Income tax Officer, Hoshiarpur V. Smt. Gurmeet Kaur, Hoshiarpur

ITA 540/ASR/2009

• Counselvise Citation: [2011] 134 COUNSELVISE.COM (IT) 5830 (ITAT-AMRITSAR)
• Duration Of Justice: 1 year(s) 5 month(s) 16 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-06-2011
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 16-12-2010
• Assessment Year: 2001-2002
• Appeal Filed On: 23-12-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: AMRIK CHAND
• Assessee Lawyers: V P VIJH

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH; AMRITSAR. BEFORE SH. H.L. KARWA, VICE PRESIDENT AND SH. MEHAR SINGH, ACCOUNTANT MEMBER I.T.A. NO. 540(ASR)/2009 ASSESSMENT YEAR:2001-02 PAN : INCOME-TAX OFFICER, SMT. GURMEET KAUR HOSHIARPUR-1, W/O SH. DHARAM PAUL, HOSHIARPUR. HOSHIARPUR. (APPELLANT) (RESPONDENT) DEPARTMENT BY:SH. AMRIK CHAND, DR ASSESSEE BY: SH. V.P. VIJH, CA ORDER PER MEHAR SINGH, AM, THE PRESENT APPEAL FILED BY THE REVENUE IS DIRECTE D AGAINST THE ORDER OF THE CIT(A), JALANDHAR, DATED 13.10.2009, PASSED UND ER SECTION 250(6) OF THE INCOME-TAX ACT, 1961 (HEREINAFTER REFERRED TO IN SH ORT THE ACT), FOR THE ASSESSMENT YEAR 2001-02. 2. THE ASSESSEE RAISED FOLLOWING GROUNDS OF APPEAL: 1. THAT, ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) HAS ERRED IN LAW IN DELETING THE ADDITIO N OF RS.23,70,000/- MADE ON ACCOUNT OF UNEXPLAINED INVES TMENT IN PURCHASE OF LAND. 1.1 WHILE DOING SO, THE LD. CIT(A) HAS FAILED TO APPRE CIATE THAT THE ENTIRE LAND OF 15 KANALS AND 15 MARLAS WAS IN F ACT PURCHASED BY THE ASSESSEE FROM SH. GURDEV SINGH AS AGREED TO AS PER ORIGINAL AGREEMENT DATED 26.10.1999, IN HER NAME AN D IN THE 2 NAME OF SHRI GURMAIL SINGH BAINS. THE INVESTMENT MA DE BY THE ASSESSEE IN THE PURCHASE OF LAND IN THE NAME OF SH. GURMAIL SINGH BAINS AMOUNTING TO RS.23,70,000/- WAS NOT SAT ISFACTORILY EXPLAINED AND THE SAME WAS RIGHTLY ADDED AS UNEXPLA INED INCOME OF THE ASSESSEE. 2. THAT IT IS PRAYED THAT THE ORDER OF THE LD. CIT(A) BE SET ASIDE AND THAT OF THE A.O. RESTORED. 3. THAT THE APPELLANT REQUESTS FOR LEAVE TO ADD OR AME ND OR ALTER THE GROUNDS OF APPEAL BEFORE THE APPEAL IS HEARD AN D DISPOSED OF. 3. THE GROUND NOS. 1 & 1.1 ARE INTER-RELATED AND R ELATE TO DELETION OF ADDITION OF RS.23,70,000/- ON ACCOUNT OF UNEXPLAINE D INVESTMENT IN THE PURCHASE OF LAND. THE BRIEF AND NEAT FACTS OF THE C ASE AS CULLED OUT FROM THE RECORDS ARE THAT THE ASSESSEE ENTERED INTO AN AGRE EMENT DATED 26.10.1999 FOR THE PURCHASE OF 15 KANALS AND 17 MARLAS OF LAND WITH ONE SH. GURDEV SINGH FOR A CONSIDERATION OF RS.31,70,000/- @ RS. 2 LACS PER KANAL. THE ASSESSEE CONTENDED THAT SHE HAD NOT EXECUTED THIS A GREEMENT IN TOTO. SHE CONTENDED THAT SHE WAS NOT AWARE THAT THE LAND