SHRI PRATAP SINGH, Bhopal V. THE ITO 1(1), Bhopal

ITA 574/IND/2014

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 5636 (ITAT-INDORE)
• Duration Of Justice: 2 year(s) 2 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-11-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 07-11-2016
• Assessment Year: 2008-2009
• Appeal Filed On: 03-09-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MOHMD JAVED
• Keywords: Opportunity of being heard
• Section: 147; 68; 148; 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, INDORE BENCH, INDORE BEFORE SHRI D.T. GARASIA, JUDICIAL MEMBER AND SHRI O.P. MEENA, ACCOUNTANT MEMBER SHRI PRATAP SINGH GRAM BAWADIA KALA, TEHSIL- HUZUR BHOPAL VS. INCOME TAX OFFICER 1(1)BHOPAL APPELLANT RESPONDENT PAN:EVQPS 8925H APPELLANT BY SHRI HARSH VIJAYVARGIYA CA RESPONDENT BY SHRI MOHMD. JAVED, SR. (DR) DATE OF HEARING 07.11.2016 DATE OF PRONOUNCEMENT 07.11.2016 O R D E R PER O.P. MEENA, ACCOUTANT MEMEBR. 1. THE ASSESSEE HAS FILED THIS APPEAL AGAINST THE ORD ER OF LD. COMMISSIONER OF INCOME TAX (APPEALS)-I, BHOPAL, DATED 06.06.2014 AND HAS T AKEN FOLLOWING GROUNDS OF APPEAL:- 1 THE LEARNED COMMISSIONER (APPEALS) HAS GROSSLY ERRE D IN FACTS AND CIRCUMSTANCES, OF THE CASE TO DISMISS APPEAL. 2 THE LEARNED COMMISSIONER (APPEALS) HAS PASSED ORDER WITHOUT CONSIDERING THE REGISTERED POWER OF ATTORNEY ISSUED BY THE ASSESSEE, ON THE BASIS OF WHICH FINAL SALE DEED EXECUTED. I.T.A. NO.574/IND/2014 ASSESSMENT YEAR:2008-09 SHRI PRATAP SINGH/ IT.A.NO.574/IND/2014-AY08-09/ PAGE 2 OF 4 3 THE LEARNED COMMISSIONER (APPEALS) HAS REJECTED THE AGREEMENT OF SALE OF PROPERTY AGAINST THE POWER OF ATTORNEY WAS EXECUTED ON THE BASIS OF WHICH SUBSEQUENT SALE DEED WAS EXECUTED IS NOT JUSTIFIED. 4 THAT THE CAPITAL GAINS ARISES ON THE SALE OF CAPITA L ASSET HAS NOT BEEN ACCEPTED IS NOT JUSTIFIED. 5 THAT THE CASH DEPOSITED IN BANK ACCOUNT AGAINST SAL E OF PROPERTY TREATED AS CASH CREDIT U/S. 68 IS ARBITRARY AND BAD IN LAW. 6 SUCCINCTLY, THE FACTS AS CULLED OUT FROM THE ORDER OF LOWER AUTHORITIES ARE THAT THE ASSESSEE, AN INDIVIDUAL HAS NOT FILED RETURN OF INC OME, WHEREAS , ON RECEIPTS OF AIR INFORMATION ON NON-PAN, THE LD. A.O. HAS NOTICED T HAT THE ASSESSEE HAD DEPOSITED CASH OF RS. 25,36,000/- IN HIS SAVING BANK ACCOUNT , WITH BANK OF INDIA. THE AO ISSUED A LETTER TO EXPLAIN SOURCE OF CASH DEPOSITS, BUT NO SATISFACTORY REPLY FURNISHED. THEREFORE, THE AO AFTER RECORDING REASON ISSUED NOT ICE UNDER SECTION 148 OF THE ACT ON 20.05.2011, BUT NO RETURN OF INCOME WAS FILED, H ENCE AFTER ISSUE OF NOTICE UNDER SECTION 142(1), ASSESSMENT WAS MADE UNDER SECTION 1 47 READ WITH SECTION 144 OF THE ACT, BY DETERMINING TO THE INCOME AT RS. 26,33,810/ -. 7 BEING, NOT SATISFIED, THE ASSESSEE FILED AN APPEAL BEFORE THE LD. CIT (A). THE LD. CIT (A) NOTICED AS PER AGREEMENT TO SALE STATED TO HAVE ENTERED INTO ON 31.03.2007, WITH PURCHASER SHRI RAM NATH SHARMA, THE ASSESSEE HAS RE CEIVED A SUM OF RS. 50,000/- BY CHEQUE NO. 098903 AND RS. 2,50,000/- IN CASH. HO WEVER, THE ASSESSEE HAS OPENED BANK ACCOUNT ON 17.09.2007 WITH BANK OF INDI A AND CASH OF RS. 1000/- AND RS. 25,00,000/- WAS DEPOSITED ON 17.09.2007 AND FUR THER CASH OF RS. 35,000/- ON 23.11.2007, AGGREGATING TO RS. 25,36,000/-.I.E. ONL Y AFTER SIX MONTHS. THUS CLEARLY SHOWED, THAT AGREEMENT TO SALE DTD. 31.03.2007 NOT ACTUALLY ENTERED INTO OR IT WAS DRAFT ONLY