Shri Satyapal Gupta Prop., Rishikesh V. ITO, Rishikesh

ITA 663/DEL/2012

• Counselvise Citation: [2014] 120 COUNSELVISE.COM (IT) 5465 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-02-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: G
• Next Hearing Date: 20-02-2014
• Assessment Year: 2005-2006
• Appeal Filed On: 08-02-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SHAMEER SHARMA
• Section: 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: G NEW DELHI BEFORE SHRI R. S. SYAL, ACCOUNTANT MEMBER AND SHRI A. D. JAIN, JUDICIAL MEMBER ITA NO. 663/DEL/2012 (ASSESSMENT YEAR: 2005 -06) SHRI SATYAPAL GUPTA PROP. M/S JAI SHREE TEXTILES, GHAT ROAD, RISHIKESH VS INCOME TAX OFFICER, WARD-1, RISHIKESH (APPELLANT) (RESPONDENT) PAN NO. ADYPG8095Q ASSESSEE BY: SHRI GAUTAM JAIN REVENUE BY: SHRI SHAMEER SHARMA DATE OF HEARING 20.2.2014 DATE OF PRONOUNCEMENT 21.2.2014 ORDER PER R. S. SYAL, AM: THIS APPEAL BY THE ASSESSEE ARISES OUT OF THE ORDER PASSED BY THE CIT(A) ON 16.11.2011 IN RELATION TO THE ASSESSMENT YEAR 2005-06. 2. FIRST GROUND IS GENERAL, WHICH DOES NOT REQUIRE ANY ADJUDICATION. GROUND NO. 2, CHALLENGING THE INITIATION OF PROVIS IONS U/S 147, WAS NOT PRESSED BY THE LD. AR. THE SAME IS, THEREFO RE, DISMISSED. 3. THE ONLY ISSUE RAISED THROUGH THE REMAINING GROUND IS ABOUT THE CONFIRMATION OF ADDITION OF RS. 17 LACS. BRIEFLY ST ATED THE FACTS OF THE CASE ARE THAT THE ASSESSEE FILED HIS RETURN DECLARI NG TOTAL INCOME OF RS. 1,03,530/-. INFORMATION WAS RECEIVED FROM THE ITO, LUCKNOW THAT THE ASSESSEE HAD PURCHASED 17.66 BIGHAS OF LAND FROM SM T. VIJAYA SHARMA FOR CONSIDERATION OF RS. 14,00,000/- PER BIGHAS, TH AT IS, TOTAL SALE I TA NO. 663/DEL/2012 SATYAPL GUPTA PROP. 2 CONSIDERATION OF RS. 2.47 CRORES. PURSUANT TO THE S AID AGREEMENT TO SALE DATED 20.11.2004, THE ASSESSEE DEPOSITED A SUM OF R S. 1,03,50,000/- IN THE SAVINGS BANK ACCOUNT OF SMT. VIJAYA SHARMA. THE ASSESSING OFFICER OBSERVED THAT THE CASH DEPOSIT OF RS. 1,03, 50,000/- IN THE ACCOUNT OF SMT. VIJAYA SHARMA WERE NOT FOUND IN THE ASSESSEES BALANCE SHEET. NOTICE U/S 148 WAS ISSUED AND THE NE CESSARY DETAILS IN THIS REGARD WERE CALLED FOR. THE ASSESSEE FURNISHED BOOKS OF ACCOUNT, PASS BOOK, VOUCHERS AND DETAILS OF PARTIES FROM WHO M MONEY WAS RECEIVED BY HIM AS ADVANCE FOR PURCHASE/BOOKING OF PLOTS WHICH WAS, IN TURN, PAID OVER TO SMT. VIJAYA SHARMA. THE ASSES SEE ALSO FURNISHED A LIST OF SEVERAL PARTIES WHO HAD ADVANCED MONEY FOR PURCHASING THE LAND THROUGH THE ASSESSEE. THE AO SOUGHT INFORMATION FRO M THE SAID BUYERS REGARDING ADVANCEMENT OF MONEY. ALL THE TRANSACTION S EXCEPT THE FOLLOWING THREE, WERE CONFIRMED BY THE SAID PARTIES : - S. NO. NAME OF THE PARTY AMOUNT OF ADVANCE (RS.) STATEMENT OF PARTY 1. SHRI AJAY GARG 3,00,000 DENIED 2. SHRI HARDEV PANESAR 10,00,000 DENIED AND STATED THAT THE TRANSACTION HAS BEEN MADE WITH SMT. VIJAYA SHARMA AND PAID RS. 2,00,000 ON 13.04.2005 AND RS. 3,24,000 ON 09.05.2005 WHICH PERTAINS TO THE NEXT YEAR. 3. SHRI NAEEM KHAN 4,00,000 ADVANCE GIVEN ON 21.07.2005 BUT RETURNED ON 24.08.2005 AS DEAL WAS NOT MATERIALIZED. THIS ALSO PERTAINS TO NEXT YEAR. I TA NO. 663/DEL/2012 SATYAPL GUPTA PROP. 3 4. IN THE LIGHT OF THE DENIAL BY THE ABOVE THREE PA RTIES, THE AO CALLED UPON THE ASSESSEE TO EXPLAIN AS TO WHY THE ADDITION OF RS. 17,00,000/- BE NOT MADE. THE ASSESSEE STATED THAT THE MONEY WAS RECEIVED BY HIM FROM ABOVE THREE PARTIES FOR PURCHASE OF PLOT DURIN G THE PREVIOUS YEAR RELEVANT TO THE ASSESSMENT YEAR UNDER CONSIDERATION . THE SALE COULD NOT