Sh. Anil Kumar Bansal, Chandigarh V. DCIT, Chandigarh

ITA 550/CHANDI/2013

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 77135 (ITAT-CHANDIGARH)
• Duration Of Justice: 1 year(s) 1 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-06-2014
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 16-06-2014
• Assessment Year: 2009-2010
• Appeal Filed On: 15-05-2013
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: J S NAGAR
• Keywords: Document seized; Documents seized
• Section: 154

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL CHANDIGARH BENCHES B CHANDIGARH BEFORE SHRI T.R. SOOD, ACCOUNTANT MEMBER AND MS. SUSHMA CHOWLA, JUDICIAL MEMBER ITA NO. 550 /CHD/2013 ASSESSMENT YEAR: 2009-10 SH. ANIL KUMAR BANSAL VS. DCIT # 2048 CENTRAL CIRCLE- I SECTOR 15-C CHANDIGARH CHANDIGARH PAN NO. ABJPB2716J & ITA NO. 551 /CHD/2013 ASSESSMENT YEAR: 2009-10 KANTA RANI BANSAL VS. DCIT PROP. BANSAL TEXTILES CENTRAL CIRCLE I CHANDIGARH CHANDIGARH PAN NO. ADLPB8005G (APPELLANT) (RESPONDENT) APPELLANT BY : SH. SUDHIR SEHGAL RESPONDENT BY : SH. J.S. NAGAR DATE OF HEARING : 16/06/2014 DATE OF PRONOUNCEMENT : 30/06/2014 ORDER PER T.R. SOOD, A.M. THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER DATED 08/03/2013 OF CIT(CENTRAL)(C) GURGAON. ITA NO. 550/CHD/2013 2. IN THIS APPEAL THE ASSESSEE HAS RAISED THE FOLL OWING GROUND.:- THAT THE LEARNED COMMISSIONER OF INCOME TAX (APPE AL) HAS ERRED IN LAW AND FACTS IN CONFIRMING THE ADDITION O F RS. 3800000/- MADE BY THE LEARNED AO ON ACCOUNT OF UNDI SCLOSED 2 INVESTMENT IN THE PURCHASE OF RESIDENTIAL H.NO. 154 5, SECTOR 38 B, CHANDIGARH. 3. GROUND NO.1: AFTER HEARING BOTH THE PARTIES WE F IND THAT A SEARCH WAS CONDUCTED IN THE PREMISES OF THE ASSESSEE ON 7.7.20 09. CERTAIN INCRIMINATING DOCUMENTS WERE FOUND AND SEIZED. THE ASSESSEE HAD A LSO SURRENDERED CERTAIN AMOUNTS AND PARTICULARLY THERE WAS A SURRENDER OF R S. 43 LAKHS ON ACCOUNT OF INVESTMENT IN KOTHI NO. 1545 SECTOR 38-D, CHANDIGAR H PERTAINING TO THE SEIZED DOCUMENTS MARKED ANNEXURE A-1. DURING ASSESSMENT P ROCEEDINGS, FROM PAGES 57 TO 76 OF ANNEXURE A-1 WHICH WERE SEIZED FROM THE OFFICE OF HILL VIEW INFRASTRUCTURE, SCO NO. 2474, SECTOR 22, CHANDIGARH , IT WAS NOTICED THAT THE SAME PERTAIN TO PURCHASE OF HOUSE NO. 1545, SECTOR 38-D, CHANDIGARH. THE SAID HOUSE WAS SOLD BY SHRI PRITAM SINGH HUNDAL AND OTHERS TO SHRI