Smt. Kailashben Bhalabhai Patel, L/H of Triveni Bhalabhai Patel, RAJKOT-GUJARAT V. The Income Tax Officer, Ward-2(3), AMRELI

ITA 602/RJT/2012

• Counselvise Citation: [2013] 140 COUNSELVISE.COM (IT) 67270 (ITAT-RAJKOT)
• Duration Of Justice: 7 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-06-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 29-05-2013
• Assessment Year: 2004-2005
• Appeal Filed On: 06-11-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: K C MATHEWS DR E B
• Assessee Lawyers: D R ADHIA AR E
• Section: 147; 144

Judgement Text

B , IN THE INCOME TAX APPELLATE TRIBU N AL; RAJKOT BENCH, RAJKOT. BEFORE SHRI T. K. SHARMA, JM AND SHRI D. K. SRIVASTAVA, AM IT A NO . 602 / RJT/20 12 / ASSESSMENT YEAR 20 0 4 - 0 5 TRIVENI BHALABHAI PATEL, L/H. KAILASHBEN BHALABHAI PATEL, AT. SALADI, TAL. LILIA, DIST. AMRELI PAN : ( , / APPELLANT) VS. ITO, WARD - 2(3), AMRELI (, / RESPONDENT E / ASSESSEE BY SHRI D R ADHIA, AR 6 E / REVENUE BY SHRI K C MATHEWS, DR E B /DATE OF HEARING 2 9 . 05 .2013 E B / DATE OF PRONOUNCEMENT 14 . 06 . 2013 / ORDER . . [ , / T. K. SHARMA, J. M . : THIS APPEAL FILED BY THE ASSESSEE IS AGAINST THE ORDER DATED 21 .0 8 .201 2 OF LD CIT (A) - IV, RAJK O T FOR CONFIRMING THE ADDITION OF RS.35,00,000/ - MADE BY THE ASSESSING OFFICER FOR THE ASSESSMENT YEAR 2004 - 05 . 2 . BRIEFLY STATED FACTS ARE THAT ASSESSEE IS AN INDIVIDUAL. FOR T HE ASSESSMENT YEAR UNDER APPEAL, THE ASSESSING OFFICER FRAMED ASSESSMENT U/S 144 R.W.S. 147 OF THE INCOME - TAX ACT, 1961 ON 27.12.2010, WHEREIN HE COMPUTED THE INCOME OF THE ASSESSEE AT RS.35,00,000/ - . THIS INCOME IS ASSESSED ON THE BASIS OF REPORT RECEIVED FROM INVESTIGATION WING . THE CONFIDENTIAL LETTER NO.ITO(INV)/UNIT - 1/UIN - 08 040071 Y/09 - 10 DTD. 17.03.2010 RECEIVED BY THE ASSESSING OFFICER FROM ITO(INV) UNIT - 1, AHMEDABAD HAS REPRODUCED IN THE ASSESSMENT ORDER WHICH READS AS UNDER: - AS PER THE DIRECTIONS ISSUED BY THE DIRECTOR OF INCOME - TAX (INV.), AHMEDABAD AND JT. DIRECTOR O F INCOME - TAX (INV.), UNIT - I, AHMEDABAD IN THE ABOVE REFERRED LETTERS UNDER REFERENCE, I AM FORWARDING HEREWITH INQUIRY REPORT PREPARED IN THE CASE OF TAX EVASION PETITION UIN NO.04040071 Y IN THE CASE OF SHRI AJAYKUMAR K. JOSHI AND SHRI RAMANBHAI P SOL ANKI FOR TAKING NECESSARY ACTION IN THE MATTER (COPIES OF SAID LETTERS ARE ENCLOSED