AMAR SINGH SHARMA, BHARATPUR V. ITO, BHARATPUR

ITA 758/JPR/2016

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 4861 (ITAT-JAIPUR)
• Duration Of Justice: 4 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-12-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: Not Allotted
• Assessment Year: 2011-2012
• Appeal Filed On: 12-08-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: POONAM RAI DHK
• Keywords: Opportunity of being heard; Corroborative evidences

Judgement Text

+VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES (SMC), JAIPUR JH HKKXPAN] YS[KK LNL; ] DS LE{K BEFORE: SHRI BHAGCHAND, ACCOUNTANT MEMBER VK;DJ VIHY LA-@ ITA NO. 758/JP/2016 FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2011-12 AMAR SINGH SHARMA, S/O- SHRI PREM RAJ SHARMA, R/O- NEAR MARUTI SCHOOL, SANJAY NAGAR, BHARATPUR-321001 (RAJ). CUKE VS. INCOME TAX OFFICER, WARD-3, BHARATPUR. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO.: BNVPS 1963 H VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY : SHRI RAJENDRA AGARWAL JKTLO DH VKSJ LS@ REVENUE BY : SMT. POONAM RAI. LQUOKBZ DH RKJH[K@ DATE OF HEARING : 19/12/2016 MN?KKS'K.KK DH RKJH[K @ DATE OF PRONOUNCEMENT : 20/12/2016 VKNS'K@ ORDER PER: BHAGCHAND, A.M. THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER DATED 27/06/2016 PASSED BY THE LD CIT(A), ALWAR FOR THE A. Y. 2011-12, WHEREIN THE ASSESSEE HAS RAISED. THE GROUND OF THE APPEAL, WH ICH IS AGAINST CONFIRMING THE ADDITION OF RS. 19,80,000/- TREATING UNEXPLAINED MONEY U/S 69A OF THE INCOME TAX ACT, 1961 (IN SHORT THE AC T). ITA 758/JP/2016_ AMAR SINGH SHARMA VS ITO 2 2. BRIEF FACTS OF THE CASE ARE THAT AMOUNT OF RS. 2 8.00 LACS WAS DEPOSITED IN THE BANK ACCOUNT OF THE ASSESSEE MAINT AINED WITH AXIS BANK BHARATPUR BEING ACCOUNT NO. 909010038466220. THE AS SESSEE CLAIMS THAT THE AMOUNT DEPOSITED BY SHRI KULDIP SHRMA, WHO IS SON IN LAW OF THE ASSESSEE. SHRI KULDIP SHARMA ALIAS DEEPAK KUMAR HAS ALSO SUBMITTED AN AFFIDAVIT IN THIS REGARD, WHEREIN HE HAS STATED THAT IN THE FINANCIAL YEAR 2010-11, HE AND HIS MOTHER HAVE SOLD AGRICULTURAL L AND TO SMT. ANGOORI DEVI, W/O- SHRI BHAJAN LAL SHARMA, R/O- VILLAGE- CH IKSOLI, TEHSIL- CHATA, DISTRICT- MATHURA.RS. 3.00 LACS RECEIVED AS ADVANCE ON 08/7/2010 AND BALANCE OF RS. 21.00 LACS ON 23/7/2010, WHICH WAS DEP OSITED IN HIS ACCOUNT. IT IS ALSO SUBMITTED THAT A NOHRA AT THE S AME VILLAGE WAS ALSO SOLD TO SMT. SUBHADRA DEVI, W/O- SHRI BANWARI LAL OF THE SAME VILLAGE FOR RS. 4.00 LACS ON 03/6/2010. THE TOTAL AMOUNTS OF RS. 28.00 LACS WAS DEPOSITED IN THE BANK ACCOUNT OF THE ASSESSEE ON VA RIOUS DATES. THE ASSESSING OFFICER HAS OBSERVED THAT, ON PERUSAL OF COPIES OF REGISTRY OF LAND, IT IS FOUND THAT SHRI KULDIP SHARMA HAD SOLD THE LAND TO SMT. SHUBHADRA DEVI AT RS. 1,10,000/- AND TO SMT. ANGOOR I DEVI AT RS. 8,00,000/-. THE COPY OF THE REGISTRY OF LAND AND A GREEMENT TO SALE SHOWS THAT SHRI KULDIP SHARMA HAD RECEIVED RS. 9,10, 000/- ONLY. THE ASSESSING OFFICER HELD THAT ON BEING ASKED THE DETA ILS ABOUT DEPOSIT OF ITA 758/JP/2016_ AMAR SINGH SHARMA VS ITO 3 RS. 28,00,000/- IN THE BANK ACCOUNT, NO SATISFACTOR Y EXPLANATION WITH EVIDENCE WAS PROVIDED BY THE ASSESSEE. THE ASSESSING OFFICER HAD MADE ADDITION OF RS. 18.90 LACS TO THE INCOME OF THE ASS ESSEE. 