SHRI DEEPAK PAL SINGH, HOSHIARPUR V. INCOME TAX OFFICER,WARD-1, HOSHIARPUR

ITA 75/ASR/2018

• Counselvise Citation: [2018] 118 COUNSELVISE.COM (IT) 8206 (ITAT-AMRITSAR)
• Duration Of Justice: 10 month(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-12-2018
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC
• Next Hearing Date: 20-11-2018
• Assessment Year: 2011-2012
• Appeal Filed On: 09-02-2018
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Assessee Lawyers: J S PASSI
• Keywords: Unexplained expenditure; Business income; Fair market value
• Section: 56(2)(vii)(b); 143(3); 69

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH, AMRITSAR (SMC) BEFORE SH. SANJAY ARORA, ACCOUNTANT MEMBER I.T.A. NO. 75/ASR/2018 AS SESSMENT YEAR: 2011-12 DEEPAK PAL SINGH S/O SH. BAKHSHISH SINGH, DASHMESH NAGAR, GALI NO. 11, DAGANA ROAD, HOSHIARPUR. [PAN: CKYPS 0469M] VS. INCOME TAX OFFICER, WARD-1, HOSHIARPUR. (APPELLANT) (RESPONDENT) APPELLANT BY : SH. J. S. PASSI (ADV.) RESPONDENT BY: SH. CHARAN DASS (D.R.) DATE OF HEARING: 20.11.2018 DATE OF PRONOUNCEMENT: 31.12.2018 ORDER PER SANJAY ARORA, AM: THIS IS AN APPEAL BY THE ASSESSEE AGITATING THE ORD ER BY THE COMMISSIONER OF INCOME TAX (APPEALS)-1, JALANDHAR ('CIT(A)' FOR SHORT) DATED 28.12.2017, PARTLY ALLOWING THE ASSESSEES APPEAL CONTESTING HIS ASSES SMENT U/S. 143(3) OF THE INCOME TAX ACT, 1961 ('THE ACT' HEREINAFTER) DATED 13.03.2 014 FOR THE ASSESSMENT YEAR (AY) 2011-12. 2.1 THE APPEAL RAISES TWO ISSUES, WHICH WE SHALL TA KE IN SERIATIM. IT WOULD BE RELEVANT TO NOTE THE BACKGROUND FACTS OF THE CASE, WHICH ARE COMMON TO THE SAME, AS WELL AS TO THE TWO OTHER ISSUES FOR WHICH ADDITI ONS EFFECTED BY THE ASSESSING OFFICER (AO) STAND SINCE DELETED BY THE FIRST APPEL LATE AUTHORITY; ALL THE ISSUES BEING INTER-RELATED. THE ASSESSEE-INDIVIDUAL, STATI NG HIS BUSINESS TO BE OF EARTH ITA NO. 75/ASR/2018 (AY 2011-12) DEEPAK PAL SINGH V. ITO 2 FILLING, FILED HIS RETURN OF INCOME FOR THE YEAR O N 11.05.2011 DECLARING BUSINESS INCOME OF RS.2,06,800/-. THE RETURN WAS SELECTED FO R BEING SUBJECT TO THE VERIFICATION PROCEDURE UNDER THE ACT IN VIEW OF THE CASH DEPOSITS OF RS.23.20 LACS IN THE ASSESSEES SAVING BANK ACCOUNT WITH ORIENTAL BANK OF COMMERCE (OBC) DURING THE RELEVANT YEAR, WHICH BEING IN FACT AT RS .22.90 LACS, WERE EXPLAINED AS UNDER: - RECEIPT FROM MANJIT KAUR RS.20.30 LACS - REDEPOSIT OF CASH WITHDRAWN FROM BANK RS. 2.60 L ACS TOTAL RS.22.90 LACS NO INCOME FROM EARTH FILLING, THE STATED BUSINESS , WAS THUS RETURNED. REJECTING THE EXPLANATION QUA RS.2.60 LACS, I.E., THE REDEPOSITING OF CASH WIT HDRAWN EARLIER, THE SAME WAS ADDED AS UNEXPLAINED DEPOSIT/S U/S. 69 A. REGARDING THE RECEIPT FROM SMT. MANJIT KAUR (MK), THE SAME WAS EXPLAINED AS CO NTRACT RECEIPT TOWARD CONSTRUCTION OF HER HOUSE AT HOSHIARPUR IN PURSUANC E TO AN AGREEMENT DATED 23.02.2010 FOR A TOTAL CONSIDERATION OF RS.34 LACS, RECEIVED AS UNDER: PARTICULARS AMT.(RS.) REMARKS - DURING F.Y. 2009-10 6.00 LACS - DURING F.Y. 2010-11 21.00 LACS THE RELEVANT PREVIOUS YEAR - DURING F.Y. 2011-12 7.00 LACS TOTAL 34.00 LACS WHY WOULD MK, AN NRI, PAY IN CASH, THE AO WONDERED. THE ASSESSEE WAS, THUS, ALSO ENGAGED IN CONSTRUCTION ACTIVITY, FOR WHICH NO BOOKS OF ACCOUNT WERE MAINTAINED. THE GROSS RECEIPT OF THE SAID BUSINESS WAS CLEARLY MORE THAN RS.18.80 LACS, ITS STATED TURNOVER, ON WHICH INCOME AT THE RATE OF 11% HAD BEEN RETURNED BY THE ASSESSEE. THE CONSTRUCTION AS PER THE AGREEMENT WAS TO BE COMPLETED BY ITA NO. 75/ASR/2018 (AY 2011-12) DEEPAK PAL SINGH V. ITO 3 23.02.2011. THE DATE 23.12.2011 IN THE PHOTOCOPY OF THE AGREEMENT