Shri Padam Chand Agrawal, Jaipur V. Income Tax officer, ward-2(5), Jaipur

ITA 747/JPR/2018

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 6899 (ITAT-JAIPUR)
• Duration Of Justice: 7 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-01-2019
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: B
• Assessment Year: 2012-2013
• Appeal Filed On: 29-05-2018
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: NEENA JEPH JCIT DHK
• Assessee Lawyers: RAJIV SOGANI
• Keywords: Additional evidence; Corroborative evidences
• Section: 143(3); 147; 68

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHE S B, 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. 747/JP/2018 FU/KZKJ.K O'KZ@ ASSESSMENT YEAR : 2012-13 SHRI PADAM CHAND AGARWAL, 34/21, SIDDHARTH MARG, KIRAN PATH, MANSAROVAR, JAIPUR. CUKE VS. I.T.O., WARD-2(5), JAIPUR. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO.: AGMPA 3083 D VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY : SHRI RAJIV SOGANI (CA) JKTLO DH VKSJ LS@ REVENUE BY : SMT. NEENA JEPH (JCIT) LQUOKBZ DH RKJH[K@ DATE OF HEARING : 26/11/2018 MN?KKS'K.KK DH RKJH[K @ DATE OF PRONOUNCEMENT : 07/01/2019 VKNS'K@ ORDER PER: VIJAY PAL RAO, J.M. THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER DATED 26/03/2018 OF LD. CIT(A)-I, JAIPUR FOR THE A.Y. 201 2-13. THE ASSESSEE HAS RAISED FOLLOWING GROUNDS OF APPEAL: 1. IN THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, LD. CIT(A) HAS ERRED IN CONFIRMING THE ACTION OF LD. A.O. IN REOPE NING THE ASSESSMENT UNDER SECTION 147 OF THE INCOME TAX ACT, 1961. THE ACTION OF THE LD. CIT(A) IS ILLEGAL, UNJUSTIFIED, A RBITRARY AND AGAINST THE FACTS OF THE CASE. RELIEF MAY PLEASE BE GRANTED BY QUASHING THE ASSESSMENT PROCEEDINGS BEING ILLEGAL AND WITHOUT AN Y BASIS. 2. IN THE FACTS AND CIRCUMSTANCES OF THE CASE AND I N LAW, LD. CIT(A) HAS ERRED IN CONFIRMING THE ACTION OF THE LD. A.O. IN M AKING AN ADDITION ITA 747/JP/2018_ PADAM CHAND AGARWAL VS ITO 2 OF RS. 1,88,00,000 AS ALLEGED UNEXPLAINED CASH DEPO SIT UNDER SECTION 68 OF THE INCOME TAX ACT. THE ACTION OF THE LD. CIT(A) IS ILLEGAL, UNJUSTIFIED, ARBITRARY AND AGAINST THE FAC TS OF THE CASE. RELIEF MAY PLEASE BE GRANTED BY DELETING THE SAID ADDITION OF RS. 1,88,00,000/-. 3. THE ASSESSEE CRAVES HIS RIGHT TO ADD, AMEND OR A LTER ANY OF THE GROUNDS ON OR BEFORE THE HEARING. 2. THE ASSESSEE HAS ALSO FILED ADDITIONAL GROUND, WHI CH READS AS UNDER: IN THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A) HAS ERRED IN NOT ACCEPTING ADDITIONAL EVIDEN CES FURNISHED BY THE ASSESSEE. THE ACTION OF THE LD. CIT(A) IS ILLEG AL, UNJUSTIFIED, ARBITRARY AND AGAINST THE FACTS OF THE CASE. RELIEF MAY PLEASE BE GRANTED BY ACCEPTING THE SAID ADDITIONAL EVIDENCES. 