TAKE PLACE DUE TO STAY OF THE SALE BY THE HONBLE H IGH COURT OF UTTRAKHAND. THE ASSESSEE TENDERED HIS REPLY DATED 2 .12.2010 BEFORE THE A.O, A COPY OF WHICH IS AVAILABLE ON PAGES 16 AND 1 7 OF THE PAPER BOOK. THE ASSESSEE STATED VIDE THIS REPLY THAT A SU M OF RS. 1,00,000/- WAS RETURNED TO SHRI AJAY GARG THROUGH VIDE CHEQUE NO. 960052 DATED 9.8.2005 AND THE REMAINING AMOUNT OF RS. 2,00,000/- WAS RETURNED IN CASH. AS REGARDS THE AMOUNT FROM SHRI HARDEV PANESA R, IT WAS SUBMITTED THAT HE GAVE RS. 15.24 LACS TO THE ASSESS EE OUT OF WHICH RS. 5.24 LACS WAS RETURNED BY WAY OF CHEQUES AND FURTHE R SUM OF RS. 5,80,000/- WAS RETURNED VIDE CHEQUE NO. 960060 DATE D 9.11.2005 AND A SUM OF RS. 1,00,000/- VIDE CHEQUE DATED 8.12.2005. IT WAS, THEREFORE, CLAIMED THAT THE ENTIRE SUM RECEIVED FROM SHRI HARD EV PANESAR WAS RETURNED BY THE ASSESSEE. AS REGARDS, THE THIRD PAR TY, NAMELY, SHRI NAEEM KHAN, IT WAS STATED THAT THE AMOUNT WAS RECEI VED IN CASH BUT A PART OF THE SAME WAS RETURNED BY MEANS OF CHEQUE BE CAUSE OF THE TRANSACTION OF SALE FALLING THROUGH. THE ASSESSING OFFICER, WITHOUT ADVERTING TO THE SUBMISSIONS MADE BY THE ASSESSEE, MADE ADDITION OF RS. 17,00,000/-. THE LD. CIT(A) UPHELD THE ADDITION . I TA NO. 663/DEL/2012 SATYAPL GUPTA PROP. 4 5. AFTER CONSIDERING THE RIVAL SUBMISSIONS AND PERU SING THE RELEVANT MATERIAL ON RECORD, IT IS OBSERVED THAT THE CLAIM O F THE ASSESSEE IS THAT HE ACTED AS A FACILITATOR BETWEEN THE BUYERS AND SM T. VIJAYA SHARMA. A SUM OF RS. 1.03 CRORE WAS RECEIVED FROM BUYERS WHIC H WAS HANDED OVER TO SMT. VIJAYA SHARMA. SINCE, THE TRANSACTION OF SALE COULD NOT FRUCTIFY, THE ASSESSEE GOT THE MONEY BACK FROM SMT. VIJAYA SHARMA AND RETURNED IT TO THE INTENDING BUYER. HERE IT IS PERT INENT TO MENTION THAT THE ASSESSEE CLAIMED TO HAVE RECEIVED THIS MONEY FR OM SEVERAL PERSONS. THE ASSESSING OFFICER HAS ACCEPTED THE GENUINENESS OF THE TRANSACTIONS IN RESPECT OF ALL BUT THE ABOVE REFERRED THREE PART IES, WHO DENIED TO HAVE ENTERED INTO TRANSACTIONS WITH THE ASSESSEE. T HE ASSESSEE ARGUED BEFORE THE A.O AS WELL AS CIT(A) THAT THE AMOUNT RE CEIVED FROM THESE THREE PERSONS WAS RETURNED PARTLY THROUGH CHEQUES A ND PARTLY IN CASH. THE ASSESSING OFFICER HAS NOT DEALT WITH THIS CONTE NTION OF THE ASSESSEE AND SIMPLY WENT ON TO MAKE THE ADDITION BY RELYING ON THE ONE SIDED VIEW GIVEN BY THESE THREE PARTIES THAT THEY HAD NOT TRANSACTED WITH THE ASSESSEE. IT IS NOT UNDERSTANDABLE AS TO HOW THEY C OULD GET THE REFUND OF MONEY FROM ASSESSEE THROUGH CHEQUES IF THEY HAD NOT ADVANCED MONEY AT ALL. ON A SPECIFIC QUERY, IT WAS INFORMED THAT N EITHER THE STATEMENTS OF THESE THREE PERSONS WERE RECORDED BY THE A.O NOR ANY OPPORTUNITY TO CROSS EXAMINE THEM WAS GIVEN TO THE ASSESSEE. WITHO UT GOING INTO THE MERIT OF THE CASE, WE ARE OF THE CONSIDERED OPINION THAT IT WOULD BE IN THE FITNESS OF THE THINGS IF THE IMPUGNED ORDER IS SET ASIDE AND THE MATTER IS RESTORED TO THE FILE OF THE A.O. WE ORDER ACCORDINGLY AND DIRECT HIM TO RECORD THE STATEMENTS OF THESE THREE PERSONS WHO DENIED TO I TA NO. 663/DEL/2012 SATYAPL GUPTA PROP. 5 HAVE TRANSACTED WITH THE ASSESSEE BUT ACCEPTED REFU NDS PARTLY THROUGH CHEQUES. THEREAFTER, THE ASSESSEE WILL BE ALLOWED A N OPPORTUNITY TO CROSS EXAMINE THEM, IF DESIRED. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 21/02/2014. SD/- SD/- (A. D. JAIN) (R. S. S YAL) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 21/02/2014 *SUBODH* COPY FORWARDED TO: 1.APPELLANT 2.RESPONDENT 3.CIT 4.CIT(APPEALS) 5.DR: ITAT ASSISTANT REGISTRAR