THE ACIT-1(1), Bhopal V. SHRI ASHOK GUPTA, Bhopal

ITA 564/IND/2016

• Counselvise Citation: [2017] 130 COUNSELVISE.COM (IT) 5782 (ITAT-INDORE)
• Duration Of Justice: 9 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-02-2017
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 22-02-2017
• Assessment Year: 2010-2011
• Appeal Filed On: 23-05-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MOHD JAVED
• Assessee Lawyers: N D PATWA
• Keywords: Additional evidence

Judgement Text

ACIT VS.ASHOK GUPTA ITA NO.564/IND/2016 1 , , IN THE INCOME TAX APPELLATE TRIB UNAL, INDORE BENCH, INDORE BEFORE SHRI C.M. GARG, JUDICIAL MEMBER AND SHRI O.P. MEENA, ACCOUNTANT MEMBER .../ I.T.A. NO. 564/IND/2016 / ASSESSMENT YEAR: 2010-11 ASSTT. COMMR. OF INCOME TAX 1(1), BHOPAL :: / APPELLANT VS SHRI ASHOK GUPTA BHOPAL PAN ABOPG 0204H :: / RESPONDENT ! ' # $ / REVENUE BY SHRI MOHD. JAVED - DR %& ' # $ / ASSESSEE BY SHRI ASHISH GOYAL AND SHRI N.D. PATWA ' ( ' &) DATE OF HEARING 2 2 .2.2017 *+,- ' &) DATE OF PRONOUNCEMENT 2 8 .2.2017 / O R D E R PER SHRI C.M. GARG, JM THIS APPEAL HAS BEEN FILED BY THE REVENUE AGAINST THE ORDER OF THE LEARNED CIT(A)-I, BHOPAL, DATED 25.2.2016 IN ACIT VS.ASHOK GUPTA ITA NO.564/IND/2016 2 FIRST APPEAL NO. CIT(A)-1/BPL/IT-177/13-14 FOR THE ASSESSMENT YEAR 2010-11. 2. THE SOLE EFFECTIVE GROUND RAISED BY THE REVENUEAPP ELLANT READS AS FOLLOWS :- ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE CIT(APPEAL) HAS ERRED IN 1. WHETHER, ON THE FACTS AND CIRCUMSTANCES OF THE CASE , THE LD. CIT(A) ERRED IN DELETING THE ADDITION OF RS.42,00,0 00/- WHEREAS THE ASSESSEE HAS NOT DISCHARGED HIS ONUS OF PROVING THAT THE SALE TRANSACTION DOES NOT PERTAIN TO HIM S INCE THE ASSESSEE HAS NOT FURNISHED ANY DOCUMENT OF THE ALLE GED SELLERS AS TO WHERE THE INCOME FROM CAPITAL GAINS H AS BEEN REFLECTED. 3. THE FACTS, IN NUTSHELL, ARE THAT THE ASSESSEE IS ENGAGED IN TRADING OF OFFSET PRINTING PRESS. THE ASSESSEE FIL ED THE RETURN OF INCOME ON 4.10.2010 SHOWING TOTAL INCOME OF RS. 44, 93,640/-. NOTICE U/S 143(2) OF THE ACT WAS ISSUED ON 7.9.2011 . IN THE PROFIT AND LOSS ACCOUNT, THE ASSESSEE HAD SHOWN GROSS RECE IPTS OF RS.6,15,50,128/- WITH NET PROFIT OFRS. 45,47,048/-. IN ADDITION, THE ASSESSEE HAS ALSO EARNED INTEREST INCOME OF RS.97,0 33/- AND CLAIMED LOSS OF RS.50,447/-UNDER THE HEAD HOUSE PROPERTY AGAINST SELF OCCUPIED RESIDENTIAL HOUSE. THE ASSES SEE WAS ASKED TO FURNISH DETAILS OF PURCHASE AND SALE OF IMMOVABLE P ROPERTY IN ACIT VS.ASHOK GUPTA ITA NO.564/IND/2016 3 RESPONSE TO WHICH THE ASSESSEE SUBMITTED THAT ON 18 .12.2009 HE HAS MADE ONLY ONE SALE TRANSACTION IN THE CAPACITY OF PARTNER OF M/S DRISHTI BUILDERS AND DEVELOPERS. HOWEVER, AS PE R AIR INFORMATION, DURING THE YEAR, THE