SHRI SUBHASH CHAND TOMAR, ALWAR V. JOINT COMMISSIONER OF INCOME TAX, RANGE-2, ALWAR

ITA 667/JPR/2017

• Counselvise Citation: [2018] 118 COUNSELVISE.COM (IT) 9488 (ITAT-JAIPUR)
• Duration Of Justice: 1 year(s) 3 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-12-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2011-2012
• Appeal Filed On: 21-08-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: K C MEENA
• Section: 133(6)

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHE S-B, JAIPUR JH FOT; IKY JKO] U;KF;D LNL; ,OA JH FOE FLAG ;KNO] YS[KK LNL; DS LE{K BEFORE: SHRI VIJAY PAL RAO, JM & SHRI VIKRAM SINGH YADAV, AM VK;DJ VIHY LA- @ ITA NO. 667/JP/2017 FU/KZKJ.K O'K Z @ ASSESSMENT YEAR :2011-12 SHRI SUBHASH CHAND TOMAR, 123, COSMOS GREEN, BLOCK-14, BHIWADI, ALWAR CUKE VS. THE JOINT COMMISSIONER OF INCOME TAX, RANGE- 2, ALWAR LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO.: AAQPT5193F VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ L S@ ASSESSEE BY : SHRI MAHENDRA GARGIEYA (ADV.) JKTLO DH VKSJ LS @ REVENUE BY : SHRI K. C. MEENA (ADDL.CIT) LQUOKBZ DH RKJH[ K@ DATE OF HEARING : 25/09/2018 MN?KKS'K.KK DH RKJH[ K@ DATE OF PRONOUNCEMENT: 20/12/2018 VKNS'K@ ORDER PER: VIKRAM SINGH YADAV, A.M. THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER OF LD. CIT(A)-22, ALWAR DATED 05.05.2017 FOR A.Y. 2011-12 WHEREIN THE EFFECTIVE GROUND OF APPEAL RELATES TO ADDITION OF RS. 20,50,0 00/- MADE BY THE AO U/S 69A OF THE ACT. 2. BRIEFLY STATED, THE FACTS OF THE CASE ARE THAT T HE DURING THE YEAR UNDER CONSIDERATION, THE ASSESSEE HAS SOLD HIS RESI DENTIAL PROPERTY SITUATED AT D-111, BHAGAT SINGH COLONY, TEHSIL-TIJA RA, DISTT- ALWAR ON 08.07.2010 FOR CONSIDERATION OF RS. 30,000,00/- WHI CH WAS STATED TO HAVE ITA NO. 667/JP/2017 SHRI SUBHASH CHAND TOMAR, ALWAR VS. JCIT, ALWAR 2 BEEN DEPOSITED IN ASSESSEES BANK ACCOUNT MAINTAINE D WITH HDFC BANK, BHIWADI. ON PERUSAL OF THE ASSESSEES BANK ACCOUNT, THE ASSESSING OFFICER OBSERVED THAT THERE ARE CERTAIN CASH DEPOSITS ON VA RIOUS DATES TOTALLING TO RS. 30,60,000/-. THE ASSESSEE SUBMITTED THAT RS. 9, 50,000 WAS RECEIVED IN ADVANCE FOR SALE OF THE HOUSE PROPERTY WHICH WAS DE POSITED ON 03.05.2010 AND 06.05.2010 IN ASSESSEES BANK ACCOUN T. IT WAS FURTHER SUBMITTED THAT THE BALANCE SALE CONSIDERATION OF RS . 20,50,000/- WAS DEPOSITED ON 08.07.2010. THE AO, ON PERUSAL OF THE BANK STATEMENT, NOTED ANOTHER CHEQUE DEPOSIT OF RS. 20,00,000/- ON 13.08.2010 AND IN RESPECT OF THE SAME, THE EXPLANATION OF THE ASSESSE E WAS THAT THE SAID PAYMENT HAS BEEN RECEIVED BY CHEQUE FROM BUYER OF T HE PROPERTY AND THE AMOUNT HAS BEEN WITHDRAWN AND GIVEN BACK VIDE TWO C HEQUES ON THE SAME DATE BY THE ASSESSEE TO THE BUYER OF THE PROPE RTY. 3. IN ORDER TO VERIFY THE ASSESSEES EXPLANATION, T HE AO ISSUED NOTICE U/S 133(6) TO THE PURCHASER OF THE PROPERTY AND IN HIS RESPONSE, HE SUBMITTED THAT RS. 10,00,000/- WAS PAID IN CASH TO THE ASSESSEE AND RS. 20,00,000/- WAS PAID THROUGH