INCOME TAX OFFICER, WARD- BHIWADI, ALWAR V. SMT. SOM LATA, ALWAR

ITA 721/JPR/2017

• Counselvise Citation: [2018] 126 COUNSELVISE.COM (IT) 2132 (ITAT-JAIPUR)
• Duration Of Justice: 4 month(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-01-2018
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2009-2010
• Appeal Filed On: 26-09-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ROSHANTA MEENA
• Keywords: Unexplained investment
• Section: 148

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHE S, 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. 721/JP/2017 FU/KZKJ.K O'K Z @ ASSESSMENT YEAR : 2009-10 INCOME TAX OFFICER, WARD- BHIWADI. CUKE VS. SMT. SOM LATA, VILLAGE- MAHESHRA, BUDI BAWAL, TEH- TIJARA, ALWAR. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO.: AKIPL8098F VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ L S@ ASSESSEE BY : SHRI P.C. PARWAL (C.A.) JKTLO DH VKSJ LS @ REVENUE BY : SMT. ROSHANTA MEENA LQUOKBZ DH RKJH[ K@ DATE OF HEARING : 23/11/2017 MN?KKS'K.KK DH RKJH[ K@ DATE OF PRONOUNCEMENT: 31/01/2018 VKNS'K@ ORDER PER: VIJAY PAL RAO, J.M. THIS APPEAL BY THE REVENUE IS DIRECTED AGAINST THE ORDER OF DATED 31.07.2017 OF CIT (A) FOR A.Y. 2009-10. THE REVENUE HAS RAISED THE FOLLOWING GROUNDS:- 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW LD. CI(A) ERRED IN DELETING THE ADDITION OF RS. 57,44,9 40/- MADE BY THE AO ON ACCOUNT OF UNDISCLOSED SOURCES DESPITE TH E FACT THAT THE ASSESSEE HAD NOT PAID THE AMOUNT FOR PURCHASE O F PROPERTY DIRECTLY FROM HER ACCOUNT AND HAD NOT FILED DOCUMEN TARY EVIDENCE WHICH CAN PROVE THAT THE PAYMENT OF RS. 83,00,000/- THROUGH ITA NO. 721/JP/2017 ITO V SMT. SOM LATA 2 TRANSFER BY HER SON WAS PAID TO THE SELLER/RELATED TO THE PURCHASER OF THE PROPERTY UNDER CONSIDERATION 2. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW LD. CI(A) ERRED IN ACCEPTING THE AFFIDAVIT OF THE SELLE R IN CONTRAVENTION OF RULE 46A OF THE I.T. RULES, 1961 AS THE AFFIDAVI T WAS NOT FILED BEFORE THE AO DURING THE COURSE OF ASSESSMENT PROCE EDINGS. 2. DURING THE YEAR UNDER CONSIDERATION, THE ASSESSE E PURCHASED 3 AGRICULTURAL LANDS JOINTLY WITH HER SISTER-IN-LAW S MT. PREM LATA DEVI FOR A TOTAL CONSIDERATION OF RS. 1,94,42,000/-. THE ASS ESSEES 50% SHARE INCLUDING THE CLAIM DUTY RS. 1,02,44,940/-. THE AO RECEIVED THE INFORMATION THAT THE ASSESSEE HAS PURCHASED AN IMM OVABLE PROPERTY AND ACCORDINGLY ISSUED NOTICE U/S 148 OF THE ACT ON 29.03.2016 FOR ASSESSMENT OF THE INCOME WHICH HAS ESCAPED ASSESSME NT AS THE ASSESSEE DID NOT DECLARE THIS TRANSACTION IN THE RE TURN OF INCOME DECLARING TOTAL INCOME OF RS. 1,74,565/-. THE AO AS KED THE ASSESSEE TO EXPLAIN THE SOURCE OF INVESTMENT MADE FOR PURCHASE FOR AGRICULTURAL OF LAND IN QUESTION. THE ASSESSEE SUBMITTED THAT THE P URCHASE CONSIDERATION WAS PAID THE AMOUNT RECEIVED FROM THE BANK ACCOUNT OF THE SON