Smt. Pushpa Lata Bathla, Ambala City V. ITO, Ambala

ITA 595/CHANDI/2011

• Counselvise Citation: [2013] 140 COUNSELVISE.COM (IT) 68440 (ITAT-CHANDIGARH)
• Duration Of Justice: 2 year(s) 2 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-08-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 06-08-2013
• Assessment Year: 2008-2009
• Appeal Filed On: 27-05-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Section: 131

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL CHANDIGARH BENCH A, CHANDIGARH BEFORE SHRI T.R. SOOD, A.M AND MS. SUSHMA CHOWLA, JM ITA NO. 595/CHD/2011 ASSESSMENT YEAR : 2008-09 SMT. PUSHPA LATA BATHLA V I.T.O. H NO. 883 WARD 1, AMBALA SECTOR 7 AMBALA CITY AARPB 5510 B (APPELLANT) (RESPONDENT) APPELLANT BY SHRI SUDHIR SEHGAL RESPONDENT BY: SHRI AKHILESH GUPTA DATE OF HEARING 6.8.2013 DATE OF PRONOUNCEMENT 23.8.2013 O R D E R PER T.R.SOOD, A.M THIS APPEAL IS DIRECTED AGAINST THE ORDER DATED 11. 5.2011 OF THE LD. CIT(A), PANCHKULA. 2 IN THIS APPEAL THE ASSESSEE HAS RAISED THE FOLLOW ING GROUNDS WHICH ARE AS UNDER: 1 THAT THE WORTHY COMMISSIONER OF INCOME TAX (APPEA LS), PANCHKULA HAS ERRED IN CONFIRMING THE ADDITION OF R S. 28,20,000/- AS MADE BY THE ASSESSING OFFICER, AS UNEXPLAINED DEPOS ITS IN THE BANK ACCOUNT OF THE APPELLANT. 2 THAT THE CIT(A) WHILE GIVING THIS FINDING HAS IGN ORED THE DOCUMENTARY EVIDENCES IN THE SHAPE OF TWO AGREEMENT S TO SELL AS EXECUTED BETWEEN THE APPELLANT AND THE PURCHASER OF THE LAND AND SUBSEQUENT POWER OF ATTORNEY, GIVEN TO THE CLOSE CO NFIDENT OF THE PURCHASER OF THE LAND WHERE THE FULL CONSIDERATION HAD BEEN MENTIONED. 3 THAT THE CIT(A) HAS ALSO IGNORED THE ORDERS OF TH E REVENUE AUTHORITY I.E. COLLECTOR, WHO HAD HELD CATEGORICALL Y THAT THERE HAS BEEN EVASION OF STAMP DUTY BY THE PURCHASER OF LAND . 2 4 THAT THE CIT(A) HAS ALSO IGNORED THE DOCUMENTARY EVIDENCES OF RS.3,50,000/- PAID BY WAY OF ACCOUNT PAYEE CHEQUE T O THE PARTY OVER AND ABOVE THE REGISTERED AMOUNT OF RS. 17,50,000/-. 5 THAT THE CIT(A) HAS ALSO IGNORED THE DOCUMENTARY EVIDENCES AS GIVEN IN THE PAPER BOOK SUBMITTED DURING THE COURSE OF PROCEEDINGS BEFORE HER AND THE WORTHY CIT(A) AND THE ASSESSING OFFICER HAVE NOT BEEN ABLE TO REBUT THE DOCUMENTARY EVIDENCES AN D RELIED UPON IRRELEVANT CONSIDERATION, WHICH HAS NO VALUE IN THE EYES OF LAW. 3. AFTER HEARING BOTH THE PARTIES WE FIND THAT DURI NG ASSESSMENT PROCEEDINGS