DCIT, Jaipur V. SUNIL AGARWAL, Jaipur

ITA 557/JPR/2015

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 5131 (ITAT-JAIPUR)
• Duration Of Justice: 1 year(s) 3 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-09-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: Not Allotted
• Assessment Year: 2010-2011
• Appeal Filed On: 03-06-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: R A VERMA
• Assessee Lawyers: ANANT KASLIWAL DHK
• Keywords: Additional evidence
• Section: 143(3); 133(6); 68

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHE S, JAIPUR JH HKKXPUN] YS[KK LNL; ,OA JH DQY HKKJR] U;KF;D LNL; DS LE{K BEFORE: SHRI BHAGCHAND, AM AND SHRI KUL BHARAT, JM VK;DJ VIHY LA-@ ITA NO. 557/JP/2015 FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2010-11. THE DEPUTY COMMISSIONER OF INCOME-TAX, CIRCLE-6, JAIPUR. CUKE VS. SHRI SUNIL AGARWAL, 111, HARI MARG, CIVIL LINES, JAIPUR. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN NO. AAAPA 2935 L VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT JKTLO DH VKSJ LS@ REVENUE BY : SHRI R.A. VERMA (ADDL. CIT) FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY : SHRI ANANT KASLIWAL (ADVOCATE) LQUOKBZ DH RKJH[K@ DATE OF HEARING : 19.08.2016. ?KKS'K .KK DH RKJH[K@ DATE OF PRONOUNCEMENT : 16/09/2016. VKNS'K@ ORDER PER SHRI KUL BHARAT, JM. THIS APPEAL BY THE REVENUE IS DIRECTED AGAINST THE ORDER OF LD. CIT (A)-2, JAIPUR DATED 24.03.2015 PERTAINING TO A.Y. 2010-11. THE REVENUE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL :- 1. WHETHER ON THE FACTS AND CIRCUMSTANCES OF THE CASE THE LD.CIT (A) ERRED IN HOLDING THAT THE CASH DEPOSITED IN THE BANK ACCOUNT OF RS. 27 LACS REPRESENTS A PART OF THE SALE CONSIDERATION. 2. WHETHER ON THE FACTS AND CIRCUMSTANCES OF THE CASE THE LD.CIT (A) ERRED IN DELETING THE ADDITION MADE ON ACCOUNT OF FORFEITED MONEY OF RS. 9,00,000/-. 3. THE APPELLANT CRAVES ITS RIGHTS TO ADD, AMEND OR AL TER ANY OF THE GROUNDS ON OR BEFORE THE HEARING. 2 ITA NO. 557/JP/2015 DCIT VS. SHRI SUNIL AAGRWAL 2. BRIEFLY STATED THE FACTS OF THE CASE ARE THAT TH E CASE OF THE ASSESSEE WAS PICKED UP FOR SCRUTINY ASSESSMENT AND THE ASSESSMEN T WAS FRAMED UNDER SECTION 143(3) OF THE IT ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT) VIDE ORDER DATED 31.01.2013. WHILE FRAMING THE ASSESSMENT, THE AO M ADE ADDITION ON ACCOUNT UNEXPLAINED CASH OF RS. 27,00,000/- AND ADVANCE FOR FEITED OF RS. 9,00,000/-. THE ASSESSEE AGGRIEVED BY THIS ORDER, PREFERRED AN APPE AL BEFORE LD. CIT (A), WHO AFTER CONSIDERING THE SUBMISSIONS AND EVIDENCES PLACED ON RECORD, DELETED THE ADDITION AND ALLOWED THE APPEAL OF THE ASSESSEE. 