SHRI DARAVJEET SINGH POONIA, SHAHEED BHAGAT SINGH NAGAR V. INCOME TAX OFFICER , NAWANSHAHR

ITA 616/ASR/2019

• Counselvise Citation: [2022] 104 COUNSELVISE.COM (IT) 0164 (ITAT-AMRITSAR)
• Duration Of Justice: 3 year(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-10-2022
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 11-10-2022
• Assessment Year: 2011-2012
• Appeal Filed On: 24-09-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Gift
• Section: 148; 143(3); 133(6); 69A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH, AMRITSAR. BEFORE DR. M. L. MEENA, ACCOUNTANT MEMBER AND SH. ANIKESH BANERJEE, JUDICIAL MEMBER I.T.A. No.616/Asr/2019 Assessment Year: 2011-12 Sh. Daravjeet Singh Poonia, S/o Sh. Sucha Singh, Village BharoMajara Distt. SBS Nagar, Nawanshahr. [PAN: BDHPP1151J] (Appellant) Vs. ITO, Nawanshahr (Respondent) Appellant by Sh. J.S. Bhasin, Adv. Respondent by Sh. S.M. Surendranath, Sr.DR Date of Hearing 12.10.2022 Date of Pronouncement 20.10.2022 ORDER Per:Anikesh Banerjee, JM: The instant appeal of the assessee is directed against the order of the ld. Commissioner of Income Tax(Appeals)-1,Jalandhar, [in brevity the CIT(A)] bearing appeal No.CIT(A)-1/JAL/10321/18-19, date of order 30.07.2019, the order passed u/s 250(6) of the Income Tax Act 1961, [in brevity the Act] for A.Y. 2011- 12.The impugned order was emanated from the order of the ld. Income TaxOfficer, I.T.A. No.616/Asr/2019 Assessment Year: 2011-12 2 Ward Nawanshahr,(in brevity the AO) order passed u/s 143(3) r.w.s. 147 of the Act, date of order 12.12.2018. 2. The brief fact of the case is that a notice u/s 148 was issued by the ld. AO on the basis of AIR Information for depositing cash Rs.28,30,000/- in the joint bank account of the assessee and his wife maintained with an Axis Bank Nawanshahr, the assessment was completed u/s 143(3). After adjusting the deposit and withdraw of the cash the amount of Rs.26,75,000/- was added back as unexplained investment in the bank account of the assessee. The assessee filed an appeal before the ld. CIT(A) and explained the issue that the said amount was deposited from the agreement of sale of agricultural land of father and the amount was received from the father and deposited in the cash. Both the revenue authorities had not found any viability in the evidence filed by the assessee during the hearing. Also the purchaser of land Mr. Budh Singh was not appeared before the revenue authorities, after the notice u/s 133(6) of the Act. The ld. CIT(A) upheld the order of the ld. AO. Being aggrieved assessee filed an appeal before us. 3. The ld. Counsel of the assessee vehemently argued and filed a paper book from page nos. 1 to 50 which is kept in the record. The ld. Counsel argued that the father of the assessee Mr. Sucha Singh had entered in agreement with Mr. Budh Singh for sale of agricultural land on 02.04.2010. Lateron the sale of the land was I.T.A. No.616/Asr/2019 Assessment Year: 2011-12 3 not executed. Further agreement was made on 05.05.2017 and the said agreement was made for Rs.1,02,50,000/- instead of 82,50,000/-. The copy of the agreement with English translation dated 02.04.2010 is enclosed in page no. 14 to 23 of APB and the sale agreement dated 03.07.2012 page nos. 31 to 37 in APB. 3.1 The ld. Counsel further argued that the AO had made the witness who signed the agreement on dated 02.04.2010.But there is no inquiry was conducted to the Stamp Vendor / Tehsildar Office for verification of genuinity of said instruments. It is also the fact that the notice issued by the department to Sh. Budh Singh which was served. Therefore, the identity of the Budh Singh is not in question. Even in instance case agreement of sale of land is executed in form of power of attorney. Further buyer from his power of attorney had already made a registry approximately half of the land of 05.05.2007 APB page no. 39 to 44. The AO merely disbelieved the explanation/statement given by the assessee and has converted good proof into no proof. The ld. Counsel relied on the order of the Hon’ble Apex Court in the case of Sreelekha Banerjee vs. CIT (1963) 49 ITR 112 (SC)& in the case of Uma Charan Shaw & Bros Co vs. CIT, 37 ITR 271 has held that the surmises and conjectures, and the conclusion is the result of suspicion which cannot take place as proof. I.T.A. No.616/Asr/2019 Assessment Year: 2011-12 4 4. The ld. Sr. DR vehemently argued and relied on the order of the ld. CIT(A). The relevant para of the ld. CIT(A) is extracted as below: “6.1 I have carefully considered facts of the case and submissions of the appellant. During F.Y.2010-11, the assessee has made cash deposits of Rs.28,30,000/- in his bank account with Axis Bank Ltd., Nawanshahr. The Assessing Officer after considering the explanation of the assessee has made addition of Rs. 26,75,000/- on account of cash deposits, against which appeal has been filed by the assessee on 11.01.2019. During the appeal proceedings, the assessee has filed affidavit dated 01.07.2019 by Sh. SuchaSingh father of Sh. Daravjit Singh Poonia to say that he has given a gift of Rs. 20,00,000/- to his son on 02.04.2010. This document was not filed before the Assessing Officer. An additional evidence has been filed by the assessee, however no reasons were explained for admission of additional evidence nor any request was made for admission of additional evidence, therefore, the same cannot be admitted and no reliance can be placed on affidavit of Sh. Sucha Singh regarding gift of Rs. 20,00,000/- to the assessee on 02.04.2010. From the submissions made by