THE AO NOTICED THAT THE ASSESSEE HAS D EPOSITED CASH IN SAVING BANK ACCOUNT WITH HARYANA GRAMIN BANK WITH D ETAILS OF DEPOSIT ARE AS UNDER: DATE DEPOSIT (RS) 10.10.2007 1,20,000 22.12.2007 4,00,000 8.1.2008 23,00,000 TOTAL 28,20,000 IN RESPONSE TO THE QUERY TO THESE DEPOSITS, IT WAS SUBMITTED THAT ABOVE DEPOSITS HAVE BEEN MADE OUT OF SALE PROCEEDS OF HER AGRICULTURAL LAND AT VILLAGE KHEDKI. COPY OF THE AGREEMENT TO SELL D ATED 28.9.2007 BETWEEN THE ASSESSEE AND ONE SMT. KULWANT GUPTA W/O SHRI SURINDER GUPTA R/O 272, SECTOR 16, PANCHKULA WAS ALSO FILED. IT WAS FURTHER POINTED OUT THAT AFTER THE RECEIPT OF FULL CONSIDER ATION A POWER OF ATTORNEY DATED 7.1.2008 WAS EXECUTED AND REGISTERE D IN RESPECT OF THIS LAND. THE AGREEMENT TO SELL CLEARLY SHOW THAT THE SALE CONSIDERATION OF RS. 55,78,875/- WHICH WAS RECEIVED THROUGH CHEQUE NO. 004473 DATED 29.9.2007 FOR RS. 5 LAKHS AND THRO UGH CHEQUE NO. 004480 DATED 7.5.2008 FOR RS. 12,50,000 AND BALANCE AMOUNT OF RS. 38,28,575/-. THE ASSESSING OFFICER WAS NOT SATISFI ED WITH THIS AND CALLED FOR INFORMATION FROM SMT. KULWANT GUPTA U/S 131 WHO INFORMED THAT SHE HAS PAID A SUM OF RS. 17,50,000/- AS TOTAL SALE CONSIDERATION. 3 IN THIS BACKGROUND THE ASSESSING OFFICER WAS OF THE OPINION THAT THE ASSESSEE HAS NO SOURCE FOR THE DEPOSIT OF RS. 28,20 ,000/- IN CASH IN THE BANK AND SAME WAS ADDED TO THE BANK OF THE ASSE SSEE. 4 ON APPEAL SIMILAR SUBMISSIONS WERE MADE BEFORE TH E LD. CIT(A). COPIES OF AGREEMENTS WERE AGAIN SUBMITTED AND IT WA S SUBMITTED THAT THE ASSESSEE HAS RECEIVED CASH AND CHEQUES IN THE P RESENCE OF ONE SHRI VED PARKASH WHOSE AFFIDAVIT WAS ALSO FILED. T HE DETAILS FURNISHED BEFORE THE LD. CIT(A) ARE AS UNDER: PARTICULARS CASH CHEQUE AGREEMENT NO. 3 DATED 28.09.07 RS. 1,00,000/- NIL AGREEMENT NO. 1 DATED 28.09.07 RS. 4,00,000/- 5,00, 000/- AGREEMENT NO. 1 DATED 21.12.07 RS. 5,00,000/- NIL AGREEMENT NO. 2 DATED 07.01.08 (*) RS. 25,78,875/- 12,50,000/- 3,50,000/- (*) TOTAL CASH AS PER AGREEMENT NO. 2 IS RS. 38,28, 875/- LESS: CASH ALREADY RECEIVED VIDE AGREEMENT NO. 1 I) DATED 28.09.07 4,00,000/- II) DATED 21.12.07 5,00,000/- RS. 9,00,000/- III) CHEQUE RECEIVED ON 07.01.08 AGAINST MUTILATED NOTES AND SHORTAGE OF CASH ETC. 3,50,000/ - (-) RS. 12,50,000/- CASH RECEIVED ON 07.01.08 RS. 25,78,875/- THE CASH RECEIVED ON 07.01.08 WAS ACTUALLY COUNTED BY SH. R.C. SAINI THE SR. MANAGER OF HARYANA GRAMIN