DINESH KUMAR SHARMA(JANGID), Jaipur V. ITO, Jaipur

ITA 69/JPR/2017

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 9723 (ITAT-JAIPUR)
• Duration Of Justice: 1 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-03-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2003-2004
• Appeal Filed On: 20-01-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: R A VERMA CIT DHK
• Assessee Lawyers: GARIMA KHANDELWAL
• Keywords: Unexplained investment

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES (SMC), JAIPUR JH HKKXPAN] YS[KK LNL; ] DS LE{K BEFORE: SHRI BHAGCHAND, ACCOUNTANT MEMBER VK;DJ VIHY LA-@ ITA NO. 69/JP/2017 FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2003-04 DINESH KUMAR SHARMA (JANGID), WARD NO. 12, NAYA BAZAR, CHOMU, DISTRICT- JAIPUR. CUKE VS. INCOME TAX OFFICER, WARD 7(3), JAIPUR. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO.: ACAPS 0582 P VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY : MS. GARIMA KHANDELWAL (CA) JKTLO DH VKSJ LS@ REVENUE BY : SHRI R.A. VERMA (ADDL.CIT) LQUOKBZ DH RKJH[K@ DATE OF HEARING : 03/03/2017 MN?KKS'K .KK DH RKJH[K @ DATE OF PRONOUNCEMENT : 06/03/2017 VKNS'K@ ORDER PER: BHAGCHAND, A.M. THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER DATED 05/10/2016 PASSED BY THE LD. CIT(A)-35, NEW DELHI/CA MP OFFICE AT JAIPUR FOR THE A.Y. 2003-04. THE ONLY ISSUE INVOLVED IN THIS APPEAL IS AGAINST SUSTAINING THE PENALTY OF RS. 9,90,509/- MA DE U/S 271(1)(C) OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED AS TH E ACT). ITA 69/JP/2017_ DINESH KUMAR SHARMA (JANGID) VS ITO 2 2. AT THE TIME OF HEARING, THE LD. AR OF THE ASSESS EE HAS SUBMITTED THAT THE HONBLE ITAT, JAIPUR BENCH WHILE DECIDING TH E QUANTUM APPEAL IN ITA NO. 1106/JP/2011 HAS DELETED THE ADDITION SU STAINED BY THE LD. CIT(A), THEREFORE, THERE WAS NO MERIT IN SUSTAINING T HE PENALTY U/S 271(1)(C) OF THE ACT. 3. THE LD. SR. DR HAS RELIED ON THE ORDER OF THE LD. CIT(A). 4. I HAVE HEARD BOTH THE SIDES AND PERUSED THE MATE RIAL AVAILABLE ON THE RECORD. FROM PERUSAL OF THE RECORDS, I FIND THAT THE ITAT, JAIPUR BENCH WHILE DECIDING THE QUANTUM APPEAL, HAS DELETED THE ADDITION ON BOTH THE ISSUES I.E. THE ADDITION OF RS. 31,33,000/ - ON ACCOUNT OF UNACCOUNTED INVESTMENT. THE FINDING OF THE ITAT, JAIP UR BENCH ON THIS DELETION IS AS UNDER:- 4.6 WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSE D THE MATERIALS AVAILABLE ON RECORD. IT IS UNDISPUTED FACT THAT THE ASSESSEE PURCHASED 1/3 RD SHARE OF PROPERTY. ON THE BASIS OF TEP, THE AO HELD THAT 2/3 RD PROPERTY WAS ACQUIRED BY THE ASSESSEE THROUGH POWER OF ATTORNEY IN THE NAME OF SHRI ARUN KUMAR CHOUDHARY. THE AO HEAVILY RELIED ON THE REPORT OF INVESTIGATION WING BUT THE FACTS HAD NOT BEEN VERIFIED BY SUMMONING THE NOTARY PUBLIC IT HAD NOT BEEN VERIFIED THE VERACITY OF THE ENTRIES ITA 69/JP/2017_ DINESH KUMAR SHARMA (JANGID) VS ITO 3 MADE IN THE REGISTER OF NOTARY PUBLIC. THE ASSESSEE HAVING BEEN DENIED THE PURCHASE OF 2/3 RD SHARE IN THIS PROPERTY IN HIS STATEMENT DATED 6-03-2009 IN QUESTION NO. 6. FURTHER THE SELLER ALSO ADMITTED TH AT 2/3 RD SHARE OF THIS PROPERTY WAS EXECUTED THROUGH A POWER OF