The Assistant Commissioner of Income-tax, Jalandhar V. Smt. Rekha Rani Bagga, Hoshiarpur

ITA 74/ASR/2012

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 63497 (ITAT-AMRITSAR)
• Duration Of Justice: 6 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 24-09-2012
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 18-09-2012
• Assessment Year: 2006-2007
• Appeal Filed On: 01-03-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: AMRIK CHAND
• Assessee Lawyers: V K MALHOTRA
• Keywords: Unexplained investment; Income from undisclosed sources; Opportunity of being heard; Additional evidence
• Section: 143(3); 54B; 142(1); 132

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH; AMRITSAR. BEFORE SH. H.S. SIDHU, JUDICIAL MEMBER AND SH. B.P.JAIN, ACCOUNTANT MEMBER I.T.A. NO.74(ASR)/2012 ASSESSMENT YEAR:2006-07 PAN :AAMPR8933K ASSTT. COMMR. OF INCOME-TAX, VS. SMT. REKHA RANI BA GGA, C.C.II. JALANDHAR. W/O SH. DEEPAK KUMAR BAGGA, HOSHIARPUR. (APPELLANT) (RESPONDENT) APPELLANT BY:SH. AMRIK CHAND, DR RESPONDENT BY:SH. V.K. MALHOTRA, ADV. DATE OF HEARING:18/09/2012 DATE OF PRONOUNCEMENT:24/09/2012 ORDER PER BENCH ; THE REVENUE HAS FILED THE PRESENT APPEAL AGAINST T HE IMPUGNED ORDER OF CIT(A)-1, LUDHIANA, DATED 12/12/2011 RELATING TO ASSESSMENT YEAR 2006- 07 ON THE FOLLOWING GROUNDS: 1. THE LD. CIT(A) LUDHIANA HAS ERRED BOTH IN LAWS AND ON FACTS OF THE CASE IN DELETING THE ADDITIONS OF RS.15,00,000/ - AS THE SPECIFIC TRANSACTION IN THE CASE OF THE ASSESSEE ST ILL REMAINS UNVERIFIED. MERELY BECAUSE THE LENDER WAS TREATED G ENUINE IN THE CASE OF THE HUSBAND, IT CANNOT BE SAID THAT THE TRANSACTION IN THE CASE OF THE ASSESSEE ACTUALLY TOOK PLACE AND IS GENUINE. ITA NO.74(ASR)/2012 2 2. THE LD. CIT(A) LUDHIANA HAS ERRED BOTH IN LAWS A ND ON FACTS OF THE CASE IN DELETING THE ADDITIONS OF RS.2,88,750 M ADE ON ACCOUNT OF UNEXPLAINED CASH IN HAND. 3. THE APPELLANT CRAVES LEAVE TO ADD OR AMEND THE G ROUNDS OF APPEAL ON OR BEFORE THE APPEAL IS HEARD AND DISPOSE D OFF. 4. IT IS PRAYED THAT THE ORDER OF THE CIT(APPEALS) BE SET ASIDE AND THAT OF THE A.O. BE RESTORED. 2. THE FACTS RELATING TO THE ADDITIONS IN DISPUTE A RE THAT A SEARCH U/S 132 OF THE INCOME TAX ACT, 1961 (IN SHORT, THE ACT) W AS CONDUCTED AT THE RESIDENTIAL AND BUSINESS PREMISES OF THE ASSESSEE O N 17.11.2005. SUBSEQUENTLY, A NOTICE U/S 142(1) WAS ISSUED ON 19. 09.2007 AND SERVED UPON THE ASSESSEE ON 21.09.2005 REQUIRING HERE TO FURNIS H THE RETURN ON OR BEFORE 28.09.2007. THE ASSESSEE FILED THE RETURN OF INCOME AT RS.14,280/- ON 28.09.2007 AND AGRICULTURAL INCOME AT RS.87,500/-. THE AO ISSUED NOTICE U/S 142(1)( & 143(2) ALONGWITH QUESTIONNAIRE ON 02. 