BANK. OUT OF THE ABOV E CASH RECEIPTS OF THE THREE AGREEMENTS THE ASSESSEE HAD DEPOSITED THE CAS H IN HER ACCOUNT WITH HARYANA GRAMIN BANK ON THE FOLLOWING DATES:- DATE DEPOSIT(RS.) 10.10.2007 1,20,000 4 22.12.2007 4,00,000 08.01.2008 23,00,000 TOTAL 28,20,000 IT WAS POINTED OUT THAT THE BUYER SMT. KULWANT GUPT A HAS COMMITTED AN MISCHIEF BY ENTERING INTO VARIOUS AGREEMENTS AND BY OBTAINING A POWER OF ATTORNEY IN FAVOUR OF SHRI RAVINDER KUMAR S/0 SH RI ISHWAR CHAND WHO ULTIMATELY REGISTERED A SALE DEED IN FAVOUR OF SMT . KULWANT GUPTA. IT WAS ALSO POINTED OUT THAT THE COLLECTOR NARAINGARH HAS ALSO INITIATED ACTION AGAINST SMT. KULWANT GUPTA FOR LESS STAMP DU TY. HOWEVER, THE LD. CIT(A) DID NOT FIND FORCE IN THE SUBMISSIONS AN D CONFIRMED THE ADDITION. 5 BEFORE US, THE LD. COUNSEL OF THE ASSESSEE REFERR ED TO VARIOUS DOCUMENTS AND SUBMITTED THAT INITIALLY TWO AGREEMEN TS TO SELL WERE EXECUTED BETWEEN THE ASSESSEE AND THE PURCHASER I.E SMT. KULWANT GUPTA. THE COMBINED READING OF BOTH THESE AGREEMEN TS SHOW THAT LAND WAS AGREED TO BE SOLD FOR A TOTAL CONSIDERATION OF RS. 55,78,875/-. INITIALLY THE AGREEMENT WAS ENTERED ON 28.9.2007 FO R A SUM OF RS. 5 LAKHS THROUGH A CHEQUE AND RS. 4 LAKH THROUGH CASH WAS RECEIVED. LATER ON FURTHER AGREEMENT WAS ENTERED ON 7.01.2008 WITH ONE MORE CHEQUE FOR RS. 5 LAKHS WAS RECEIVED AND TOTAL CASH AMOUNTING TO RS. 38,28,675/- WAS ALSO RECEIVED. ANOTHER AGREEMENT D ATED 28.9.2007 WAS ALSO EXECUTED WHICH SHOWS ONLY RECEIPT OF RS. 1 LAKH AS ADVANCE. ON RECEIPT OF WHOLE CONSIDERATION AS SUGGESTED BY T HE SELLER A POWER OF ATTORNEY WAS EXECUTED IN FAVOUR OF ONE SHRI RAV INDER KUMAR S/O SHRI ISHWAR CHAND WAS EXECUTED WHO WAS NOMINEE OF T HE PURCHASER. THIS ATTORNEY HOLDER EXECUTED SALE DEED IN FAVOUR O F BUYER I.E. SMT. 5 KULWANT GUPTA ON 8.1.2008. THE SALE DEED SHOWS SAL E CONSIDERATION OF RS. 17,50,000/-. THE ASSESSEE DID NOT HAVE ANY KNO WLEDGE ABOUT THAT SALE DEED OF RS. 17,50,000/-. THIS SALE CONSIDERATI ON WAS NOT TRULY STATED AND BECAME CLEAR FROM THE COPY OF BANK ACCO UNT OF SMT. KULWANT GUPTA WHO IS BUYER AND THE ACCOUNT CLEARLY SHOWS TOTAL PAYMENT CONSISTING OF RS. 5 LAKHS, RS. 3,50,000/- A ND RS. 12,50,000/- ON 10.10.2007, 8.10.2008 AND 8.10.2008. IN FACT SO ME OF THE CURRENCY NOTES WERE IN BAD FORM AND THE SAME WAS RETURNED AN D THE BUYER HAD ISSUED ANOTHER CHEQUE FOR RS. 3,50,000/-. IF THE SA LE CONSIDERATION