Sh. Manav Singla, Chandigarh V. DCIT, Chandigarh

ITA 746/CHANDI/2017

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 6655 (ITAT-CHANDIGARH)
• Duration Of Justice: 2 year(s) 3 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-07-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: Not Allotted
• Next Hearing Date: 17-07-2019
• Assessment Year: 2006-2007
• Appeal Filed On: 28-04-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: APUL JAYASWAL
• Keywords: Deemed to accrue or arise in india; Cost of acquisition
• Section: 143(3)

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL, CHANDIGARH BENCH B CHANDIGARH !, ' # $ , $ % & ' ( ) , *+ # BEFORE: SMT. DIVA SINGH, JM & SMT.ANNAPURNA GUPTA, AM ./ ITA NO. 746/CHD/2017 ASSESSMENT YEAR : 2006-07 SHRI MANAV SINGLA, HOUSE NO. 244, SECTOR 16A, CHANDIGARH. VS THE DCIT, CENTRAL CIRCLE-1, CHANDIGARH. PAN /TAN NO: AUKPS1017R APPELLANT RESPONDENT ! ASSESSEE BY : SHRI NIKHIL GOYAL & SHRI SUDHIR SEHGAL,ADVOCATE ' ! REVENUE BY : SHRI APUL JAYASWAL, SR.DR # $ % DATE OF HEARING : 18.07.2019 &'() % D ATE OF PRONOUNCEMENT : 29.07.2019 *./ ORDER PER DIVA SINGH THE PRESENT APPEAL HAS BEEN FILED BY THE ASSESSEE WHEREIN THE CORRECTNESS OF THE ORDER DATED 25.01.2017 OF CI T(A)-3 GURGAON PERTAINING TO 2006-07 ASSESSMENT YEAR HAS B EEN ASSAILED. 2. HOWEVER, BEFORE WE ADDRESS THE GRIEVANCE RAISED BY THE ASSESSEE, IT IS PERTINENT TO NOTE THAT IN THE FILIN G OF THE PRESENT APPEAL, THE REGISTRY HAS POINTED OUT A DELA Y OF 24 DAYS. 3. THE LD. AR INVITING ATTENTION TO THE AFFIDAVIT F ILED ON BEHALF OF THE ASSESSEE SUBMITTED THAT THE DELAY OF 24 DAYS HAS ITA 746/CHD/2017 A.Y. 2006-07 PAGE 2 OF 6 BEEN EXPLAINED BY THE ASSESSEE CLAIMING THAT THE DO CUMENTS FOR FILING OF THE APPEAL WERE MISPLACED BY HIM. RE FERRING TO THE AFFIDAVIT AND THE MATERIAL AVAILABLE ON RECORD, IT WAS SUBMITTED THAT HOWEVER, THE APPEAL FEE FOR FILING THE APPEAL WAS DEPOSITED WITHIN TIME I.E. ON 28.02.2017. ACCO RDINGLY, IT WAS HIS SUBMISSION THAT THE DELAY HAS OCCURRED ON A CCOUNT OF THE INADVERTENT MISPLACEMENT OF DOCUMENTS AND CONSI DERING THE PECULIAR FACTS, THE DELAY MAY BE CONDONED. 4. THE LD. SR.DR CONSIDERING THE RECORD POSED NO OB JECTION IN THE CIRCUMSTANCES FOR CONDONING THE DELAY. 5. WE HAVE HEARD THE SUBMISSIONS AND PERUSED THE MA TERIAL AVAILABLE ON RECORD. THE ABOVE SUBMISSIONS ARE BORN E OUT FROM THE FOLLOWING AVERMENTS MADE IN THE AFFIDAVIT: I, MANAV SINGLA S/O SH. SUKHDEV SINGLA RESIDENT OF H.NO. 244, SECTOR 16-A, CHANDIGARH DO HEREBY SOLEMNLY DECLARE AS UNDER:- 1. THAT THE ASSESSEE RECEIVED APPELLATE ORDERS DA TED 25.01.2017 ON 03.02.2017 CONFIRMING THE IMPOSITION OF PENALTY OF RS. 15,07,6 49/- BY THE ASSESSING OFFICER U/S 271(L)(C ). 