ANIL BANSAL I.E. ASSESSEE AND HIS MOTHER SMT. KANTA RANI. THE AGREEMENT WAS MADE FOR TOTAL CONSIDERATION OF RS. 3,42,00,000/-. PAGES 58 & 59 OF THE PAPER BOOK WERE INDEMNITY BOND DATED 2.12.2008 EXECUTED BY SHRI PRI TAM SINGH HUNDAL AND OTHERS IN FAVOUR OF THE ASSESSEE AND HIS MOTHER AND CLEARLY STATED THAT SELLERS HAVE RECEIVED THE FULL AND FINAL CONSIDERATION FRO M PURCHASERS AND HAVE EXECUTED THE GENERAL POWER OF ATTORNEY (GPA) AND WI LL IN FAVOUR OF THE PURCHASER. THESE DOCUMENTS WERE REGISTERED IN THE O FFICE OF SUB-REGISTRAR AND GPA WAS MADE AS IRREVOCABLE. PAGE 60 WAS COPY OF T HE AFFIDAVIT OF SHRI PRITAM SING HUNDAL, JATINDER KAUR, GURPAL SINGH HUNDAL AND UDEY PAL SINGH HUNDAL ALL DATED 2.12.2008 AND STATED THAT THESE 04 PERSON S WERE ABSOLUTE AND UNDISPUTED OWNERS OF 100% FREE HOLD RESIDENTIAL HOU SE NO. 1545, SECTOR 38-D CHANDIGARH AND THESE PERSONS HAVE HANDED OVER THE P OSSESSION OF THE PROPERTY TO THE BUYERS. IN VIEW OF THESE DOCUMENTS THE ASSE SSEE WAS ASKED WHETHER THE ABOVE TRANSACTIONS HAVE BEEN SHOWN BY THE ASSESSEE AND ALSO TO EXPLAIN THE SOURCES OF INVESTMENT. IN RESPONSE TO THIS, IT WAS MAINLY STATED THAT AT THE TIME WHEN AGREEMENT TO SELL WAS ENTERED THERE WAS A ADVE RSE POSSESSION OF THE HOUSE BY A THIRD PARTY AND SHRI HUNDAL HAS PROMISED TO GE T IT VACATED AND HANDED OVER 3 THE POSSESSION TO BE BUYERS. IT WAS FURTHER SUBMITT ED THAT SHRI HUNDAL COULD NOT GET THE HOUSE VACATED FROM THE ADVERSE POSSESSION I.E. WHY CONSIDERATION WAS REVISED TO RS. 180 LAKHS. IN ANY CASE THE ASSESSEE ALONG WITH HIS MOTHER FURTHER SURRENDERED A SUM OF RS. 86 LAKHS. THE ASS ESSING OFFICER DID NOT FIND FORCE IN THESE SUBMISSIONS BECAUSE OF THE DOCUMENTS FOUND DURING THE SEARCH CLEARLY MENTIONED THAT SAID PROPERTY WAS FREE FROM ALL ENCUMBRANCES AND VACANT PHYSICAL POSSESSION OF THE PROPERTY WAS HANDED OVER TO THE BUYER I.E. ASSESSEE. FURTHER, THESE DOCUMENTS CLEARLY SHOWS THAT PROPERT Y WAS PURCHASED FOR RS. 3,42,00,000/- BUT WAS REGISTERED AT RS. 1,80,00,000 /- AND THUS THERE WAS DIFFERENCE OF RS. 1,62,00,000/-. SINCE THE ASSESSE E ALONGWITH HIS MOTHER FURTHER DECLARED A SUM OF RS. 86 LAKHS, THE ASSESSEE WAS AS KED WHY A FURTHER SUM OF RS. 38 LAKHS (I.E. 50% OF RS. 76 LAKHS OF THE BALANCE C ONSIDERATION) SHOULD NOT BE ADDED TO THE INCOME OF THE ASSESSEE AS UNDISCLOSED INVESTMENT. THE ASSESSEE REITERATED THE EARLIER