WAS, IN THE VIEW OF THE AO, A MANIPULATION; THE ASSESSEE, DESPI TE THE ORIGINAL BEING CALLED FOR, FAILING TO PRODUCE THE SAME. FURTHER, THE ASSESSEE S STATED METHOD OF ACCOUNTING BEING MERCANTILE, THE RECEIPT OF A PART OF THE CONS IDERATION IN THE FOLLOWING YEAR WOULD BE OF LITTLE CONSEQUENCE. HE, ACCORDINGLY, ES TIMATED THE GROSS RECEIPT OF CONTRACT WORK FOR THE YEAR AT RS.35 LACS, ON WHICH THE DECLARED NET PROFIT RATE OF 11% WAS APPLIED TO MAKE AN ADDITION FOR RS.1,78,200 /- TOWARD BUSINESS PROFIT. THE ASSESSEE HAD, FURTHER, ACQUIRED A PLOT OF LAND (MEASURING 5 MARLAS, 15 SQ. FT.) AT VILLAGE KHAWASPUR, TEHSIL AND DISTT. HO SHIARPUR, ON SPECIAL POWER OF ATTORNEY (SPA) BASIS ON 07.01.2011 FROM ONE, GURUDE V SINGH, THE GENERAL POWER OF ATTORNEY (GPA) HOLDER FOR SMT. HARSHARAN KAUR, C OPY OF WHICH (SPA) WAS FURNISHED. SUMMONS WERE ISSUED TO BOTH, THE OWNER A ND THE GPA, TO VERIFY THE TRANSACTIONS, I.E., AFTER THE ASSESSEE INFORMING HI M OF BEING UNABLE TO PRODUCE THEM. WHILE HARSHARAN KAUR COULD NOT BE LOCATED AT THE ST ATED ADDRESS, SH. GURUDEV SINGH COMPLIED AND CONFIRMED THE TRANSACTION, FURTH ER STATING OF BEING NOT RELATED TO THE ASSESSEE NOR HAVING RECEIVED ANY CONSIDERATI ON FOR GRANTING SPA IN ASSESSEES FAVOUR. THE AO, ACCORDINGLY, INVOKED SEC TION 56(2)(VIIB), WHICH PROVISION THUS BECAME CLEARLY APPLICABLE, AND MADE AN ADDITION FOR RS.5,05,515/- APPLYING THE COLLECTOR RATE AS ON 07.01.2011. THE A SSESSEES CLAIM THAT HE HAD IN FACT PAID RS.3.95 LACS TO SH. GURUDEV SINGH, OF WHI CH OF COURSE THERE WAS NO MENTION IN THE SPA, WAS REJECTED BY THE AO AS AN AF TERTHOUGHT. THE ASSESSEE HAD, FURTHER, VIDE AGREEMENT DATED 01.03.2011 WITH ONE, SH. AMIT KUMAR, FOR SALE OF A CONSTRUCTED HOUSE AT THE SAID PLOT OF LAND, RECEIVE D AN ADVANCE OF RS.3 LACS, INCLUDING RS.7000/- IN CASH, AND WHICH ALSO EXPLAIN ED THE CREDITS FOR THE BALANCE RS.2.93 LACS IN HIS BANK ACCOUNT, I.E., THROUGH NEF T (ON 01.03.2011) AND RTGS (ON 21.03.2011). THE CONSTRUCTION OF THE HOUSE HAD IN FACT COMMENCED IN DECEMBER, 2010, AND COMPLETED IN MARCH, 2011, AND W HICH WAS ACCORDINGLY SOLD ITA NO. 75/ASR/2018 (AY 2011-12) DEEPAK PAL SINGH V. ITO 4 VIDE SALE DEED 08.04.2011 FOR RS.14 LACS, RECEIVING THE BALANCE CONSIDERATION OF RS.11 LACS VIDE CHEQUE DATED 07.04.2011. THE AO, AP PLYING A CONSTRUCTION RATE OF RS.600/- PER SQ. FT. (I.E., 1013 SQ. FT., 1M = 272 SQ. FT.), MADE AN ADDITION FOR RS.6,07,800/-, I.E., THE CONSTRUCTION COST INCURRED BY THE ASSESSEE ON THE SAID HOUSE, SOLD ON 08.04.2011, AS FROM UNEXPLAINED SOURCE. 2.2 IN APPEAL, THE ASSESSEE FURNISHED THE BREAK-UP OF THE WITHDRAWALS AND DEPOSITS IN HIS SAVING BANK ACCOUNT WITH OBC, AS UN DER: SUMMARY OF THE O.B.C. (HOSHIARPUR) S/B A/C (FOR THE PERIOD 01.04.2010 TO 31.03.2011) DETAILS UTILIZATION DETAILS SOURCE PLOT PURCHASED 3,95,000-00 OPENING BALANCE 3,17,424-31 WITHDRAWN 2,60,000-00 (AS ON 31.03 .2010) HOUSE HOLD EXPENSES 1,20,000-00 WORK IN PROGRESS 51,485-00 DEPOSIT 25,87.794-00 8,26,485-00 (SEE NOTE 1) 28 ,05,218-31 AMOUNT SPENT ON 18,80,000-00 LESS : CLG. BAL. 1,98,733-31 CONSTRUCTION INCLUDE (AS ON 31.03.2011) PROFIT @ 11% ___________ ______ ____ TOTAL 27,06,485-00 TOTAL 27,06,485-00 NOTE:- 1. MONEY RECEIVED FROM SMT. MANJIT KAUR RS.20,30,000 2. MONEY RECEIVED FROM AMIT KUMAR RS. 2,93,000 3. REDEPOSIT OF WITHDRAWALS RS. 2,60,0 00 4. BY INTEREST RS. 4,794 TOTAL RS .25,87,794 THE ASSESSEE HAVING WITHDRAWN RS.2.50 LACS ON 02.12 .2010 (RS.1 LAC) AND 06.12.2010 (RS. 1.50 LAC), I.E., PRIOR TO ITS DEPO SIT ON 17.12.2010, THE ASSESSEES EXPLANATION OF THE SOURCE OF THE CASH DEPOSIT AS BE ING REDEPOSIT (OF CASH WITHDRAWN