SHRI RAJ KUMAR. THE ASSESSING OFFICER AFTER EXAMINATION OF THE BANK ACCOUNT SHRI RAJ KUMAR SON OF THE ASSESSEE NOT ED THAT ONLY CASH OF RS. 45,00,000/- HAS WITHDRAWN FROM THE ACCOUNT O F SHRI RAJ KUMAR AND ACCORDINGLY, THE AO MADE AN ADDITION OF RS. 57, 44,940/- AS ITA NO. 721/JP/2017 ITO V SMT. SOM LATA 3 UNEXPLAINED INVESTMENT. ON APPEAL, THE LD. CIT(A) H AS DELETED THE ADDITION MADE BY THE AO BY TAKING NOTE OF THE FACT THAT THE PURCHASE CONSIDERATION WAS PAID TO THE EXTENT OF RS. 83,00,0 00/- THROUGH CHEQUE ISSUED FROM THE ACCOUNT OF SHRI RAJ KUMAR THE SON O F THE ASSESSEE WHEREAS THE ASSESSING OFFICER HAS ALREADY ACCEPTED THE CASH CONSIDERATION UPTO RS 45 LACS. 3. WE HAVE HEARD THE LD. DR AS WELL LD. AR AND CONS IDERED THE RELEVANT MATERIAL ON RECORD. THE LD. DR HAS SUBMITT ED THAT THE ASSESSEE EXPLAINED THE SOURCE OF INVESTMENT AS CASH PAID FRO M THE ACCOUNT OF HER SON SHRI RAJ KUMAR WHEREAS THE AO FOUND THAT ON LY RS. 45 LACS WAS WITHDRAWN FROM THE ACCOUNT OF SHRI RAJ KUMAR AND BA LANCE CONSIDERATION REMAINED UNEXPLAINED. HE HAS RELIED U PON THE ORDERS OF THE ASSESSING OFFICER. THE LD. AR OF THE ASSESSEE H AS SUBMITTED THAT THE ASSESSEE FILED AFFIDAVIT OF THE SELLERS AS WELL AS AFFIDAVIT OF THE SON OF THE ASSESSEE TO EXPLAIN THE MODE OF PAYMENT AND SOU RCE PURCHASE CONSIDERATION. THE LD. CIT(A) AFTER CONSIDERING THE DETAILS FILED BY THE ASSESSEE BEFORE THE AO AS WELL AS THE AFFIDAVITS FR OM SELLERS AND SHRI RAJ KUMAR SON OF THE ASSESSEE FOUND THAT THE PURCHA SE CONSIDERATION OF RS. 83 LACS WAS PAID THROUGH CHEQUE ISSUED FROM TH E BANK ACCOUNT OF ITA NO. 721/JP/2017 ITO V SMT. SOM LATA 4 SHRI RAJ KUMAR AND BALANCE AMOUNT WAS PAID IN CASH. HE HAS RELIED UPON THE IMPUGNED ORDER OF THE LD. CIT(A). 4. HAVING CONSIDERED THE RIVAL SUBMISSIONS AND CARE FUL PERUSAL OF THE RECORD, WE NOTE THAT THE AO PROPOSED TO ASSESS THE INCOME ON ACCOUNT OF PURCHASE CONSIDERATION OF RS. 1,02,44,94 0/-. THE DETAILS OF THE PROPERTY PURCHASE BY THE ASSESSEE DURING THE YE AR UNDER CONSIDERATION ARE GIVEN BY THE AO IN PARA 3 AS UNDE R:- PROPERTY DETAILS DATE IF REGISTRY AMOUNT ASSESSEES SHARE 14/01/2009 RS. 88,30,000/ - RS. 44,15,000/ - 14/01/2009 RS. 55,44,000/ - RS. 27,72,000 / - 14/01/2009 RS. 50,68,000/ - RS. 25,34,000/ - REGISTRATION CHARGES RS. 5,23,940/ - TOTAL RS. 1,02,44,940/ - THE AO AFTER CONSIDERATION THE EXPLANATION OF THE A SSESSEE NOTED AS UNDER:- DATE PARTICULAR AMOUNT CR ACCOUNT BALANCE 12.01.2009 TO C ASH RS. 25,00,000/ - - RS. 53,53,272/ - 13.01.2009 TO CASH RS. 20,00,000/ - - RS. 33,53,272/ - 14.01.2009 BY TR - RS. 40,00,000/ - RS. 73,53,272/ - 14.01.2009 BY R - RS. 10,00,000/ - RS. 83,53,272/ - 14.01.2009 BY TR RS. 83,00,000/ - - RS. 53,272/ - THEREFORE, ONLY CASH OF RS. 45,00,000/- WAS WITHDRA WN FROM THE ACCOUNT OF SHRI RAK KUMAR AND AMOUNT OF RS. 83,00,0 00/- WAS TRANSFER ENTRY. IN THIS WAY SOURCE OF RS. 45,00,000/- HAS ON LY BEEN FOUND ITA NO. 721/JP/2017 ITO V SMT. SOM LATA 5 EXPLAINED. KEEPING IN VIEW OF THE ABOVE FACTS SOURC E OF AMOUNT OF RS. 57,44,940/- ( 10,02,44,940-45,00,000) REMAINED UNEX PLAINED AND SAME IS TREATED AS INCOME OF THE ASSESSEE FROM UNDISCLOS ED SOURCES. 