Sh. Mohinder Bhardwaj, Sonepat V. ITO, Sonepat

ITA 691/DEL/2013

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 74199 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-02-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: E
• Next Hearing Date: 06-01-2014
• Assessment Year: 2009-2010
• Appeal Filed On: 04-02-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SAMEER SHARMA
• Assessee Lawyers: NAVEEN GUPT AADV
• Keywords: Capital asset; Gift

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH E: NEW DELHI BEFORE SHRI J. S. REDDY, ACCOUNTANT MEMBER AND SHRI A.T.VARKEY,JUDICIAL MEMBER I.T.A.NO.691/DEL/2013 ASSESSMENT YEAR : 2009-10 MOHINDER BHARDWAJ VS. ITO S/O, SH. RADHEY SHYAM, WARD-1, H. NO.67, RAM GALI, WARD-1, GOHANA, SONEPAT. SONEPAT. PAN: ABQPB7602N. (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI NAVEEN GUPT A,ADV. RESPONDENT BY : SHRI SAMEER SHARMA , SR.DR. O R D E R PER J. S. REDDY, ACCOUNTANT MEMBER THIS IS AN APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS)-RO HTAK DATED 16.11.2012. 2. THE FACTS ARE BROUGHT OUT BY THE LD. CIT (A) AT PARA 2 TO 2.4 WHICH IS EXTRACTED FOR READY REFERENCE: 2. BRIEF FACTS OF THE CASE ARE AS UNDER: 2.1 THE APPELLANT, AN ARCHITECT BY PROFESSION, DEC LARED A TOTAL INCOME OF RS.1,41,290/- ON GROSS RECEIPTS OF RS.2,5 4,776/-. NO BANK BALANCE WAS SHOWN AND CASH IN HAND OF ONLY RS.960/- WAS DECLARED. DURING THE ASSESSMENT PROCEEDINGS, THE ASSESSING OF FICER NOTED THAT 2 THE ASSESSEE IS MAINTAINING A JOINT A/C WITH HIS WI FE SMT.VEENA KUMARI WITH ORIENTAL BANK OF COMMERCE, GOHANA AND T HE BALANCE IN THE BANK A/C AS ON 31.03.2009 IS RS.9,54,247/-. THE ASSESSING OFFICER NOTED THAT NEITHER THE ASSESSEE HAS DECLARED THIS B ANK A/C NOR HAS SHOWN INTEREST INCOME FROM THE BANK OF RS.25,868/-. 2.2 THE ASSESSING OFFICER NOTED THE FOLLOWING CASH DEPOSITS IN THE SAID JOINT A/C. S. NO. DATE OF DEPOSIT AMOUNT DEPOSITED IN CASH (RS ) 1 29.05.2008 8,90,000/- 2 31.05.2008 2,20,000/- 3 19.06.2008 3,00,000/- THE CASH DEPOSITS OF RS.4.00 LACS AND RS.3.00 LACS WAS STATED TO HAVE BEEN MADE BY THE WIFE WHO RECEIVED RS.4.00 LACS AS GIFT FROM HER FATHER SH. TARA CHAND AND RS. 3.00 LACS WAS DEPOSIT ED OUT OF THE SALE OF PLOT OF 300 SQ YARDS. A COPY OF THE AGREEMENT F OR SALE ENTERED INTO BY THE WIFE OF THE APPELLANT WITH ONE SHRI. KULDEEP WAS FURNISHED. 2.3 IN ORDER TO VERIFY THE GENUINENESS OF THE GIFT, LETTER WAS SENT TO SH. TARA CHAND AT THE GIVEN ADDRESS BUT IT HAS COME BACK UNSERVED STATING THAT HE IS NOT RESIDING AT THE GIVEN ADDRES S. THIS WAS CONFRONTED TO THE ASSESSEE AND SUMMON WAS ISSUED AT THE NEW ADDRESS GIVEN BY THE APPELLANT AND THE SUMMONS ALSO HAS COM E BACK UNSERVED. FROM THE BANK A/C OF SH. TARA CHAND, THE ASSESSING OFFICER NOTED THAT THE ONLY SOURCE OF DEPOSITS IS RS.7,000/- P.M. AS P ENSION FROM MTNL. NO GIFT IS EVIDENT FROM THIS BANK A/C. THE ASSESSIN G OFFICER HELD THAT SH. TARA CHAND IS NOT A MAN OF MEANS AND HE IS ALSO NOT AN IT ASSESSEE. THE ASSESSING OFFICER THEREFORE HELD THAT THE ASSESSEE FAILED TO DISCHARGE THE ONUS ON HIM OF PROVING THE IDENTIT Y, GENUINENESS OF TRANSACTIONS AND CREDITWORTHINESS OF THE DONOR AND ADDED THIS AMOUNT. 