EARLIER) WAS ACCEPTED; THE BALANCE RS.10,000/- DEPO SITED ON 22.02.2011 BEING OUT ITA NO. 75/ASR/2018 (AY 2011-12) DEEPAK PAL SINGH V. ITO 5 OF CASH AVAILABLE FROM THE WITHDRAWALS DURING THE Y EAR. THE ASSESSEES TURNOVER FOR THE YEAR, THUS, WOULD WORK TO RS.20.30 LACS (I.E., RS.22.90 LACS RS.2.60 LACS) INSTEAD OF RS.35 LACS ADOPTED BY THE AO, ON WHICH T HEREFORE THE DECLARED PROFIT RATE OF 11% WAS DIRECTED BY THE LD. CIT(A), SUSTAIN ING THUS AN ADDITION FOR RS.16,500/-. AS REGARDS THE ADDITION OF RS.5,05,515 /- U/S. 56(2)(VII)(B), THE LD. CIT(A) CONFIRMED THE SAME, ALBEIT AT RS.3.95 LACS, HOLDING AS UNDER: 7.4 AS PER THE GROUND OF APPEAL NO.8 A PLOT OF 5 M ARLA 15 SQ. WAS PURCHASED BY THE APPELLANT FROM SMT. HARSHARAN KAUR THROUGH SH. AMER JEET SINGH, TO WHOM AN AMOUNT OF RS. 3,95,000/- WAS PAID DURING NOV. & DEC. 2010. THE AS SESSING OFFICER CONSIDERED THAT THE APPELLANT HAS ACQUIRED THE SAID PLOT THROUGH SPECIA L POWER OF ATTORNEY GIVEN BY SH. GURDEV SINGH, GENERAL POWER ATTORNEY HOLDER OF SMT. HARSHA RAN KAUR. THE ASSESSING OFFICER ESTIMATED THE VALUE OF PLOT AT RS. 5,05,515/- AND M ADE ADDITION U/S 56(2)(VII)(B) OF THE INCOME TAX ACT, BEING THE PLOT ACQUIRED BY THE ASSE SSEE WITHOUT ANY PAYMENT. THE APPELLANT HAS CLAIMED THAT PAYMENT OF RS. 3,95, 000/- WAS MADE TO SH. AMARJIT SINGH, WHOSE EXACT ADDRESS IS NOT KNOWN. IT IS CLAI MED THAT PAYMENT WAS MADE IN THE PRESENCE OF SH. SHIV KUMAR, WHO IS A WITNESS IN SPE CIAL POWER OF ATTORNEY DATED 07.01.2011. IN THE SPECIAL POWER OF ATTORNEY DATED 07.01.2011 EXECUTED BY SH. GURDEV SINGH, GPA HOLDER OF SMT. HARSHARAN KAUR, THERE IS NO MENTION OF ANY PAYMENT HAVING BEEN MADE TO SH. AMARJIT SINGH. THE APPELLANT HAS NOT FI LED ANY COPY OF ANY PAPER RECEIPT OR ANY REGISTERED DOCUMENT TO SHOW PAYMENT OF RS.3,95,000/ - TO SH. AMAJIT SINGH TO OBTAIN SPECIAL POWER OF ATTORNEY OF ABOVE MENTIONED PLOT. THE PAYM ENT HAS NOT BEEN MADE THROUGH CHEQUE OR BANK TRANSFER OR ANY FORM OF RECEIPT OR DOCUMENT , OR AFFIDAVIT OF ANY OF THE PARTIES INVOLVED WAS FILED TO EVIDENCE THE PAYMENT FOR ACQU IRING THE SAID PLOT. THE APPELLANT DOES NOT MAINTAIN DAY TO DAY RECORD OF ITS TRANSACTIONS WHICH COULD HAVE SUPPORTED HIS PLEA. IN VIEW OF THE FACTS AS ABOVE AND AS NOTED IN THE ASSE SSMENT ORDER, ADDITION ON ACCOUNT OF PLOT IS RESTRICTED TO RS.3,95,000 AS AGAINST ESTIMATE MADE BY THE ASSESSING OFFICER. THIS GROUND OF APPEAL IS DECIDED ACCORDINGLY. WITH REGARD TO THE OTHER ADDITION FOR RS.6,07,800, SAME WAS AGAIN CONFIRMED BY THE LD. CIT(A), HOLDING AS UNDER: 7.5 GROUND OF APPEAL NO. 9 AND 10 RELATE TO ADDITI ON OF RS.6,07,800/- MADE ON ACCOUNT OF UNACCOUNTED EXPENDITURE MADE ON CONSTRUCTION OF HOU SE SOLD ON 08.04.2011. THE APPELLANT HAS CLAIMED THAT HOUSE WAS SOLD TO SH RI AMIT KUMAR FOR RS. 14 LACS ON 08.04.2011 BUT CONSTRUCTION OF THE SAME WAS COMPLET ED IN MAY 2011. IT IS CLAIMED THAT CONSTRUCTION EXPENDITURE OF RS. 6,07,800/- WAS INCU RRED IN THE SUBSEQUENT YEAR. IT IS CLAIMED THAT IN FACT THE EXPENDITURE INCURRED ON CONSTRUCTI ON WAS EVEN HIGHER THAN ESTIMATED BY THE ASSESSING OFFICER. AS PER COPY OF AGREEMENT DATED 0 8.04.2011 PLACED ON RECORD, IT IS NOTICED THAT A SUM OF RS. 3,00,000/- WAS RECEIVED BY THE AP PELLANT BY WAY OF ADVANCE ON 01.03.2011 ITA NO. 75/ASR/2018 (AY 2011-12) DEEPAK PAL SINGH V. ITO 6 VIDE AGREEMENT DATED 01.03.2011. THE AGREEMENT TO S ELL DATED 08.04.2011, CLEARLY MENTIONS THAT THE HOUSE WITH THREE ROOMS, STORE, KITCHEN, LO BBY, BATHROOMS ETC ALONGWITH ELECTRICITY CONNECTION, WATER CONNECTION, SEWERAGE ETC. IT IS N OWHERE MENTIONED IN THE AGREEMENT THAT CONSTRUCTION IS INCOMPLETE