CHEQUE. NOTING THE DISCREPANCY IN TERMS OF EXPLANATION SUBMITTED BY THE ASSESSEE IN RESPECT OF AMOUNT OF RS. 20,50,000/- FOUND DEPOSITED IN CASH ON 08.07.2010 W HICH WAS STATED TO BE RECEIVED FROM THE PURCHASER OF THE PROPERTY AND THE REPLY OF THE PURCHASER WHERE HE SAYS THAT HE HAS MADE CHEQUE PAY MENT OF RS 20,00,000, THE AO ISSUED A SHOW-CAUSE TO THE ASSESS EE. 4. IN RESPONSE, THE ASSESSEE SUBMITTED THAT SALE TR ANSACTION WAS CONCLUDING BY SIGNING THE SALE DEED WHICH WAS REGIS TERED ON 08.07.2010 AND THE ACTUAL POSITION, THEREFORE, IS THAT TOTAL C ONSIDERATION IS PAID IN CASH ON OR BEFORE THE DATE OF THE REGISTRY I.E. 08.07.20 10 AND LATER ON, A ITA NO. 667/JP/2017 SHRI SUBHASH CHAND TOMAR, ALWAR VS. JCIT, ALWAR 3 CHEQUE OF RS. 20,00,000/- WAS ISSUED BY THE PURCHAS ER ON 10.08.2010 AND THE ASSESSEE HAS RETURNED THE CASH EARLIER RECEIVED FROM THE PURCHASER BY WITHDRAWING THE CASH FROM HIS BANK ACCOUNT AND IN S UPPORT, AFFIDAVIT OF THE ASSESSEE WAS ALSO SUBMITTED. 5. THE SUBMISSION FILED BY THE ASSESSEE WAS HOWEVER NOT FOUND ACCEPTABLE BY THE ASSESSING OFFICER AND HIS FINDING S ARE AS UNDER:- 1. THE ASSESSEE HAS ARGUED THAT HE HAS RECEIVED TH E FULL AMOUNT OF SALE CONSIDERATION I.E. RS. 30,00,000/- IN CASH BEF ORE THE REGISTRY AND LATER ON A CHEQUE OF RS. 20,00,000/- WAS ISSUED BY THE PU RCHASER TO SELLER. THE ARGUMENT OF THE ASSESSEE IS NOT ACCEPTABLE BECAUSE, IF THE ASSESSEE HAD RECEIVED ALL THE AMOUNT OF SALE CONSIDERATION IN CA SH BEFORE THE REGISTRY. WHAT WAS THE NEED TO TAKE A CHEQUE OF RS. 20,00,000 /- FROM THE PURCHASER. 2. THE PURCHASER HAS CLEARLY STATED THAT HOUSE SITU ATED AT D-111, BHAGAT SINGH COLONY, BHIWADI WAS PURCHASED FOR RS. 30,00,000/- AND RS. 10,00,000/- WAS PAID IN CASH AND THE AMOUNT OF RS. 20,00,000/- WAS PAID THROUGH BANK. THE ENTRY OF CHEQUE GIVEN IS ALSO REF LECTING IN THE ACCOUNT OF THE PURCHASER AS WELL AS IN THE ACCOUNT OF ASSES SEE. 3. THE ASSESSEE HAS ACCEPTED THE FACT THAT A CHEQUE OF RS. 20,00,000/- WAS RECEIVED FROM THE PURCHASER SHRI GU LZARI LAL SHARMA. IF THIS CHEQUE WAS NOT AGAINST THE CONSIDERATION OF SA LE, THEN WHAT WAS THE PURPOSE OF THIS RECEIPT IN THE ACCOUNT OF THE ASSES SEE. 4. THE TWO WITHDRAWALS OF RS. 9.5 LACS ON 13.08.201 0 FROM THE BANK ACCOUNT HAVE BEEN MADE IN CASH. THE ASSESSEE CAN NO T ESTABLISH THAT THESE WERE HANDED OVER TO PURCHASER. 5. THE ARGUMENTS GIVEN BY THE ASSESSEE NOT SUPPORTE D BY ANY DOCUMENTARY EVIDENCE AND THE ASSESSEE HAS FAILED TO ESTABLISH ANY THING. ITA NO. 667/JP/2017 SHRI SUBHASH CHAND TOMAR, ALWAR VS. JCIT, ALWAR 4 6. THE ASSESSEE HAS FAILED TO EXPLAIN THE SOURCE OF RS. 20,50,000/- DEPOSITED IN CASH ON 08.07.2010 IN HIS ACCOUNT. 