2. THAT THE APPEAL WAS TO BE FILED ON 04.04.2017 I.E W ITHIN 60 DAYS OF THE RECEIPT OF THE ORDER TO BE APPEAL AGAINST, BUT THE SAME WAS FILED ON 28.04.2017 AFTER A DELAY OF 24 DAYS. 3. THAT THE ASSESSEE DEPOSITED TRIBUNAL FEE OF RS 10,0 00/- ON 28.02.2017 WELL BEFORE THE DUE DATE OF FILING OF APPEAL BEFORE THIS HON'BLE ITAT. 4. THAT THE CHALLAN OF DEPOSIT OF TRIBUNAL FEE ALONG W ITH OTHER DOCUMENTS FOR FILING APPEAL BEFORE THE HON'BLE TRIBUNAL GOT MISPLACED BY ME AND ESCAPED MY ATTENTION FOR FILING THE SAME WITHIN DUE DATE OF 60 DAY FROM THE RECEIPT OF APPELLATE ORDERS BEFORE THE HON'BLE BENCH. 5. THAT THE ABOVE INADVERTENT MISTAKE WAS BROUGHT TO M Y NOTICE BY THE PROFESSIONAL LOOKING AFTER MY CASE AFTER THE STATUT ORY PERIOD OF TWO MONTHS FOR FILING THE APPEAL. ITA 746/CHD/2017 A.Y. 2006-07 PAGE 3 OF 6 6. THAT I IMMEDIATELY SEARCHED FOR THE DOCUMENTS AND F ILED APPEAL BEFORE THIS HON'BLE TRIBUNAL ON 28.04.2017 APPEAL NO 746/CHANDI -2017 AFTER A DELAY OF 24 DAYS. 7. THAT THE SAID DELAY IN FILING THE APPEAL WAS BECAUS E OF THE REASONS BEYOND MY CONTROL. 8. THAT THE INADVERTENT MISTAKE ON ACCOUNT OF DELAY IN FILING THE APPEAL BY 24 DAYS BE CONDONED AND THE APPEAL BE TAKEN UP ON MERITS. 5.1. CONSIDERING THE SAME, WE FIND THAT THE CONTENT S OF THE AFFIDAVIT ARE BORNE OUT FROM A COPY OF THE CHALLAN BEARING REFERENCE NO. 2202249 DATED 28.02.2017 AVAILABLE ON RECORD. ACCORDINGLY, ON A PERUSAL OF THE MATERIAL AVAILABLE ON RECORD, WE NOTE THAT NO UNDUE ADVANTAGE HAS BEEN DERIVED BY THE ASSESSEE BY FILING THE APPEAL LATE AND NO DISADVANT AGE IS VISITED UPON THE REVENUE IN CASE THE DELAY IS CONDO NED AS NO VESTED RIGHT OF THE REVENUE IS FOUND TO BE DISTURBE D IF DELAY IS CONDONED AND THE ISSUES ARE DECIDED AFTER HEARING T HE PARTIES. 5.2 ACCORDINGLY, ACCEPTING THE EXPLANATION AS BONAF IDE AND TRUE, THE DELAY OF 24 DAYS IS CONDONED. SAID ORDER WAS PRONOUNCED IN THE OPEN COURT AND THE PARTIES WERE D IRECTED TO ARGUE THE APPEAL ON MERITS. 6. THE LD. AR INVITING ATTENTION TO THE FACTS ON RE CORD SUBMITTED THAT THE AO LEVIED A PENALTY OF RS. 15 LA CS ODD ON ACCOUNT OF THE ADDITIONS MADE IN THE ASSESSMENT ORD ER. IT WAS SUBMITTED THAT THE ASSESSEE WAS UNSUCCESSFUL IN HIS CHALLENGE POSED TO THE ADDITIONS BEFORE THE CIT(A). THE ISSU E IN THE QUANTUM PROCEEDINGS, ACCORDINGLY WAS CARRIED FURTHE R TO THE ITA 746/CHD/2017 A.Y. 2006-07 PAGE 4 OF 6 ITAT AND THE SAID ADDITION OF RS. 45,58,200/- WAS U LTIMATELY DELETED. COPY OF THE ORDER WAS FILED AND RELYING ON THE ORDER DATED 07.05.2019 IN ITA 229/CHD/2013, IT WAS HIS PR AYER THAT THE PENALTY PROCEEDINGS BECOME INFRUCTUOUS. 