3. BEING AGGRIEVED BY THE ORDER OF THE ASSESSING OF FICER, THE ASSESSEE CARRIED THE MATTER BEFORE THE LD. CIT(A), WH O HAD CONFIRMED THE ORDER OF THE ASSESSING OFFICER BY OBSERVING AS UNDE R:- 4.3 I HAVE GONE THROUGH THE ASSESSMENT ORDER AS WEL L AS SUBMISSIONS MADE BY THE APPELLANT AND FIND THAT AN ADDITION OF RS. 18,90,000 HAS BEEN MADE BY THE AO O N ACCOUNT OF UNEXPLAINED MONEY U/S 69A OF THE IT ACT. BASED ON THE INFORMATION RECEIVED FROM THE ITD DATABASE, IT WAS FOUND THAT APPELLANT HAS DEPOSITED AN AMOUNT OF RS. 32,01,000 IN SAVINGS BANK ACCOUNT WITH AXIS BANK IN CASH DURING THE PERIOD UNDER CONSIDERATION. THE REQUISITE DETAILS FURNISHED BY TH E APPELLANT WERE EXAMINED BY THE AO IN THE COURSE OF ASSESSMENT PROCEEDINGS AND BASED ON THE DETAILS WITH SUPPORTING EVIDENCE FURNISHED, IT WAS FOUND THAT CAS H DEPOSITS OF RS. 28 LACS ARE UNEXPLAINED. THE APPELLA NT FURTHER EXPLAINED THAT THIS AMOUNT HAS BEEN DEPOSIT ED BY HIS SON IN LAW SH. KULDEEP SHARMA URF DEEPAK KUMAR OUT OF THE SALE PROCEEDS OF LAND SOLD BY HIM AND HIS FAMILY MEMBERS. ITA 758/JP/2016_ AMAR SINGH SHARMA VS ITO 4 4.4 THE SAME FACTS WERE SUBSTANTIATED BY SH. KULDEEP SHARMA IN HIS STATEMENT BEFORE THE AO, HOWEVER THE SUPPORTING EVIDENCE FILED BY HIM FOR SALE OF LAND S HOWS RECEIPT OF ONLY RS. 9,10,000 ON THIS ACCOUNT. THEREF ORE, EVEN AFTER CONSIDERING THE EXPLANATION OF THE APPEL LANT WITH REGARD TO THE DEPOSITS OF CASH IN HIS ACCOUNT M ADE BY HIS SON IN LAW, AN AMOUNT OF RS. 9,10,000 WAS TREATED AS EXPLAINED BY THE AO OUT OF THE CASH DEPO SITS OF RS. 28,00,000 AND BALANCE AMOUNT OF RS. 18,90,00 0 WAS HELD TO BE UNEXPLAINED CASH DEPOSITS. 4.5 DURING THE COURSE OF APPELLATE PROCEEDINGS, THE APPELLANT HAS REITERATED THE SUBMISSIONS FILED BEFO RE THE AO AND HAS STATED THAT TOTAL MONEY DEPOSITED IN CAS H IS ON ACCOUNT OF SALE OF LAND BY SH. KULDEEP SHARMA AN D HIS MOTHER, SMT. SITA DEVI. IT IS FURTHER STATED TH AT DECLARED CONSIDERATION FOR SALE OF LAND WAS LESS FO R THE REASON THAT BUYER OF THE LAND WANTED TO AVOID PAYMEN T OF STAMP DUTY. IT IS ALSO STATED THAT MONEY DEPOSIT ED IN THE BANK ACCOUNT BY THE FAMILY MEMBERS HAS BEEN RETURNED BACK TO THEM BY THE APPELLANT. 