the Ld. Counsel during the appeal proceedings, it emerges that S. Sucha Singh has registered a General Power of Attorney in favour of Sh. Rakesh Gandhi S/o Sh. Ram Sharan, Banga with respect to land at village Bharomajra, I.T.A. No.616/Asr/2019 Assessment Year: 2011-12 5 Tehsil- Nawanshahr vide Vasika No. 123, Bahi No. 4 dated 30.07.2012 with the Joint Sub-Registrar, Banga. On the same day i.e. on 30.07.2012, for the same land for which power of attorney was registered in favour of Sh. Rakesh Gandhi, Sh. Sucha Singh also entered into an agreement with Sh. Budh Singh S/o Sh. Mohinder Singh for Rs. 1,02,50,000/-. As per this agreement Sh. Sucha Singh has received the whole amount of Rs. 1,02,50,000/-. Further, on 05.05.2017 Sh. Rakesh Gandhi as power of attorney holder of Sh. Sucha Singh referring to registered power of attorney executed on 30.07.2012 vide Vasika No. 123 Bahi No. 4, registered land in favour of Smt. Sunita Devi and registration was done with Sub-Registrar, Banga on 05.05.2017. However, in order to explain the cash deposits in the case of Sh. Daravjit Singh Poonia S/o Sh. Sucha Singh, Ld. Counsel has filed a copy of agreement to sell between assessee and Sh. Budh Singh dated 02.04.2010. As per this agreement it is claimed thatSh. Sucha Singh, father of the assesses has received cash of Rs. 20,00,000/-. There is no mention of Sh. Rakesh Gandhi in this agreement to sell. The assessee has not produced copy of original agreement to sell either during the assessment proceedings or during the appeal proceedings. As per noting on Pages Of this agreement on 03.12.2010, the parties mutually agreed for extension of date to 03.01.2011. It is argued by I.T.A. No.616/Asr/2019 Assessment Year: 2011-12 6 the Ld. Counsel that Sh. Sucha Singh has presented himself for registration of land but the other party did not attend due to which registration could not take place. In this regard, during the appeal proceedings, the assessee has filed copies of two affidavits dated 03.12.2010 and 03.01.2010. It is observed that subsequent agreement dated 30.07.2012 entered by Sh. Sucha Singh with Sh. Budh Singh for sale of land has no reference at all to any earlier agreement dated 02.04.2010. There is no reference of Rs. 20,00,000/- as already received by Sh. Sucha Singh. In pursuance of the second agreement for sale of land subsequently registry for sale of land was also executed. However, as far as agreement to sale dated 02.04.2010 by S. Sucha Singh, father of the assessee is co-concerned, the assessee could not produce the original agreement nor Sh. Budh Singh was produced. No confirmation was filed by the assessee from Sh. Budh Singh to confirm that Rs. 20,00,000/- was paid in cash as advance for purchase of land by him. Sh. Budh Singh has not responded to the letters u/s 133(6) of the Income Tax Act, 1961 by the Assessing Officer in this regard. The genuineness of the whole transaction of agreement to sell dated 02.04.2010 regarding S. Sucha Singh having received Rs. 20,00,000/- is not proved. The Ld. Counsel has field copies of two affidavits to show that registry in pursuance to agreement dated 02.04.2010 was not done by the other party while S. Sucha Singh has presented I.T.A. No.616/Asr/2019 Assessment Year: 2011-12 7 himself for this purpose does not prove by itself that S. Sucha Singh received assessment Rs. 20,00,000/-in cash on 02.04.2010 as alleged. The plea of the assessee that he has received cash gift of Rs. 20,00,000/- is not proved as S. Sucha Singh has sold land vide sale agreement dated 30.07.2012 in pursuance of which agreement, actual registry of sale of land was also executed by the Power of Attorney holder. The assessee has failed to establish the genuineness and creditworthiness regarding gift of Rs. 20,00,000/- received by the assessee from his father S. Sucha Singh. In view of these facts, the addition made by the Assessing Officer on account of unexplained cash deposits is confirmed u/s 69A of the Income Tax Act, 1961. The order of the Assessing Officer is modified accordingly. These grounds of appeal are dismissed.” 5. We heard the rival submission and relied on the documents available in the records. During hearing the ld. Counsel has filed the evidence related to Rs.20 lacs. The entire evidence and argument isfocused only on Rs.20 lacs out of total addition Rs.26,75,000/-. The rest amount of Rs.6,75,000/- was not properly explained before the Bench. In the submission and the argument ld. Counsel correctly pointed out that the revenue authority had not done any verification in the land, revenue Department /Tehsildar Office. Related to document submitted by the counsel the ld. Sr. DR had not made any strong objection against the submission of I.T.A. No.616/Asr/2019 Assessment Year: 2011-12 8 the assessee. So, the deposit of cash Rs.20 lacs is summarily accepted by the bench in relation to the evidence produced by the assessee before the authorities and bench. In balance 6,75,000/- cash deposit the issue is setting aside to the ld. CIT(A) for fresh consideration of the cash deposited in the bank account. Needless to say, theassessee should get reasonableopportunity of hearing before the authority. 6. In the result, the appeal of the assessee bearing ITA No.616/Asr/2019 is allowed for statistical purposes. Order pronounced in the open court on 20.10.2022 Sd/- Sd/- (Dr. M. L. Meena) (ANIKESH BANERJEE) Accountant Member Judicial Member AKV Copy of the order forwarded to: (1)The Appellant (2) The Respondent (3) The CIT (4) The CIT (Appeals) (5) The DR, I.T.A.T. True Copy By Order