AND WILL BE COMPLETED IN DUE COURSE. THE APPELLANT HAS ALREADY ENTERED INTO ONE AGREEMENT WITH THIS PARTY WHILE RE CEIVING ADVANCE PAYMENT OF RS. 3 LACS. IF THE HOUSE WAS INCOMPLETE THERE WAS NO OCCASION FOR THE APPELLANT TO ENTER INTO ANOTHER AGREEMENT WITHOUT ANY PURPOSE THAT TOO AFTER PAYING STAMP DUTY. THE APPELLANT HAS NOT MAINTAINED DAY TO DAY RECORDS OF EXPENSES INCURRED TO SUPPORT ITS CLAIM THAT INFACT THE CONSTRUCTION OF THE HOUSE SOLD ON 08.04.2011 WAS DO NE IN THE SUBSEQUENT YEAR. THE REGISTERED AGREEMENT TO SELL IN THE PRESENCE OF WITNESSES MENT IONS ABOUT THE HOUSE BEING SOLD ALONG WITH VARIOUS FEATURES AS MENTIONED THEREIN FOR A CO NSIDERATION OF RS.14 LACS. THE APPELLANT HAS NOT GIVEN DETAILS OR RECORDS SUBSTANTIATING HIS CLAIM THAT CONSTRUCTION OF HOUSE WAS DONE IN A SUBSEQUENT YEAR. IN VIEW OF THE ABOVE FACTS AN D FACTS AS NOTED BY THE ASSESSING OFFICER, THE ADDITION MADE BY THE ASSESSING OFFICER IS UPHEL D. AGGRIEVED, THE ASSESSEE IS IN APPEAL QUA THE ADDITIONS FOR RS.3.95 LACS AND RS.6.078 LACS. 3. I HAVE HEARD THE PARTIES, AND PERUSED THE MATERI AL ON RECORD. 3.1 ACCEPTANCE OF THE ASSESSEES EXPLANATION IN RES PECT OF THE CASH DEPOSITS OF RS.2.60 LACS AS A REDEPOSIT/S OF CASH, IMPLIES HIM TO HAVE CASH AVAILABILITY LESS BY THAT AMOUNT, WHICH MAY HAVE OTHERWISE EXPLAINED, WH OLLY OR PARTLY, THE SOURCE OF THE CONSTRUCTION MADE UP TO THE YEAR-END, STATED AT RS.51,485, AND WHICH THE REVENUE HAS ESTIMATED AT RS.6,07,800/-. SIMILARLY, AGAIN, IF THE ASSESSEE HAS INDEED NOT PAID ANY SUM TO GURDEV SINGH TOWARD PURCHASE OF PLOT ON SPA BASIS, HE, THOUGH LIABLE TO BE ASSESSED U/S. 56(2)(VII)(B), AS CONFIRMED BY THE LD. CIT(A), WOULD HAVE AN ADDITIONAL RS.3.95 LACS AVAILABLE WIT H HIM, WHICH COULD BE EXPLAINED AS TOWARD CONSTRUCTION. FURTHER, THE CASH AVAILABLE WOULD NOT ONLY BE FOR THE CONSTRUCTION ON THE PLOT PURCHASED, BUT ALSO TH AT BEING UNDERTAKEN FOR MK. IT IS FOR THIS REASON, I.E., OF THE ADDITIONS HAVING THEI R GENESIS IN THE CASH AVAILABLE WITH THE ASSESSEE, WHICH HAS BEEN DISREGARDED BY THE REV ENUE, THAT IT HAS BEEN CONSIDERED PROPER TO LIST THE BACKGROUND FACTS OF A LL THE FOUR ISSUES, WHICH ARE THUS INTER-RELATED. THE ASSESSEE, ON BEING ASKED DURING HEARING THE BASIS OF THE ITA NO. 75/ASR/2018 (AY 2011-12) DEEPAK PAL SINGH V. ITO 7 CALCULATION OF THE DECLARED PROFIT OF RS.2,06,800/- , WHICH WORKS TO 11%, BEING IN EXCESS OF THE PRESUMPTIVE RATE OF 8% PRESCRIBED U/S . 44AD, WHICH THUS HAS NOT OPTED FOR BY THE ASSESSEE (I.E., DESPITE NOT MAINTA INING BOOKS OF ACCOUNT), THE LD. COUNSEL, SH. PASSI, WOULD STATE THE SAME AS BEING T HE BALANCING FIGURE, AS UNDER: PARTICULARS AMT.(RS.) REMARKS RECEIPT 20,30,000/- (1) EXPENDITURE ON CONSTRUCTION 18,28,515/- (2) (18,80 ,000-51,485) BANK INTEREST 4,795/- (3) BUSINESS INCOME 2,06,280 (#) (4) = ((1) - (2) + (3)) (#) (INSTEAD OF RS.2,06,800, STATING THE DIFFERENCE AS ON ACCOUNT OF THE WORKING BEING MADE AT A WHOLE PERCENTAGE, I.E., 11% OF RS.1 8.80 LACS). ON BEING ASKED AS TO WHY THE INCOME BE NOT TAKEN BY INCLUDING THE AMOUNT RECEIVED FROM SH. AMIT KUMAR (RS. 3 LACS) AS WELL, SH. PASSI WOULD SUBMIT THAT THE SAME STANDS EXCLUDED AS IT WAS ONLY AN ADVANCE. HE, HOWEVER, COULD NOT EXPLAIN AS TO WHY THE RECEIPT (FROM MANJIT KAUR) HAD, INSTEAD OF RS.20.30 LACS, NOT BEEN TAKEN AT RS.21 LACS (REFER PARA 2.1/PG. 2 OF THIS ORDER). ON BEING FURTHER ASKED IF THEREFORE THE COST OF CONSTRUCTION IN PROGRESS AS AT 31.03.20 11 WAS, AS STATED, ONLY RS.51,485/-, HE WOULD CLAIM IT TO BE IN FACT AT RS. 6 LACS, OF WHICH RS.5 LACS STANDS WITHDRAWN ON 21.03.2011, WHILE RS.1 LAC WAS FROM TH E CASH