6. BEING AGGRIEVED, THE ASSESSEE CARRIED THE MATTER IN APPEAL BEFORE THE LD. CIT(A) WHO HAS CONFIRMED THE SAID ADDITION AND HIS FINDINGS ARE CONTAINED AT PARA 5.5.2 WHICH IS REPRODUCED AS UNDE R:- 5.5.2 I HAVE CONSIDERED THE ABOVE MENTIONED FACTS . I HAVE TAKEN NOTE OF THE FACT THAT THE PURCHASER HAS ADMITTED TH AT HE HAS MADE PAYMENT OF RS. 30 LAKHS TOWARDS PURCHASE CONSIDERAT ION OF THE PROPERTY BY MAKING CHEQUE PAYMENT AMOUNTING TO RS. 20 LAKHS AND CASH PAYMENT OF RS. 10 LAKHS. THEREFORE, THE PURCHASER HAS DENIE D MAKING ANY PAYMENT OF RS. 20,50,000/- FOUND DEPOSITED IN CASH IN THE B ANK ACCOUNTS OF THE APPELLANT ON 08.07.2010. IN VIEW OF THIS FACT, THE AO IS JUSTIFIED IN CONCLUDING THAT THE SOURCE OF RS. 20,50,000/- FOUND DEPOSITED IN CASH IN THE BANK ACCOUNT OF THE APPELLANT REMAIN UNEXPLAINE D. ACCORDINGLY, THE ADDITION OF RS. 20,50,000/- IS CONFIRMED AND THE AP PELLANTS GROUND OF APPEAL ON THIS ISSUE IS DISMISSED. 7. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. THE LIMITED ISSUE UNDER CONSI DERATION RELATES TO SOURCE OF CASH AMOUNTING TO RS 20.50 LACS FOUND DEP OSITED IN ASSESSEES SAVINGS BANK ACCOUNT ON 8.7.2010 MAINTAINED WITH HF DC BANK. THE ASSESSEES CONTENTION IS THAT THE SAID AMOUNT HAS B EEN RECEIVED TOWARDS THE BALANCE SALE CONSIDERATION TOWARDS SALE OF HIS HOUSE PROPERTY. THE REVENUES CONTENTION IS THAT BASED ON INFORMATION R ECEIVED U/S 133(6) FROM THE PURCHASER OF THE SAID PROPERTY, HE HAS ISS UED A CHEQUE FOR RS 20 LACS TOWARDS THE BALANCE SALE CONSIDERATION WHICH W AS FOUND DEPOSITED ON ITA NO. 667/JP/2017 SHRI SUBHASH CHAND TOMAR, ALWAR VS. JCIT, ALWAR 5 13.8.2010 AND THEREFORE, THE ASSESSEES CONTENTION WAS NOT FOUND ACCEPTABLE. 8. TO OUR MIND, THE BETTER WAY OF RESOLVING THE PR ESENT CONTROVERSY BY THE REVENUE WOULD HAVE BEEN TO CALL FOR PERSONAL AP PEARANCE OF THE BUYER OF THE PROPERTY AND TO ALLOW THE ASSESSEES TO CROS S- EXAMINE THE BUYER. THE SAME WOULD HAVE GIVEN A GREATER CLARITY ON THE FACTUAL POSITION ON THE SALE TRANSACTION AND MODE OF DISCHARGE OF SALE CONS IDERATION. GIVEN THAT THE MATTER IS MORE THAN 8 YEARS OLD, WE ARE NOT INC LINED TO REMAND THE MATTER AND ALLOW THE PARTIES A FRESH LEASE OF LIFE AND IN THE PROCESS, BURDEN THE PARTIES TO SPEND ADDITIONAL TIME AND COS T. 9. HAVING SAID THAT, GIVEN THE EVIDENCES WHICH H AVE BEEN GATHERED AND PRESENTED BY BOTH THE PARTIES AND WHICH WE HAVE EXA MINED, WE FIND THAT THE ASSESSEE DESERVES TO SUCCEED IN THE PRESENT APP EAL. THE FIRST CRITICAL PIECE OF EVIDENCE IS THE SALE DEED FOR TRANSFER OF HOUSE PROPERTY WHICH WAS EXECUTED AND REGISTERED WITH THE SUB-REGISTRAR, BHIWADI ON 8.7.2010 WHEREIN IT HAS BEEN STATED CLEARLY THAT THE SALE CO NSIDERATION AGREED AT RS 30 LACS HAS BEEN RECEIVED ON OR BEFORE THE DATE OF REGISTRY AND THE POSSESSION OF THE PROPERTY HAS BEEN HANDED OVER ON THE DATE OF THE REGISTRY I.E. 8.7.2010. THE SALE DEED IS HOWEVER SI LENT AS FAR AS MODE OF DISCHARGE OF THE SALE CONSIDERATION WHETHER FULLY IN CASH, OR PART CASH AND PART CHEQUE PAYMENT. AS PER INFORMATION OBTAIN ED BY THE AO FROM THE BUYER OF THE PROPERTY, A CHEQUE FOR RS 20 LACS DATED 10.8.2010 WAS ISSUED IN FAVOUR OF THE ASSESSEE BY THE BUYER OF TH E PROPERTY AND THE SAME WAS FOUND CREDITED IN ASSESSEES BANK ACCOUNT ON 13.8.2010 AND THE SAID FACT WAS ALSO