WAS ONLY RS. 17,50,000/- THEN WHY THE BUYER PAID ANOTHE R CHEQUE OF RS. 3,50,000/- IN ADDITION TO THE CHEQUES FOR RS. 17,50 ,000/-. FURTHER SHRI VED PARKASH WAS WITNESS IN ALL THE SALE AGREEMENTS AND HE HAS CLEARLY STATED ON AFFIDAVIT THAT SMT. KULWANT GUPTA HAS MAD E PAYMENT OF RS. 55,78,875/-. THE ASSESSEE HAD FILED RETURN AND THE COMPUTATION (COPY OF WHICH IS AVAILABLE AT PAGE 1 OF THE PAPER BOOK) CLEARLY CONTAIN THE NOTE TO THE EFFECT THAT THE ASSESSEE HAS RECEIVED S ALE PROCEEDS OF RS. 55,78,875/- AGAINST SALE PROCEEDS OF RURAL AGRICULT URAL LAND. ALL THESE FACTS CLEARLY SHOW THAT TOTAL CONSIDERATION WAS RS. 55,778,875/-. 6 IN ANY CASE THE ASSESSEE HAD FILED A COMPLAINT WI TH THE CHIEF COMMISSIONER OF INCOME TAX EXPLAINING THESE DETAIL S AND A REQUEST TO TAKE ACTION AGAINST SMT. KULWANT GUPTA AGAINST THE ECONOMIC OFFENCE BY SHOWING LOWER CONSIDERATION AND SIMILAR COMPLAIN T WAS FILED WITH THE COLLECTOR, NARAINGARH ALSO FOR RECOVERING THE STAMP DUTY. THE COLLECTOR HAS GIVEN A CLEAR CUT FINDING THAT SALE DUTY HAS BE EN EXECUTED LESS THAN THE MARKET VALUE AND ACCORDINGLY THE BUYER WAS ASKED TO PAY EXTRA STAMP DUTY. 6 7 HE ALSO REFERRED TO THE BANK STATEMENT AND SUBM ITTED THAT MAJOR AMOUNT AMOUNTING TO RS. 23 LAKHS WAS DEPOSITED ON 8 .01.2008 I.E. THE NEXT TO THE AGREEMENT TO SELL DATED 7.01.2008. THES E FACTS CLEARLY SHOW THAT THE CASH WAS GIVEN TO THE ASSESSEE AGAINST SAL E OF AGRICULTURAL LAND AND THE SAME WAS DEPOSITED IN THE BANK. 8 ON THE OTHER HAND, THE LD. DR FOR THE REVENUE ST RONGLY SUBMITTED THAT THE ORDER OF THE COLLECTOR REGARDING DEPOSIT O F EXTRA STAMP DUTY HAS NOT BECOME FINAL AND THE SAME IS PENDING BEFORE THE HON'BLE HIGH COURT. THEREFORE, IT CANNOT BE SAID WHETHER SALE DEED IS CORRECT OR AGREEMENT TO SELL IS CORRECT. HE FURTHER SUBMITTED THAT COPY OF COMPUTATION WAS NEVER SUBMITTED ALONG WITH THE RETU RN BECAUSE THE DEPARTMENT AS A MATTER OF PRACTICE, HAS STOPPED ACC EPTING ANY DOCUMENTS ALONG WITH RETURN. HE ALSO SUBMITTED THA T THE ASSESSEE IS SIGNING DIFFERENTLY IN HINDI AND ENGLISH IN VARIOUS DOCUMENTS AND IN THIS REGARD HE REFERRED TO PAGE 7 & 12 OF THE PAPER BOOK ALONG WITH PAGE 15 & 16 OF THE PAPER BOOK. HE STRONGLY SUPPORTED THE ORDER OF ASSESSING OFFICER AND THE LD. CIT(A). 