AVAILABLE FROM THE EARLIER WITHDRAWALS. THE CONSTRUCTION, COMMENCED IN DECEMBER, 2010, WAS BY OBTAINING THE CONSTRUCTION MATERIAL ON CREDIT, WHIC H WAS PAID ON WITHDRAWING CASH IN MARCH, 2011. WHY, THEN, SHOULD NOT THE WORK-IN-P ROGRESS (WIP) AS AT THE YEAR- END BE TAKEN AT RS. 6 LACS INSTEAD OF RS. 51,485/-? ON BEING SO ASKED, HE WOULD EXPLAIN THAT THIS WAS AS, APART FROM UTILIZATION OF ADVANCE OF RS.3 LACS FROM THE PROSPECTIVE BUYER, AMIT KUMAR, THE BALANCE RS.3 LAC S WAS BY WAY OF DIVERSION OF ITA NO. 75/ASR/2018 (AY 2011-12) DEEPAK PAL SINGH V. ITO 8 FUNDS RECEIVED FROM MK, THE CONSTRUCTION ACTIVITY I N WHOSE CASE WAS ALSO ON AT THE RELEVANT TIME. 3.2 THE LD. CIT(A) HAS CONFIRMED, IN PART, THE ADDI TION ON ACCOUNT OF BUSINESS PROFIT BY ENHANCING THE TURNOVER TO RS.20.30 LACS, INSTEAD OF AT RS.18.80 LACS BY THE ASSESSEE, EVEN AS THE FORMER IS AGAIN ADMITTEDLY SH ORT BY RS.0.70 LACS, IF NOT BY RS.3.70 LACS, I.E., IF THE AMOUNT RECEIVED FROM SH. AMIT KUMAR IS ALSO TO BE INCLUDED, I.E., IN ADDITION TO THAT FROM MK. THE FI GURE OF RS.18.80 LACS IN FACT DOES NOT REPRESENT A RECEIPT, BUT EXPENDITURE, SO THAT T HE SAME CLEARLY IS NOT A PROPER BASIS, EVEN AS OBSERVED BY THE BENCH DURING HEARING . EVEN THOUGH THE ASSESSEE HAS NOT DISPUTED THE SAME, IF THE AMOUNT DECLARED AS PR OFIT IS A RESULTANT (AS AGAINST A CONTRIVED OR ASSUMED) FIGURE, BASED ON SOME WORKING , THE CHANGE IN THE TURNOVER FIGURE, IF THE SAID WORKING IS CORRECT, SHOULD NOT RESULT IN ANY CHANGE IN PROFIT; THE ASSESSEES COMPUTATION OF PROFIT, IT SHALL BE SEEN, ALSO RECKONING THE TURNOVER AT THE SAME FIGURE OF RS.20.30 LACS. THIS IS OF COURSE SUB JECT TO THE CHANGE IN THE PROFIT ARISING DUE TO CHANGE IN THE FIGURE OF TURNOVER. THE WORKING BY THE REVENUE, AS AFORE-NOTED, AS INDEED BY THE ASSESSEE HIMSELF, IS DE HORS THE CASH FLOW, WHICH I OBSERVE AS THE PRINCIPAL FLAW IN THE PRESENT CASE . THIS IS ALSO THE REASON (AS ALSO SOUGHT TO BE EMPHASIZED EARLIER) AS TO WHY ALL THE FOUR ADDITIONS IN THE INSTANT CASE ARE INTER-RELATED. THE TURNOVER FIGURE, EVEN IF THA T RECEIVED FROM AMIT KUMAR IS TO BE IGNORED, CANNOT BE LESS THAN RS.21 LACS, I.E., T HE AMOUNT ADMITTEDLY RECEIVED FROM MK. 3.3 WITH THIS BACKGROUND, I MAY NOW PROCEED TO DISC USS THE VARIOUS ISSUES ARISING IN THIS APPEAL. THE LD. CIT(A) HAS RESTRICT ED THE ADDITION U/S. 56(2)(VII)(B) TOWARD ACQUISITION OF IMMOVABLE PROPERTY (PLOT OF L AND) WITHOUT CONSIDERATION, FROM RS.5.05 LACS TO RS.3.95 LACS. I DO NOT CONSIDE R IT AS PROPER FOR TWO REASONS. FIRSTLY, THE REVENUE AUTHORITIES ARE NOT CORRECT IN REGARDING IT TO BE A CASE OF ITA NO. 75/ASR/2018 (AY 2011-12) DEEPAK PAL SINGH V. ITO 9 ACQUISITION (OF IMMOVABLE PROPERTY) WITHOUT CONSIDE RATION WHEN THE ASSESSEE HIMSELF STATES OF HAVING PAID RS.3.95 LACS, STATING THE SAID AMOUNT SEPARATELY IN HIS CASH FLOW STATEMENT. TWO, THE AO HAS NOT, AS THE LD . CIT(A) STATES, MADE ANY ESTIMATION IN THIS REGARD, BUT APPLIED THE STAMP DU TY VALUE, I.E., RS.5.50 LACS, WITH REFERENCE TO WHICH THE ADDITION IS TO BE RECKONED A S PER THE PROVISION OF LAW, DEDUCTING THE LOWER CONSIDERATION, IF ANY, STATED T O HAVE BEEN PAID BY THE ASSESSEE, AND WHICH BOTH THE REVENUE AUTHORITIES HAVE, BASED ON THE ASSESSEES EARLIER VERSION AS WELL AS THE ABSENCE OF EVIDENCE AS TO PA YMENT, REGARDED AS NIL. THE RATIONALE BEHIND THE PROVISION IS AS TO WHY WOULD O NE TRANSFER HIS IMMOVABLE PROPERTY TO A NON-RELATIVE WITHOUT PROPER CONSIDERA TION, I.E., THE FAIR MARKET VALUE (FMV) THEREOF. NOW, WHEN THE ASSESSEE HIMSELF CLAIM S OF HAVING PAID RS.3.95 LACS FOR THE SAME, SPECIFYING THE DATES (17.11, 25.11 & 29.11.2010) ON