HEREWITH). SINCE THE AGREEMENT SHOWING PAYMENT/RECEIPT OR RS.35,00,000/ - IN CASH AS MENTIONED IN THE INQUIRY REPORT WAS EXECUTED ON 01.05.2003, THE ASSESSMENT YEAR RELATED TO THE ITA NO. 602/RJT/2012 2 ABOVE SAID TRANSACTION IS A.Y. 2004 - 05 AND THE TIME LIMIT FOR RE - OPENING THE ASSESSMENT EXPIRES ON 31.03.2010. IT IS, THEREFORE, REQUESTED TO TAKE NECESSARY ACTION IN THE MATTER IN THE CASE OF SMT. TRIVENIBEN BHALABHAI PATEL, VILLAGE VANKIA (BALAP UR), TAL. & DIST. AMRELI. 3. IN THE ASSESSMENT ORDER, THE ASSESSING OFFICER MENTIONED THAT THE AFORESAID ADDITION IS MADE BECAUSE THE ASSESSEE IS NON - CO OPERATIVE FOR GIVING THE CLARIFICATION REGARDING THE DETAILS OF PAYMENT OF RS.35,00,000/ - , RECEIVED IN CASH . ON APPEAL BEFORE THE LD CIT(A), THE ASSESSEE CONTENDED THAT THE ASSESSEE NAMELY SMT KAILASHBEN BHALABHAI PATEL IS A LEGAL HEIR OF LATE SMT TRIVENIBEN BHALABHAI PATEL IN CAPACITY AS DAUGHTER OF THE DECEASED WHO ONCE AGAIN IS LEGAL HEIR OF LATE SHRI BHALABHAI PATEL. THE ASSESSEES MOTHER WAS MARRIED TO SHRI BHALABHAI PATEL AND ON HIS DEMISE; SHE WAS REMARRIED TO ONE SHRI THAKERSHI GOPALBHAI KAPADIA OF AMRELI. ON BEHALF OF SMT TRIVENIBEN BHALABHAI PATEL, SHE INHERITED LAND FROM HER LATE HUSBAND SHRI BHALABHAI PATEL AT BODAKDEV, TAL. DASCROI, DIST. AHMEDABAD ALONGWITHLATE BALABHAI PATEL BROTHERS SON SHRI TEJAS SHANTILAL PATEL. IT WAS SUBMITTED THAT THE CO - OWNER SHRI TEJAS SHANTILAL PATEL, ON THE BASIS OF A FORGED DOCUMENT, ENTERED INTO AN AGREEMENT FOR SALE (BANAKHAT) AND PRESUMABLY RECEIVED THE CASH OF RS.35,00,000/ - . THE ASSESSEE , BEFORE THE ASSESSING OFFICER , DENIED OF HAVING ENTERED INTO ANY SALE (BANAKHAT) OR HAVING RECEIVED ANY SUCH CASH. ON KNOWING THIS FACT, THE ASSESSEE FILED A CIVIL SUIT IN THE COURT OF LAW. IT WAS SUBMITTED THAT ON DISMISSAL OF THE SAME IN THE DISTRICT COURT, THE ASSESSEE PREFERRED A SECOND APPEAL BEFORE THE HIGH COURT, WHICH IS STILL PENDING. IT WAS ALSO SUBMITTED THAT IN THE SAID PETITION, THE ASSESSEE DENIED BEFORE T HE HIGH COURT OF HAVING ENTERED INTO ANY SUCH AGREEMENT FOR SALE OR HAVING RECEIVED ANY CASH IN LIEU OF SUCH AGREEMENT. IT WAS SUBMITTED THAT THE ASSESSING OFFICER HAS NOT EXAMINED THE STATEMENTS MADE BY THE BUYER PROPERLY BECAUSE THE BUYER HAS NEVER STAT ED THAT HE HAS PAID THE AMOUNT TO THE ASSESSEE. IT WAS SUBMITTED THAT IN THE ABSENCE OF ANY