11.2007 AND IN RESPONSE TO THE SAME THE ASSESSEES HUSBAND SH. DEEPAK KUMAR BAGGA ATTENDED THE ASSESSMENT PROCEEDING ALONGWITH AUTHORIZED REPRENTA TIVE OF THE ASSESSEE. AS PER ANNEXURE-2 SEIZED FROM THE RESIDENT OF THE ASSE SSEE, A COUNTERFOIL DOCUMENT NO.27 DATED 1.10.2005 OF PUNJAB NATIONAL B ANK FOR RS.10,00,000/- WAS FOUND AND SEIZED AT THE RESIDENC E OF THE ASSESSEE. THERE WERE CERTAIN OTHER SUCH PAY-IN-SLIPS ALSO IN THE NA MES OF SH. DEEPAK KUMAR BAGGA AND HIS FAMILY MEMBERS. DURING THE POST SEARC H ENQUIRIES, STATEMENT ITA NO.74(ASR)/2012 3 OF SH. DEEPAK KUMAR BAGGA WAS RECORDED WHEREIN HE W AS REQUIRED TO INTIMATE OF THESE RECEIPTS BY DIFFERENT MEMBERS OF HIS FAMILY AND ALSO TO PRODUCE DOCUMENTARY EVIDENCE WITH REGARD TO SOURCE OF THESE RECEIPTS. SH. DEEPAK KUMAR BAGGA EXPLAINED THAT THESE AMOUNTS HAV E BEEN RECEIVED BY DIFFERENT MEMBERS OF HIS FAMILY AND CREDITED INTO T HEIR BANK ACCOUNTS AS ADVANCE TAKEN FOR SALE OF THEIR LAND SITUATED AT SA LWARA AND KAKOO VILLAGES. HE, HOWEVER, FURTHER STATED THAT HE HAD NO DOCUMENT ARY EVIDENCE WITH HIM IN THIS REGARD. SH. DEEPAK KUMAR BAGA, WHO IS HUSB AND OF THE ASSESSEE, FURTHER STATED HE HAS NO AGREEMENT IN WRITING FOR THE SALE AND PURCHASE OF THE LAND BECAUSE IT IS A VERBAL AGREEMENT WITH SH. BALWINDER SINGH AND HIS EXACT ADDRESS WILL BE SUPPLIED ON THE NEXT DATE OF HEARING. BUT HE DID NOT SUPPLY THE EXACT ADDRESS OF SH. BALWINDER SINGH AN D ALSO DID NOT FILE ANY DOCUMENTARY EVIDENCE TO PROVE THE SALE TRANSACTION OF THE LAND MENTIONED ABOVE. HE ONLY STATED THAT SH. BALWINDER SINGH IS R ESIDING SOMEWHERE IN USA AND HE DID NOT KNOW HIS EXACT ADDRESS. BUT HE HAD TAKEN RS.30,00,000/- FROM HIM AND WIFE SMT. REKHA RANI AN D HAD TAKEN RS.15,00,000/- FROM HIM AND SIMILARLY OTHER MEMBERS OF HIS FAMILY ALSO TAKEN RS.10,00,000/- EACH FROM SH. BALWINDER SINGH FOR THE SALE OF LAND. 2.1. AFTER CONSIDERING THE DOCUMENTARY EVIDENCE FIL ED BY THE ASSESSEE AS WELL AS THE SEARCH MATERIAL, ON THE AMOUNT IN DISPU TE, THE AO MADE AN ITA NO.74(ASR)/2012 4 ADDITION OF RS.15,00,000/- AS UNACCOUNTED INCOME NO T DISCLOSED TO THE DEPARTMENT IN THE HANDS OF THE ASSESSEE AND SECONDL Y RS.2,88,750/- AS UNEXPLAINED CASH FOUND AT THE TIME OF SEARCH BELON GED TO THE ASSESSEE AND VARIOUS OTHER ADDITIONS WHILE COMPLETING THE ASSESS MENT U/S 143(3) OF THE ACT ON 27.12.2007. AGGRIEVED BY THE SAME, THE ASSES SEE FILED AN APPEAL BEFORE THE LD. CIT(A), WHO VIDE IMPUGNED ORDER 12/ 12/2011 PARTLY ALLOWED THE APPEAL OF THE ASSESSEE AND DELETED THE ADDITION S IN DISPUTE. 