WAS SITUATED IN THE IMMEDIATE VICINITY OF THE UPCOMING UNA BYE-PASS AND HAT CONST RUCTION ON BOTH SIDES OF BYE PASS ROAD UPTO A DISTANCE OF 100 MTRS FROM THE OUTER EDGE OF THE ROAD WAS BANNED; THAT SHE WAS NOT AWARE OF THIS CONDITIO N AT THE TIME OF ENTERING INTO THE SAID AGREEMENT AND THAT THIS FACT HAD BEEN CONCEALED BY THE SELLER AND AFTER THE ASSESSEE CAME TO KNOW THIS FACT, SHE REFUSED TO HONOUR TERMS AND CONDITIONS OF ORIGINAL AGREEMENT AND PURCHASED SUBSEQUENTLY ONLY 9 KANALS OF LAND @ RS.1 LAC PER KANAL. HOWEVER, THE AO ON THE BASIS OF THE STATEMENT OF GURDEV SINGH HELD THAT THE SALE HAD BE EN MADE AT THE ORIGINAL RATE OF RS. 2 LAC PER KANAL TO SMT. GURMEET KAUR OF THE ENTIRE LAND. HE FURTHER NOTED THAT THE SUM OF RS.31,70,000/- HAD BE EN DEPOSITED IN THE ACCOUNT OF SH. GURDEV SINGH AND HIS FAMILY MEMBERS; SMT. GURDEV KAUR 3 WAS IN FULL KNOWLEDGE ABOUT THE SANCTIONED BYE PASS ON 26.10.1999 SINCE THIS WAS ACQUIRED BY THE GOVT. BY 1995-96.; SH. MO HINDER SINGH ONE OF THE WITNESSES TO THE AGREEMENT DATED 26.10.1999 STATED THAT RS.7,50,000/- IN CASH WAS GIVEN BY SMT. GURMEET KAUR TO SH. GURDEV S INGH ON 17.8.2000 IN COMPLIANCE TO AGREEMENT DATED 26.10.1999 AND ANOTHE R RS. 2 LACS WAS GIVEN ON 18.8.2000. SH. .GURMAIL SINGH BAINS WAS DHARAMP ALS BROTHER IN LAW AND THE SOURCE OF HIS INVESTMENT IN THE BALANCE POS ITION OF LAND SOLD BY SH. GURDEV SINGH WAS QUESTIONED BY THE AO AND HE HAS FO UND THAT CHEQUES AND CASH OF RS. 5 LACS WITHDRAWN ON 25.10.2001, 22.11.2 002 AND 23.11.2002 HAD BEEN RECEIVED BY SH. DHARAM PAL, ASSESSEES HUSBAND FROM THE HOSHIARPUR TELECOM EMPLOYEES COOPERATIVE THRIFT AND CREDIT SO CIETY, THERE WAS NEXUS BETWEEN SMT. GURMEET KAUR AND SH. GURMAIL BAINS SIN CE BOTH HAD DISPOSED OFF THEIR RESPECTIVE SHARE OF 3 KANALS 7 MARLAS BY WAY OF COMMON SALE DEED AND COPY OF BANK ACCOUNT OF SH. GURMAIL BAINS SHOWE D DEPOSIT OF R. 2 LAC ON 12.5.2001 AND THE DEPOSITS SLIP BORE SH. DHARAM PALS SIGNATURES. THE ADDITION WAS, HOWEVER, DELETED BY THE CIT(A) VIDE O RDER DATED 9.7.2004, AFTER VERIFICATION FROM THE OFFICE OF THE REGISTRAR FROM WHOM IT WAS ASCERTAINED THAT SH. GUDEV SINGH HAD GIVEN AFFIDAVI T TO THE EFFECT THAT NO AGREEMENT WAS ENTERED INTO BY HIM IN RESPECT OF THI S LAND PRIOR TO THE DATE OF THE SALE AGREEMENT OF 8 KANAL LAND. IT WAS ALSO ST ATED THAT THE HONBLE ITAT HAS HELD THAT EVEN IF THE AFFIDAVIT HAD BEEN ADMITT ED BY THE CIT(A), HE HAD TO ALLOW AN OPPORTUNITY TO THE AO TO EXAMINE THE AD DITIONAL EVIDENCE IN THE FORM OF THIS AFFIDAVIT UNDER THE PROVISIONS OF RULE 46A(3) AND REMITTED THE MATTER BACK TO THE CIT(A), TO BE DECIDED AFRESH IN ACCORDANCE WITH LAW. ACCORDINGLY, A REPORT WAS CALLED FOR FROM THE AO ON THE ISSUE. 