4.1 THUS, IT IS CLEAR FROM THE DETAILS AS RECORDED BY THE AO THAT THERE WAS A CASH WITHDRAWAL FROM THE BANK ACCOUNT OF SHRI RAJ KUMAR THE SON OF THE ASSESSEE OF RS. 45 LACS AND ALSO THERE IS TR ANSFER ENTRY OF RS. 83 LACS WHICH WAS ACCEPTED BY THE AO IN HIS ORDER HOWE VER, THE AO HAS CONSIDERED ONLY THE CASH WITHDRAWAL AS SOURCE AVAIL ABLE WITH THE ASSESSEE FOR PAYMENT OF CONSIDERATION. THE LD. CIT( A) AFTER CONSIDERING THE NECESSARY DETAILS HAS GIVEN THE FINDING IN PARA 5.3.2 AS UNDER:- 5.3.2 I HAVE CONSIDERED THE ABOVE MENTIONED FACTS OF THE CASE ALONG WITH THE BANK STATEMENT OF SH. RAJ KUMAR. IN THIS REGARD I HAVE ALSO PERUSED THE AFFIDAVIT FROM THE PURCHASER SH. AJAY PAL, WHO HAS AFFIRMED THAT HE HAS RECEIVED AN AMOUNT OF RS. 83 LACS THRUGH CHEQUE NO. 868041 DATED 14/01/2009 AS THE SA LE PROCEED FOR THE PROPERTY SOLD TO SMT. SOMLATA. AND THAT THE AMOUNT HAS BEEN RECEIVED FROM THE BANK ACCOUNT OF SH. RAJ KUMA R, S/O SMT. SOMLATA. SH. RAJ KUMAR IS A REGULAR INCOME TAX ASSE SSEE HAVING PAN BHQPK0301Q. IN VIEW OF THE ABOVE MENTION FACT S, THE SOURCE OF INVESTMENT OF THE ENTIRE AMOUNT OF RS. 1, 02,44,940/- IS EXPLAINED. THEREFORE, I FIND NO JUSTIFICATION FOR A DDITION OF RS. 57,44,940/-. ACCORDINGLY, THE ADDITION OF RS. 57,44 ,940/- IS DELETED AND THE APPELLANTS GROUND OF APPEAL ON THE ISSUE IS ALLOWED. THE LD. CIT(A) NOTED THAT AN AMOUNT OF RS. 83 LACS WAS PAID THROUGH CHEQUE NO. 868041 DATED 14.01.2009 WHICH WAS ALSO S HOWN IN THE DETAILS AS RECORDED BY THE AO. THEREFORE, WHEN THE PURCHASE ITA NO. 721/JP/2017 ITO V SMT. SOM LATA 6 CONSIDERATION TO THE EXTENT OF RS. 83 LACS PAID THR OUGH CHEQUE FROM THE ACCOUNT OF THE SON OF THE ASSESSEE THEN, THE BALANC E AMOUNT OF RS. 19,44,940/- WAS VERY MUCH ACCEPTED BY THE AO AS SOU RCE FROM THE CASH WITHDRAWAL OF RS. 45 LACS. ACCORDINGLY, IN VIE W OF THE FACTS AND CIRCUMSTANCES OF THE CASE, WE DO NOT FIND ANY MERIT AND SUBSTANCE IN THE PRESENT APPEAL OF THE REVENUE. THE ORDER OF THE LD. CIT(A) IS UPHELD. IN THE RESULT, THE REVENUES APPEAL IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 31/01/2018. SD/- SD/- FOE FLAG ;KNO FOT; IKY JKO (VIKRAM SINGH YADAV) (VIJAY PAL RAO) YS[KK LNL;@ ACCOUNTANT MEMBER U;KF;D LNL;@ JUDICIAL MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 31/01/2018. * SANTOSH. VKNS'K DH IZFRFYFI VXZSFKR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE RESPONDENT- ITO, WARD- BHIWADI. 2. IZR;FKHZ@ THE APPELLANT- SMT. SOM LATA, 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. 721/JP/2017} VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASST. REGISTRAR