3. NOW THE REVENUE IS IN APPEAL BEFORE US AGAINST T HE ORDER OF LD. CIT (A). 4. FIRST GROUND OF THE REVENUE IS AGAINST DELETION OF ADDITION OF RS. 27,00,000/-. THE LD. D/R SUPPORTED THE ORDER OF THE AO AND SUBMI TTED THAT THE LD. CIT (A) WAS NOT JUSTIFIED IN DELETING THE ADDITION. 4.1. ON THE CONTRARY, THE LD. COUNSEL FOR THE ASSES SEE SUPPORTED THE ORDER OF LD. CIT (A) AND ALSO SUBMITTED THAT THE AO IN REMAND PR OCEEDINGS HAS ACCEPTED THE CLAIM OF THE ASSESSEE. 4.2. WE HAVE HEARD RIVAL CONTENTIONS, PERUSED THE M ATERIAL AVAILABLE ON RECORD AND GONE THROUGH THE ORDERS OF THE AUTHORITIES BELO W. THE LD. CIT (A) HAS GIVEN A FINDING OF FACT BY OBSERVING AS UNDER :- 3.7.2. DURING REMAND PROCEEDINGS, THE ASSESSING O FFICER HAS CONDUCTED INQUIRIES WITH THE BANKS OF THE PURCHASER SHRI VIJAY DAHIYA WHICH SHOWS THAT A SUM OF RS. 34 LACS HAS BEEN DEBI TED ON 30.07.2009 FOR ISSUE OF PAY ORDERS, IN FAVOUR OF THE APPELLANT WHICH IS REFLECTED IN THE SALE DEED. FURTHERMORE, SHRI VIJAY DAHIYA, THE PURCHASER ALSO WITHDREW A SUM OF RS. 27 LACS IN CASH FROM HIS BANK ACCOUNT BEFORE THE REGISTRATION OF THE SALE DEED WHICH MATCHES WIT H THE CASH DEPOSITED IN THE BANK ACCOUNT BY THE APPELLANT, ON THE DAY WHEN THE SALE DEED WAS REGISTERED. ON THIS BASIS, THE ASSESS ING OFFICER HAS STATED CONSIDERING THE FACTS THAT THE CASH WITHDRAWN BY T HE BUYER 3 ITA NO. 557/JP/2015 DCIT VS. SHRI SUNIL AAGRWAL JUST BEFORE THE EXECUTION AND REGISTRATION OF THE S ALE DEED MATCHES EXACTLY WITH THE CASH COMPONENT CLAIMED TO HAVE BEE N RECEIVED BY THE SELLER, IT MAY BE INFERRED THAT THE SAID CASH COMPO NENT OF RS. 27 LACS WAS PAID BY THE BUYER, MR. VIJAY DAHIYA TO THE ASSE SSEE AS PART OF THE CONSIDERATION OF SALE OF PROPERTY. THE RATIO IN THE CASE OF INTEZAR ALI (SUPRA) IS A S UNDER :- SECTION 68 OF THE INCOME-TAX ACT, 1961 CASH CRED IT [IMMOVABLE PROPERTY] ASSESSMENT YEAR 2008-09 AS SESSEE DEPOSITED A CERTAIN SUM AS SALE CONSIDERATION OF HI S AGRICULTURAL LAND IN HIS BANK ACCOUNT HOWEVER, SALE DEED REFLE CTED LESSER SALE CONSIDERATION ASSESSEE MADE COMPLAINT TO REG ISTERING AUTHORITY ABOUT DEFICIENCY OF STAMP DUTY IN SALE DE ED BANK MANAGER AND WITNESS TO SALE DEED HAD ALSO CONFIRMED DEPOSITION MADE BY ASSESSEE FURTHER, ASSESSEE HAD ALSO PRODUCED REPORT OF TEHSILDAR TO JUSTIFY VALUATION O F PROPERTY WHETHER IN VIEW OF ABOVE, SALE CONSIDERATION COULD NOT BE TREATED AS UNDISCLOSED INCOME OF ASSESSEE PARTICULA RLY IN ABSENCE OF ANY CONTRARY MATERIAL ON RECORD HELD, YES [PARA 10][IN FAVOUR OF ASSESSEE]. THIS RATIO OF THIS CASE LAW, IN