AS NO SUCH AMOUNT OF RS. 50,000/ CLAIMED TO HAVE RECEIVED BY CHEQUE DEPOSITED IN BANK ACCOUNT OF THE ASSESSEE. NOR THE ASSESSEE HAD FURNISHED COPY OF SHRI PRATAP SINGH/ IT.A.NO.574/IND/2014-AY08-09/ PAGE 3 OF 4 REGISTERED SALE DEED DURING THE COURSE OF ASSESSMEN T PROCEEDINGS OR DURING THE COURSE OF APPELLATE PROCEEDINGS. THE GENERAL POWER OF ATTORNEY WAS EXECUTED ON 07.09.2007 WHEREAS CASH IN BANK ACCOUNT WAS DEPOSIT ED ON 17.09.2007 AND 23.11.2007. THUS, THE LD. CIT (A) CONFIRMED THE ACT ION OF THE A.O. 8 BEING, AGGRIEVED THE ASSESSEE FILED THIS APPEAL BEF ORE THE TRIBUNAL. THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE LD. CIT (A) AND THE AO HAS THE IGNORED THE SUBSEQUENT SALE DEED REGISTERED ON 31.08.2008 B Y SHRI RAM NATH SHARMA ON THE STRENGTH OF GENERAL POWER OF ATTORNEY DTD. 07-09-20 07. IT WAS CLAIMED THAT BY REGISTERED SALE DEED DTD. 31.03.2008, THE SAID PROP ERTY WAS SOLD TO ONE SHRI JEEVAN LAL GUPTA & SONS FOR RS. 12 LAKH OF WHICH MARKET VA LUE FOR STAMP DUTY WAS AT RS. 23,08,000/0( COPY FILE PAPER BOOK PAGE NO. 17) . TH E AO HAS PASSED ASSESSMENT ORDER ON THE BASIS THAT AGREEMENT TO SALE DTD. 31.0 3.2007 IS NOT SIGNED BY THE PURCHASER, SHRI RAM NATH SHARMA, IGNORING THE OTHER DOCUMENTS LIKE GENERAL POWER OF ATTORNEY, REGISTERED SALE DEED DTD. 31.03.2008. THEREFORE, IT WAS URGED UPON TO SET-ASIDE THE ISSUE TO THE FILE OF THE A.O. TO EXAM INE AS FRESH. 9 THE LD. SENIOR (DR) RELIED ON THE ORDER OF LD. CIT (A) AND SUBMITTED THAT AS PER AGREEMENT TO SALE DTD. 31.07.2007, THE ASSESSEE CLA IMED TO HAVE RECEIVED AN AMOUNT OF RS. 50,000/- BY CHEQUE BUT THAT AMOUNT DID NOT F IND DEPOSITED IN BANK ACCOUNT OF THE ASSESSEE. NOR THE ASSESSEE HAS FILED REGISTERED SALE DEED BEFORE THE AO OR CIT (A). 10 WE HAVE HEARD THE RIVAL SUBMISSIONS AND HAVE GONE T HROUGH THE ORDERS OF THE LOWER AUTHORITIES, AND PERUSED THE MATERIAL AVAILABLE ON RECORD. WE FIND THAT THE ASSESSMENT WAS MADE US/144 READ WITH SECTION 147 OF T HE ACT AS THE ASSESSEE HAS FAILED TO MAKE COMPLIANCE OF FILING OF RETURN OF IN COME AND REPLY TO NOTICE UNDER SECTION 142(1), COPY OF REGISTERED SALE DEED. BEFORE CIT (A) ALSO NO COPY OF REGISTERED SALE DEED DTD. 31.03.2008 WAS FURNISHED. WE FURTHER FIND THAT AGREEMENT TO SALE DTD. 31.03.2007 IS NOT SIGNED BY THE PURCHASER, SHRI RAM NATH SHARMA, WHO WAS NEITHER SHRI PRATAP SINGH/ IT.A.NO.574/IND/2014-AY08-09/ PAGE 4 OF 4 EXAMINED BY THE AO. NOR THE AMOUNT OF RS. 50,000 / - STATED TO HAVE BEEN RECEIVED BY CHEQUE NO. 098903 ON 31.03.2007 IS FOUND DEPOSIT ED IN BANK ACCOUNT WHERE THE AMOUNT OF RS. 2, 50, 000 /- RECEIVED IN CASH IS DEP OSITED IS NOT SUBSTANTIATED. THEREFORE, WE CONSIDERED IT APPROPRIATE TO SET-ASID E THE ASSESSMENT TO THE FILE OF THE A.O. TO EXAMINE AND VERIFY THE POWER OF ATTORNEY, G ENERAL POWER OF ATTORNEY, AGREEMENT TO SALE WITH SOURCE OF CHEQUE AMOUNT DEPO SITED, REGISTERED SALE DEED DTD. 31.03.2008 AND SHRI RAM NATH SHARMA AND MAKE DE-NOV A ASSESSMENT AFTER CONSIDERING ALL ISSUE AS FRESH, AND AFTER ALLOWING PROPER AND ADEQUATE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. THUS, ABOVE ALL GROUND S OF APPEAL ARE ALLOWED FOR STATISTICAL PURPOSE. 11 IN THE RESULT, THE APPEAL OF THE ASSESSEE IS SET-AS IDE. 12 THE ORDER PRONOUNCED IN THE OPEN COURT ON 07.11.20 16 S D / - (D.T.GARASIA) JUDICIAL MEMBER S D / - (O.P.MEENA) ACCOUNTANT MEMBER DATED : 07 TH NOVEMBER, 2016.OPM