SHRI GEETA GOPAL, KAPURTHALA V. INCOME TAX OFFICER, KAPURTHALA - 1, KAPURTHALA

ITA 515/ASR/2017

• Counselvise Citation: [2018] 122 COUNSELVISE.COM (IT) 7756 (ITAT-AMRITSAR)
• Duration Of Justice: 1 year(s) 1 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-09-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 25-09-2018
• Assessment Year: 2009-2010
• Appeal Filed On: 07-08-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: J S BHASIN
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH, AMRITSAR (SMC) BEFORE SH. SANJAY ARORA, ACCOUNTANT MEMBER I.T.A. NO. 515/ASR/2017 AS SESSMENT YEAR: 2009-10 GEETA GOPAL, PROP. GOPAL TYRES, SULTANPUR ROAD, KAPURTHALA [PAN: AEGPG 8648N] VS. INCOME TAX OFFICER, KAPURTHALA 1 KAPURTHALA (APPELLANT) (RESPONDENT) APPELLANT BY : SH. J. S. BHASIN (ADV.) RESPONDENT BY: SH. CHARAN DASS (D.R.) DATE OF HEARING: 25.09.2018 DATE OF PRONOUNCEMENT: 27.09.2018 ORDER PER SANJAY ARORA, AM: THIS IS AN APPEAL BY THE ASSESSEE DIRECTED AGAINST THE ORDER BY THE COMMISSIONER OF INCOME TAX (APPEALS)-2, JALANDHAR ( 'CIT(A)' FOR SHORT) DATED 16.05.2017, DISMISSING THE ASSESSEES APPEAL CONTES TING HIS ASSESSMENT U/S. 143(3) OF THE INCOME TAX ACT, 1961 ('THE ACT' HEREINAFTER) DATED 15.11.2011 FOR THE ASSESSMENT YEAR (AY) 2009-10. 2. THE SOLE ISSUE ARISING IN THE INSTANT APPEAL IS THE MAINTAINABILITY IN LAW, AND IN THE FACTS AND CIRCUMSTANCES OF THE CASE, OF AN A DDITION IN THE SUM OF RS.6 LACS DEPOSITED CASH IN HIS SAVINGS BANK ACCOUNT (WITH IC ICI BANK, KAPURTHALA) BY THE ASSESSEE ON 19.06.2008. ITA NO. 515/ASR/2017 (AY 2009-10) GEETA GOPAL V. ITO 2 3. THE ASSESSEES EXPLANATION OF THE SAME BEING THE SALE PROCEEDS OF A TRUCK, RECEIVED CASH ON 18.06.2008 FROM ONE, VIJAY SINGH S ON OF SH. AMAR NATH, WAS SUBJECT TO VERIFICATION BY THE ASSESSING OFFICER (A O) DURING THE ASSESSMENT PROCEEDINGS FROM THE LATTER, WHOSE ADDRESS WAS ALSO , AS REQUIRED, MENTIONED BY THE ASSESSEE. SH. VIJAY SINGH, WHILE CONFIRMING THE TRA NSACTION, FURNISHING ALONG WITH THE TRUCK DETAILS (VIZ. REGISTRATION NUMBER, CHASSI S AND ENGINE NO.; YEAR OF MANUFACTURE), STATED, VIDE HIS LETTER DATED 24.10.2 011 (PB PG. 6) , THAT THE TRUCK WAS IN FACT PURCHASED ON 31.5.2008 (AT 7 P.M.) FOR RS.6 .10 LACS, MAKING A DOWN PAYMENT OF RS.1.10 LACS (IN CASH). THE BALANCE AMOU NT OF RS.5 LACS WAS PAID CASH, ON 04.7.2008, AFTER WITHDRAWING THE LOAN AMOUNT FOR THE SAID AMOUNT RECEIVED FROM SHREE RAM TRANSPORT FINANCE CO. (BRANCH OFFICE: PAT HANKOT) AGAINST THE SAID VEHICLE. THE AO CONFIRMED THE TRUTH OF THE SAID STA TEMENT FROM THE ACCOMPANYING DOCUMENTS. THE CHEQUE FROM THE FINANCE COMPANY, DAT ED 26.6.2008, STOOD CREDITED TO THE BUYERS BANK ACCOUNT ON 02.7.2008, WHICH STO OD WITHDRAWN ON 04.7.2008. THE VEHICLE, REGISTERED