FAVOUR OF THE ASSES SEE, IS ALSO APPLICABLE TO THE FACTS OF THIS CASE. ON THE BASIS OF THE FIND ING GIVEN BY THE ASSESSING OFFICER THAT CASH DEPOSITED IN THE BANK A CCOUNT IS A PART OF THE SALE CONSIDERATION, RECEIVED FROM THE BUYER, IT IS HELD THAT THE CASH DEPOSITED IN THE BANK ACCOUNT OF RS. 27 LACS REPRES ENTS A PART OF THE SALE CONSIDERATION, ON WHICH CAPITAL GAINS HAS BEEN DISCLOSED BY THE APPELLANT, IN THE RETURN OF INCOME. THE ASSESSING O FFICER, IS THEREFORE, DIRECTED TO DELETE THE ADDITION OF RS. 27 LAKHS ON ACCOUNT OF UNEXPLAINED CASH DEPOSIT IN THE BANK ACCOUNT. GROUN D NO. 2 IS ALLOWED. THE ABOVE FINDING OF FACT IS NOT CONTROVERTED BY TH E REVENUE BY PLACING ANY CONTRARY MATERIAL. MOREOVER, THE AO IN HIS REMAND REPORT DAT ED 18 TH JULY, 2014 IN PARA 4 TO 7 HAS STATED AS UNDER :- 4. PERUSAL OF THE BANK A/C STATEMENT OF SHRI VIJAY DAHIYA (ENCLOSED HEREWITH) HAS REVEALED THAT A SUM OF RS. 34 LAKHS W AS DEBITED ON 30.07.2009 FOR ISSUE OF PAY ORDER (S). IT IS NOTEWO RTHY THT THIS AMOUNT CORRESPONDS TO RS. 34 LAKHS MENTIONED ON PAGE 6 OF THE SALE DEED. IN ADDITION, IT IS ALSO EVIDENT FROM THE BANK ACCOUNT STATEMENT THAT SHRI 4 ITA NO. 557/JP/2015 DCIT VS. SHRI SUNIL AAGRWAL VIJAY DAHIYA ALSO WITHDREW AN AMOUNT OF RS 27 LAKHS IN CASH (RS. 12 LAKHS WITHDRAWN ON 21.07.2009 BY INSTRUMENT NUMBER 401787 & RS. 15 LAKHS ON 28.07.2009 BY INSTRUMENT NUMBER 401788) AROUND THE SAME TIME. INTERESTINGLY, THIS AMOUNT OF RS. 27 LAK HS MATCHES WITH THE AMOUNT HELD AS UNDISCLOSED INCOME OF THE ASSESSEE I N THE ASSESSMENT ORDER U/S 143(3) PARA 13 (PAGE 8). THE ASSESSEE REP EATEDLY CONTENDED IN THE ADDITIONAL EVIDENCES PUT BEFORE YOUR GOODSEL F THAT RS. 27 LAKHS WAS RECEIVED BY HIM IN LIEU OF THE PROPERTY SOLD BY HIM TO MR.VIJAY DAHIYA & SMT. SHASHI DAHIYA. CONSIDERING THE FACT THAT THE CASH WITHDRAWN BY THE BUYER JUST BEFORE THE EXECUTION AN D REGISTRATION OF THE SALE DEED MATCHES EXACTLY THE CASH COMPONENT CL AIMED TO HAVE BEEN RECEIVED BY THE SELLER, IT MAY BE INFERRED THA T THE SAID CASH COMPONENT OF RS. 27 LAKHS WAS PAID BY THE BUYER MR. VIJAY DAHIYA TO THE ASSESSEE AS PART CONSIDERATION OF THE SALE OF P ROPERTY. HOWEVER, NOTICES U/S 133(6) ISSUED TO SHRI VIJAY DAHIYA HAS RETURNED UNSERVED. 5. PERUSAL OF BANK ACCOUNT STATEMENT OF SMT. SHASHI DA HIYA REVEALS THAT SHE WITHDREW AN AMOUNT OF RS. 9,90 LAKHS IN CA SH ON 30.07.2009 (ONE DAY BEFORE THE SALE DEED GOT EXECUT ED) VIDE INSTRUMENT NO. 127933. 