SUBMISSIONS. THE ASSESSING OFFICER REFERRED TO THE PARA 4 OF THE AFFIDAVIT WHICH STATED AS UNDER:- THAT WE HAVE DELIVERED THE ACTUAL, PHYSICAL & VACA NT POSSESSION OF SAID HOUSE TO THE SAID PURCHASER AND HAVE ALSO HANDED OVER ALL CONCERNED PAPERS AND DOCUMENTS OF T HE SAID HOUSE TO THE SAID PURCHASERS AND W.E.F TO-DAY THE SAID PURCHASERS HAVE BECOME THE ABSOLUTE OWNERS OF SAID HOUSE. 4. IN VIEW OF THE ABOVE CATEGORICAL AFFIDAVIT IT WA S HELD THAT ASSESSEE ALONGWITH HIS MOTHER HAS INVESTED FURTHER SUM OF RS . 76 LAKHS AND ,THEREFORE, 50% OF THAT AMOUNT WAS ADDED TO THE INCOME OF THE A SSESSEE. 5. ON APPEAL, THE SUBMISSION MADE BEFORE THE ASSESS ING OFFICER WERE REITERATED BEFORE THE LD. CIT(A). IT WAS FURTHER SU BMITTED THAT ASSESSEE HAD SOLD THIS HOUSE TO SHRI R.S. CHEEMA A SENIOR ADVOCATE FO R A SUM OF RS. 180 LAKHS BECAUSE THE ASSESSEE WAS NOT IN A POSITION TO GET T HE ADVERSE POSSESSION VACATED. THE LD. CIT(A) DID NOT FIND FORCE IN THESE SUBMISSI ON AND DECIDED THE ISSUE VIDE PARA 5.2 WHICH IS AS UNDER:- 4 5.2 I HAVE CONSIDERED THE SUBMISSIONS OF THE ASSESS EE AND THE IMPUGNED ORDER. THE MAIN CONTENTION WAS THAT THERE WAS NO EVIDENCE OF PAYMENT OF RS. 76 LACS BY THE BUYERS. B ESIDES, NO REGISTRATION DEED WAS EXECUTED EITHER WHICH SUPPORT ED ITS CONTENTION THAT THE PROPERTY SUFFERED FROM SOME ENC UMBRANCES IT WAS ALSO STATED THAT THE STATEMENT OF SHRI HUNDAL W AS NOT RECORDED NOR WAS HE ASKED TO BE PRODUCED, THOUGH AO HAD RELI ED HEAVILY ON THE INDEMNITY BOND AND AFFIDAVIT BESIDES THE SE IZED SALE AGREEMENT. THAT MERE MENTION THAT FULL PAYMENT HAD BEEN RECEIVED DID NOT SUPPLANT THE EVIDENCE OF PAYMENT. THE ASSES SEE WENT ON TO STATE THAT THE PROPERTY WAS ULTIMATELY SOLD TO ONE R.S CHEEMA, A SENIOR ADVOCATE FOR RS. 1,83,00,000/- AS PER SALE D EED DATED 21.05.2009. SO IT WAS ASSESSEES CASE THAT IF THE P ROPERTY COST WAS RS. 3,42,00,000/- WHY SHOULD THE SALE TO SHRI CHEEM A BE EFFECTED FOR ONLY RS. 1.83 CRS. THE RECOVERY OF THESE CRUCIAL DOCUMENTS, VIZ. THE ORIGINAL SALE DEED WITH SHRI HUNDAL DATED 28.08.2008, THE IN DEMNITY BOND ALSO INCLUDING THE EXECUTION OF GPA AND WILL AS WELL AS THE AFFIDAVIT, CANNOT BE DISREGARDED. SUCH CERTIFICATIO NS AND TRANSFER OF TITLE WILL ONLY BE DONE/ OBTAINED AFTER ALL DUES AR E CLEARED. THE CONTENTION THAT NO REGISTRATION WAS MADE DOES NOT H OLD ANY WEIGHT BECAUSE THE PROPERTY WAS