3.1. THE AO SUBMITTED A REPORTED DATED 30.5.2007 S TATING THEREIN THAT SH. GURDEV SINGH HAD STATED ON OATH THAT HE RECEIVED RS .31,70,000/- FROM THE 4 ASSESSEE EITHER DIRECTLY OR THROUGH HER HUSBAND SH. DHARAM PAL. A SUM OF RS.31,25,000/- WAS DEPOSITED IN THE BANK ACCOUNTS O F SH. GURDEV SINGH AND HIS FAMILY MEMBERS BETWEEN 17.8.2000 AND 20.3.2001 , DURING WHICH PERIOD THE TRANSACTION WAS CARRIED OUT .RS.9.50 LACS WAS A CKNOWLEDGED ON THE AGREEMENT ITSELF AND RECEIVED IN THE PRESENCE OF SH . MOHINDER SINGH RANDHAWA AND RS. 1 LAC WAS PAID AS BIANA. THE AO FU RTHER CONTENDED THAT ASSESSEES CLAIM TO HAVE PURCHASED ONLY 8 KANALS OF LAND OUT OF 15 KANALS 17 MARLAS WAS WRONG.. HE CONTENDED THAT THE AGREEMENT BETWEEN SH. GURMAIL BAINS AND GURDEV SINGH FOR SALE OF THE BALANCE 7 KA NAL 18 MARLAS LAND WAS A SHAM TRANSACTION BECAUSE GURMAIL SINGH WAS COUSIN OF THE ASSESSEE AND A PERSON OF MODEST MEANS EARNING SALARY OF RS. 2000/- PER MONTH. HE ALSO ALLEGED THAT THE BANK A/C OF GURMAIL SINGH HAD BEEN USED BY THE ASSESSEE FOR DEPOSITS AND WITHDRAWALS. SH. GURDEV SINGH HAD STAT ED IN HIS STATEMENT THAT SH. DHARAM PAL WANTED POWER OF ATTORNEY IN HIS OWN NAME BUT LATER ON WANTED HIM TO DO SO IN FAVOUR OF SH. BAINS. THE ENT IRE LAND PURCHASED BY THE ASSESSEE IN THE NAME OF GURMAIL BAINS WAS SOLD TO S H. SATPAL SINGH. ACCORDINGLY, THE AO URGED THAT THE ADDITIONAL EVIDE NCE FILED BY THE ASSESSEE SHOULD NOT BE CONSIDERED AND THE ADDITION MADE BE C ONFIRMED. AGAIN ON APPEAL, THE CIT(A), DELETED THE ADDITION. NOW AGGRI EVED WITH THE ORDER OF THE CIT(A), THE REVENUE IS IN APPEAL BEFORE THIS BE NCH. 4. THE LD. DR SIMPLY RELIED ON THE ORDER OF THE A SSESSING OFFICER. 5. THE LD. COUNSEL FOR THE ASSESSEE, ON THE OTHER H AND, RELIED ON THE ORDER OF THE CIT(A) 6. WE HAVE CAREFULLY PERUSED THE FACTS OF THE CASE, RIVAL SUBMISSIONS, IMPUGNED ASSESSMENT ORDER AND IMPUGNED APPELLATE OR DER. A CAREFUL PERUSAL OF THE IMPUGNED APPELLATE ORDER DATED 13.10.2009, C LEARLY REVEALS THAT THE LD. CIT(A), HAS DISCUSSED THE ISSUE IN QUESTION IN GREATER DETAIL AFTER 5 APPRECIATION OF THE EVIDENCES AND MATERIAL ON RECOR D, AS ALSO THE FACTUAL POSITION OF THE CASE. NEEDLESS TO SAY THAT THE IMPU GNED APPELLATE ORDER IS WELL REASONED AND BASED ON THE RELEVANT AND COGENT MATERIAL AND FACTS OF THE CASE. IT IS IMPERATIVE AND ESSENTIAL TO REPRODUCE T HE RELEVANT AND OPERATIVE PART OF THE ORDER OF THE LD. CIT(A): 4. I HAVE GIVEN CAREFUL CONSIDERATION TO THE AVERM ENTS MADE BY THE APPELLANT AND BY THE AO. THE AO HAS MADE OUT A CASE THAT THE AGREEMENT DATED 26.10.1999 WAS NOT REALLY CANCELLED AND HAD BEEN ACTED UPON. OF PARTICULAR RELEVANCE ARE OF THE FACT S THAT SH. GURMAIL BAINS, RELATED TO THE ASSESSEE, PURCHASED A