ASSESSEE HAD ENTE RED INTO TWO TRANSACTIONS OF SALE OF IMMOVABLE PROPERTY. ONE OF THEM PERTAINS TO THE SALE OF PROPERTY ON BEHALF OF THE FIRM IN WHICH THE ASSESSEE IS A PARTNER, WHEREAS ON 30.9.2209, THE ASSESSEE HAS SOL D ANOTHER PROPERTY AT RS. 42,00,000/- WHICH HE HAS NOT MENTIO NED ANYWHERE. VIDE HIS REPLY DATED 18.3.2013 THE ASSESSEE AGAIN R EITERATED THAT THE ASSESSEE HAS NEITHER PURCHASED NOR SOLD THE PIE CES OF LAND IN HIS INDIVIDUAL CAPACITY. HOWEVER, THE ASSESSEE CONTENDED BEFORE THE ASSESSING OFFICER THAT THE ASSESSEES PAN IS AL SO QUOTED IN ANOTHER SALE DEED DATED 30.9.2009 IN FVOUR OF SMT. VIBHA GUPTA W/O SHRI ASHOK GUPTA IN WHICH THE ASSESSEE HAD SIGN ED ON BEHALF OF REGISTERED OWNER AND SELLER BY OBTAINING A GENER AL POWER OF ATTORNEY FROM THE OWNERS OF THE LAND. HOWEVER, THE ASSESSEE HAS NOT DISCHARGED THE ONUS OF PROVING THAT THE SALE TR ANSACTION DOES NOT PERTAIN TO HIM SINCE THE ASSESSEE HAS NOT FURNI SHED ANY DOCUMENT OF THE ALLEGED SELLERS ASA TO WHERE THE IN COME FROM CAPITAL GAIN HAS BEEN REFLECTED. THE ASSESSING OFFI CER OBSERVED THAT ACIT VS.ASHOK GUPTA ITA NO.564/IND/2016 4 THE ASSESSEE HAS ALSO NOT SHOWN ANY INCOME FROM CAP ITAL GAINS IN THE COMPUTATION OF INCOME. IN THE WAKE OF THESE FAC TS, THE ASSESSING OFFICER ADDED RS. 42,00,000/- ON ACCOUNT OF SALE OF IMMOVABLE PROPERTY TO THE TOTAL INCOME OF THE ASSES SEE AS UNDISCLOSED INCOME. 4. BEING AGGRIEVED WITH THE ABOVE ACTION OF THE ASS ESSING OFFICER, THE ASSESSEE PREFERRED FIRST APPEAL BEFORE THE LEAR NED CIT(A). DURING THE COURSE OF HEARING BEFORE THE LEARNED CIT(A), TH E ASSESSEE FILED AN APPLICATION UNDER RULE 46A SUBMITTING ADDITIONAL EVIDENCE IN THE FORM OF AGREEMENT TO SELL WHICH WAS FORWARDED B Y THE LEARNED CIT(A) TO THE ASSESSING OFFICER CALLING FOR HIS REM AND REPORT. IN RESPONSE, THE ASSESSING OFFICER SUBMITTED THE REMAN D REPORT ON 12.1.2016 . AFTER CONSIDERING THE FACTS OF THE CAS E, SUBMISSIONS OF THE ASSESSEE AND THE REMAND REPORT OF THE ASSESSING OFFICER, THE LEARNED CIT(A) OBSERVED AS UNDER :- 10. LOOKING TO THE FACTS OF THE CASE AND THE SUBMI SSION, IT IS SEEN THAT THE APPELLANT IN THIS CASE HAS ACTED AS T HE POWER OF ATTORNEY HOLDER FOR THE SELLERS SMT. KANTI RGHU AND SMT. SANTOSH MEHROTRA. THE BUYER WAS SMT. VIBHA GUPTA, W HO IS THE WIFE OF THE APPELLANT. AT THE TIME OF THE REGISTRA TION OF THE ACIT VS.ASHOK GUPTA ITA NO.564/IND/2016 5 PROPERTY, THE PAN OF THE POWER OF ATTORNEY HOLDER I .E. THE APPELLANT WAS MENTIONED IN THE SALE DEED WHICH WAS PICKED UP BY THE AIR TRANSACTIONS AND WAS SUBSEQUENTLY REPORT ED TO THE DEPARTMENT. HOWEVER, AS THE APPELLANT HAD NOT SOLD THE PROPERTY, THEREFORE, THE ADDITION MADE BY THE A.O. OF RS.42,00,000/- IN THE ASSESSMENT ORDER HOLDING THAT THIS AMOUNT IS ON ACCOUNT OF SALE OF IMMOVABLE PROPERTY BY THE APPELLANT IS NOT CORRECT AND THE ADDITION MADE IN T HE ASSESSMENT ORDER IS THEREFORE DELETED. THE GROUND O F APPEAL IS ALLOWED AND THE APPELLANT GETS RELIEF ON THIS ACCOU NT. IN VIEW OF THE ABOVE FINDINGS, THE LEARNED CIT(A) D ELETED THE ADDITION MADE BY THE ASSESSING OFFICER. 