WITH THE REGISTERING AUTHOR ITY ON 25.8.2008, STOOD HYPOTHECATED TO THE SAID FINANCE COMPANY (PB PG. 7) . IN THE VIEW OF THE AO, THE ASSESSEES CLAIM OF HAVING RECEIVED RS. 6 LACS FROM SH. VIJAY SINGH ON 18.6.2008 STOOD EFFECTIVELY DISPROVED; THE BUYER BEING PRECIS E IN HIS STATEMENT AND, FURTHER, HAVING PROVED THE SOURCE OF HIS PAYMENT TO THE ASSE SSEE WITH DOCUMENTARY EVIDENCE. THE ASSESSEES CLAIM, BACKED BY AN AFFIDA VIT DATED 19.6.2008 (PB PG. 5) , AVERRING TO HAVE SOLD THE SAID VEHICLE TO THE NAMED BUYER, RECEIVING FULL CONSIDERATION THERE-AGAINST, WAS REGARDED BY THE AO AS HAVING BEEN PERHAPS ISSUED TO FACILITATE THE TRANSFER OF THE VEHICLE IN THE PU RCHASERS NAME AND, IN ANY CASE, ITS PURPOSE WOULD ONLY BE BEST KNOWN TO THE ASSESSEE. T HE SAME DOES NOT STATE THE DATE/S OF RECEIPT OF THE CONSIDERATION, OR EVEN THE AMOUNT/S THEREOF. THE SAID DOCUMENT, CLEARLY EXECUTED FOR FURNISHING BEFORE TH E REGISTERING AUTHORITY FOR THE PURPOSE OF REGISTERING THE CHANGE IN THE OWNERSHIP OF THE VEHICLE, WOULD NOT PROVE ITA NO. 515/ASR/2017 (AY 2009-10) GEETA GOPAL V. ITO 3 THE ASSESSEES CASE. THE ADDITION U/S. 69A FOR RS. 6 LACS STOOD MADE AND CONFIRMED ON THIS BASIS, SO THAT, AGGRIEVED, THE ASSESSEE IS IN SECOND APPEAL. 4. I HAVE HEARD THE PARTIES, AND PERUSED THE MATERI AL ON RECORD. THE FIRST THING THAT STRIKES ONE IS THAT EVEN IF T HE ASSESSEES EXPLANATION OF HAVING SOLD THE TRUCK ON 18.6.2008 ON RECEIPT OF TH E FULL CONSIDERATION, STATED AT RS. 6 LACS, THE ADDITION U/S. 69A COULD BE MADE FOR RS. 5 LACS ONLY AND NOT FOR RS. 6 LACS. THIS IS AS THE ASSESSEES HAS, EVEN GOING BY THE VERSION OF THE PURCHASER, RECEIVED RS.1 LAC AND ODD ON 31.5.2008, I.E., BEFOR E 18.6.2008, AND ONLY THE BALANCE RS.5 LACS WAS DUE ON 18.6.2008. THE SECOND OBSERVATION IS THAT THE PURCHASER HAVIN G CONFIRMED THE TRANSACTION, THE QUESTION ESSENTIALLY BOILS DOWN TO WHETHER THE BALANCE CONSIDERATION OF RS.5 LACS WAS PAID ON 18.6.2008, A S THE ASSESSEE STATES, OR ON 04.7.2008, AS CLAIMED BY THE PURCHASER. CLEARLY, ON E OF THEM, OR PERHAPS EVEN BOTH, ARE NOT STATING THE TRUTH, I.E., WITH REGARD TO THE SAID DATE/S; THE DATE OF RECEIPT OF RS.1.10 LACS BEING NOT SERIOUSLY DISPUTED BY THE ASSESSEE AND, BESIDES, BEING PRIOR TO 18.6.2008, EVEN OTHERWISE INCONSEQUENTIAL FROM THE STANDPOINT OF THE AVAILABILITY OF CASH OF RS.6 LACS WITH THE ASSESSEE ON THAT DATE. BOTH OF THEM THOUGH APPARENTLY HAVE NO REASON TO NOT STATE THE TRUTH. T HE CASH ACQUISITION BEING ASCRIBED TO THE SALE OF VEHICLE IN CASH, AN UNDISPU TED FACT, IT WOULD MATTER LITTLE IF THE CASH ACQUISITION AND, CONSEQUENTLY, ITS DEPOSI T IN BANK, WERE TO BE ON 04.7.2008 INSTEAD. THE REVENUE HAS NOT BROUGHT ANY MATERIAL ON RECORD TO SHOW ANY PARTICULAR SIGNIFICANCE OF 