7. THE LD. SR.DR SOUGHT TIME TO GO THROUGH THE ORDE R. ACCORDINGLY, THE APPEAL WAS PASSED OVER. IN THE NE XT ROUND, LD. SR.DR AGREED THAT THE ADDITION HAS BEEN DELETED IN TOTO AND THE PENALTY ORDER CONFIRMED BY THE CIT(A) DOES BECO ME INFRUCTUOUS. 8. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. IT IS SEEN THAT THE C O-ORDINATE BENCH IN THE QUANTUM ORDER PERTAINING TO 2006-07 AS SESSMENT YEAR, IN THE AFORESAID ORDER DATED 07.05.2019 WERE REQUIRED TO CONSIDER THE FOLLOWING GROUND: 1. THAT THE LD. COMMISSIONER OF INCOME TAX (CENTR AL) HAS ERRED IN CONFIRMING AN ADDITION OF RS. 45,58,000/- AS DEEMED INCOME OF THE ASSESSEE UNDER SECTION 698 OF THE INCOME TAX, ACT, /96I AND ALSO INCOME OF RS. 13,55,000/- ASSESSED U/S 154 BY THE ASSESSIN G OFFICER U/S 69B. 8.1. IT IS SEEN THAT THE ADDITION SUSTAINED BY THE CIT(A) IN THE CHALLENGE POSED BEFORE THE ITAT WHICH IS A SUBJECT MATTER FOR CONSIDERATION IN THE PRESENT PENALTY PROCEEDINGS WA S DELETED HOLDING AS UNDER: 11. WE HAVE HEARD THE ARGUMENTS AND PERUSED THE MAT ERIAL ON RECORD THE FOLLOWING FACTS EMANATE FROM THE RECORD. THE NOTING AND THE D ETAILS OF THE PURCHASE DEEDS ARE AS UNDER : SI.NO. PLOT NO. AMOUNT MENTIONED IN THE DIARY PURCHASE COST AS PER REGISTERED DOCUMENTS ITA 746/CHD/2017 A.Y. 2006-07 PAGE 5 OF 6 1 PLOT NO. 9 3356950 + 534907 = 3891557 720000/- 2 PLOT NO. 55 2680250+820836=3501086 618000/- HENCE IT CANNOT BE SAID AT THIS JUNCTURE THAT TH E OTHER FIGURES NECESSARILY CONSTITUTE CASH PAYMENT IN THE ABSENCE OF ANY PAYME NT CORROBORATING THE FIGURES MENTIONED IN THE DIARY. THE PURCHASE VALUE VARIES F ROM THE FIGURES NOTED IN THE DIARY. THE REVENUE WHILE RECORDING THE STATEMENT UN DER SECTION 132(4) EVEN AT THE TIME OF SEARCH AND AT THE TIME OF ASSESSMENT CO ULD NOT BRING OUT ANYTHING ON RECORD TO PROVE ARE CORROBORATE THE DIARY NOTING. I T HAS BEEN THE CONSISTENT STAND OF THE ASSESSEE THAT THESE ARE ESTIMATES IN T HE STATEMENTS RECORDED. THERE WAS NO EVIDENCE OF CASH PAYMENT OR GENERATION OF CA SH OR PHYSICAL CASH PERTAINING TO THE ASSESSEE FOUND AT THE TIME OF SEA RCH. THE REVENUE DID NOT ENQUIRE ON THE SIDE OF SELLERS OF THE PLOTS TO PROV E ANYTHING CONTRA AS PUT FORWARD BY THE ASSESSEE. THUS, WHAT WE HAVE ON RECO RD IS A MERE NOTING OF THE DIARY WHICH IN THE ABSENCE OF ANY OTHER CORROBORATI VE EVIDENCE CANNOT BE UTILIZED FOR MAKING ADDITION UNDER SECTION 69B. AS FAR AS THE REVENUE IS CONCERN THERE ARE NO EVIDENCES ON RECORD TO PROVE U NEXPLAINED INVESTMENTS. THE PAPER IN QUESTION DOES NOT INDICATE THAT IN THE TRA NSACTION CASH PAYMENT HAS EVER TAKEN PLACE BECAUSE IT DOES NOT CONTAIN ANY IN FORMATION AS TO WHAT WAS THE CHEQUE AMOUNT OR