Sh. Dharam Chand, Ludhiana V. ITO, Ludhiana

ITA 592/CHANDI/2016

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 9095 (ITAT-CHANDIGARH)
• Duration Of Justice: 3 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-09-2016
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: SMC
• Assessment Year: 2002-2003
• Appeal Filed On: 17-05-2016
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: S K MITTALDR
• Assessee Lawyers: AJAY PAL SINGH
• Keywords: Unexplained investment; Additional evidence; Corroborative evidences
• Section: 147; 148; 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, CHANDIGARH BEFORE SHRI BHAVNESH SAINI, JUDICIAL MEMBER ITA NO. 592/CHD/2016 ASSESSMENT YEAR: 2002-03 SHRI DHARAM CHAND, VS THE ITO, PLOT NO. 51, WARD 1(1), CHAUDHARI COLONY, LUDHIANA. MOTI NAGAR, LUDHIANA. PAN: ANEPC2539B (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI AJAY PAL SIN GH RESPONDENT BY : SHRI S.K.MITTAL,DR DATE OF HEARING : 22.08.2016 DATE OF PRONOUNCEMENT : 14.09.2016 O R D E R THIS APPEAL BY ASSESSEE HAS BEEN DIRECTED AGAINST T HE ORDER OF LD. CIT(APPEALS)-I LUDHIANA DATED 29.02.20 16 FOR ASSESSMENT YEAR 2002-03. 2. THE ASSESSEE FILED AMENDED GROUNDS OF APPEAL CHALLENGING THE ADDITION OF RS. 3 LACS MADE ON ACCO UNT OF UNEXPLAINED INVESTMENT AND CHALLENGED THE ORDER OF LD. CIT(APPEALS) IN NOT ACCEPTING THE ADDITIONAL DOCUME NTS. 3. BRIEFLY THE FACTS OF THE CASE ARE THAT THE ASSES SING OFFICER RECEIVED INFORMATION AGAINST THE ASSESSEE T HAT HE HAD PURCHASED 500 SQ.YDS. OF LAND ON 18.09.2001 FOR A 2 CONSIDERATION OF RS. 3 LACS, THEREFORE, ASSESSING O FFICER REOPENED THE CASE UNDER SECTION 147 OF THE ACT. TH E ASSESSEE DID NOT FILE ANY SOURCE OF THE SAID INVEST MENT. NO DOCUMENTARY EVIDENCE WAS FILED DESPITE GIVING OPPOR TUNITY, THEREFORE, EX-PARTE ASSESSMENT ORDER UNDER SECTION 144 WAS FRAMED. THE ASSESSEE DID NOT FILE RETURN OF INCOME IN RESPONSE TO NOTICE UNDER SECTION 148. THE ASSESSIN G OFFICER, ACCORDINGLY, MADE ADDITION OF RS. 3 LACS O N ACCOUNT OF UNEXPLAINED INVESTMENT. 4. THE ASSESSEE FILED ADDITIONAL EVIDENCE BEFORE LD . CIT(APPEALS) UNDER RULE 46A OF THE IT RULES AND MAD E A REQUEST FOR ADMISSION OF THE SAME. REMAND REPORT F ROM THE ASSESSING OFFICER WAS CALLED FOR IN WHICH ASSESSING OFFICER OBJECTED TO ADMISSION OF ADDITIONAL EVIDENCE ON THE GROUND THAT ASSESSEE WAS NOT PREVENTED BY SUFFICIENT CAUSE IN PRODUCING THE EVIDENCE BEFORE THE ASSESSING OFFICER . 5. THE LD. CIT(APPEALS), CONSIDERING THE MATERIAL O N RECORD NOTED THAT CASE WAS REOPENED ON THE BASIS OF SPECIFIC INFORMATION RECEIVED AGAINST THE ASSESSEE THAT HE HAD INVESTED AN AMOUNT OF RS. 3 LACS FOR PURCHASING OF 500 SQ.YDS. LAND FROM SHRI HARBHAJAN SINGH. THE ASSESS ING OFFICER ASKED THE ASSESSEE TO EXPLAIN SOURCE OF THE INVESTMENT BUT HE FAILED TO EXPLAIN THE SAME DESPIT E GIVING OPPORTUNITIES. THE ASSESSEE DID NOT FILE RETURN OF INCOME UNDER