POSITIVE EVIDENCE AGAINST THE ASSESSEE, THE ASSESSING OFFICER HAS ERRED IN MAKING THE ADDITION OF RS.35,00,000/ - . APART FROM THIS, IT WAS ALSO SUBMITTED THAT STAT EMENT OF ASSESSEE WAS NEVER RECORDED BY THE INVESTIGATION WING. THE ASSESSING OFFICER, ONLY ON THE BASIS OF THE REPORT FROM INVESTIGATION WING, WITHOUT ANY OTHER CORROBORATIVE EVIDENCE PASSED ITA NO. 602/RJT/2012 3 THE ASSESSMENT ORDER. THE ASSESSEE HAS NO OWNERSHIP OF SUCH LAND AND SHE COULD NOT TRANSFER GOOD TITLE OF THE PROPERTY. FURTHER, IN THE PATRAK OF 7/12 OR IN HAKPATRAK (NAMUNO - 6) WHICH DESCRIBES THE TITLE OF OWNERSHIP, ASSESSEES NAME HAS NOT BEEN MENTIONED. 4. AFTER CONSIDERING THE AFORESAID SUBMISSIONS, IN THE IMPUGNED ORDER, THE LD CIT(A) CONFIRMED THE ADDITION FOR THE DETAILED REASONS GIVEN IN PARAGRAPH 4 OF THE APPELLATE ORDER WHICH READS AS UNDER: - 4. I HAVE GONE THROUGH THE ASSESSMENT ORDER AND SUBMISSIONS OF APPELLANT. THE A/R, SHRI DHRUV SHAH WAS ASK ED DURING THE APPELLATE PROCEEDINGS WHETHER ANY FIR WAS FILED BY L/H OF APPELLANT FOR FORGING OF SIGNATURES OF APPELLANT AS WELL AS L/H OF APPELLANT IN THE BANAKHAT. HE WAS ALSO ASKED WHETHER ANY REPORT OF FO RENSIC LAB IS AVAILABLE THAT THE SIGNATURES OF APPELLANT AND HER L/H IN THE BANAKHAT ARE NOT THE REAL SIGNATURES. SHRI DHRUV SHAH INFORMED DURING THE APPELLATE PROCEEDINGS THAT NO SUCH FIR IS FILED AND NO SUCH FORENSIC REPORT IS AVAILABLE. A/R OF APPELLANT FILED THE COPY OF APPEAL BEFORE HIGH COURT B Y APPELLANT AND HER DAUGHTER AGAINST ONE ORDER OF CIVIL COURT. IT APPEARS THAT ONE SHRI ISHWARBHAI WAS THE OWNER OF SOME LAND IN BODAKDEV, AHMEDABAD. HE HAD TWO SONS SHRI BHAILABHAI AND MOTIBHAI. APPELLANT, IE TRIVENIBEN WAS MARRIED TO BHAILABHAI AND KAI LASHBEN IS THEIR DAUGHTER. SHRI BHAILABHAI DIED IN 1954 AND SHRI SHRI ISHWARBHAI DIED IN 1960. THE APPELLANT, TRIVENIBEN REMARRIED SHRI THAKERSHI GOPALBHAI KAPADIA OF AMRELI IN 1960. SMT. TRIVENIBEN ALONGWITH HER DAUGHTER AND TWO OTHER PERSONS FILED A S UIT VIDE SPECIAL CIVIL SUIT NO.130 OF 2002 IN CIVIL COURT DEMANDING 50% SHARE IN THE LAND OF SHRI ISHWARBHAI. THE CIVIL COURT REJECTED THIS DEMAND OF APPELLANT APPARENTLY IN 2007 AND THEN THE APPEAL AGAINST THIS ORDER OF CIVIL COURT, FILED IN 2007, IS PEN DING BEFORE HBLE HIGH COURT. I FIND THAT IN THE AGREEMENT TO SELL (BANAKHAT) DATED 01.05.2003, WHICH IS THE BASIS OF