3. WE HAVE HEARD THE LD AR OF THE ASSESSEE AS WELL T HE LD DR ON THE ADMISSION OF THE ADDITIONAL GROUND RAISED BY THE AS SESSEE. AT THE OUTSET, WE NOTE THAT THE ADDITIONAL GROUND IS NOT A FRESH PL EA RAISED BY THE ASSESSEE BUT IT IS ON THE POINT OF REJECTION OF ADD ITIONAL EVIDENCE FILED BY THE ASSESSEE BEFORE THE LD. CIT(A), THEREFORE, THE I SSUE RAISED BY THE ASSESSEE IN THE ADDITIONAL GROUND IS EMANATING FROM THE IMPUGNED ORDER OF THE LD. CIT(A) WHEN THE ASSESSEE PROPOSED TO FIL E THE ADDITIONAL EVIDENCE BEFORE THE LD. CIT(A) WHICH WAS NOT ACCEPTED. HENCE, IN VIEW OF THE FACTS AND CIRCUMSTANCES THAT THE ADDITIONAL GRO UND RAISED BY THE ASSESSEE IS NOT A FRESH PLEA BUT IT IS AGAINST THE ORDER OF THE LD. CIT(A) FOR NOT ACCEPTING THE ADDITIONAL EVIDENCE PROPOSED TO BE FILED BY THE ITA 747/JP/2018_ PADAM CHAND AGARWAL VS ITO 3 ASSESSEE IN SUPPORT OF THE CLAIM, WE ADMIT THE ADDIT IONAL GROUND RAISED BY THE ASSESSEE FOR DECIDING ON MERITS. 4. GROUND NO. 1 OF THE APPEAL IS REGARDING VALIDITY OF REOPENING OF THE ASSESSMENT. AT THE TIME OF HEARING, THE LD AR OF TH E ASSESSEE STATED AT BAR THAT THE ASSESSEE DOES NOT PRESS GROUND NO. 1 O F THE ASSESSEES APPEAL AND THE SAME MAY BE DISMISSED AS NOT PRESSED . THE LD DR HAS RAISED NO OBJECTION IF THE GROUND NO. 1 OF THE ASSE SSEES APPEAL IS DISMISSED AS NOT PRESSED. ACCORDINGLY, GROUND NO. 1 OF THE ASSESSEES APPEAL IS DISMISSED BEING NOT PRESSED. 5. GROUND NO. 2 OF THE APPEAL IS REGARDING THE ADDI TION OF RS. 1.88 CRORES MADE BY THE ASSESSING OFFICER ON ACCOUNT OF UNEXPLAINED CASH DEPOSIT WAS SUSTAINED BY THE LD. CIT(A). THE ADDITIONA L GROUND RAISED BY THE ASSESSEE IS REGARDING THE ADDITIONAL EVIDENCE I S ALSO IN SUPPORT OF THE GROUND NO. 2 OF THE APPEAL, THEREFORE, THE GROUND N O. 2 AS WELL AS ADDITIONAL GROUND RAISED BY THE ASSESSEE ARE TAKEN UP TOGETHER FOR ADJUDICATION. THE ASSESSEE IS INDIVIDUAL AND ENGAGED IN THE BUSINESS OF REAL ESTATE IN THE NAME AND STYLE OF M/S JAI NARAYA N CONSTRUCTION COMPANY. THE ASSESSEE FILED HIS RETURN OF INCOME FOR THE YEAR UNDER CONSIDERATION ON 26/3/2013 DECLARING TOTAL INCOME O F RS. 3,57,650/-. ITA 747/JP/2018_ PADAM CHAND AGARWAL VS ITO 4 DURING THE ASSESSMENT COMPLETED U/S 147 READ WITH SE CTION 143(3) OF THE INCOME TAX ACT, 1961 (IN SHORT THE ACT), THE ASS ESSING OFFICER MADE ADDITION OF RS. 1,88,00,000/- ON ACCOUNT OF UNEXPLA INED CASH DEPOSIT IN THE BANK. 6. THE ASSESSEE CHALLENGED THE ACTION OF THE ASSESSI NG OFFICER BEFORE THE LD. CIT(A) AND SUBMITTED THAT SOURCE OF THE CASH DEPOSIT IN THE BANK IS ADVANCE RECEIVED BY THE ASSESSEE IN RESPECT OF T HE ALLOTMENT OF PLOTS OF LAND TO VARIOUS PERSONS FOR WHICH THE ASSESSEE PR OPOSED TO FILE THE ADDITIONAL EVIDENCE. SINCE THE LD. CIT(A) DID NOT AD MIT THE ADDITIONAL EVIDENCE, THEREFORE, THE CLAIM OF THE ASSESSEE WAS R EJECTED AND ADDITION WAS SUSTAINED. 