6. NOTICE U/S 133(6) WAS ALSO ISSUED TO THE DIRECTOR M /S. ETHICAL INFRASTRUCTURES PVT. LTD. ON 21.02.2014 ASKING WHET HER THE AGREEMENT BETWEEN THE ASSESSEE AND M/S. ETHICAL INF RASTRUCTURE PVT. LTD. WAS MATERIALIZED AND WHETHER THE ADVANCE PAID TO THE ASSESSEE WAS FORFEITED. THE AR OF THE COMPANY M/S. ETHICAL INFRASTRUCTURES PVT. LTD. REPLIED VIDE LETTER DATED 12.03.2014 (COPY ENCLOSED HEREWITH) THAT THE AMOUNT OF RS. 9 LAKHS A DVANCED TO THE ASSESSEE WAS RECEIVED BACK BY M/S. ETHICAL INFRASTR UCTURES P VT. LTD. THE AR FURTHER MENTIONED THAT M/S. ETHICAL INF RASTRUCTURES PVT. LTD. WAS NOT A PARTY TO THE SALE DEED. 7. WITH REGARD TO THE ADDITIONAL EVIDENCES SUBMITTED B Y THE ASSESSEE VIDE HIS SUBMISSION BEFORE YOUR GOODSELF DATED 08.0 1.2014, THE UNDERSIGNED HAS PERUSED THE SAME. THESE LETTERS WRI TTEN TO THE JOINT SUB REGISTRAR, GURGAON AND THE COMMISSIONER O F INCOME TAX, GURGAON ARE APPARENTLY WRITTEN BY THE ASSESSEE WITH THE INTENTION TO MATCH THE FACTS OF HIS CASE WITH THE FACTS OF TH E CASE OF CIT VS. INTEZAR ALI IN INCOME TAX APPEAL NO. 162/2013 DATED 26.07.2013. THE UNDERSIGNED HAS NO OBJECTION TO THE ADMISSION O F THE ADDITIONAL EVIDENCES WITH REFERENCE TO RULE 46A AS THE RULING OF THE CASE OF CIT VS. INTEZAR ALI WAS PASSED ON 26.07.2013, AFTER THE ORDER U/S 143(3) WAS PASSED BY THE AO ON 31.01.2013. 5 ITA NO. 557/JP/2015 DCIT VS. SHRI SUNIL AAGRWAL IN VIEW OF THE ABOVE, WE DO NOT SEE ANY REASON TO I NTERFERE IN THE ORDER OF LD. CIT (A), THE SAME IS HEREBY AFFIRMED. 5. GROUND NO. 2 OF THE REVENUE IS AGAINST DELETION OF ADDITION MADE ON ACCOUNT OF FORFEITED MONEY OF RS. 9,00,000/-. 5.1. THE LD. D/R SUPPORTED THE ORDER OF AO. 5.2. ON THE CONTRARY, THE LD. COUNSEL FOR THE ASSES SEE RELIED ON THE FINDING OF LD. CIT (A) AND SUBMITTED THAT THE AO HAS ACCEPTED THE CONTENTION OF THE ASSESSEE IN HIS REMAND REPORT. THEREFORE, THERE IS NO REASON TO INTERFERE WITH THE ORDER OF LD. CIT (A). 5.3. WE HAVE HEARD RIVAL CONTENTION, PERUSED THE MA TERIAL AVAILABLE ON RECORD. WE FIND THAT LD. CIT (A) HAS GIVEN THE FINDING OF FACT IN PARA 3.8 AS UNDER :- 3.8. THE ISSUE WHICH HAS TO BE DECIDED IN GROUND NO. 3 IS WHETHER THE SALE DEED REGISTERED ON 31.07.2009 FLOWS FROM T HE AGREEMENT TO SALE DATED 24.05.2009 ENTERED INTO BY THE APPELLANT WITH M/S. EIPL OR WHETHER THE AGREEMENT TO SALE IS TO BE TREATED AS C ANCELLED. THE APPELLANT HAS STATED THAT THE SALE IS TO BE TREATED AS CANCELLED. THE APPELLANT HAS STATED THAT THE SALE CONSIDERATION OF RS. 90,21,000/- INCLUDES THE ADVANCE RECEIVED FROM EIPL OF RS. 9 LA CS, WHICH HAS ALSO BEEN DEPOSITED IN THE BANK ACCOUNT. HE HAS ALSO STA TED THAT THE SALE DEED HAS BEEN ENTERED INTO BY HIM WITH THE NOMINEES OF M/S. EIPL, AS STIPULATED IN CLAUSE B OF PARA 2 OF THE