Atul Lal, New Delhi V. ITO, New Delhi

ITA 5879/DEL/2012

• Counselvise Citation: [2016] 121 COUNSELVISE.COM (IT) 2695 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 1 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-01-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 04-01-2016
• Assessment Year: 2009-2010
• Appeal Filed On: 22-11-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: K K JAISWAL
• Assessee Lawyers: A T PANDA S
• Keywords: Additional evidence
• Section: 133(6)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCHES : A : NEW DELHI BEFORE SHRI R.S. SYAL, AM & MS SUCHITRA KAMBLE, JM ITA NO.5879/DEL/2012 ASSESSMENT YEAR : 2009-10 ATUL LAL, B-59, FIRST FLOOR, SOAMI NAGAR, NEW DELHI. PAN: ABTPL0895N VS. ITO, WARD-11(3), NEW DELHI. (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI SATYAN SETHI & SHRI A.T. PANDA, ADVOCATES DEPARTMENT BY : SHRI K.K. JAISWAL, DR DATE OF HEARING : 04.01.2016 DATE OF PRONOUNCEMENT : 05.01.2016 ORDER PER R.S. SYAL, AM: THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST TH E ORDER PASSED BY THE CIT(A) ON 4.9.2012 IN RELATION TO THE ASSESSMEN T YEAR 2009-10. THE ONLY ISSUE RAISED IN THIS APPEAL IS AGAINST THE CON FIRMATION OF ADDITION OF RS.12,83,877/-. ITA NO.5879/DEL/2012 2 2. BRIEFLY STATED, THE FACTS OF THE CASE ARE THAT T HE ASSESSEE, ALONG WITH HIS BROTHER SHRI AKHIL LAL, SHOWED TO HAVE RECEIVE D INDIVIDUALLY A SUM OF RS.60,50,000/- FROM M/S SANSKAR HOMES PVT. LTD. IN PURSUANCE OF AN AGREEMENT WITH M/S SANSKAR HOMES PVT. LTD. FOR DEVE LOPMENT/SALE OF ANCESTRAL PROPERTY SITUATED AT S-92, PANCHSHEEL PAR K. WHEN THE AO CALLED UPON THE ASSESSEE TO ADDUCE NECESSARY EVIDEN CE IN CONFIRMATION OF THIS RECEIPT OF ADVANCE OF RS.60,50,000/- FROM M /S SANSKAR HOMES PVT. LTD., THE ASSESSEE SUBMITTED THAT DUE TO DISPU TE WITH THE SAID BUILDER, HE WAS NOT IN A POSITION TO GET CONFIRMAT ION. NOTICE U/S 133(6) WAS ISSUED BY THE AO TO M/S SANSKAR HOMES PVT. LTD. VIDE THEIR REPLY DATED 20.10.2011, THEY STATED TO HAVE PAID A SUM OF RS.73,33,877.50 TO THE ASSESSEE. THE AO REQUIRED THE ASSESSEE TO EXPL AIN THE DIFFERENTIAL AMOUNT OF RS.12.83 LAC WHICH WAS NOT RECORDED IN HI S BOOKS OF ACCOUNT THOUGH M/S SANSKAR HOMES PVT. LTD. CLAIMED TO HAVE GIVEN IT TO THE ASSESSEE. THE ASSESSEE REFUTED THE ALLEGATION OF H AVING RECEIVED A SUM OF RS.10 LAC CLAIMED TO HAVE PAID BY M/S SANSKAR HO MES PVT. LTD. ON 11.9.2008. AS REGARDS THE REMAINING AMOUNT OF RS.2 .83 LAC, THE ASSESSEE SUBMITTED THAT M/S SANSKAR HOMES PVT. LTD. HAS PAID THIS AMOUNT TO ITA NO.5879/DEL/2012 3 DDA ON BEHALF OF THE ASSESSEE FOR CONVERTING THE PR OPERTY INTO FREEHOLD AND THIS AMOUNT WOULD BE ADJUSTED AT THE TIME OF FI NALIZATION OF THE SALE. THE AO INVOKED THE PROVISIONS OF SECTION 69A AND M ADE AN ADDITION OF RS.12,83,877/-. THE LD. CIT(A) UPHELD THE ADDITION . THE ASSESSEE IS AGGRIEVED AGAINST THE SUSTENANCE OF THE ADDITION. 3. AFTER CONSIDERING THE RIVAL SUBMISSIONS AND PERU SING THE RELEVANT MATERIAL ON RECORD, WE OBSERVE THAT THE DISPUTE IN THE INSTANT APPEAL IS ABOUT THE TAXABILITY OR OTHERWISE OF THE SUM OF RS. 12,83,877/-. THE LD. AR SUBMITTED THAT DUE TO DISPUTE BETWEEN THE ASSESS EE AND HIS BROTHER ON THE ONE HAND AND M/S SANSKAR HOMES PVT. LTD., ON THE OTHER, THE BUILDER HAD WRONGLY SHOWN THE AMOUNT OF CASH PAYMEN T OF RS.10 LAC TO THE ASSESSEE FOR WHICH THERE WAS NO EVIDENCE. THE LD. AR SUBMITTED THAT A SUIT WAS FILED AND, EVENTUALLY, FINAL SETTLEMENT WAS ARRIVED AT WHEREIN THERE IS NO REFERENCE TO THIS PAYMENT OF RS.10 LAC. AN APPLICATION UNDER RULE 29 HAS BEEN FILED BY THE ASSESSEE SUBMITTING A DDITIONAL EVIDENCE FROM PAGES 120-125 OF THE PAPER BOOK, INTER ALIA , A COPY OF COMPROMISE. THE LD. AR CONTENDED THAT THIS COMPROM ISE WAS REACHED ITA NO.5879/DEL/2012 4 BETWEEN THE PARTIES ON 22.8.2012 AND THE FINAL SALE TRANSACTION WAS SHOWN IN THE PREVIOUS YEAR RELEVANT TO ASSESSMENT Y EAR 2013-14 PURSUANT TO SUCH SETTLEMENT DATED 22.8.2012. SINCE THIS IS AN ADDITIONAL EVIDENCE HAVING A BEARING ON THE ISSUE UNDER CONSIDERATION, WE ADMIT THIS ADDITIONAL EVIDENCE AND SEND THE MATTER TO THE FILE OF THE AO FOR A FRESH CONSIDERATION AND DECISION AS PER LAW ON THE ISSUE UNDER CONSIDERATION. NEEDLESS TO SAY, THE AO WILL ALSO VERIFY THE CONTEN TION OF THE LD. AR ABOUT THE OFFERING OF CAPITAL GAIN IN TERMS OF THE COMPROMISE REACHED ON 22.8.2012 IN THE PREVIOUS YEAR RELEVANT TO ASSESSME NT YEAR 2013-14. 4. IN THE RESULT, THE APPEAL IS ALLOWED FOR STATIST ICAL PURPOSES. THE ORDER PRONOUNCED IN THE OPEN COURT ON 05.01.201 6. SD/- SD/- [SUCHITRA KAMBLE] [R.S. SYAL] JUDICIAL MEMBER ACCOUNTANT MEMBER DATED, 05 TH JANUARY, 2016. DK ITA NO.5879/DEL/2012 5 COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT (A) 5. DR, ITAT AR, ITAT, NEW DELHI.