9 WE HAVE HEARD THE RIVAL SUBMISSIONS CAREFULLY AN D FIND FORCE IN THE SUBMISSIONS OF THE LD. COUNSEL OF THE ASSESSEE. FIRST OF ALL WE FIND THAT THE ASSESSEE HAD ENTERED INTO THREE AGREEMENTS . FIRST AGREEMENT (TRANSLATED COPY IS AVAILABLE AT PAGE 41 & 42 OF TH E PAPER BOOK) WAS ENTERED ON 28.9.2007 WHICH CLEARLY SHOWS THAT THE A SSESSEE HAD AGREED TO SELL THE LAND @ RS. 16,20,000/- PER ACRE AND A SUM OF RS. 1 LAKH IN CASH WAS RECEIVED AS ADVANCE. IN ANOTHER A GREEMENT WHICH IS ALSO DATED 29.8.2007 (TRANSLATED COPY OF WHICH IS A VAILABLE AT PAGES 36 & 37 OF THE PAPER BOOK), IT IS PROVIDED LAND IS SOL D AT RS. 16,20,000/- PER ACRE BUT THIS SHOWS THAT THE ASSESSEE HAS RECEI VED A SUM OF RS. 9 7 LAKHS AS ADVANCE OUT OF WHICH A SUM OF RS. 5 LAKHS WAS RECEIVED BY CHEQUE NO. 004473 ON 29.9.2007 OF PNB IN THE NAME O F THE ASSESSEE. THE BALANCE OF RS. 4 LAKHS WAS SHOWN TO HAVE BEEN P AID IN CASH. FINALLY AN AGREEMENT DATED 7.1.2008 (TRANSLATED COP Y OF WHICH IS AVAILABLE AT PAGES 39 & 40 OF THE PAPER BOOK) WAS E XECUTED WHICH SHOWS THAT LAND HAS BEEN SOLD FOR THE TOTAL CONSIDE RATION OF RS. 56,78,751/- OUT OF WHICH RS. 5 LAKH AND RS. 12,50,0 00/- WAS RECEIVED VIDE CHEQUE NO. 004473 DATED 29.9.2007 AND CHEQUE N O. 004480 DATED 7.1.2008. IT IS FURTHER STATED THAT IN THIS AGREEM ENT A SUM OF RS. 38,28,875/- WAS PAID IN CASH. THIS AGREEMENT CLEAR LY SHOWS THAT TOTAL CONSIDERATION OF RS. 56,78,751/- OUT OF WHICH RS. 3 8,28,875/- WAS PAID IN CASH. HOWEVER, THE BUYER VERY SMARTLY GOT AN PO WER OF ATTORNEY EXECUTED SIMULTANEOUSLY ALONG WITH THIS AGREEMENT ( TRANSLATED COPY OF WHICH IS AVAILABLE AT PAGE 44 TO 47 OF THE PAPER BO OK) THROUGH WHICH SMT. PUSHAP LATA, I.E. THE ASSESSEE HAS APPOINTED O NE SHRI RAVINDER KUMAR AS ATTORNEY HOLDER. SHRI RAVINDER KUMAR EXEC UTED THE SALE DEED (COPY OF WHICH IS AVAILABLE AT PAGES 23 TO 25 OF TH E PAPER BOOK) FOR THE SALE OF SAID LAND TO SMT. KULWANT GUPTA (I.E. THE B UYER) ON 8.01.2008. IN THIS SALE DEED TOTAL CONSIDERATION SHOWN IS RS. 17,50,000/-. SINCE THIS SALE DEED WAS NOT EXECUTED BY THE ASSESSEE SHE CAN NOT BE SAID TO HAVE THE KNOWLEDGE THAT THE SALE DEED WAS EXECUTED ONLY FOR RS. 17,50,000/-. NO FAULT CAN BE FOUND WITH THE ISSUE OF POWER OF ATTORNEY WHICH WAS EXECUTED IN FAVOUR OF SHRI RAVINDER KUMA R ONLY AFTER RECEIPT OF FULL CONSIDERATION. THE FACT OF PAYMENT OF CASH ALSO BECOMES CLEAR FROM THE COPY OF AFFIDAVIT FILED BEFORE THE LOWER A UTHORITIES (COPY OF WHICH IS AVAILABLE AT PAGE 19 & 20 OF PAPER BOOK) O F ONE SHRI VED PARKASH. SHRI VED PARKASH