SECTION 148/142(1) OF THE ACT. THE LD. CIT(A PPEALS) NOTED THAT ASSESSEE FILED ADDITIONAL EVIDENCE IN TH E SHAPE OF PHOTO COPY OF AFFIDAVIT OF SHRI SUSHIL KUMAR, PH OTO COPY 3 OF AFFIDAVIT BETWEEN ASSESSEE AND SHRI SUSHIL KUMAR , BANK ACCOUNTS STATEMENT OF SHRI SUSHIL KUMAR, COPY OF RE CEIPT FROM LUDHIANA CHOUDHRI COOPERATIVE HOUSE BUILDING SOCIETY, COPY OF THE PETITION FILED BEFORE HON'BLE PUNJAB & HARYANA HIGH COURT ON 20.04.1987. THE LD. CIT(APPE ALS) CONSIDERING ASSESSEE TO BE ILLITERATE PERSON AND FA CTS OF THE CASE, ADMITTED THE ADDITIONAL EVIDENCES. 5(I) THE LD. CIT(APPEALS) CONSIDERED THE AFFIDAVI T OF SHRI SUSHIL KUMAR NOTED THAT ASSESSEE FAILED TO PRODUCE OTHER SUPPORTING EVIDENCES TO SUBSTANTIATE THE SAID AFFID AVIT. NO MATERIAL IS PRODUCED TO SUPPORT AFFIDAVIT OF SHRI S USHIL KUMAR. SHRI SUSHIL KUMAR STATED IN HIS AFFIDAVIT T HAT HE HAD PAID ADVANCE AGGREGATING TO RS. 3,70,000/- ON V ARIOUS DATES TO THE ASSESSEE BUT NO SUPPORTING EVIDENCE HA VE BEEN FILED. IT IS FURTHER STATED IN THE AFFIDAVIT THAT SHRI SUSHIL KUMAR HAD GIVEN ADVANCE TO THE ASSESSEE ON VARIOUS DATES OF PURCHASE OF PLOT NO. 51, MOTI NAGAR, LUDHIANA, H OWEVER, PERUSAL OF THE BANK STATEMENT OF SHRI SUSHIL KUMAR SHOWS THAT HE DEPOSITED RS. 3.50 LACS ON 14.06.2001 AND WITHDRAWN CASH ON 15.06.2001 WHICH RAISES DOUBT ABO UT THE EXPLANATION GIVEN IN THE AFFIDAVIT. THE ORIGIN AL AGREEMENT EXECUTED BETWEEN ASSESSEE AND SHRI SUSHIL KUMAR WAS NOT PRODUCED ON THE PRETEXT THAT SAME WAS DESTROYED AS THE AGREEMENT WAS TERMINATED. NO PROO F OF THE SAME WAS ALSO FILED. IN THE ABSENCE OF ANY SUP PORTING EVIDENCES, THE AFFIDAVIT OF SHRI SUSHIL KUMAR WAS N OT CONSIDERED. 4 5(II) FURTHER, WITH REGARD TO PROCEEDINGS BEFORE HON'BLE PUNJAB & HARYANA HIGH COURT, IT WAS NOTED THAT THE COPY OF THE JUDGEMENT IS FILED WHICH IS DATED 16.03.1987 AND FURTHER VIDE ORDER DATED 23.03.1987, THE HIGH COURT HAS STAYED THE POSSESSION AND DEMOLITION OF THE HOUSES CONSTRUCTED ON THE ALLOTTED PLOTS IN THE SOCIETY. THE ORDER RELATES TO 1987 WHEREAS SO-CALLED AGREEMENT BETWEEN SHRI SUSHIL KUMAR AND ASSESSEE WAS STATED TO BE OF 14.06 .2001. THEREFORE, CONSIDERING THE CONSIDERABLE LAPSE OF TI ME, IT WAS NOT CONSIDERED RELEVANT. THE ADDITIONAL EVIDENC ES WERE, THEREFORE, NOT FOUND RELIABLE AND SAME WERE NOT ACC EPTED. THE LD. CIT(APPEALS), ACCORDINGLY, CONFIRMED THE AD DITION OF RS. 3 LACS. 6. I HAVE HEARD LD. REPRESENTATIVES OF BOTH THE PAR TIES AND PERUSED THE MATERIAL ON RECORD. THE LD. COUNSE L FOR THE ASSESSEE DID NOT PRESS ADDITIONAL GROUND OF APP EAL REGARDING RE-OPENING OF THE ASSESSMENT UNDER SECTIO N 148 OF THE ACT. THE SAME IS, ACCORDINGLY, DISMISSED AS NOT PRESSED. 