CASH AMOUNT, WHAT WAS THE DATE OF THE TRANSACTION, WHAT DID THE FIGURE NOTED ON THE PIECE OF PAPER REPRESENT, A ND WHETHER IN ANY MANNER THE PAPER IN QUESTION HAS ANY RELEVANCE TO THE DETERMIN ATION OF THE INCOME IN THE HANDS OF THE ASSESSEE. NO EVIDENCE HAS BEEN BROUGHT ON RECORD TO CORROBORATE THE ALLEGATION THAT THE ASSESSEE HAD PAID CASH. THE REFORE UNLESS THERE IS A CORROBORATIVE EVIDENCE TO SHOW THAT THE PAYMENT OF CASH HAS TAKEN PLACE DURING THE PURCHASE, NO AMOUNT CAN BE ADDED IN THE HANDS O F THE ASSESSEE. IN THE INSTANT CASE DISTINCT AND SEPARATE PROOFS WERE NECE SSARY NAMELY PROOF OF CASH PAYMENT BY THE WAY OF GENERATION OF AMOUNT OR PHYSI CAL CASH, PROOF OF TRUTHFULNESS BY THE WAY OF ORAL STATEMENTS RECORDED OR DOCUMENTS TO PROVE THAT THE CONTENTS IN THE DIARY AMOUNTS TO UNEXPLAINED IN VESTMENTS AS PER THE PROVISIONS OF SECTION 69B. HENCE IN THE ABSENCE OF ANY OTHER EVIDENCES COLLECTED BY THE REVENUE, WE HEREBY HOLD THAT THE ADDITION MA DE BY THE ASSESSING OFFICER CANNOT BE SUSTAINED. FURTHER, WE ALSO FIND FROM THE RETURNS OF THE ASSE SSEE, FILED FOR THE ASSESSMENT YEAR 2011-12 AND 2012-13 AND ALSO THE 143(3) ORDER FOR THE ASSESSMENT YEAR 2012-13 THAT THE REVENUE ITSELF HAS ACCEPTED THE CA PITAL GAINS DECLARED BY THE ASSESSEE TAKING INTO CONSIDERATION THE AMOUNT DECLA RED IN THE REGISTERED DOCUMENTS. NO ACTION HAS BEEN TAKEN BY THE REVENUE TO DISPUTE THE COST OF ACQUISITION PERTAINING TO THE PROPERTIES IN QUESTIO N. BY ACCEPTING THE CAPITAL GAINS DECLARED BY THE ASSESSEE THE REVENUE HAS MADE A SELF GOAL PERTAINING TO THE ADDITION MADE IN THE EARLIER YEARS (THOUGH THIS IS NOT THE ONLY REASON TO DELETE THE ADDITION). 12. AS A RESULT, THE APPEAL OF THE ASSESSEE IS H EREBY ALLOWED. 8.2. ACCORDINGLY, IN THESE PECULIAR FACTS AND CIRCU MSTANCES, THE SUBMISSIONS OF THE LD. AR ARE BORNE OUT TO BE C ORRECT. THE ITA 746/CHD/2017 A.Y. 2006-07 PAGE 6 OF 6 PENALTY ORDER, IN THE ABSENCE OF ANY ADDITION IN TH E QUANTUM PROCEEDINGS HAS NO LEGS TO STAND ON. ACCORDINGLY, T HE IMPUGNED ORDER AND THE PENALTY ORDER ARE RESPECTIVE LY DISMISSED AS INFRUCTUOUS. THE APPEAL OF THE ASSESS EE, ACCORDINGLY, IS ALLOWED. SAID ORDER WAS PRONOUNCED IN THE OPEN COURT AT THE TIME OF HEARING ITSELF. 9. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED . ORDER PRONOUNCED IN THE OPEN COURT ON 29 TH JULY,2019. SD/- SD/- ( % & ' ( ) ) ( ! ) (ANNAPURNA GUPTA) (DIVA SINGH) *+ #/ ACCOUNTANT MEMBER ' #/ JUDICIAL MEMBER & % '+ ,- .- / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT 3. # / / CIT 4. # / ( )/ THE CIT(A) 5. -01 2 , % 2 , 34516 / DR, ITAT, CHANDIGARH 6. 15 7$ / GUARD FILE '+ # / BY ORDER, 8 ' / ASSISTANT REGISTRAR