ULTIMATELY SOLD TO SHRI CH EEMA ON 21.05.2009. IF THE POSSESSION TRANSFERRED TO THE AS SESSEE WAS NOT 100%, FURTHER SALE TO ANYONE, THAT TOO A SENIOR ADV OCATE WOULD NOT HAVE BEEN POSSIBLE. THE OTHER ARGUMENT THAT NO EVID ENCE OF PAYMENT OF RS. 76,00,00/- WAS FOUND / AVAILABLE DOES NOT CH ANGE THE FACE OF THE CASE IN VIEW OF THE OVER WHELMING EVIDENCE FOUN D. IF THE CONSIDERATION WAS ACTUALLY REVISED TO RS. 1,80,00,0 00/- AS CLAIMED, THEN SOME DOCUMENT WOULD HAVE ALSO BEEN FOUND INDIC ATING THE SAME. SUCH REVISION WOULD NOT HAVE BEEN LEFT UNDOCU MENTED. FOR REFUSING THE CONTENTS OF THE SEIZED DOCUMENTS, WHIC H CORROBORATE WITH EACH OTHER, ASSESSEE THEREFORE HAD THE HEAVY O NUS OF LEADING EVIDENCE TO DISPROVE THAT CONTENTS THEREOF ARE NOT TRUE. NO SUCH DOCUMENTARY EVIDENCES HAVE BEEN FURNISHED. THUS, CO NSIDERING THE FACTS OF THE CASE, I HAVE NO HESITATION IN CONFIRMI NG THE ADDITION OF RS. 38 LACS I.E. 50% OF RS. 76,00,000/- IN THE HAND S OF THE ASSESSEE AS UNDISCLOSED INVESTMENT. 5 6. BEFORE US, LD. COUNSEL FOR THE ASSESSEE REITERAT ED THE SUBMISSIONS MADE BEFORE THE ASSESSING OFFICER AND CIT(A). IT WAS FUR THER SUBMITTED THAT WHATEVER EVIDENCE WAS FOUND FOR PAYMENT OF CASH THAT AMOUNT HAS ALREADY BEEN SURRENDERED BY THE ASSESSEE AND NO FURTHER EVIDENCE FOR PAYMENT OF CASH OF RS. 76 LAKHS WAS FOUND DURING THE SEARCH. IF SOME FURTH ER PAYMENTS WERE MADE THEN DEFINITELY SUCH EVIDENCE WOULD HAVE BEEN FOUND DURI NG THE SEARCH. FURTHER SHRI PRITAM SINGH HUNDAL WAS DIAGNOSED WITH CANCER AND ULTIMATELY HE EXPIRED BEFORE FEW MONTHS OF COMPLETION OF ASSESSMENT. BEC AUSE OF HIS ILLNESS ASSESSEE WAS IN A HURRY AND TO AVOID LEGAL HASSLES OBTAINED VARIOUS DOCUMENTS LIKE GPA AND WILL. BECAUSE OF THESE REASONS, THE SALE DEED COULD NOT BE EXECUTED IN FAVOUR OF THE ASSESSEE. ULTIMATELY, THE ASSESSEE ALSO MADE DISTRESS SALE OF THIS PROPERTY TO A SENIOR ADVOCATE SHRI R. S. CHEEMA FOR A SUM OF RS. 1.83 CRORES. SHRI CHEEMA BEING A RENOWNED ADVOCATE WAS IN A BETT ER POSITION TO GET THE PROPERTY VACATED FROM THE ADVERSE POSSESSION. 7. ON THE OTHER HAND, THE LD. DR STRONGLY SUPPORTED THE ORDER OF ASSESSING OFFICER AND CIT(A). HE ALSO REFERRED TO VARIOUS RE CEIPTS WHICH WERE FOUND DURING THE SEARCH WHICH CLEARLY STATE THE RECEIPT O F CASH. HE CONTENDED THAT SELLER HAD ALREADY HANDED OVER THE PHYSICAL VACANT POSSESSION AND, THEREFORE, IT CANNOT BE SAID THAT HOUSE WAS UNDER ADVERSE POSSES SION. 8. THE BENCH ASKED A SIMPLE QUESTION FROM THE LD. C OUNSEL OF THE ASSESSEE WHETHER THERE WAS ANY EVIDENCE TO SHOW THAT THERE W AS AN ADVERSE POSSESSION, HE CLEARLY ADMITTED THAT THERE WAS NO EVIDENCE TO S HOW THAT HOUSE WAS UNDER ADVERSE POSSESSION. 9. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS CAREFUL LY AND FIND THAT AGREEMENT TO SELL WHICH HAS BEEN FILED BY THE ASSES SEE CLEARLY SHOWS THAT AGREEMENT WHICH WAS ENTERED ON 28.08.2008 WAS FOR S ALE OF FREE HOLD RESIDENTIAL 6 HOUSE NO. 1545, SECTOR 38-D, CHANDIGARH FOR A TOTAL CONSIDERATION OF RS. 3.42 CRORES. ON THE SAME DAY A SUM OF RS. 50 LAKHS WAS P AID OUT OF WHICH RS. 25 LAKHS WAS PAID IN CASH. THIS ITSELF SHOWS THAT ASSE SSEE WAS CLEAR IN HIS MIND THAT SOME CONSIDERATION WOULD BE PASSED IN CASH ONL Y. LATER ON, CASH AND CHEQUES WERE PAID E.G. VIDE RECEIPT DATED 10.11.20 08, COPY OF WHICH IS PLACED AT PAGE 4 OF THE PAPER BOOK CLEARLY SHOWS THAT A SU M OF RS. 30 LAKHS WAS PAID OUT OF WHICH TWO CHEQUES OF RS. 10 LAKHS WERE PAID AND BALANCE RS. 10 LAKHS WAS PAID IN THE SHAPE OF CURRENCY NOTES. THE OTHER RECEIPTS ALSO HAVE SIMILAR NARRATIONS. THIS MAKES IT CLEAR THAT ATLEAST EVIDEN CE FOR MAKING PAYMENT OF RS. 86 LAKHS WAS FOUND DURING THE SEARCH ITSELF. NOW TH E CONTENTION OF THE ASSESSEE IS THAT NO EVIDENCE WAS FOUND DURING THE SEARCH FOR BALANCE PAYMENT OF RS. 76 LAKHS. WE FIND NO MERIT IN THIS CONTENTION BECAUSE SUCH EVIDENCE MIGHT HAVE BEEN KEPT SOMEWHERE ELSE. THE ASSESSEE HAS FILED CO PY OF THE SALE DEED FOR THE SALE OF PROPERTY TO SHRI. R.S. CHEEMA AT PAGE 14 TO 20 OF THE PAPER BOOK BUT THAT CANNOT PROVE THE CASE OF ASSESSEE. THIS IS SO BECAUSE ASSESSEE HAS CLEARLY ADMITTED THAT ORIGINALLY THE PROPERTY WAS TO BE PUR CHASED FOR RS. 3.42 CRORES AS PER AGREEMENT TO SELL AND APART FROM THE SUM OF RS. 1.80 CRORES PAID THROUGH CHEQUE AND ASSESSEE HAS CLEARLY ADMITTED THAT CAS H WAS ALSO PAID TO THE EXTENT OF RS. 86 LACS. THE ASSESSEE CLAIMS THAT THE BALANC E WAS NOT PAID BECAUSE OF ADVERSE POSSESSION BUT NO EVIDENCE IS AVAILABLE FOR ADVERSE POSSESSION. THEREFORE EVEN IF THE ASSESSEE HAS SOLD THE PROPERT Y FOR LESSER CONSIDERATION THAT WILL NOT CHANGE THE FACT THAT PROPERTY WAS PURCHASE D FOR RS. 3.42 CRORES. 