19.06.2008, AS WHERE SOME PAYMENTS/WITHDRAWALS WERE TO BE, AND WERE ACCORDINGLY, MADE FROM 19.6.20 08 TO 03.7.2008. LIKEWISE, THE BUYER, A FARMER, HAVING SHOWN THE SOURCE OF THE BALANCE PAYMENT OF RS.5 LACS WITH HIM, AVAILABLE TO HIM ONLY ON 02.7.2008, COULD NOT POSSIBLY BE DOUBTED IN-AS- MUCH AS THE FINANCING OF THE VEHICLE IS PROVED. AT THE SAME TIME, AS ONLY ONE OF THE ITA NO. 515/ASR/2017 (AY 2009-10) GEETA GOPAL V. ITO 4 TWO THE ASSESSEE OR THE BUYER, IS STATING THE FAC T, THE OTHER WOULD BE HARD PUT TO EXPLAIN THE SOURCE OF THE FUNDS WITH REFERENCE TO T HE DATE/S OF ACTUAL PAYMENT/S THE ASSESSEE, IF THE CASH WAS ACTUALLY PAID TO HIM ONLY ON 04.7.2008, OR THE BUYER, WHERE THE CONSIDERATION WAS ACTUALLY DISCHARGED IN FULL ON 18.6.2008. AND, THEREFORE, BOTH OF THEM, UNDER THE GIVEN CIRCUMSTAN CES, ONLY AWARE OF THE CONSEQUENCES THAT MAY FOLLOW IF NOT ABLE TO EXPLAIN THE PAYMENT/RECEIPT WITH REFERENCE TO THE GIVEN DATE/S, HAVE SUFFICIENT REAS ON TO PERSIST WITH THE UNTRUTH. NEXT, IT MAY BE PROFITABLE TO EXAMINE THE EVIDENCE LED BY EITHER, THE REVENUE HAVING FOUND ONE SET (OF EVIDENCES) MORE PE RSUASIVE THAN THE OTHER. THE ASSESSEES SOLE EVIDENCE IS THE SO-CALLED AFFIDAVIT , WHICH IS IN EFFECT AND SUBSTANCE A NO OBJECTION CERTIFICATE (NOC) BY HIM, AS THE REG ISTERED OWNER OF THE VEHICLE, TO ENABLE THE TRANSFER OF ITS OWNERSHIP, I.E., THE RE GISTRATION OF THE VEHICLE IN THE NAME OF THE BUYER, AS ITS NEW OWNER. TRUE, THE SAME CAN NOT PASS OFF AS AN EVIDENCE QUA SALE CONSIDERATION OR THE DATE/S OF ITS DISCHARGE, WHICH IS THE BONE OF CONTENTION BETWEEN THE PARTIES. AGAIN, WITHOUT DOUBT, IT IS A UNILATERAL DOCUMENT. THE SAME, HOWEVER, EXECUTED ON 19.6.2008, CLEARLY STATES OF H AVING RECEIVED THE CONSIDERATION WHATEVER THAT MAY BE, IN FULL, AND THAT (THEREFORE) THE OWNER (ASSESSEE) HAS NO OBJECTION TO THE REGISTRATION (OF THE VEHICLE UNDER REFERENCE) IN THE NAME OF THE NEW PURCHASER. THE SAME ONLY IMPLIE S THAT THE CONSIDERATION STOOD RECEIVED BY THE ASSESSEE-TRANSFEROR BY 19.6.2008 AN D, FURTHER, THE POSSESSION OF THE VEHICLE ALSO DELIVERED BY THAT DATE. THAT IS, THE S ALE TRANSACTION IS COMPLETE AS ON 19.6.2008. THE EVIDENTIARY VALUE OF THE SAID DOCUME NT, EVEN AS OBSERVED BY THE BENCH DURING HEARING, ARISES FROM THE FACT THAT IT WAS ISSUED IN THE ORDINARY COURSE OF BUSINESS, AS A PART OF THE MANDATORY PROCEDURE, WITH EVEN ITS LANGUAGE BEING CLEARLY FIXED, LEAVING GAPS FOR FILLING THE VARIABL ES, AS THE PARTICULARS OF THE VEHICLE AND THE BUYER. NO DOUBT ISSUED FOR THE PURPOSE OF E FFECTING REGISTRATION, BUT IS NOT THE SAME, THE NOC, ONE MAY ASK, A PART OF THE OBLIG ATION OF THE SELLER? THEN, AGAIN, ITA NO. 515/ASR/2017 (AY 2009-10) GEETA GOPAL V. ITO 5 WOULD ANYONE ISSUE THE SAME WITHOUT HAVING