Sh. Hari Kumar, Meerut V. ITO, Meerut

ITA 661/DEL/2015

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 6357 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 1 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-03-2016
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: C
• Assessment Year: 2009-2010
• Appeal Filed On: 02-02-2015
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: BHARAT BHUSHAN GARG
• Assessee Lawyers: V K GOYAL
• Keywords: Business income
• Section: 133(6); 131; 148; 6

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, DELHI BENCHES, NEW DELHI (CIRCUIT BENCH AT MEERUT) BEFORE : SHRI . I.C. SUDHIR, JUDICIAL MEMBER AND SHRI PRASHANT MAHARISHI, ACCOUNTANT MEMBER ITA NO. 661 - DEL - 2015 (ASSTT. YEAR: 2009 - 10 ) HARI KUMAR, C/O. SH. V.K. GOEL, ADVOCATE, 282, BOUNDARY ROAD, CIVIL LINES, MEERUT PAN:CJNPK0047F VS. ITO, WARD - 1(3), MEERUT (APPELLANT) (RESPONDENT) DATE OF HEARING 17/12/2015 DATE OF PRONOUNCEMENT 15 / 03 /2016 ASSESSEE BY: SH. V.K. GOYAL, ADV REVENUE BY: SH. BHARAT BHUSHAN GARG, SR. DR O R D E R PER PRASHANT MAHARISHI, A. M. 1 . THIS APPEAL IS PREFERRED BY THE ASSESSEE AGAINST THE ORDER DATED 12.01.2015 PASSED BY THE LEARNED COMMISSIONER OF INCOME - TAX (APPEALS) - MEERUT FOR THE ASSESSMENT YEAR 2009 - 10. 2 . THE ONLY ISSUE IS AGAINST THE CONFI RMATION OF ADDITION OF RS.45 , 60 ,00 0/ - AS SHORT TERM CAPITAL GAIN WHEREAS IT WAS CONTENDED BY THE ASSESSEE THAT THE PROPERTY IS PURCHASED AND SOLD BY HIM AS BENAMI PROPERTY OF HIS SISTER AND BROTHER SHRI DHARAM SINGH WHO PAID PURCHASE CONSIDERATION FOR THIS SUM. 3 . BRIEF FACTS OF THE CASE ARE THAT ACCORDING TO THE AIR INFORMATION IT CAME TO THE KNOWLEDGE OF THE INCOME TAX DEPARTMENT THAT A PROPERTY FOR RS. 48 , 41 , 262/ - IS SOLD ON 24 TH JUNE 2008 AND THEREFORE NOTICE U/S 148 W AS ISSUED. IN RESPONSE TO THAT NOTICE IT WAS SUBMITTED THAT THE ORIGINAL RETURN FILED ON 8 TH JUNE 2012 PAGE 2 OF 3 MAY BE TREATED AS RETURN FILED U/S 148 OF THE ACT. DURING THE COURSE OF ASSESSMENT PROCEEDINGS THE ASSESSEE SUBMITTED THAT IMPUGNED LAND IS PURCHASED AN D SOLD ON BEHALF OF SHRI DHARAM SINGH AND HE WAS ONLY ACTING AS A BENAMI OF THAT GENTLEMAN, HE STATED THAT TOTAL PURCHASE CONSIDERATION WAS RECEIVED FROM HIM AND TOTAL SALES CONSIDERATION WAS GIVEN TO HIM AND THEREFORE THIS CAPITAL GAIN IS NOT CHARGEABLE T O TAX IN THE HANDS OF THE ASSESSEE. THESE FACTS WERE ALSO RECORDED BY ISSUE OF SUMMONS U/S 131 BY THE ASSESSEE. BASED ON THIS INFORMATION U/S 133(6) WAS CALLED FROM SHRI DHARAM SINGH AND SMT. SAROJ , BOTH OF THEM DENIED THIS FACT. IN VIEW OF THIS SHORT TERM CAPITAL GAIN OF RS.45 , 6 0 , 000/ - IS TAXED IN THE HANDS OF THE ASSESSEE. AGAINST THIS THE ASSESSEE FILED AN APPEAL BEFORE LD CIT ( A), WHO IN TURN CONFIRMED THE ADDITION. 