7. BEFORE US, THE LD AR OF THE ASSESSEE HAS SUBMITT ED THAT THE ASSESSEE FILED ADDITIONAL EVIDENCE CONSISTS OF DETA ILS OF ADVANCES RECEIVED AMOUNTING TO RS. 62,40,000/- FROM 26 ALLOTTEES OF P LOTS AS WELL AS CONVERSION APPLICATION ALONGWITH THE MAP OF SCHEME F ILED WITH JDA U/S 90B OF THE JDA ACT. THEREFORE, PRIMA FACIE, THE ASS ESSEE HAS PRODUCED SUPPORTING EVIDENCE TO SHOW THAT TO THE EXTENT OF RS . 62,40,000/-, THE ASSESSEE RECEIVED ADVANCE AGAINST THE ALLOTMENT OF 26 PLOTS OF LANDS TO ALLOTTEES AND RS. 40.00 LACS WAS REGARDING SALE CONS IDERING OF LAND ITA 747/JP/2018_ PADAM CHAND AGARWAL VS ITO 5 RECEIVED FROM ONE SHRI TUFAN MEENA. THE LD AR HAS FUR THER POINTED OUT THAT A SUM OF RS. 84,25,000/- IS THE CASH WITHDRAWN B Y THE ASSESSEE ON EARLIER OCCASIONS AND THE BALANCE AMOUNT OF RS. 1,3 5,000/- IS PAST SAVINGS OF THE ASSESSEE, THEREFORE, THE ASSESSEE HA D EXPLAINED THE SOURCE OF DEPOSIT MADE IN THE BANK ACCOUNT. HENCE, THE LD AR HAS SUBMITTED THAT SINCE THE ADDITIONAL EVIDENCE FILED BY THE ASSESSEE WAS NEITHER EXAMINED BY THE ASSESSING OFFICER NOR BY TH E LD. CIT(A), THEREFORE, THE MATTER MAY BE REMANDED TO THE RECORD OF THE ASSESSING OFFICER FOR VERIFICATION AND ADJUDICATION OF THE IS SUE AFRESH. 8. ON THE OTHER HAND, THE LD DR HAS VEHEMENTLY OBJE CTED TO THE REMAND OF THE MATTER TO THE ASSESSING OFFICER AND C ONTENDED THAT ALL THE EVIDENCES PROPOSED TO BE FILED BY THE ASSESSEE IN S UPPORT OF THE CLAIM IS NOTHING BUT AN AFTERTHOUGHT CREATED EVIDENCE BY THE ASSESSEE. HE HAS FURTHER SUBMITTED THAT THE SO CALLED RECEIPT SHOWN B Y THE ASSESSEE ARE NOT MATCHING WITH THE TRANSACTIONS OF DEPOSITS MADE IN THE BANK ACCOUNT AND OTHERWISE THE TRANSACTION OF SALE OF LAND IN QUE STION BY THE ASSESSEE TO SOME OTHER PERSON AND NOT TO THE ALLEGED ALLOTTE ES. THE LD DR HAS FURTHER CONTENDED THAT ONCE NO PLOT OF LAND WERE FIN ALLY SOLD TO THE ALLEGED ALLOTTEES THEN THE CLAIM OF ADVANCE RECEIVE D FROM THESE 26 PARTIES IS NOTHING BUT AN AFTERTHOUGHT CONCOCTED ST ORY BY THE ASSESSEE ITA 747/JP/2018_ PADAM CHAND AGARWAL VS ITO 6 WHEN THE ASSESSING OFFICER HAS MADE THE ADDITION ON THIS ACCOUNT. HE HAS RELIED UPON THE ORDERS OF THE AUTHORITIES BELOW. 9. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AS WELL AS THE RELEVANT MATERIAL ON RECORD. THE ASSESSEES CLAIM IS BASED ON THE ADDITIONAL EVIDENCE WHICH IS THE DETAILS OF ADVANCE RECEIVED FR OM THE ALLEGED ALLOTTEES OF PLOT OF LAND AND COPY OF APPLICATION T O JDA FOR CONVERSION OF LAND. WE FURTHER NOTE THAT THE SAID APPLICATION FOR CONVERSION OF LAND FILED WITH THE JDA WAS REJECTED BY THE JDA VIDE ORDER DATED 20/5/2011 AT PAGE NO. 159 OF THE PAPER BOOK. THEREFORE, THE AGRI CULTURAL LAND PURCHASED BY THE ASSESSEE VIDE SALE DEED DATED 20/4 /2011 AND APPLIED FOR CONVERSION WITH THE JDA WAS REJECTED VIDE ORDER D ATED 20/5/2011 WHICH WAS KNOWN TO THE ASSESSEE. THEREAFTER THE ASSESS EE SOLD THE SAID AGRICULTURAL LAND TO ONE SMT. SNEHLATA JAIN VIDE SA LE DEED DATED 17/11/2011. THE ASSESSEE