CONFIRMED BY THE ASSESSEES BANK . HOWEVER, WE FIND IT HIGHLY IMPROBABLE THAT THE ASSESSEE WILL TRANSFER H IS PROPERTY AND HAND ITA NO. 667/JP/2017 SHRI SUBHASH CHAND TOMAR, ALWAR VS. JCIT, ALWAR 6 OVER THE PHYSICAL POSSESSION ON 8.7.2010, A CLEAR O NE MONTH IN ADVANCE OF RECEIVING THE REMAINING TWO-THIRD OF THE SALE CONSI DERATION ON 10.8.2010. IT IS EQUALLY HIGHLY IMPROBABLE THAT AS ON THE DATE OF EXECUTION OF THE SALE DEED AND HANDING OVER THE POSSESSION OF THE PROPERT Y, THE ASSESSEE AGREES TO RECEIVE A POST DATED CHEQUE AND LIVE WITH THE CONSEQUENCES OF DISHONOR OF SUCH CHEQUE IN ABSENCE OF ANY RECOVERY MECHANISM SO AGREED WITH THE BUYER OF THE PROPERTY. HAVING SAID THAT, THE FACT REMAINS THAT THERE IS A SALE DEED DULY REGISTERED WHICH STATES C LEARLY THAT THE SALE CONSIDERATION HAS BEEN RECEIVED BY THE ASSESSEE ON OR BEFORE THE DATE OF EXECUTION OF THE SALE DEED I.E, 8.7.2010, THERE IS DEPOSIT OF CASH IN BANK ACCOUNT OF THE ASSESSEE ON 8.7.2010, AND THERE IS A LSO EVIDENCE OF ISSUANCE OF CHEQUE DATED 10.8.2010 BY THE BUYER OF THE PROPERTY IN FAVOUR OF THE ASSESSEE AND WHICH HAS BEEN CREDITED IN THE ASSESSEES BANK ACCOUNT ON 13.8.2010. IN SUCH A SCENARIO, ONLY PRO BABLE SCENARIO WHICH EXISTS IS THAT THE ASSESSEE HAS INITIALLY RECEIVED CASH OF RS 20 LACS FROM THE BUYER OF THE PROPERTY WHICH WAS DEPOSITED IN THE ASSESSEES BANK ACCOUNT ON 8.7.2010 WHICH HAS RESUL TED IN CLOSURE OF THE SALE TRANSACTION AS EVIDENCED BY THE SALE DEED EXEC UTED ON 8.7.2010. SUBSEQUENTLY, FOR REASONS BEST KNOWN TO THE TWO PAR TIES, THE BUYER OF THE PROPERTY ISSUED A CHEQUE OF EQUIVALENT AMOUNT ON 10 .8.2010 WHICH WAS DEPOSITED IN ASSESSEES BANK ACCOUNT ON 13.8.2010 A ND SIMULTANEOUSLY, CASH OF EQUIVALENT AMOUNT WAS WITHDRAWN BY THE ASSE SSEE AND RETURNED TO THE BUYER OF THE PROPERTY. 10. IN LIGHT OF ABOVE DISCUSSIONS AND IN LIGHT OF P ECULIAR FACTS AND CIRCUMSTANCES OF THE CASE, WE AGREE WITH THE ASSESS EES EXPLANATION THAT THE SOURCE OF CASH DEPOSIT OF RS 20.5 LACS ON 8.7.2 010 IS THE BALANCE SALE CONSIDERATION RECEIVED FROM THE BUYER OF THE PROPER TY AND WHICH HAS BEEN ITA NO. 667/JP/2017 SHRI SUBHASH CHAND TOMAR, ALWAR VS. JCIT, ALWAR 7 DULY OFFERED TO TAX BY THE ASSESSEE IN HIS RETURN O F INCOME. IN THE RESULT, GROUND OF APPEAL IS ALLOWED. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWE D. PRONOUNCED IN THE OPEN COURT ON 20/12/2018. SD/- SD/- FOT; IKY JKO FOE FLAG ;KNO (VIJAY PAL RAO) (VIKRAM SINGH YADAV) U;KF;D LNL;@ JUDICIAL MEMBER YS[KK LNL;@ ACCOUNTANT MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 20/12/2018. * GANESH. VKNS'K DH IZFRFYFI VXZSFKR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT- SHRI SUBHASH CHAND TOMAR, ALWAR 2. IZR;FKHZ@ THE RESPONDENT- JCIT, RANGE-2, ALWAR 3. VK;DJ VK;QDR@ CIT 4. VK;DJ VK;QDR@ CIT(A) 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ@ DR, ITAT, JAIPUR. 6. XKMZ QKBZY@ GUARD FILE {ITA NO. 667/JP/2017} VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASST. REGISTRAR