4 . ON APPEAL BEFORE US THE LD AR OF THE APPELLANT SUBMITTED SAME ARGUMENTS AND STATED THAT HE IS THE OWNER OF THE BENAMI PROPERTY OF SHRI DHARAM SINGH AND SMT. SAROJ AND THEREFORE CAPITAL GAIN IS NOT CHARGEABLE IN HIS HANDS. THE LD DR ON THE OTHER HAND RELIED ON THE ORDERS OF LOWER AUTHORITIES. 5 . WE HAVE CAREFULLY CONSIDERED THE RIVAL CONTENTIONS AND WE HAVE ALSO PERUSED THE PAPER BOOK FILED BY THE ASSESSEE ALONG WITH WRITTEN SUBMISSION AND WE DO NOT FIND ANY INFIRMITY IN THE ORDER OF LOWER AUTHORITIES. THE ASSESSEE HAS FAILED TO PROVE ANYTHING ABO UT WHATEVER IS SAID ABOUT THE OWNERSHIP OF THE PROPERTY. MERELY MAKING A STATEMENT AND NOT ADDUCING ANY EVIDENCE SUPPORTING THAT ARGUMENT CANNOT HELP THE ASSESSEE . IN RESPONSE TO 133(6) LETTERS THE ALLEGED OWNERS STATED BY THE ASSESSEE HAVE CATEGORICALLY DENIED THE OWNERSHIP OF THE PROPERTY. FURTHER THE DOCUMENTS EMPHATICALLY SHOW ASSESSEE AS THE OWNER AND ALSO RECIPIENT OF THE CONSIDERATION. RECEIPT OF MONEY FOR PURCHASE OF PROPERTY BY ASSESSEE AND PAYMENTS OF MONEY ON SALE OF PROPERTY BY ASSESSEE TO SO MEBODY ELSE CANNOT BE ANY BASIS FOR TREATING THAT PERSON AS THE REAL OWNER OF THE PROPERTY. IN VIEW OF THE ABOVE WE CONFIRM THE FINDING OF LD CIT ( A) IN ADDING RS.45 , 60 ,0 00/ - IN THE HANDS OF THE ASSESSEE AS SHORT TERM CAPITAL GAIN ON SALE OF PROPERTY. IN THE RESULT GROUND NO .1 OF THE APPEAL IS DISMISSED. PAGE 3 OF 3 6 . SECOND GROUND OF APPEAL IS REGARDING DEDUCTION OF BROKERAGE EXPENSES OF RS.75000/ - CLAIMED AS DEDUCTION BY THE ASSESSEE. IT WAS SUBMITTED BY THE LD AR THAT RS. 3 LAKHS AND RS.4.50 LACS WAS PAID BY ASSESSEE TO TWO PERSONS BY ACCOUNT PAYEE CHEQUES. HOWEVER NO EVIDENCE WAS FURNISHED BY THE ASSESSEE ON PAYMENT BEING MADE TO THIS GENTLEMAN ON ACCOUNT OF BROKERAGE THEREFORE CONCURRENTLY THE AO AND LD CIT ( A) DID NOT AGREE WITH THE CONTENTION OF THE ASSESSEE. BEFORE US THE LD AR REPEATED THE SAME ARGUMENT RAISED BEFORE THE LOWER AUTHORITIES AND LD DR RELIED ON THE ORDERS OF THE LOWER AUTHORITIES. 7 . WE HAVE CAREFULLY CONSIDERED THE RIVAL CONTENTION AND WE ARE VIEW OF THAT IN ABSENCE O F ANY EVIDENCE PRODUCED BY THE ASSESSEE AND MERELY MAKING AN AFFIDAVIT DO NOT HEL P ASSESSEE IN CLAIMING THE EXPENSES WHICH COULD NOT BE ALLOWED IN ABSENCE OF ANY EVIDENCE. IN VIEW OF THE ABOVE FACTS NO DEDUCTION OF BROKERAGE CAN BE ALLOWED. HENCE WE CONFI RM THE FINDING OF THE LEARNED COMMISSIONER OF INCOME - TAX (APPEALS). 8 . ORDER PRONOUNCED IN THE OPEN COURT ON 15 . 03 .2016 . - S D / - - S D / - ( I.C. SUDHIR ) ( PRASHANT MAHARISHI ) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 15 .03.2016 * AJAY KUMAR KEOT COPY OF ORDER FORWARDED TO: (1) THE APPELLANT (2) THE RESPONDENT (3) COMMISSIONER (4) CIT (A) (5) DEPARTMENTAL REPRESENTATIVE (6) GUARD FILE BY ORDER ASSISTANT. REGISTRAR INCOME TAX APPELLATE TRIBUNAL DELHI BENCHES, NEW DELHI