ACTUALLY RECEIVED THE CONSIDERATION, EVEN AS CLEARLY STATED THEREIN? THE BUYER, UPON THE RECEIPT OF THE NOC, BECOMES THE LEGAL OWNER AND POSSESSOR OF THE SUBJECT VEHICL E. IT IS CLEARLY A SIGNIFICANT PIECE OF EVIDENCE, SIGNIFYING THE TRANSACTION BETWEEN THE PARTIES AS WELL AS THE DATE OF ITS COMPLETION. THE SAME OUGHT TO HAVE BEEN CONFRONTED BY THE REVENUE TO THE BUYER, SH. VIJAY SINGH, WHICH IT DID NOT, OR CHOSE NOT TO. THE EVIDENCE LED BY THE BUYER IS PERSUASIVE INDEED. WHAT IS THE DOCUMENT, HOWEVER, F URNISHED BY THE BUYER TO THE FINANCE COMPANY TO SHOW THE PURCHASE CONSIDERATION OF THE SUBJECT VEHICLE AT RS.6.10 LACS; THE PAYMENT OF RS.1.10 LACS, WHICH HA S BEEN, AS APPARENT, REGARDED BY THE LATTER AS THE PURCHASERS MARGIN MONEY? HOW WOULD THE FINANCE COMPANY PROCEED IN THE MATTER WITHOUT THESE BASIC DOCUMENTS , NOT FURNISHED BY EITHER PARTY? AGAIN, WHY DID IT, THE BALANCE CONSIDERATION OF RS. 5 LACS BEING UNDISCHARGED AS ON 26.6.2008, NOT ISSUE THE CHEQUE FOR THE SAME IN THE NAME OF THE ASSESSEE-SELLER? HOW WOULD IT THE FINANCE COMPANY, ISSUING CHEQUE IN THE FAVOUR OF THE BUYER ON 26.6.2008, ENSURE THAT THE AMOUNT IS PAID TO THE RI GHT PERSON, THE PREVIOUS OWNER? IN ANY CASE, THE BUYER COULD HAVE MADE THE PAYMENT TO THE ASSESSEE BY CHEQUE. IN FACT, THE DEED OF HYPOTHECATION WOULD, IN ALL PROBA BILITY, BE EXECUTED ON OR BEFORE 26.6.2008, AND WHICH COULD ONLY BE IF THE BUYER HAD , BY THAT DATE, ASSUMED OWNERSHIP OF THE VEHICLE, AND TOWARD WHICH THE NOC FROM THE ASSESSEE (THE REGISTERED OWNER) IS A VITAL DOCUMENT. YES, IT COUL D ALSO BE THAT THE NOC STOOD ISSUED BY THE ASSESSEE WITHOUT RECEIVING THE FULL C ONSIDERATION, I.E., BY WAY OF ACCOMMODATING THE BUYER; THE SALE AGREEMENT (UNDISC LOSED) CLEARLY STATING THE BALANCE CONSIDERATION, WHICH IS TO BE PAID AGAINST DULY STAMPED RECEIPT (OR OTHER COMPELLING EVIDENCE). THAT, HOWEVER, WITHOUT ANY CO NTRARY EVIDENCE, WOULD BE A CONJECTURE OR A SURMISE. IT WAS, RATHER, IN THAT CA SE, ALL THE MORE INCUMBENT FOR THE BUYER TO PAY THE BALANCE CONSIDERATION BY CHEQUE (B ANKING CHANNEL), AN ASPECT EMPHASIZED BY THE LD. COUNSEL. AND, AGAIN, POINTS T O THE NECESSITY OF CONFRONTING ITA NO. 515/ASR/2017 (AY 2009-10) GEETA GOPAL V. ITO 6 THE BUYER WITH THE NOC, ON THE BASIS OF WHICH HE PR ESUMABLY GOT THE VEHICLE REGISTERED IN HIS NAME ON 25.8.2008. CLEARLY, THEREFORE, THE REVENUE HAS IN THE FACTS A ND CIRCUMSTANCES OF THE CASE UNDERMINED THE SIGNIFICANCE OF THE NOC. THE NE XT QUESTION IS IF THE MATTER BE RESTORED TO THE FILE OF THE AO FOR CONFRONTING THE SAID DOCUMENT TO THE BUYER, I.E., TOWARD ESTABLISHING ITS TRUTH. THOUGH THAT IS THE COURSE WHICH, STRICTLY SPEAKING, SHOULD BE FOLLOWED, I AM NOT INCLINED TO DO SO. THI S IS AS ONCE THE ASSESSEE FURNISHES A