HAS CLAIMED THAT HE HAS RE CEIVED AN AMOUNT OF RS. 62,40,000/- FROM 26 ALLOTTEES OF PLOT OF LAN DS. IN THE ADDITIONAL EVIDENCE, THE ASSESSEE HAS FILED THE RECEIPTS FROM THESE 26 ALLEGED ALLOTTEES AT PAGE 204 TO 228 OF THE PAPER BOOK. ON CAREFUL EXAMINATION OF THESE RECEIPTS, WE FIND THAT THE ASSESSEE HAS STA TED TO HAVE RECEIVED AMOUNTS OF THE ALLEGED ADVANCE FROM THESE ALLOTTEES ON VARIOUS DATES AS UNDER: ITA 747/JP/2018_ PADAM CHAND AGARWAL VS ITO 7 NAME AMOUNT DATE GITA DEVI 1,50,000 21/07/2011 MAHAVIR 1,60,000 29/07/2011 SHANKAR LAL JAGGA 2,00,000/- 31/07/2011 GOVIND 1,80,000/- 05/08/2011 USHA GUPTA 2,10,000/- 13/08/2011 SULEKHA GUPTA 2,10,000/- 15/08/2011 MADHU JOMINI 4,00,000/- 29/08/2011 MADHU JOMINI 3,00,000/- 29/08/2011 HARI SHANKAR GUPTA 3,00,000/- 29/08/2011 SHANKAR LAL SHARMA 2,80,000/- 26/09/2011 BINOD KUMAR MITTAL 2,30,000/- 26/09/2011 SHAKUNTALA DEVI 2,05,000/- 26/09/2011 SATYANARAYAN AGARWAL 1,95,000/- 26/09/2011 SITA RAM 2,60,000/- 28/09/2011 CHANDPAL JAT 3,00,000/- 29/09/2011 VIR SINGH GURJAR 3,00,000/- 30/09/2011 PAWAN KUMAR PARIK 2,50,000/- 11/10/2011 AWADHESH PARIK 2,50,000/- 11/10/2011 JITENDRA SHARMA 3,00,000/- 11/10/2011 LOKESH 2,50,000/- 17/10/2011 DINESH KUMAR 2,50,000/- 11/10/2011 BRIJ MOHAN AGARWAL 2,50,000/- 12/10/2011 KHEM CHAND 2,00,000/- 12/10/2011 SHIV RAJ 1,50,000/- 12/10/2011 MOTI LAL 2,00,000/- 12/10/2011 THUS, FROM THE ABOVE DETAILS OF THE ALLEGED ADVANCES , IT IS CLEAR THAT THESE ADVANCES WERE RECEIVED BY THE ASSESSEE AFTER R EJECTION OF THE CONVERSION OF THE LAND BY THE JDA ON 20/5/2011 AND FURTHER SOME OF THE ADVANCES WERE ALLEGEDLY RECEIVED EVEN AFTER THE ASSE SSEE RECEIVED THE ADVANCE SALE CONSIDERATION OF THE AGRICULTURAL LAND IN QUESTION FROM SMT. SNEH LATA JAIN TO WHOM THE LAND WAS FINALLY SOLD VID E SALE DEED DATED ITA 747/JP/2018_ PADAM CHAND AGARWAL VS ITO 8 17/11/2011. THE DETAILS OF THE SALE CONSIDERATION R ECEIVED BY THE ASSESSEE IS GIVEN IN THE SALE DEED AS UNDER: S. NO. AMOUNT CHEQUE/DD NO. DATE BANK AND BRANCH 1. 30,00,000/ - 008463 14/10/2011 ICICI BANK MI ROAD IN FAVOUR OF DILIP KUMAR GOYAL 2. 30,00,000/ - 008464 14/10/2011 ICICI BANK MI ROAD IN FAVOUR OF GYAN PRAKASH GOYAL 3. 51,00,000/ - 019633 20/01/2012 ICICI BANK MI ROAD IN FAVOUR OF DILIP KUMAR GOYAL 4. 51,00,000/ - 019637 20/01/2012 ICICI BANK MI ROAD IN FAVOUR OF GYAN PRAKASH GOYAL TOTAL 1,62,00,000/ - THUS, THE PART OF THE SALE CONSIDERATION WAS ALREADY RECEIVED BY THE ASSESSEE ON 14/10/2011 WHEREAS SOME OF THE ADVANCES WERE CLAIMED TO HAVE BEEN RECEIVED BY THE ASSESSEE FROM THE ALLEGED ALLOTTEES OF LAND EVEN AFTER 14/10/2011. EVEN OTHERWISE WHEN THE ASSESS EE HAS RECEIVED THE SALE CONSIDERATION FROM SMT. SNEH LATA JAIN ON 14/10/2011 THEN THE ASSESSEE HAD ALREADY DECIDED TO SELL THE LAND IN QU ESTION TO SMT. SNEH LATA JAIN AND THEREFORE, THE SUBSEQUENT CLAIM OF AD VANCES FROM