WHICH THE SAID AMOUNT WAS WITHDRAWN, HE STATES PRECISELY WHAT THE PROVISION PRESUMES THE STATE OF AFFAIRS TO BE AS. THAT IS, WHY, PRAY, WOULD ONE TRANSFER HIS PROPERTY TO ANOTHER WITHOUT PROPER CONSIDERATION. THE REVENUES DISBELI EF THEREOF IS THEREFORE NOT UNDERSTOOD. IT IS, RATHER, THE SELLER WHO SHOULD BE DISBELIEVED AND QUESTIONED IN THE MATTER. THE DEEMING PROVISION OF SEC. 56(2)(VII)(B) CAN, THUS, NEITHER BE FOR RS.5.055 LACS NOR FOR RS.3.95 LACS, I.E., AS BY THE REVENUE AUTHORITIES, BUT ONLY FOR THE SAID SHORTFALL OF RS.1,10,515 (RS. 5,05,515 R S. 3,95,000). 3.4 THE NEXT QUESTION IS THE INVESTMENT OR THE EXPE NDITURE ON CONSTRUCTION MADE BY THE ASSESSEE WHICH, ESTIMATING THE SAME AT RS.6, 07,800/-, HAS BEEN REGARDED BY THE REVENUE AS UNEXPLAINED. THE SAME AGREES WITH THE ASSESSEES VERSION OF HAVI NG SPENT RS.6 LACS ON THE SAID CONSTRUCTION UP TO 31.0 3.2011 . THE ASSESSEES EXPLANATION IN THIS REGARD IS OF HAVING INCURRED TH E SAME OUT OF THE COMMON POOL OF FUNDS AVAILABLE WITH HIM, I.E., HIS OWN CAPITAL; THAT RECEIVED FROM ANOTHER CONTRACTEE (RS.21 LACS); AND FROM THE PROSPECTIVE B UYER (RS.3 LACS). THE SAME IS ITA NO. 75/ASR/2018 (AY 2011-12) DEEPAK PAL SINGH V. ITO 10 PLAUSIBLE, PARTICULARLY CONSIDERING THAT THE ASSESS EE RECEIVED RS.4 LACS FROM MK (THE OTHER CONTRACTEE) ON 16/3/2011, I.E., PRIOR TO MAKING A CASH WITHDRAWAL OF RS. 5 LACS ON 21.03.2011, STATED TO BE FOR PAYMENT OF THE CONSTRUCTION WORK FOR SH. AMIT KUMAR (PROJECT B (SAY)). THE SOURCING AND EXPENDITU RE ON BOTH THE PROJECTS AS AT 31.03.2011 IS THUS AS UNDER: (AMOUNT IN RS. LACS) PARTICULARS PROJECT (A) P ROJECT (B) SELF TOTAL (A) AMOUNT RECEIVED 27.00 3.00 30.00 (UPTO 31.03.2011) (B) AMOUNT LYING IN BANK 1.94(1) (C) AMOUNT WITHDRAWN (CASH) 28.06(2) (D) ALLOCATION OF AMOUNT WITHDRAWN 16.83(4) 10.0 3(3) 1.20 (28.06) (1) NET OF BANK INTEREST (2) [RS. 30 LACS RS. 1.9 4 LACS) (3) [RS.3.95 LACS (LAND) + RS. 6.08 LACS (ON CONSTR UCTION)] (4) BALANCING FIGURE THE ASESSEEE HAS THUS APPARENTLY TRANSFERRED RS.7 L ACS (APPROX.) (AND NOT RS.6 LACS) FROM PROJECT A TO PROJECT B. FURTHER, THE ASSESSMEN T OF PROFIT ON CONTRACT WORK COULD ONLY BE UPON THE ASSESSMENT OF THE EXTENT OF COMPLETION OF THE WORK AS ON 31.03.2011. THIS IS AS, THEN, THE SALE VALUE OF WIP COULD BE ASSESSED ACCORDINGLY, AND DEDUCTING ITS COST WOULD YIELD THE PROFIT EARN ED. IN THIS REGARD, IT IS NOT UNREASONABLE TO PRESUME THAT THE AMOUNT IS RELEASED BY THE CONTRACTEE IN DEFINED STAGES, PROPORTIONATE TO THE WORK COMPLETED. ACCORD INGLY, PRIOR TO THE RECEIPT OF RS.4 LACS FROM MANJIT KAUR ON 16.03.2011, THE CONST RUCTION FOR HER CAN BE CONSIDERED AS COMPLETED TO BE PROPORTIONATE EXTENT, I.E., RS. 23 LACS (OUT OF A TOTAL OF RS.34 LACS). THAT IS, ABOUT 2/3. THE VALUE OF WI P, RATED ON SALE RATE BASIS, WOULD ITA NO. 75/ASR/2018 (AY 2011-12) DEEPAK PAL SINGH V. ITO 11 THEREFORE BE RS.23 LACS, WHILE ITS COST IS AT RS.1 6.83 LACS. THE DIFFERENCE, I.E., RS.6.17 LACS, IS THE ASSESSEES PROFIT (ON PROPORTI ONATE BASIS). IT IS THIS PROFIT THAT THE ASSESSEE, HAVING ADMITTEDLY NOT SPENT ANY PART OF RS. 4 LACS, RECEIVED IN EXCESS OF RS. 23 LACS, FOR HER CONSTRUCTION, HAS INVESTED IN PROJECT B. FROM THE LIQUIDITY STAND-POINT, THE ASSESSEE HAS DIVERTED RS.4 LACS RE CEIVED FROM MK (ON 16/3/2011) TO FUND THE CONSTRUCTION, NEARING COMPLETION, FOR A MIT KUMAR, AND THE CONSIDERATION FOR WHICH STANDS TO BE RECEIVED SHORT LY AFTER, ON 07.04.2011. THE REVENUE HAS STATED THIS DIFFERENTLY BY ASCRIBING TH E ENTIRE COST OF CONSTRUCTION OF PROJECT B TO UNDISCLOSED INCOME. THE TWO METHODS LE ADING TO THE SAME RESULT, I.E., THE