DOCUMENT/EVIDENCE IN SUBSTANTIATION OF HIS CASE, IT WAS FOR THE REVENUE TO VERIFY THE SAME. IT MAY CALL UPON THE ASSESSEE, IN WHOSE SPECIAL KNOWLEDGE THE FACTS OF HIS CASE ARE, AND WHO IS TO PROVE HIS RETU RN OR THE CLAIMS PREFERRED THEREBY, TO FURTHER CORROBORATE HIS CASE, BUT IT CANNOT CHOO SE TO DISMISS THE SAME, AS IT DOES IN THE PRESENT CASE, CAUSING PREJUDICE TO THE ASSES SEE. I AM, AGAIN, CONSCIOUS THAT THE INSTANT CASE IS NOT TO BE CONSTRUED AS ONE WHER E ONE SET OF EVIDENCES ARE PITTED AGAINST THE OTHER, AS MADE OUT OR MAY APPEAR TO BE. THIS IS AS THE BUYER, SH. VIJAY SINGH, IS ONLY THE ASSESSEES WITNESS, FROM WHOM TH E ASSESSEE CLAIMS TO HAVE RECEIVED CASH IN ONE GO, ON 18.06.2008. BUT, AS A FORE-NOTED, IN THE FACTS AND CIRCUMSTANCES OF THE CASE; ONE OF THEM IS CLEARLY N OT STATING THE TRUTH, IT WAS INCUMBENT ON THE REVENUE TO, WHERE IN DOUBT OF THE ASSESSEES EXPLANATION, REQUIRE HIM TO EXAMINE THE BUYER OR OTHERWISE DISPROVE THE LATTERS CLAIM BY PRODUCING HIM. IT MERELY STATING, WITHOUT APPRECIATING THE FA CTS OF THE CASE, THAT THE SAME DOES NOT ASSIST THE ASSESSEES CASE, WITH, AS SHOWN, IT BEING VITAL TO THE BUYERS CLAIM/S WHICH, AS AFORE-NOTED, HAS SEVERAL GAPS, IS NEITHER HERE NOR THERE. IN FACT, IT HAVING SOUGHT VERIFICATION DIRECTLY FROM THE BUYER, COULD HAVE; RATHER, OUGHT TO HAVE, CONFRONTED THE BUYER WITH THE NOC OR REQUIRE HIM TO PRODUCE THAT ON THE BASIS OF WHICH REGISTRATION IN HIS FAVOUR WAS OBTAINED. I MA Y THOUGH ADD THAT NOT SO DOING DOES NOT MEAN THAT THE NOC BEING RELIED UPON BY THE ASSESSEE IS SACROSANCT OR PROVED, AS THE LD. COUNSEL WOULD ARGUE, BUT SURELY IT CANNOT BE DISREGARDED OR SAID ITA NO. 515/ASR/2017 (AY 2009-10) GEETA GOPAL V. ITO 7 TO BE DISPROVED; THERE BEING NOTHING ON RECORD TO D OUBT THE NOC DATED 19/6/2008. IT IS, IN MY VIEW, TOO LATE IN THE DAY TO REQUIRE T HE SAID VERIFICATION PROCESS FOR WHICH THE REVENUE HAD ALL THE TIME; THE PROCEEDINGS BEFORE THE FIRST APPELLATE AUTHORITY ITSELF CONSUMING NEARLY SIX YEARS. THE AS SESSEE, UNDER THE CIRCUMSTANCES, CAN ONLY BE SAID TO HAVE FURNISHED A SATISFACTORY E XPLANATION TOWARDS THE ACQUISITION OF CASH FOR RS.6 LACS BY HIM DEPOSITED IN HIS BANK ACCOUNT ON 19.6.2008. NO CASE FOR SUSTAINING THE ADDITION IS, UNDER THE CIRCUMSTANCES, MADE OUT. I DECIDE ACCORDINGLY. 5. IN THE RESULT, THE ASSESSEES APPEAL IS ALLOWED. ORDER PRONOUNCED IN THE OPEN CO URT ON SEPTEMBER 27, 2018 SD/- (SANJAY ARORA) ACCOUNTANT MEMBER DATE: 27.09.2018 /GP/SR. PS. COPY OF THE ORDER FORWARDED TO: (1) THE APPELLANT: GEETA GOPAL, PROP. GOPAL TYR ES, SULTANPUR ROAD, KAPURTHALA (2) THE RESPONDENT: INCOME TAX OFFICER, KAPURTH ALA 1 KAPURTHALA (3) THE CIT(APPEALS)-2, JALANDHAR (4) THE CIT CONCERNED (5) THE SR. DR, I.T.A.T. TRUE COPY BY ORDER