THE ALLOTTEES OF PLOT OF LANDS IS NOT IN CONSONANCE WITH THE UNDISPUTED FACTS OF THE CASE REGARDING THE REJECTION OF APPLICATION OF CONVERSION VIDE ORDER DATED 20/5/2011 BY THE JDA AND ALREADY NEGOTIATING THE SALE OF THE AGRICULTURAL LAND TO SMT. SNEH LATA JAIN PRIOR TO T HE ALLEGED RECEIPT OF THE ADVANCES FROM THE ALLOTTEES OF THE PLOTS. THE QUESTI ON OF ALLOTMENT OF PLOTS DOES NOT ARISE AS THE LAND WAS NEVER CONVERTED AND FURTHER THE ITA 747/JP/2018_ PADAM CHAND AGARWAL VS ITO 9 ASSESSEE ALREADY RECEIVED THE SALE CONSIDERATION PR IOR TO THE ALLEGED ADVANCE. THEREFORE, THE ADDITIONAL EVIDENCE FILED B Y THE ASSESSEE IS NOTHING BUT AN ATTEMPT ON THE PART OF THE ASSESSEE TO MANUFACTURE THE EVIDENCE WHICH IS NOT FOUND TO BE CORRECT. THE DATES OF THE ALLEGED ADVANCES RECEIVED FROM THE 26 ALLOTTEES ARE CONTRAD ICTORY WITH THE FACTS THAT THE FATE OF THE CHANGE USE OF LAND WAS ALREADY KNOWN MUCH PRIOR TO THE ALLEGED DATES OF RECEIPT AND FURTHER THE ASSESS EE ALREADY DECIDED TO SELL THE AGRICULTURAL LAND IN QUESTION TO A THIRD P ARTY NAMELY SMT. SNEH LATA JAIN AND RECEIVED THE ADVANCE OF RS. 60.00 LAC S VIDE CHEQUE DATED 14/10/2011. THEREFORE, THE CLAIM OF THE ASSESSEE TH AT THE ASSESSEE RECEIVED THE ADVANCE FROM THESE PARTIES IS WITHOUT A NY BASIS AND THE ONLY EVIDENCE IN SUPPORT OF THE SAID CLAIM IS THE A LLEGED RECEIPTS WHICH ARE CONTRARY TO THE UNDISPUTED AND ADMITTED FACTS. ACCORDINGLY, TO THE EXTENT OF THE SOURCE OF DEPOSIT OF RS. 62.40 LACS WE CONFIRM THIS ADDITION. FOR THE REST OF THE AMOUNT OF RS. 40.00 LACS AS WELL AS RECYCLING OF THE EARLIER WITHDRAWAL OF RS. 84.25 LACS, WE FIND THAT THE RELEVANT DETAILS IN THIS REGARD NEED A PROPER EXAMINATION AND VERIFICAT ION. SO FAR AS THE CLAIM OF SALE CONSIDERATION FROM SHRI TUFAN MEENA, T HE ASSESSING OFFICER HAS TO CONDUCT A PROPER ENQUIRY AND EXAMINE THE SAI D PERSON ON THE POINT OF THE SOURCE OF THE AMOUNT OF RS. 40.00 LACS IN THE HAND OF ITA 747/JP/2018_ PADAM CHAND AGARWAL VS ITO 10 SHRI TUFAN MEENA AND AS REGARDS THE RECYCLING OF THE WITHDRAWAL, THE ASSESSEE HAS TO ESTABLISH THE FACT BY DRAWING A CASH FLOW STATEMENT TO SUPPORT THE CLAIM. ACCORDINGLY, THE ISSUE REGARDING THE SOURCE OF RS. 40.00 LACS AS WELL AS RS. 84.25 LACS IS SET ASIDE TO THE RECORD OF THE ASSESSING OFFICER FOR FRESH ADJUDICATION AFTER COND UCTING A PROPER ENQUIRY. 10. IN THE RESULT, APPEAL OF THE ASSESSEE IS PARTLY ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 07 TH JANUARY, 2019. 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:- 07 TH JANUARY, 2019 *RANJAN VKNS'K DH IZFRFYFI VXZSFKR @ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ @ THE APPELLANT- SHRI PADAM CHAND AGARWAL, JAIPUR. 2. IZR;FKHZ @ THE RESPONDENT- THE I.T.O., WARD-2(5), 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. 747/JP/2018) VKNS'KKUQLKJ @ BY ORDER, LGK;D IATHDKJ @ ASST. REGISTRAR