PROFIT FIGURE MATCHING WITH THE UNDISCLOSED INC OME, ENDORSES THE COMPUTATION OF PROFIT. I AM CONSCIOUS THAT RS.6 LACS (OUT OF RS .27 LACS FROM MK) STANDS RECEIVED IN F.Y. 2009-10, I.E., THE IMMEDIATELY PRE CEDING YEAR. HOWEVER, THE SAME STANDS RECEIVED ONLY IN END-FEBRUARY, 2010, ALONG W ITH THE AGREEMENT, SO THAT NO SUBSTANTIAL INVESTMENT WOULD HAVE BEEN MADE DURING F.Y. 2009-10, WITH IN FACT RS.3.17 LACS LYING IN BANK AS ON 31/3/2010. WHY, TH OUGH RS.21 LACS STAND RECEIVED DURING THE CURRENT YEAR, RS.4 LACS RECEIVED ON 16.0 3.2011 HAVE BEEN SIMILARLY EXCLUDED IN-AS-MUCH AS THE SAME STAND DIVERTED TO P ROJECT B, WORKING ON WHICH, SOLD IN APRIL, 2010, WAS IN FULL SWING AT THE TIME. NO PROFIT ON RS.6 LACS RECEIVED IN F.Y. 2009-10 STANDS DISCLOSED FOR THAT YEAR, AS IS THE CASE FOR RS.3 LACS RECEIVED FROM SH. AMIT KUMAR, AS ALSO RS. 4 LACS FROM MK HER SELF, DURING THE RELEVANT YEAR. NOW, OF RS.6.17 LACS, RS.2.07 LACS STAND ALRE ADY DISCLOSED BY THE ASSESSEE. AN ADDITION FOR THE BALANCE PROFIT OF RS.4.10 LACS WOULD THUS SURVIVE, OF WHICH RS.0.17 LACS STANDS ALREADY SUSTAINED BY THE LD. CI T(A). IT MAY BE ARGUED THAT THIS ADDITION IS QUA PROFIT, WHICH IS NO LONGER IN DISPUTE INASMUCH AS THE REVENUE IS NOT IN APPEAL. THAT, HOWEVER, WOULD BE TAKING A MYOPIC VIEW OF THE MATTER. THE ISSUE/S BEFORE ME, AS BEFORE THE LD. CIT(A), IS THE CORRECT VALUATION OF THE ASSESSEES, WHO IS NOT MAINTAINING ANY BOOKS OF ACCOUNT, ASSETS AND LIABILITIES AS AT THE YEAR-END, ITA NO. 75/ASR/2018 (AY 2011-12) DEEPAK PAL SINGH V. ITO 12 AND WHICH ONLY WOULD RESULT IN DETERMINATION OF HIS CORRECT INCOME FOR THE YEAR. AND, FURTHER, ALSO CLARIFY IF THERE IS ANY SCOPE FO R ASCRIBING THE SOURCING OF ANY ASSET TO ANY UNDISCLOSED INCOME. THE TWO ADDITIONS, I.E., QUA PROFIT AND THE VALUE OF WIP, IT NEEDS TO BE APPRECIATED, ARE IN PARI MATERIA , AND CANNOT BE VIEWED INDEPENDENT OF EACH OTHER, REPRESENTING THE TWO SID ES OF THE SAME COIN, BEING THE WIP OF THE ASSESSEES CONSTRUCTION (AS AT THE YEAR- END), AND THE MANNER IN WHICH IT IS FINANCED, INCLUDING BY THE PROFIT EARNED BY THE ASSESSEE (FROM THE CONSTRUCTION ACTIVITY). WHY, THE UNDISCLOSED INCOME IMPUTED IS O NLY THE PROFIT EARNED BY THE ASSESSEE FROM HIS CONSTRUCTION, OR ANY OTHER, BUSIN ESS. FURTHER, THAT THE TWO RESULTS, I.E., DETERMINING THE PROFIT AND UNDISCLOSED INCOME, ARE BROADLY IN AGREEMENT ONLY REINFORCES THE VALIDITY OF THE ASSUMPTIONS ON WHICH IT IS BASED. THE DIFFERENCE BETWEEN THE TWO APPROACHES, IS IN FACT ONLY APPAREN T AND NOT REAL INASMUCH AS THE REVENUE HAS NOT ALLOWED ANY CREDIT FOR THE FINANCIN G OF THE WIP FOR THE PROFIT EARNED DURING THE YEAR, DISCLOSED AT RS. 2.07 LACS. IT IS IN FACT THIS, I.E., NOT CORRELATING THE VALUATION OF THE ASSETS WITH THAT O F LIABILITIES AS WELL AS THE CASH FLOW, IN THE ABSENCE OF THE BOOKS OF ACCOUNT, THAT THE MISMATCH, TO THE EXTENT OBSERVED, HAS OCCURRED. CORRECT RESULTS COULD ONLY BE STATED ON FACTORING IN THE MISSING LINKS, WHICH ARE APPARENT. E.G., ADMITTEDLY , RS. 6 LACS IS THE COST OF CONSTRUCTION AS COMPLETED FOR SH. AMIT KUMAR AS ON 31/3/2011, THOUGH THE ASSESSEE IS UNABLE TO EXPLAIN THE SOURCE THEREOF EV EN AS HE FURNISHES A CASH FLOW STATEMENT FULLY ACCOUNTING (OR ALMOST) WHAT STANDS RECEIVED DURING THE YEAR FROM MK (AT RS. 21 LACS) AND AMIT KUMAR (RS. 3 LACS). WE HAVE ONLY ATTEMPTED TO SHOW THAT THE ASSESSEES BASIS FOR DISCLOSING PROFIT IS ARBITRARY, EXPLAINING THE FINANCING OF HIS PROJECTS (AS PROJECT B) FROM FUNDS RECEIVED FOR ANOTHER (PROJECT A), WITHOUT SHOWING AS TO HOW THE SAID FUNDS WERE SUBSEQUENTLY REVERTED BACK. TO THE EXTENT OF PROFIT, IT NEEDS