HAPPENS TO BE A WITNESS IN THE ALL THE 8 AGREEMENTS TO SELL EXECUTED BY THE ASSESSEE. IN TH E AFFIDAVIT IT IS CLEARLY STATED THAT SMT. PUSHAP LATA HAS SOLD AGRIC ULTURAL LAND MEASURING ABOUT 28 KANALS @ RS. 16,20,000/- PER ACR E. CASH AMOUNTING TO RS. 4 LAKHS WAS PAID ON 28.9.2007 AND 5 LAKH ON 21.12.2007 WHICH CLEARLY SHOW THE TOTAL CONSIDERATI ON AND PAYMENT OF SOME CASH. IT IS FURTHER STATED THAT RS. 25,78,875 /- WAS PAID IN CASH ON 7.1.2008. 10 WHEN THESE FACTS REGARDING EXECUTION OF SALE DEE D AT LOWER AMOUNT CAME TO THE KNOWLEDGE OF THE ASSESSEE, ASSES SEES HUSBAND FILED A COMPLAINT ON 14.11.2008 WITH THE TEHSILDAR, NARAINGARH. COPY OF THIS COMPLAINT WAS MARKED TO THE CHIEF LD. COMMI SSIONER OF INCOME TAX ALSO. ON THE BASIS OF THIS COMPLAINT, ACTION W AS TAKEN BY THE REGISTERING AUTHORITY WHICH BECOMES CLEAR FROM THE ORDER OF THE COLLECTOR (TRANSLATED COPY OF THE SAME IS AVAILABLE AT PAGE 48 TO 51 AND 52 TO 58 OF THE PAPER BOOK). THE COLLECTOR HAS CLE ARLY HELD THAT UPON INSPECTOR OF ADJOINING AREA THAT THOUGH REGISTERED SALE DEEDS WERE EXECUTED ON THE COLLECTOR RATE BUT THE SAME WAS LES S THAN THE PREVALENT MARKET RATE. THIS CLEARLY SHOWS THAT THE ASSESSEE WAS TAKEN FOR A RIDE AND THE CASH PORTION PAID TO THE ASSESSEE BY THE BU YER WAS NOT DECLARED AND WHATEVER STEPS THE ASSESSEE COULD HAVE TAKEN, HAVE BEEN TAKEN BY THE ASSESSEE TO REPORT THE MATTER TO THE A UTHORITIES. THE ASSESSING OFFICER COULD HAVE EASILY CALLED SMT. KUL WANT GUPTA AND CONFRONTED HER WITH THE AGREEMENT PARTICULARLY IN V IEW OF THE FACT THAT EXTRA AMOUNT OF RS. 3,50,000/- SAID TO HAVE BEEN PA ID BY THE BUYER TO THE ASSESSEE IN ADDITION TO THE AMOUNT MENTIONED IN THE SALE DEED. FURTHER NO ACTION HAS BEEN TAKEN AGAINST THE PURCHA SER EVEN AFTER SPECIFIC COMPLAINT WAS LODGED WITH THE DEPARTMENT. IN THIS BACK GROUND 9 WE ARE SATISFIED THAT THE CASH HAS BEEN RECEIVED BY THE ASSESSEE ON SALE OF AGRICULTURAL LAND AND THE SAME HAS BEEN DEP OSITED IN THE BANK. IN THESE CIRCUMSTANCES, WE SET ASIDE THE ORDER OF T HE LD. CIT(A) AND DELETE THE ADDITION ON ACCOUNT OF UNEXPLAINED DEPO SITS IN THE BANK. 11 IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED . ORDER PRONOUNCED IN THE OPEN COURT ON 23.8.2013 SD/- SD/- (SUSHMA CHOWLA) (T.R. SOOD) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED : 23.8.2013 SURESH COPY TO: THE APPELLANT/THE RESPONDENT/THE CIT/THE C IT(A)/THE DR