3. NOW THE REVENUE HAS FILED THE PRESENT APPEAL AGA INST THE IMPUGNED ORDER DATED 12.12.2011 BEFORE US. 4. AT THE TIME OF HEARING, THE LD. DR RELIED UPON T HE ORDER PASSED BY THE ASSESSING OFFICER. 5. ON THE CONTRARY, THE LD. COUNSEL FOR THE ASSESSE E RELIED UPON THE ORDER OF THE CIT(A). IN ADDITION, HE HAS FILED A PAPER B OOK CONTAINING PAGES 1 TO 44, IN WHICH HE HAS ATTACHED VARIOUS DOCUMENTARY EV IDENCES SUPPORTING THE CLAIM OF THE ASSESSEE. HE FURTHER DREW OUR ATTENTIO N TOWARDS THE ASSESSMENT ORDER IN THE CASE OF THE HUSBAND OF THE ASSESSEE, S H. DEEPAK KUMAR BAGGA, WHICH HE HAS ATTACHED AT PAGES 33-37 OF THE PAPER B OOK. HE STATED THAT EXACTLY UNDER SIMILAR CIRCUMSTANCES, THE SIMILAR AD DITION HAS BEEN MADE IN THE CASE OF SH. DEEPAK KUMAR BAGGA, WHO IS HUSBAND OF THE ASSESSEE AND HE HAS ALSO NOT FILED ANY DOCUMENTARY EVIDENCE BEFORE THE AO AND HE FILED THE ITA NO.74(ASR)/2012 5 ADDITIONAL EVIDENCE SUPPORTING HIS CLAIM BEFORE THE LD. CIT(A) AND THE LD. CIT(A) HAD DELETED THE ADDITION OF RS.38,50,000/- AND REJECTED THE ASSESSEES GROUND OF APPEAL REGARDING EXEMPTION U/S 54B OF THE ACT. 6. AGAINST THE ORDER OF THE LD. CIT(A), THE ASSESS EE AS WELL AS THE REVENUE FILED THE APPEALS BEFORE THE ITAT I.E. IN I TA NO.300(ASR)/2009 AND ITA NO.241(ASR)/2009 ON 17.07.2009. THE ITAT SET AS IDE THE ISSUES IN DISPUTE TO THE FILE OF THE ASSESSING OFFICER FOR FR ESH DECISION AS WELL AS ITAT HAS ALSO ALLOWED THE APPLICATION FOR ADDITIONAL EVI DENCE UNDER RULE 46A OF THE I.T. RULES, 1962 WITH THE DIRECTION TO THE AO E XAMINE THE SAME AFRESH AND DECIDE THE ISSUE IN ACCORDANCE WITH LAW AFTER A FFORDING REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. THE LD. COUNSEL FURTHER STATED THAT IN COMPLIANCE OF THE ORDER DATED 17.07.2009 PA SSED BY THIS BENCH, THE AO HAS ACCEPTED ALL THE TRANSACTIONS AS EXPLAINED C REDIT IN THE NAME OF THE HUSBAND OF THE ASSESSEE I.E. SH. DEEPAK KUMAR BAGGA AND DID NOT MAKE ANY SUCH ADDITION WHILE COMPLETING THE ASSESSMENT ON 09 .12.2010 U/S 143(3) OF THE ACT, IN THE CASE OF THE HUSBAND OF THE ASSESSEE . HE FURTHER STATED THAT IN THE CASE OF THE ASSESSEE, THE ADDITION IN DISPUTE H AS BEEN MADE WITHOUT CONSIDERING THE RECORD OF THE ASSESSEE AND THE LD. FIRST APPELLATE AUTHORITY HAS RIGHTLY CONSIDERED THE DOCUMENTARY EVIDENCE IN THE CASE OF THE ASSESSEE AND RIGHTLY APPRECIATED THE ASSESSMENT ORDER PASSED IN THE CASE OF HUSBAND ITA NO.74(ASR)/2012 6 OF THE ASSESSEE AND FINALLY IN ORDER TO MAINTAIN RU LE OF CONSISTENCY DELETED THE ADDITION IN DISPUTE. HE RELIED UPON THE ORDER P ASSED BY THE LD. FIRST APPELLATE AUTHORITY. 