THE REASSESSMENT BY THE ASSESSING OFFICER, THE REFERENCE OF SPECIAL CIVIL SUIT NO.130 OF 2002 IN CIVIL COURT SHOWING THE DISPUTED 50% S HARE OF APPELLANT IN THE BODAKDEV LAND HAS BEEN MADE. THE AGREEMENT TO SELL (BANAKHAT) DATED 01.05.2003 IS OBVIOUSLY AN AGREEMENT TO SELL A DISPUTED RIGHT BY APPELLANT AND HER DAUGHTER. THE NAMES OF APPELLANT OR HER DAUGHTER IN LAND DOCUMENTS LIKE 7/12 OR SPECIMEN - 6 WERE NOT SUPPOSED TO BE THERE BECAUSE THE SUIT IN CIVIL COURT WAS NOT DECIDED IN THEIR FAVOUR WHEN THIS AGREEMENT TO SE L L (BANAKHAT) DATED 01.05.2003 WAS MADE. EVEN LATER, THE CIVIL COURT DECIDED AGAINST THE APPELLANT. IN FACT, THIS AGR EEMENT TO SELL WAS MADE ON THE STRENGTH OF THE SUIT FILED BY APPELLANT IN CIVIL COURT IN 2002 FOR THE CLAIM OF 50% SHARE IN BODAKDEV LAND. THEREFORE, THE PLEA OF APPELLANT THAT THE APPELLANTS NAME IS NOT APPEARING IN 7/12 OR SHE WAS NOT THE OWNER OF SUC H DISPUTED LAND IN BODAKDEV IS OF NO CONSEQUENCE. THE OTHER PLEA THAT THE AGREEMENT TO SELL (BANAKHAT) DATED 01.05.2003 IS FORGED IS ALSO NOT SUPPORTED BY ANY EVIDENCE. IN FACT IF APPELLANT HAD COME TO KNOW THAT THE BANAKHAT IS FORGED, SHE SHOULD HAVE IMMEDIATELY FILED FIR AND SHOULD HAVE GOT THE SIGNATURES VERIFIED IN A FORENSIC LABORATORY TO PROVE THE SAME. APPELLANT DID NOT FILE ANY FIR A ND HAS NO EVIDENCE THAT HER SIGNATURES IN THE BANAKHAT ARE FORGED. I THEREFORE FIND THAT THE EVIDENCE IN THE FOR M OF AGREEMENT TO SELL (BANAKHAT) DATED 01.05.2003 AND OTHER CIRCUMSTANTIAL EVIDENCES SHOW THAT APPELLANT ALONGWITH HER DAUGHTER WHO IS HER L/H SOLD THEIR DISPUTED CLAIM OF 50% SHARE IN BODAKDEV LAND AND RECEIVED RS.35,00,000/ - IN CONSIDERATION. THE ASS ESSING OFFICER HAS ITA NO. 602/RJT/2012 4 THEREFORE CORRECTLY INCLUDED SUCH RECEIPT IN THE TOTAL INCOME OF THE APPELLANT. AGGRIEVED BY THE ORDER PASSED BY THE LD CIT(A), THE ASSESSEE I S NOW IN APPEAL BEFORE THIS TRIBUNAL. 5. AT THE TIME OF HEARING BEFORE US, ON BEHALF OF ASS ESSEE SHRI D R ADHIA APPEARED AND POINTED OUT THAT NEITHER THE ASSESSING OFFICER NOR THE CIT(A) IN THEIR RESPECTIVE ORDERS HAS MENTIONED THE SECTION UNDER WHICH RS.35,00,000/ - ALLEGED TO BE RECEIVED BY THE ASSESSEE IS TAXABLE. FURTHER NOWHERE IN THE ASSES SMENT ORDER IT IS MENTIONED THAT SALE DEED IS REGISTERED OR POSSESSION OF THE PROPERTY IS GIVEN; THEREFORE ADDITION OF RS.35,00,000/ - EIT HER BE DELETED OR THE MATTER BE REMANDED TO THE FILE OF ASSESSING OFFICER FOR PASSING THE APPROPRIATE ORDER, AFTER TAKI NG INTO CONSIDERATION THE OUTCOME OF APPEAL OF THE ASSESSEE PENDING BEFORE THE HONBLE HIGH COURT. THE RELEVANT APPEAL NUMBER IS 5171 OF 2007. 