7. THE LD. COUNSEL FOR THE ASSESSEE ALSO FILED ANOT HER APPLICATION FOR ADMISSION OF ADDITIONAL EVIDENCE WH ICH IS JUDGEMENT OF THE HON'BLE PUNJAB & HARYANA HIGH COUR T DATED 07.10.2013 IN THE CASE OF SHRI BACHITTAR SING H & OTHERS, HOWEVER, IT IS NOT EXPLAINED AS TO HOW THIS JUDGEMENT IS RELEVANT TO THE MATTER IN ISSUE WITH R EGARD TO SOURCE OF INVESTMENT IN THE PROPERTY. IN THE ABSEN CE OF 5 ANY EXPLANATION FROM THE SIDE OF THE ASSESSEE, NO COGNIZANCE OF SAME CAN BE TAKEN. 8. AS REGARDS THE ADDITION ON MERIT OF RS. 3 LACS, IT IS A FACT THAT AT THE ASSESSMENT STAGE, ASSESSEE DID NOT FILE ANY EVIDENCE TO EXPLAIN SOURCE OF INVESTMENT IN PURCHAS E OF PROPERTY. THE ASSESSEE AT THE APPELLATE STAGE, FIL ED CERTAIN ADDITIONAL EVIDENCES WHICH INCLUDE AFFIDAVIT OF SHR I SUSHIL KUMAR WHICH HAVE BEEN ADMITTED BY THE LD. CIT(APPEA LS) FOR THE PURPOSE OF HEARING. THEREFORE, GROUND NO. 3 IS WRONGLY TAKEN BY THE ASSESSEE CHALLENGING ORDER OF LD. CIT(APPEALS) IN NOT ACCEPTING ADDITIONAL EVIDENCE. THIS GROUND OF THE ASSESSEE IS, THEREFORE, DISMISSED AS INFRUCTUOUS. 9. AS REGARDS SOURCE OF INVESTMENT IN THE PROPERTY, ASSESSEE FILED AFFIDAVIT OF SHRI SUSHIL KUMAR DATED 16.07.2013 WHEREAS THE ASSESSMENT ORDER INVOLVED IN APPEAL IS 2002-03. AS PER AFFIDAVIT OF SHRI SUSHIL KUMAR, HE HAS GIVEN ADVANCE OF RS. 3,70,000/- TO ASSESSEE ON VARIOUS DATES, ON 14.06.2001 ( RS. 10,000/-), 15.06 .2001 ( RS. 3,50,000/-) AND ON 01.10.2001 ( RS. 10,000/-) . THE LD. CIT(APPEALS) HAS GIVEN A SPECIFIC FINDING THAT SHRI SUSHIL KUMAR HAS DEPOSITED RS. 3,50,000/- IN THE BA NK ACCOUNT ON 14.06.2001 AND WITHDRAWN CASH ON 15.06.2 001, THEREFORE, THERE IS NO QUESTION OF MAKING ANY ADVAN CE TO THE ASSESSEE ON 14.06.2001. FURTHER, AFFIDAVIT OF SHRI SUSHIL KUMAR IS NOT SUPPORTED BY ANY EVIDENCE. IT IS NOT EXPLAINED WHY THIS AFFIDAVIT WAS PREPARED AFTER SEV ERAL 6 YEARS. THE AGREEMENT WAS STATED TO HAVE BEEN EXECU TED BETWEEN ASSESSEE AND SHRI SUSHIL KUMAR BUT IT WAS N OT PRODUCED BECAUSE IT WAS DESTROYED ON TERMINATION OF THE AGREEMENT. IT IS, THEREFORE, A FACT THAT ASSESSEE FAILED TO PRODUCE ANY RELEVANT AND COGENT EVIDENCE ON RECORD TO PROVE THE SOURCE OF INVESTMENT IN PURCHASE OF THE P ROPERTY. THE AFFIDAVIT OF SHRI SUSHIL KUMAR IS NOT RELIABLE BECAUSE IT IS NOT CORROBORATED BY ANY EVIDENCE ON RECORD. H ON'BLE CALCUTTA HIGH COURT IN THE CASES OF BHARATI PVT. LT D. 111 ITR 951 AND UNITED COMMERCIAL & INDUSTRIAL CO. PVT. LTD. 187 ITR 596 HELD THAT MERE CONFIRMATION NOT ENOUGH TO PROVE CASH CREDIT. THE LD. CIT(APPEALS) WAS, THEREF ORE, JUSTIFIED IN CONFIRMING THE ADDITION. I, THEREFORE , DO NOT FIND ANY JUSTIFICATION TO INTERFERE WITH THE ORDERS OF AUTHORITIES BELOW. THE ASSESSEE FAILED TO PRODUCE ANY EVIDENCE TO EXPLAIN SOURCE OF INVESTMENT IN THE PRO PERTY, THEREFORE, APPEAL OF THE ASSESSEE HAS NO MERIT, THE SAME IS, ACCORDINGLY, DISMISSED. 10. IN THE RESULT, APPEAL OF THE ASSESSEE IS DISMIS SED. ORDER PRONOUNCED IN THE OPEN COURT. SD/- (BHAVNESH SAINI) JUDICIAL MEMBER DATED : 14 TH SEPT.,2016. POONAM COPY TO: THE APPELLANT, THE RESPONDENT, THE CIT(A), THE CIT, DR ASSISTANT REGISTRAR, ITAT CHANDIGARH