7. WE HAVE HEARD BOTH THE PARTIES AND CAREFULLY GO NE THROUGH THE MATERIAL AVAILABLE ON RECORD, ESPECIALLY THE ORDER PASSED BY THE AO IN THE CASE OF SH. DEEPAK KUMAR BAGGA, HUSBAND OF THE ASSE SSEE, U/S 143(3) OF THE ACT, DATED 09.12.2007. A COPY OF THE SAME HAS BEEN PLACED IN THE PAPER BOOK AT PAGES 33-37. IN THE PRESENT CASE, THE ADDIT ION OF RS.15,00,000/- HAS BEEN MADE ON ACCOUNT OF UNEXPLAINED INVESTMENT, WHI CH THE ASSESSEE HAS RECEIVED AS ADVANCE/EARNEST MONEY FOR THE SALE OF L AND FROM SH. BALWINDER SINGH THROUGH A/C PAYEE CHEQUE. NO DOUBT, THE ASSES SEE COULD NOT PRODUCE ANY DOCUMENTARY EVIDENCE IN THE ASSESSMENT PROCEEDI NGS IN SUPPORT OF THIS. IT IS PERTINENT TO MENTION HERE THAT HUSBAND OF TH E ASSESSEE SH. DEEPAK KUMAR BAGGA WAS ALSO AGGRIEVED BY SIMILAR ADDITION MADE BY THE AO IN HIS CASE. HE ALSO DID NOT FILE ANY DOCUMENTARY EVIDENCE BEFORE THE AO AND THE ADDITIONS WERE MADE IN HIS CASE ALSO. HE FILED ALL THE DOCUMENTARY EVIDENCES BEFORE THE LD. FIRST APPELLATE AUTHORITY BUT ON APP EAL BEFORE THE ITAT, AMRITSAR BENCH, IN THE CASE OF SH. DEEPAK KUMAR BAG GA, THIS BENCH HAD REMITTED THE ADDITIONAL EVIDENCES FILED BY THE HUSB AND OF THE ASSESSEE AFTER TAKING REMAND REPORT FROM THE AO , IN WHICH THE AO HAS NOT RAISED ANY ITA NO.74(ASR)/2012 7 SERIOUS OBJECTION ON THE ADMISSION OF THE ADDITIONA L EVIDENCE FILED BY THE HUSBAND OF THE ASSESSEE. ON THE BASIS OF THE ADDITI ONAL EVIDENCE FILED BY THE HUSBAND OF THE ASSESSEE IN HIS APPELLATE PROCEEDING S BEFORE THE LD. CIT(A), THE LD. CIT(A) HAS DELETED THE SIMILAR ADDITION IN THE CASE OF THE ASSESSEE WHO IS WIFE OF SH. DEEPAK KUMAR BAGGA. THE LD. FIRS T APPELLATE AUTHORITY IN THE IMPUGNED ORDER HAS APPRECIATED ALL EVIDENCES PR ODUCED BY THE ASSESSEE IN THE APPELLATE PROCEEDINGS WHICH ARE SIMILAR IN N ATURE IN THE CASE OF THE ASSESSEE ALSO. THE LD. FIRST APPELLATE AUTHORITY HA S ALSO HELD THAT IN VIEW OF THE DECISION OF THE HONBLE PUNJAB & HARYANA HIGH C OURT IN THE CASE OF SH. JASWANT RAI VS. COMMISSIONER OF WEALTH TAX, REPORTE D IN (1977) 107 ITR 477 (P&H) WHEREIN IT IS HELD THAT IT IS NOT OPEN TO THE DEPARTMENT TO ADOPT A DIFFERENT YARD-STICK IN THE CASE OF AN EQUAL SHARE OF THE ASSESSEE IN THE SAME PROPERTY. BUT IT IS NOT DISPUTED BY THE REVENUE TH AT THE ASSESSEE IS NOT HAVING EQUAL SHARE WITH HER HUSBAND. IT IS AN ADMIT TED FACT THAT THE ASSESSEE HAS ALSO RECEIVED SIMILAR NATURE EARNEST MONEY ADVA NCE FROM SH. BALWINDER SINGH BY CHEQUE, AS THE HUSBAND OF THE ASSESSEE HAD RECEIVED FROM SH. BALWINDER SINGH. THEREFORE, IN OUR CONSIDERED VIEW , THE DEPARTMENT SHOULD HAVE ALSO DELETED THE ADDITION IN DISPUTE BECAUSE O F SIMILAR IN NATURE. 