TO BE APPRECIATED, THE FUNDS TR ANSFERRED FROM ONE PROJECT TO ANOTHER, ARE THE ASSESSEES OWN FUNDS, WITH NO OBLI GATION FOR THE SAID REVERSION. ITA NO. 75/ASR/2018 (AY 2011-12) DEEPAK PAL SINGH V. ITO 13 WE MAY, FOR BETTER UNDERSTANDING, RESTATE GRAPHICAL LY WHAT STANDS STATED HEREINABOVE, AS UNDER: PARTICULARS PROJECT (A) PROJECT (B) SE LF BANK TOTAL MONEY RECEIVED 27.00 3.00 30.00 PROFIT 6.17 6.17 TOTAL FUNDS: 27.00 3.00 6.17 36.1 7 UTILIZATION: 23.00 10.03 1.20 1.94 36.17 THOUGH TECHNICALLY NOT VERY CORRECT INASMUCH AS IT STATES THE WIP (OF PROJECT A) AT SALE VALUE, IT BECOMES UNDERSTANDABLE WHERE MK IS R EGARDED AS BILLED FOR RS. 23 LACS, I.E., THE TOTAL AMOUNT RECEIVED FROM HER PRIO R TO LAST SUM OF RS. 4 LACS ON 16/3/2011. THE ASSESSEES LIABILITY TO HER IS TO BE REGARDED AS FOR RS. 4 LACS RECEIVED IN MARCH, 2011, ADMITTEDLY TRANSFERRED TO PROJECT B AND, THUS, NOT SPENT ON HER PROJECT. THE BENEFIT OF SUCH A REPRESENTATION I S THAT IT GIVES A SNAP SHOT OF WHAT STANDS INVESTED WHERE AS WELL AS THE ASSESSEES OBL IGATIONS. IN FACT, THE EXERCISE AFORE-MADE WAS NECESSITATED ONLY DUE TO THE NON-MAI NTENANCE OF ACCOUNTS. THE ENTIRE PROFIT ACCRUED DURING THE YEAR IS ON PROJECT A, WHICH IN FACT STANDS REALIZED (TO THAT EXTENT). NO PROFIT ON PROJECT B IS TAKEN A CCOUNT OF. THE REASON IS THAT NEITHER THE ASSESSEE NOR THE REVENUE HAS REGARDED I T AS ACCRUED TO ANY EXTENT DURING THE YEAR. THE ASSESSEE HAVING RETURNED THE E NTIRE INCOME ON PROJECT B FOR THE FOLLOWING YEAR, IT IS EVEN OTHERWISE CONSIDERED NOT PROPER TO ASSESS ANY PART THEREOF FOR THE CURRENT YEAR. THOUGH, AS HELD BY TH E REVENUE AUTHORITIES, THE HOUSE IS ALMOST COMPLETE, SO THAT THE FIGURE AS ON 31/3/2 011 GIVES A FAIR INDICATION OF THE PROFIT THAT WOULD STAND TO BE EARNED THEREON, NO FI NAL FINDING WITH REGARD TO THE PROFIT ACTUALLY EARNED THEREON IS BEING ISSUED; THE ASSESSEE IN FACT STATING OF HAVING EXPENDED A SUBSTANTIAL SUM THEREON DURING THE SUBSE QUENT YEAR, I.E., DURING THE ITA NO. 75/ASR/2018 (AY 2011-12) DEEPAK PAL SINGH V. ITO 14 MONTHS OF APRIL AND MAY, 2011, NOT ACCEPTED IN VIEW OF IT BEING AFTER THE EXECUTION OF THE SALE-DEED. THESE ARE, HOWEVER, ISS UES OR ASPECTS WHICH SHALL THEREFORE STAND TO BE CONSIDERED ONLY FOR THAT YEAR ; NO PROFIT ON THE SAID PROJECT HAVING BEEN EITHER RETURNED OR ASSESSED FOR THE CUR RENT YEAR. 3.5 TO CONCLUDE, THE FINDINGS ARE AS UNDER: A) THE ASSESSMENT U/S. 56(2)(VII)(B) FOR ACQUISITION O F IP WITHOUT ADEQUATE CONSIDERATION IS RESTRICTED TO RS. 1,10,515/-. B) THE ENTIRE COST OF CONSTRUCTION OF THE RESIDENTIAL HOUSE AT VILLAGE KHAWASPUR, HOSHIARPUR, IS EXPLAINED AS FROM THE PROFIT ARISING ON THE CONSTRUCTION ACTIVITY AND THE TRANSFER OF FUNDS FROM ANOTHER PRO JECT (REFER TABLES AT PARA 3.4 OF THIS ORDER). C) THE PROFIT ON THE SAID HOUSE, SOLD IN APRIL, 2011, WOULD STAND TO BE ASSESSED, IN TOTO , ONLY FOR THE FOLLOWING YEAR. D) THE ASSESSEE SHALL, IN ADDITION TO THE PROFIT RETU RNED, STAND TO BE ASSESSED FOR THAT SHORT DISCLOSED, WHICH IN FACT FINDS CONFIRMAT ION FROM THE CORRECT STATEMENT OF THE ASSESSEES ASSETS AND LIABILITIES AS AT THE YEAR-END. 4. IN THE RESULT, THE ASSESSEES APPEAL IS PARTLY A LLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON DECEMBER 31, 2018 SD/- (SANJAY ARORA) ACCOUNTANT MEMBER DATE: 31.12.2018 /GP/SR. PS. COPY OF THE ORDER FORWARDED TO: (1) THE APPELLANT: DEEPAK PAL SINGH BAKHSHISH S INGH, DASHMESH NAGAR, GALI NO. 11, DAGANA ROAD, HOSHIARP UR (2) THE RESPONDENT: INCOME TAX OFFICER, WARD-1, HOSHIARPUR (3) THE CIT(APPEALS)-1, JALANDHAR (4) THE CIT CONCERNED TRUE COPY (5) THE SR. DR, I.T.A.T. BY ORDER