6. ON THE OTHER HAND, SHRI K C MATHEWS APPEARED ON BEHALF OF REVENUE AND VEHEMENTLY SUPPORTED THE ORDER PASSED BY THE LD CIT(A). HE CONTENDED THAT BEFORE THE ASSESSING OFFICER THE ASSESSEE WAS NON - COOPERATIVE FOR GIVING THE CLARIFICATION REGARDING THE DETAILS OF PAYMENT OF RS.35,00,000/ - ; THEREFORE ADDITION OF RS.35,00,000/ - WAS RIGHTLY MADE. 7. AFTER HEARING BOTH THE SIDES, WE HAVE CAREFULLY GONE THROUGH THE ORDERS OF AUTHORITIES BELOW. IT IS PERTINENT TO NOTE THAT IN THE ASSESSMENT ORDER THE ASSESSING OFFICER NOWHERE MENTIONED THE SECTION OF INCOME - TAX ACT UNDER WHICH HE IS TAXING RS.35,00,000/ - . IT IS AL SO NOT KNOWN WHAT HAPPENED IN THE CASE OF OTHER CO - OWNERS. KEEPING IN VIEW OF THE CONSPICUOUS FACTS OF THE CASE , WE SET ASIDE THE IMPUGNED ORDER PASSED BY THE LD CIT(A) AND RESTORE THE MATTER BACK TO THE FILE OF ASSESSING OFFICER WHO WILL MAKE REQUISITE I NQUIRY VIZ. WHETHER THE POSSESSION OF LAND WAS HANDED OVER TO THE BUYER, WHETHER THE ASSESSEE EXECUTED ANY DOCUMENT, WHETHER BANAKHAT OF RS.35,00,000/ - IS RECEIVED TAXABLE; IF TAXABLE UNDER WHICH SECTION. TO SUM - UP, THE ASSESSING ITA NO. 602/RJT/2012 5 OFFICER WILL PASS A FRES H ORDER IN ACCORDANCE WITH LAW AFTER CONDUCTING NECESSARY INQUIRY AND CLEARLY MENTIONING THE SECTION UNDER WHICH RS.35,00,000/ - IS TAXABLE AS INCOME OF THE ASSESSEE FOR THE ASSESSMENT YEAR UNDER APPEAL. 8 . IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS TREATED AS ALLOWED FOR STATISTICAL PURPOSES . THIS ORDER IS PRONOUNCED IN THE OPEN COURT ON THE DATE MENTIONED HEREINABOVE. SD/ - SD/ - ( D. K. SRIVASTAVA ) (T. K. SHARMA) FOR / ACCOUNTANT MEMBER 6 / JUDICIAL MEMBER / ORDER DATE 14 . 0 6 .2013 . /RAJKOT BT T JO O / COPY OF ORDER FORWARDED TO: - 1 . , / APPELLANT - TRIVENI BHALABHAI PATE L, L/H. KAILASHBEN BHALABHAI PATEL, AT. SALADI, TAL. LILIA, DIST. AMRELI 2 . (, / RESPONDENT - ITO, WARD - 2(3), AMRELI 3 . . / CONCERNED CIT - III, RAJKOT 4 . . - / CIT (A) - IV , RAJKOT 5 . , B , / DR, ITAT, RAJKOT 6 . / GUARD FILE. / BY ORDER , TRUE COPY PRIVATE SECRETARY INCOME TAX APPELLATE TRIBUNAL, RAJKOT