7.1 KEEPING IN VIEW THE FACTS AND CIRCUMSTANCES OF THE CASE DISCUSSED ABOVE, WE ARE OF THE VIEW THAT ON IDENTICAL ISSUE I N THE CASE OF THE HUSBAND ITA NO.74(ASR)/2012 8 OF THE ASSESSEE, THE ADDITIONAL EVIDENCE PROPOSED T O HAVE BEEN FILED BY THE ASSESSEE HAD BEEN DIRECTED TO BE ACCEPTED BY THIS B ENCH AND THE CASE WAS SET ASIDE TO THE FILE OF THE AO FOR EXAMINATION OF ALL THE ADDITIONAL EVIDENCES AND LASTLY THE AO IN COMPLIANCE OF THE ITAT ORDER ACCEPTED THE AMOUNT RECEIVED AS GENUINE. NO ADDITION IN THIS REGARD HAS BEEN MADE. IN THE FACTS AND CIRCUMSTANCES OF THE CASE, THE RECEIPT OF RS.15 ,00,000/- BY THE ASSESSEE FROM THE SAME SELLER IN RESPECT OF THE DEAL FOR SAL E OF LAND CANNOT BE CONSIDERED AS UNEXPLAINED. THEREFORE, WE DELETE THE ADDITION OF RS.15,00,000/- BY UPHOLDING THE ORDER OF THE LD. FI RST APPELLATE AUTHORITY ON THIS ISSUE. 7.3. AS REGARDS THE DELETION OF ADDITION OF RS.2,88 ,750/- MADE ON ACCOUNT UNEXPLAINED CASH FOUND AT THE RESIDENCE, AFTER GOIN G THROUGH THE IMPUGNED ORDER AS WELL AS THE EVIDENCE FILED BY THE LD. COUN SEL FOR THE ASSESSEE, WE ARE OF THE VIEW THAT ALL PAYMENTS/RECEIPTS AS RECORDED IN THE SEIZED CASH BOOK HAVE BEEN EXAMINED YEAR-WISE BY THE AO AND SUITABLE ADDITIONS HAVE BEEN MADE IN CONSEQUENCE THEREOF. IN THE CIRCUMSTANCES T HE BALANCE AS PER THIS CASH BOOK AS ON THE DATE OF SEARCH DOES NOT NEED AN Y EXPLANATION AS IT IS THE NET RESULT OF THE DEBITS AND CREDITS AS CONTAINED I N THE CASH BOOK. THE LD. FIRST APPELLATE AUTHORITY IN THE IMPUGNED ORDER HAS RIGHTLY APPRECIATED THE RECORD AND DELETED THE ADDITION. THEREFORE, NO INTE RFERENCE IS CALLED FOR IN THE ITA NO.74(ASR)/2012 9 WELL REASONED ORDER PASSED BY THE LD. FIRST APPELLA TE AUTHORITY. ACCORDINGLY, WE UPHOLD THE IMPUGNED ORDER BY DISMISSING THE APPE AL FILED BY THE REVENUE. 8. IN THE RESULT, THE APPEAL FILED BY THE REVENUE I S DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 24T SEPTEMBER, 2012. SD/- SD/- (B.P. JAIN) (H.S. SIDHU) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 24TH SEPTEMBER, 2012 /SKR/ COPY OF THE ORDER FORWARDED TO: 1. THE ASSESSEE:SMT. REKHA RANI BAGGA, HOSHIARUR. 2. THE ACIT,C.C.II, JALANDHAR. 3. THE CIT(A) 4. THE CIT 5. THE SR DR, ITAT, AMRITSAR. TRUE COPY BY ORDER (ASSISTANT REGISTRAR) INCOME TAX APPELLATE TRIBUNAL, AMRITSAR BENCH: AMRITSAR.