ATTORNEY IN THE NAME OF SHRI ARUN KUMAR CHOUDHARY. IN SUBSEQUENT YEAR, SHRI ARUN KUMAR CHOUDHARY HAD SOLD 2/3 RD SHARE OF THIS PROPERTY TO VARIOUS PERSONS. THE AO HAD NOT BROUGHT ON RECORD ANY MATERIAL TO SUBSTANTIATE HIS FINDING THAT 2/3 RD SHARE OF PROPERTY BELONGED TO THE ASSESSEE. THEREFORE, IN OUR CONSIDERED VIEW, THE ADDITION MADE BY THE AO AND CONFIRMED BY THE LD. CIT(A) IS NOT JUSTIFIED. ACCORDINGLY, WE DELETE THE ADDITION MADE BY THE AO. THUS GROUND NO. 4 OF THE ASSESSEE IS ALLOWED. THE ANOTHER ADDITION OF RS. 45,000/- MADE ON ACCOUNT OF SUPPRESSION IN SHOWING THE VALUE OF 1/3 RD SHARE IN THE PROPERTY AT CHOMU HAS ALSO BEEN DECIDED BY THE ITAT, JAIPUR BENCH IN FAVOUR OF THE ASSESSEE. THE RELEVANT FINDING OF THE BENCH IS AS UNDER:- 5.6 WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSE D THE MATERIALS AVAILABLE ON RECORD. WE HAVE OBSERVED THAT THE ASSESSEE HAS SHOWN RS. 3,45,660/- IN THE BALANCE SHEET FOR THIS PROPERTY WHERE RS. 3,00,000/- HAD BEEN TAKEN FROM SHRI ITA 69/JP/2017_ DINESH KUMAR SHARMA (JANGID) VS ITO 4 ARUN KUMAR AGARWAL AS MENTIONED AT PAGE 61 OF PAPER BOOK. THE ASSESSEE HAS SHOWN THE AMOUNT OF RS. 6,97,035/- ON BOTH THE SIDES I.E. LIABILITIE S AND ASSETS MEANING THEREBY THAT SOURCE OF ALL ASSETS SHOWN IN THE BALANCE SHEET STANDS PROVED. THE ASSESSEE DURING THE COURSE OF HIS STATEMENTS BEFORE THE INVESTIGATION WING SUBMITTED THAT HE HAD MADE INVESTMENT OF RS. 3,45,000/- FOR THIS PROPERTY AND ALSO STATED ABOUT TAKING A LOAN OF RS. 3.00 LACS FROM SHRI ARUN KUMAR AGARWAL. THE AO FOUND THAT IN THE STATEMENTS THE ASSESSEE SUBMITTED ABOUT INVESTMENT OF RS. 3,45,000/- IN THE PROPERTY WHEREAS REGISTERED SALE DEED EVIDENCED ABOUT THE PAYMENT OF RS. 3.00 LACS ONLY AND THE AO CONSIDERED THE DIFFERENCE OF RS. 45,000/- AS UNDISCLOSED INVESTMENT OF THE ASSESSEE. THE AO DID NOT CONSIDER THAT THE ASSESSEE HAD SPENT RS. 45,000/- TOWARDS REGISTRATION PURPOSES AND BECAUSE OF THIS REASON, THE AO STATED ABOUT INVESTMENT OF RS. 3,45,000/- FOR THIS PROPERTY. IT APPEARS FROM THE RECORD THAT THE ASSESSEE HAS SPENT RS. 45,000/- FOR REGISTRATION PURPOSES AND RS. 3.00 LACS FOR PURCHASE OF 1/3 RD SHARE IN THE PROPERTY THUS THERE IS NO REASON TO SUSTAIN THE AMOUNT OF RS. 45,000/-. HENCE, THE GROUND 5 OF THE ASSESSEE IS ALLOWED. ITA 69/JP/2017_ DINESH KUMAR SHARMA (JANGID) VS ITO 5 THUS, THERE WAS NO ADDITION SUSTAINED IN THE QUANTUM APPEAL, THEREFORE, THE PENALTY SUSTAINED BY THE LD. CIT(A) U /S 271(1)(C) IS HEREBY DELETED. 5. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED. ORDER PRONOUNCED IN THE OPEN COURT ON 06/03/2016. SD/- HKKXPAN (BHAGCHAND) YS[KK LNL;@ ACCOUNTANT MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 06 TH MARCH, 2017 *RANJAN VKNS'K DH IZFRFYFI VXZSFKR @ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ @ THE APPELLANT- SHRI DINESH KUMAR SHARMA (JANGID), JAIPUR. 2. IZR;FKHZ @ THE RESPONDENT- THE ITO, WARD 7(3), JAIPUR. 3. VK;DJ VK;QDR @ CIT 4. VK;DJ VK;QDRVIHY @ THE CIT(A) 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ @ DR, ITAT, JAIPUR 6. XKMZ QKBZY @ GUARD FILE (ITA NO. 69/JP/2017) VKNS'KKUQLKJ @ BY ORDER, LGK;D IATHDKJ @ ASST. REGISTRAR