PART OF THE LAND MENTIONED IN THE AGREEMENT DATED 26.10.1999 VIDE SALE DEED BU T THE SOURCES OF HIS FINANCE WERE NOT VERY STRONG AND SOME OF HIS FI NANCIAL TRANSACTIONS THROUGH HIS BANK ACCOUNT ETC. WERE HANDLED BY SH. D HARAM PAL, THE ASSESSEES HUSBAND. ALMOST THE ENTIRE SALE CONSIDER ATION WAS DEPOSITED IN THE BANK ACCOUNT OF SH. GURDEV SINGH O R HIS WIFE OR CHILDREN ON OR AROUND THE DATES MENTIONED ON THE RE VERSE OF AGREEMENT DATED 26.10.1999 OR THE DATES WHEN THE SALE TRANSAC TION WITH THE ASSESSEE AND SH. GURMAIL BAINS TOOK PLACE. THE LAND PURCHASED BY THE ASSESSEE AND SH. GURMAIL BAINS IS ALSO SHOWN TO HAV E BEEN SOLD AT ONE GO. THESE ARE STRONG CIRCUMSTANTIAL EVIDENCE INDICA TING THAT THE AGREEMENT DATED 26.10.1999 WAS EXECUTED IN FULL. I DO NOT THINK THAT THE APPELLANTS CONTENTION THAT THE PERIOD FOR EXEC UTION OF THE AGREEMENT HAD EXPIRED AND THE AGREEMENT WOULD HAVE LAPSED HAS MUCH VERY RELEVANT, SINCE IT WAS FOR THE SELLER TO HAVE ENFORCED THE LAPS AND IF HE CHOSE NOT TO DO SO, IT DOES NOT IMPL Y THAT THE AGREEMENT NEED NO BE GIVEN FULL EFFECT. ALSO, THE MENTIONING OF THE WORDS CANCELLED ON THE REVERSE OF AGREEMENT, WITHOUT SI GNATURE OF BOTH THE PARTIES DOES NOT APPEAR TO HAVE MUCH SIGNIFICANCE. IN MY OPINION, IF THE AGREEMENT IS TO BE CANCELLED ENTIRELY, BOTH THE PARTIES SHOULD CANCEL IT ON THE FACE OF DOCUMENT ITSELF OR EXECUTE A NEW AGREEMENT CANCELING THE EARLIER AGREEMENT, WHICH SHOULD NORMA LLY BE IN THE PRESENCE OF WITNESSES AS IN THE ORIGINAL AGREEMENT. 4.1. ON THE OTHER HAND, THE APPELLANT HAS ALSO MADE OUT ITS CASE BASED ON THE FACT THAT THE SALE DEEDS REGISTERED WI TH THE REGISTRAR WER AT THE RATE OF RS. 1 LAC PER KANAL AND THAT THE AGR EEMENT HAD BEEN CANCELLED. ONE OF THE WITNESSES TO THE AGREEMENT HA S RETRACTED AND THE 6 PERSON WHO HAS STATED TO HAVE WITNESSES THE TRANSFE R OF CASH AMOUNTING TO RS.7.50 LACS IS SOUGHT TO BE DISBELIEV ED ON THE GROUND THAT THERE WAS DISCREPANCY AS TO THE PERSON WHO ACT UALLY GAVE THE MONEY TO SH. GURDEV SINGH. SH. GURDEV SINGH STATED THAT MONEY WAS GIVEN BY THE ASSESSEE WHEREAS THE BANK MANAGER STAT ED THAT THE MONEY WAS GIVEN BY SH. DHARAM PAL. THE APPELLANT HAS ALSO PLACED RELIANCE ON THE FACT THAT AN AFFIDAVIT WAS SUBMITTED WHILE R EGISTERING THE ORIGINAL DOCUMENT IN WHICH IT WAS STATED THAT NO AG REEMENT HAD ENTERED INTO PRIOR TO THE EXECUTION OF SALE DEED. T HIS AFFIDAVIT, IT IS CONTENDED, SHOWS THAT THE AGREEMENT DATED 26.10.199 9 HAD BEEN CANCELLED. MY LD. PREDECESSOR, IN HER ORDER DATED 9 .7.2004 ON THE APPELLANTS APPEAL HAS NOTED ON PAGE 4 OF THE ORDER THAT THERE WERE ARGUMENTS BOTH FOR AND AGAINST THE EXECUTION OF ORI GINAL SALE DEED DATED 26.10.1999 WHICH WAS THE BASIC QUESTION HERE. AFTER