10. THE SALE AGREEMENT HAS BEEN EXECUTED FOR A SUM OF RS. 3,42,00,000/- OUT OF WHICH A SUM OF RS. 1,80,00,000/- WAS ACCEPTED TO BE PAID THROUGH CHEQUES AND BALANCE THROUGH CASH. OUT OF THIS CASH PORTION , CLEARLY FURTHER SUM OF RS. 86 LAKHS WAS PAID IN CASH ON VARIOUS DATES FOR WHIC H EVIDENCE WAS DULY FOUND DURING THE SEARCH. THEREFORE, IT CANNOT BE SAID THA T NO CASH WAS PAID AT ALL BECAUSE THE SALE AGREEMENT WHICH WAS FOUND DURING T HE SEARCH CLEARLY HAS BEEN 7 ACTED UPON BY THE ASSESSEE AND THEREFORE, IT CANNOT BE SAID THAT ONLY PART OF AGREEMENT WAS ACTED UPON. MOREOVER, THE SELLER I.E. SHRI PRITAM SIGN HUNDAL AND OTHERS EXECUTED THE GPA, WILL, INDEMNITY BOND E TC. AND NO PERSON WOULD EXECUTE THESE DOCUMENTS WITHOUT RECEIVING FULL CONS IDERATION. PARA 4 OF THE AFFIDAVIT CLEARLY STATES AS UNDER:- THAT WE HAVE DELIVERED THE ACTUAL, PHYSICAL & VACA NT POSSESSION OF SAID HOUSE TO THE SAID PURCHASER AND HAVE ALSO HANDED OVER ALL CONCERNED PAPERS AND DOCUMENTS OF T HE SAID HOUSE TO THE SAID PURCHASERS AND W.E.F TO-DAY THE SAID PURCHASERS HAVE BECOME THE ABSOLUTE OWNERS OF SAID HOUSE. THE ABOVE CLEARLY SHOWS THAT PHYSICALLY VACANT POSS ESSION OF THE SAID HOUSE WAS GIVEN BY THE SELLER TO THE BUYER I.E. ASSESSEE. TH ERE IS NOT EVEN IOTA OF EVIDENCE ON RECORD TO SHOW THAT HOUSE WAS UNDER ADVERSE POSS ESSION. IN FACT ALL THE DOCUMENTS CLEARLY STATES THAT HOUSE IS FREE FROM AL L ENCUMBRANCES. THEREFORE, IT BECOME ABSOLUTELY CLEAR THAT SALE TRANSACTIONS WAS FOR RS. 3,42,00,000/- ONLY. THEREFORE, IN OUR OPINION, THE LD. CIT(A) HAS CORRE CTLY CONFIRMED THE ADDITION OF RS. 38 LAKHS I.E. 50% OF SHARE OF THE EXTRA CASH PAID BY THE ASSESSEE. ACCORDINGLY, WE CONFIRM THE ORDER OF CIT(A). 11. IN THE RESULT, APPEAL OF THE ASSESSEE IS DISMIS SED. 12. IN ITA NO. 551/CHD/2013 , IDENTICAL ISSUE HAS BEEN RAISED FOR PAYMENT OF CASH AMOUNTING TO RS. 38 LAKHS FOR PURCHASE OF PRO PERTY. SMT. KANTA RANI IS 50% SHARE HOLDER OF THE PROPERTY ALONGWITH SHRI AN IL BANSAL WHOSE APPEAL HAS BEEN ADJUDICATED ABOVE. FOLLOWING THAT ORDER, IN TH IS CASE ALSO WE CONFIRM THE ADDITION OF RS. 38 LAKHS. THE APPEAL OF THE ASSESSE E IS THEREFORE, DISMISSED. 13. IN THE RESULT, BOTH THESE APPEALS OF THE ASSESS EE ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 30/06/2014 SD/- SD/- (SUSHMA CHOWLA) (T.R.SOOD) JUDICIAL MEMBER ACCOUNTANT MEMER DATED : 30 TH JUNE, 2014 RKK COPY TO:1. THE APPELLANT, 2.THE RESPONDENT, 3.THE C IT, 4.THE CIT(A),5.THE DR