5. FELT AGGRIEVED, THE REVENUE HAS COME UP IN APPEA L BEFORE THE TRIBUNAL. 6. WE HAVE HEARD THE ARGUMENTS OF BOTH THE SIDES AN D CAREFULLY PERUSED THE RELEVANT MATERIAL PLACED ON RECORD OF T HE TRIBUNAL, INTER-ALIA, ASSESSMENT ORDER, IMPUGNED FIRST APPELL ATE ORDER, PAPER BOOK FILED BY THE ASSESSEE SPREAD OVER 42 PAGES AND OTHER RELEVANT MATERIAL PLACED ON RECORD OF THE TRIBUNAL. ACIT VS.ASHOK GUPTA ITA NO.564/IND/2016 6 7. THE LEARNED DR SUPPORTING THE ACTION OF THE ASSE SSING OFFICER SUBMITTED THAT THE LEARNED CIT(A) HAS ERRED IN DELE TING THE ADDITION OF RS. 42 LACS WHEREAS THE ASSESSEE HAS NOT DISCHAR GED HIS ONUS OF PROVING THAT THE SALE TRANSACTION DOES NOT PERTAIN TO HIM. THE LEARNED DR VEHEMENTLY CONTENDED THAT SINCE THE ASS ESSEE HAS NOT FURNISHED ANY DOCUMENT OF THE ALLEGED SELLERS AS TO WHEREFROM THE INCOME AS CAPITAL GAINS HAS BEEN REFLECTED THEN THE ADDITION MADE BY THE ASSESSING OFFICER ON SOLE GROUNDS CANNOT BE DISMISSED. DRAWING OUR ATTENTION TO PARA 4 OF THE ASSESSMENT O RDER, THE LEARNED DR SUBMITTED THAT THE COMPUTATION OF INCOME FURNISHED BY THE ASSESSEE DOES NOT CONTAIN ANY INCOME FROM CAPIT AL GAINS WHEREAS THE AIR INFORMATION RECEIVED BY THE ASSESSI NG OFFICER CLEARLY SHOWS THAT DURING THE YEAR THE ASSESSEE HAS ENTERED INTO TWO TRANSACTIONS OF SALE OF IMMOVABLE PROPERTIES OU T OF WHICH ONE PERTAINED TO THE SALE OF THE PROPERTY ON BEHALF OF THE FIRM IN WHICH THE ASSESSEE IS A PARTNER AND THE ASSESSEE HAS ALSO SOLD ANOTHER PROPERTY AT RS.42 LACS ON 30.9.2009, WHICH THE ASSE SSEE HAS NOT SHOWN ANYWHERE INCLUDING THE COMPUTATION OF INCOME. 8. THE LEARNED DR SUBMITTED THAT THE LEARNED CIT(A) HAS GRANTED RELIEF TO THE ASSESSEE WITHOUT ANY JUSTIFICATION AN D REASONING. ACIT VS.ASHOK GUPTA ITA NO.564/IND/2016 7 THEREFORE, THE SAME MAY BE SET ASIDE BY RESTORING T HE ORDER OF THE ASSESSING OFFICER. 9. REPLYING TO THE ABOVE, THE LEARNED COUNSEL FOR T HE ASSESSEE CONTENDED THAT BEFORE THE ASSESSING OFFICER THE ASS ESSEE VIDE REPLY DATED 18.3.2013 SUBMITTED THAT THE ASSESSEE HAS NEI THER PURCHASED NOR SOLD THE PIECES OF LAND IN HIS INDIVIDUAL CAPAC ITY AND THE ASSESSEE ONLY EXECUTED THE SALE DEED IN FAVOUR OF S MT. VIBHA GUPTA ON BEHALF OF THE REGISTERED OWNER BY OBTAINING A GE NERAL POWER OF ATTORNEY FROM THE OWNERS OF THE LAND. THEREFORE, NO LONG TERM CAPITAL GAIN OR ANY OTHER INCOME CAN BE ALLEGED IN THE HANDS OF THE ASSESSEE FOR MAKING THE ADDITION. 