EXAMINING THE AFFIDAVIT OF SH. GURDEV SINGH PROCURED FROM THE HOSHIARPUR TEHSIL COMPLEX, SHE CAME TO THE CONCLUSION THAT THE STATEMENTS OF THE SELLER SH. GURDEV SINGH WAS NOT RELIABLE AT ALL. SH E, THEREFORE, DELETED THE ADDITION MADE BY THE AO. 4.2. THE FACTS REMAIN ESSENTIALLY THE SAME AS WHEN THE ORDER DATED 9.7.2004 WAS PASSED BY MY LD. PREDECESSOR. THE AO H AS HAD A CHANCE TO REBUT THE EVIDENCE IN THE FORM OF THESE AFFIDAVI TS. HE HAS SHOWN THAT THE PURCHASE OF THE AFFIDAVITS WAS BY SOME OTH ER PERSON IN ONE CASE AND PROBABLY BY OTHER PERSON IN ANOTHER CASE. HE ALSO RECORDED THE STATEMENT OF SH. GURDEV SINGH WHO STATED THAT H E DID NOT REMEMBER SIGNING THE AFFIDAVIT. HOWEVER, SH. GURDEV SINGH HAS ADMITTED THAT SIGNATURE ON THE AFFIDAVITS WERE HIS OWN. THERE IS NO ALLEGATION THAT THESE AFFIDAVITS WERE OBTAINED FROM SH. GURDEV SINGH EITHER THROUGH FRAUD OR THROUGH THREAT OR COERCION. THESE AFFIDAVITS WERE ALSO FOUND IN THE RELEVANT RECORDS OF REGISTRA R OF PROPERTIES AND NO EVIDENCE HAS BEEN BROUGHT ON RECORD TO SHOW THAT THE RECORDS HAVE BEEN INTERPOLATED WITH. IN THE ABSENCE OF ANY NEW F ACTS OR ANY CLAIM TO SHOW THAT THE AFFIDAVIT WAS OBTAINED THROUGH FRAUD OR UNDER THREAT, I DO NOT SEE ANY REASON TO DIFFER FROM THE ORDER OF M Y LD. PREDECESSOR. THE VERACITY OF THE AFFIDAVIT IS ESTABLISHED. THE F ACTS THAT THE AFFIDAVIT WAS PURCHASED BY SOME OTHER PERSON IS NOT VERY MATE RIAL WHEN THE SIGNATURE ON THE AFFIDAVIT HAS BEEN ACCEPTED BY THE DEPONENT. THE CIRCUMSTANCES REMAINING THE SAME AS WHEN THE APPELL ATE ORDER DATED 9.7.2004 WAS PASSED, WITH NO NEW FACTS ON THE RECOR D AND THE VERACITY OF AFFIDAVIT HAVING BEEN ESTABLISHED, I RESPECTFULL Y FOLLOW MY 7 PREDECESSORS ORDER IN THIS CASE RENDERED VIDE HER ORDER DATED 9.7.2004 AND DELETE THE ADDITION MADE BY THE A.O. 6.1. IN VIEW OF THE ABOVE, WE DO NOT FIND ANY INFIR MITY IN THE FINDINGS OF THE CIT(A), AS THE SAME HAVE BEEN ARRIVED AT AFTER PROPER APPRECIATION OF THE LEGAL AND FACTUAL POSITION OF THE CASE. THEREFORE, THE FINDINGS OF THE CIT(A) ARE UPHELD AND THIS GROUND OF APPEAL OF THE REVENU E IS DISMISSED. 7. GROUND NOS. 2 & 3 ARE GENERAL IN NATURE AND DO N OT REQUIRE ANY ADJUDICATION AND HENCE, THE SAME ARE DISMISSED. 8. IN THE RESULT, THE APPEAL FILED BY THE REVENUE I S DISMISSED DECISION PRONOUNCED IN THE OPEN COURT ON 7TH J UNE, 2011. SD/- SD/- (H.L. KARWA) (MEHAR SINGH) VICE PRESIDENT ACCOUNTANT MEMBER DATED: 7TH JUNE, 2011 /SKR/ COPY OF THE ORDER IS FORWARDED TO : 1. THE ASSESSEE:SMT. GURMEET KAUR, HOSHIARPUR. 2. THE ITO HOSHIARPUR-1. 3. THE CIT(A), JLR 4. THE CIT,JLR 5. THE SR DR TRUE COPY BY ORDER (ASSISTANT REGISTRAR) INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH : AMRITSAR.