AGREEMENT T O SALE. IT HAS ALSO BEEN STATED BY THE APPELLANT THAT HAVING ENTERED IN TO AN AGREEMENT TO SALE ON 24.05.2009, FOR RS. 90,21,000/-, THERE WAS NO REASON THAT HE WOULD CANCEL THIS AGREEMENT WITHIN 75 DAYS TO ENTER ANOTHER SALE DEED FOR A SUM OF ONLY RS. 54 LACS. DURING REMAND PROCEE DINGS, THE ASSESSING OFFICER HAS CONDUCTED INQUIRIES WITH M/S. EIPL WHICH REVEALED THAT M/S. EIPL HAS RECEIVED BACK THE SUM O F RS. 9 LACS. ALSO, INQUIRIES WITH THE BANK OF THE OTHER PURCHASER, SMT . SHASHI DAHIYA HAS REVEALED THAT A SUM OF RS. 9.9 LACS HAS BEEN WITHDR AWN IN CASH FROM HER BANK ACCOUNT ON 30.07.2009, ONE DAY BEFORE THE SALE DEED GOT REGISTERED. THE ABOVE INQUIRIES CONDUCTED BY THE AS SESSING OFFICER SUBSTANTIATE THE CONTENTION OF THE APPELLANT THAT T HE SUM OF RS. 9 LACS HAS NOT BEEN FORFEITED. THEREFORE, THE ADDITION MAD E BY THE ASSESSING OFFICER OF RS. 9 LACS ON ACCOUNT OF FORFEITURE OF T HE ABOVE AMOUNT, IS DIRECTED TO BE DELETED. GROUND NO. 3 IS ALLOWED. 6 ITA NO. 557/JP/2015 DCIT VS. SHRI SUNIL AAGRWAL THIS FINDING IS FURTHER SUPPORTED BY THE REPORT OF THE AO IN PARA 6 OF HIS REPORT AS UNDER :- 6. NOTICE U/S 133(6) WAS ALSO ISSUED TO THE DIRECTOR M/S. ETHICAL INFRASTRUCTURES PVT. LTD. ON 21.02.2014 ASKING WHET HER THE AGREEMENT BETWEEN THE ASSESSEE AND M/S. ETHICAL INF RASTRUCTURE PVT. LTD. WAS MATERIALIZED AND WHETHER THE ADVANCE PAID TO THE ASSESSEE WAS FORFEITED. THE AR OF THE COMPANY M/S. ETHICAL INFRASTRUCTURES PVT. LTD. REPLIED VIDE LETTER DATED 12.03.2014 (COPY ENCLOSED HEREWITH) THAT THE AMOUNT OF RS. 9 LAKHS A DVANCED TO THE ASSESSEE WAS RECEIVED BACK BY M/S. ETHICAL INFRASTR UCTURES P VT. LTD. THE AR FURTHER MENTIONED THAT M/S. ETHICAL INF RASTRUCTURES PVT. LTD. WAS NOT A PARTY TO THE SALE DEED. THE ABOVE FINDING OF FACT IS NOT CONTROVERTED BY TH E REVENUE BY PLACING ANY CONTRARY MATERIAL ON RECORD. THEREFORE, WE DO NOT FIND ANY REASON TO INTERFERE IN THE ORDER OF LD. CIT (A), THE SAME IS HEREBY AFFIRMED. 6. IN THE RESULT, APPEAL OF THE REVENUE IS DISMISS ED. ORDER IS PRONOUNCED IN THE OPEN COURT ON 16.09. 2016. SD/- SD/- ( HKKXPUN ( DQY HKKJR ) ( BHAGCHAND) ( KUL BHARAT ) YS[KK LNL;@ ACCOUNTANT MEMBER U;KF;D LNL;@ JUDICIAL MEMBER JAIPUR DATED:- 16/09/2016. DAS/ VKNS'K DH IZFRFYFI VXZSF'KR@ COPY OF THE ORDER FORWARDED TO: 1. THE APPELLANT- THE ACIT, CIRCLE-6, JAIPUR. 2. THE RESPONDENT SHRI SUNIL AGARWAL, JAIPUR. 3. THE CIT(A). 4. THE CIT, 5. THE DR, ITAT, JAIPUR 6. GUARD FILE (ITA NO. 557/JP/2015) VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASSISTANT. REGISTRAR 7 ITA NO. 557/JP/2015 DCIT VS. SHRI SUNIL AAGRWAL