10. THE LEARNED COUNSEL FOR THE ASSESSEE FURTHER DR EW OUR ATTENTION TOWARDS PARAS 6 TO 10 OF THE FIRST APPELL ATE ORDER AND SUBMITTED THAT THE ASSESSEE FILED ALL RELEVANT PAPE RS AS ADDITIONAL EVIDENCE BEFORE THE LEARNED CIT(A) UNDER THE PROVIS IONS OF RULE 46A OF THE INCOME TAX RULES, 1962 AND AFTER OBTAINING T HE REMAND REPORT AND CONSIDERING THE REJOINDER OF THE ASSESSE E TO THE REMAND REPORT, THE LEARNED CIT(A) RIGHTLY HELD THAT THE AS SESSEE HAS ACTED AS A POWER OF ATTORNEY HOLDER FOR THE SELLER SMT. K ANTI RAGHU AND SMT. SANTOSH MEHROTRA AND AT THE TIME OF REGISTRATI ON OF SALE DEED, ACIT VS.ASHOK GUPTA ITA NO.564/IND/2016 8 PAN OF POWER OF ATTORNEY HOLDER I.E. THE ASSESSEE W AS MENTIONED IN THE SALE DEED WHICH WAS WRONGLY PICKED UP BY AIR IN FORMATION AND REPORTED TO THE ASSESSING OFFICER. THE LEARNED COUN SEL FOR THE ASSESSEE VEHEMENTLY POINTED OUT THAT THE ASSESSING OFFICER WITHOUT APPLYING HIS MIND TO THE INFORMATION AND THE MATERI AL, PROCEEDED TO MAKE THE ADDITION WITHOUT ANY BASIS WHICH WAS RIGHT LY DELETED BY THE LEARNED CIT(A), HENCE THE FIRST APPELLATE ORDER MAY KINDLY BE UPHELD. 11. ON CAREFUL CONSIDERATION OF THE ABOVE SUBMISSIO NS AND FROM A CAREFUL READING OF THE FIRST APPELLATE ORDER, WE OB SERVE THAT NEITHER THE ASSESSING OFFICER NOR THE LEARNED DR DURING THE COURSE OF ARGUMENTS, COULD CONTROVERT THIS FACT THAT THE ASSE SSEE MERELY ACTED AS POWER OF ATTORNEY HOLDER OF THE SELLERS - SMT. KANTI RAGHU AND SMT. SANTOSH MEHROTRA AND AT THE TIME OF EXEC UTION AND REGISTRATION OF THE SALE DEED, THE ASSESSEE MENTION ED HIS PAN PERHAPS AS PER THE REQUIREMENTS OF THE REGISTRATION DEPARTMENT AND THIS CREATED A DOUBT IN THE MIND OF THE ASSESSING O FFICER WHICH RESULTED INTO IMPUGNED ADDITION. OBVIOUSLY, WHEN TH E ASSESSEE IS NEITHER THE OWNER OF THE LAND NOR BENEFICIARY OF TH E SALE CONSIDERATION AND HE MERELY ACTED ON BEHALF OF THE SELLERS UNDER THE ACIT VS.ASHOK GUPTA ITA NO.564/IND/2016 9 POWER OF ATTORNEY THEN IT CANNOT BE ALLEGED AGAINST THE ASSESSEE THAT THE ASSESSEE HAS EARNED THE INCOME ON SALE OF SUCH PROPERTY AND THE ENTIRE SALE CONSIDERATION IS THE INCOME OF THE ASSESSEE. IN OUR CONSIDERED OPINION, THE VIEW TAKEN BY THE LEARN ED CIT(A) ON THE BASIS OF EVIDENCE PLACED BEFORE HIM, REMAND REPORT OF THE ASSESSING OFFICER AND THE REJOINDER OF THE ASSESSEE, IS QUITE JUSTIFIED AND SUSTAINABLE AND WE ARE UNABLE TO SEE ANY VALID REAS ON TO INTERFERE WITH THE SAME. ACCORDINGLY, THE SOLE GROUND OF THE REVENUE, BEING DE VOID OF ANY MERIT, IS DISMISSED. 12. IN THE RESULT, THE APPEAL OF THE REVENUE STANDS DISMISSED. THE ORDER HAS BEEN PRONOUNCED IN OPEN COURT ON 28 TH FEBRUARY, 2017. SD/- SD/- $) ! ! (O.P.MEENA) (C.M. GARG) ACCOUNTANT MEMBER JUDICIAL MEMBER FEBRUARY 28 TH , 2017. DN/