2.4 REGARDING THE SALE OF PLOT, THE ASSESSING OFFIC ER ISSUED SUMMONS TO SH. KULDEEP IS NOT KNOWN. THE ASESSEE HA S NOT FURNISHED ANY DOCUMENTARY EVIDENCE REGARDING OWNERSHIP OF PLO T, WHICH WAS STATED TO HAVE BEEN SOLD TO SH. KULDEEP. FURTHER, N O SALE DEED WAS EXECUTED TILL DATE. IN VIEW OF THE ABOVE, THE ASSE SSING OFFICER HELD 3 THAT THE ASSESSEE FAILED TO PROVE THE SOURCE OF CAS H DEPOSIT OF RS.3.00 LACS AND ADDED THE SAME. 3. THE ASSESSING OFFICER COMPUTED TOTAL INCOME OF R S.12,64,120/-. ON APPEAL THE LD. CIT (A) GRANTED PART RELIEF FURTHER AGGRIEVED THE ASSESSEE IS IN THE APPEAL ON THE FOLLOWING GROUNDS: 1 THAT THE ORDER OF LD. CIT (A) IS AGAINST LAW AND FACTS. 2. THAT THE LD. CIT (A) ERRED IN CONFIRMING THE AD DITION OF RS.1,91,620/- MADE BY THE LD. ASSESSING OFFICER BY DISALLOWING THE CLAIM OF DEDUCTION OF EARTH FILLING EXPENSES OUT OF CAPITAL GAINS ARISES FROM THE SALE OF LAND. 3. THAT THE LD. CIT (A) ERRED IN CONFIRMING THE EST IMATION OF THE LD. ASSESSING OFFICER FOR THE HOUSE HOLD EXP ENSES OF THE APPELLANT AT 20,000/- P.M. 4. THAT THE APPELLANT CRAVES LEAVE TO ADD OR ALTER ANY OF THE GROUNDS OF APPEAL. 4. WE HAVE HEARD MR. NAVEEN GUPTA LD. COUNSEL FOR T HE ASSESSEE AND MR SAMEER SHARMA LD. SENIOR DEPARTMENTAL REPRESENTA TIVE ON BEHALF OF THE REVENUE. ON CAREFUL CONSIDERATION OF THE FACTS AND CIRCUMSTANCES OF THE CASE AND A PERUSAL OF THE PAPERS ON RECORD AND THE ORDER S OF THE AUTHORITIES BELOW WE HOLD AS FOLLOWS: ON THE FIRST ISSUE OF COMPUTATION OF CAPITAL GAINS THE ASSESSEE CLAIMS DEDUCTION FOR EARTH FILLING EXPENSES ON THE GROUND THAT IMPROVEMENTS HAS TAKEN PLACE TO THE CAPITAL ASSETS. THE ASSESSING OF FICER DISALLOWED THE SAME ON THE GROUND THAT NO EVIDENCE IS PRODUCED. 4 5. THE LD. CIT (A) HAS UPHELD THE DISALLOWANCE ON T HE GROUND THAT THE ASSESSEE HAS NOT PRODUCED EVIDENCE. SELF MADE VOUCH ERS WERE REJECTED ON THE GROUND THAT THEY ARE NOT CAPABLE OF VERIFICATIO N. THE ASSESSEE PRODUCES THE COPIES OF SELF MADE VOUCHERS AS WELL AS A VALUA TION REPORT IN SUPPORT OF HIS CLAIM. 6. IN OUR VIEW THE SAME SHOULD HAVE BEEN ALLOWED, A S NO INDEPENDENT THIRD PARTY VOUCHERS CAN BE PRODUCED AS EVIDENCE FO R EARTH FILLING EXPENSES, AS IT IS IN THE UNORGANIZED SECTOR. VALUATION REPOR T SHOULD BE A BASIS FOR ALLOWING THE EXPENDITURE, WHEN CORROBORATED WITH VO UCHERS OBTAINED AND PRODUCED BEFORE THE ASSESSING OFFICER. IN THE RESUL T THIS GROUND OF THE ASSESSEE IS ALLOWED. 7. THE NEXT EFFECTIVE GROUND ON THE ESTIMATION OF H OUSE HOLD EXPENSES AT RS.20,000/- PER MONTH. THE ASSESSEE IN THIS CASE HA S SHOWN WITHDRAWALS OF RS.95,405/- DURING THE YEAR AND HIS WIFE HAS SHOWN RS.45,200/-. IN OUR VIEW THERE WITHDRAWALS ARE SUFFICIENT AND NO FURTHER EST IMATION AND ADDITION IS WARRANTED. THUS, GROUND NO.3 IS ALLOWED. 8. GROUND NO. 1 AND 4 ARE GENERAL IN NATURE. IN THE RESULT THE APPEAL OF THE ASSESSEE IS ALLOWE D. PRONOUNCED IN THE OPEN COURT ON 18 TH FEBRUARY, 2014 SD/- SD/- (A.T.VARKEY) (J. S. REDDY) JUDICIAL MEMBER ACCOUNTANT MEMBER 5 DATED: 18 TH FEBRUARY, 2014. COPY OF THE ORDER FORWARDED TO:- 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR BY ORDER DEPUTY REGISTRAR, ITAT. S. SINHA