT IS DISMISSED. THE ORDER PRONOUNCED IN THE OPEN COURT ON 08.04.20 13. SD/- SD/- [T.S. KAPOOR] [A.D. JAIN] ACCOUNTANT MEMBER JUDICIAL MEMBER DATED, 08.04.2013. DK COPY FORWARDED TO: - 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR, ITAT TRUE COPY BY ORDER, DEPUTY REGISTRAR, ITAT, DELHI BENCHES