4.6 HAVING CONSIDERED THE MATERIAL AVAILABLE ON REC ORD, I FIND THAT COPY OF THE SALE AGREEMENTS FILED BY THE APPELLANT REFLECT A SALE CONSIDERATION OF RS. 8 LAC S AND RS. 1,10,000 HAVING BEEN RECEIVED BY SH. KULDEEP SHARMA AND HIS MOTHER FOR SALE OF LAND. THE STAMP DU TY DUE ON THE LAND HAS BEEN DULY CHARGED BY THE STATE ITA 758/JP/2016_ AMAR SINGH SHARMA VS ITO 5 GOVERNMENT AT THE NIRDHARIT DAR I.E. THE CIRCLE R ATE. THE TRANSACTIONS BETWEEN THE FAMILY MEMBERS OF FUNDS TRANSFER CANNOT BE CONCLUSIVE EVIDENCE AS THESE ARE SELF SERVING IN NATURE. THE APPELLANT HAS FAILED TO BRING ANY EVIDENCE TO THE CONTRARY ON RECORD IN THE COURSE OF PRESENT PROCEEDINGS TO PROVE THE RECEIPT OF CONSIDERATION MORE THAN WHAT HAS BEEN STATED IN THE SALE DEED. THUS, I CONFIRM THE ADDITION OF RS. 18,90 ,000 MADE BY THE AO ON ACCOUNT OF UNEXPLAINED DEPOSITS MADE IN CASH BY THE APPELLANT. 4. NOW THE ASSESSEE IS IN APPEAL BEFORE ME. THE LD AR OF THE ASSESSEE HAS SUBMITTED THAT THE ASSESSING OFFICER H AS SOUGHT DIRECTIONS U/S 144A OF THE ACT BUT NO OPPORTUNITY WAS PROVIDED TO THE ASSESSEE. LD. AR ALSO SUBMITTED THAT THE ASSESSING OFFICER SOUGHT THE DIRECTION ON THE THREE SITUATIONS HE NOTICED DURING INVESTIGATION, WH ICH IS CLEAR FROM THE DIRECTIONS OF THE LD. JCIT, BHARATPUR, THE SAME ARE AS UNDER:- 1- JH DQYNHI 'KEKZ MQZ NHID DQEKJ] TKS DJNKRK DK NK EKN GSA] US NKS I`FKD&I`FKD HKWFE JHERH LQHKNZK NSOH VKSJ JHERH VAX WJH NSOH DKS E'K% :I;S 4 YK[K VKSJ :I;S 24-00 YK[K ESA CSPH VKS J CASH JKF'K DJNKRK DS CSAD [KKRS ESA TEK DJOKBZA DQY JKF 'K :I;S 28-00 YK[K 2- FO; I=KSA DS VUQLKJ JH DQYNHI 'KEKZ MQZ NHID D QEKJ US JHERH LQHKNZK NSOH VKSJ JHERH VAXWJH NSOH DKS E'K% :I;S 1-10 YK[K VKSJ :I;S 8-00 YK[K ESA CSPHA DQY JKF'K :I;S 9-10 YK[KA ITA 758/JP/2016_ AMAR SINGH SHARMA VS ITO 6 3- FUJH{KD DH FJIKSVZ DS VUQLKJ JH DQYNHI 'KEKZ MQZ NHID DQEKJ US JHERH LQHKNZK NSOH VKSJ JHERH VAXWJH NSOH DKS E'K% :I;S 5-00 YK[K VKSJ :I;S 14-00 YK[K ESA CSPHA DQY JKF'K :I;S 19-00 YK[K LD. AR SUBMITTED THAT THE DIRECTIONS OF THE ADDL.CI T WAS PREJUDICIAL TO THE ASSESSEE, THEREFORE, AS PER PROVISIONS OF LAW, T HE ASSESSEE HAS TO BE GIVEN AN OPPORTUNITY OF BEING HEARD, WHICH HAS NOT B EEN DONE BY THE REVENUE AUTHORITIES. HE PLEADED THAT THE MATTER MAY BE RESTORED BACK TO THE FILE OF THE ASSESSING OFFICER. 5. ON THE CONTRARY, THE LD DR HAS RELIED UPON THE O RDERS OF THE AUTHORITIES BELOW AND CLAIMED THAT THE ORDER OF THE LD. CIT(A) DESERVES TO BE SUSTAINED AS THERE IS NO EVIDENCE REGARDING T HE CLAIM OF THE ASSESSEE THAT THE AMOUNT WAS RECEIVED ON THE SALE OF LAND AND NOHRA BY THE SON IN LAW AND MOTHER IN LAW OF THE ASSESSEE. 6. I HAVE HEARD BOTH THE PARTIES AND HAVE ALSO GONE THROUGH THE PAPERS SUBMITTED IN THE PAPER BOOK BY THE ASSESSEE. THERE IS AN INSPECTORS REPORT SUBMITTED TO THE ASSESSING OFFIC ER PLACED AT PAGE NO. 17 OF THE PAPER BOOK WHEREIN SMT. ANGOORI DEVI, W/O- SHRI BHAJAN LAL SHARMA, R/O- VILLAGE- CHIKSOLI, TEHSIL- CHATA, DIST RICT- MATHURA HAS STATED THAT SHE HAD PURCHASED AGRICULTURAL LAND FOR RS. 14 .00 LACS AND THE AMOUNT WAS RECEIVED BEFORE THE SUB-REGISTRAR, CHATA. FURTHER, THE ITA 758/JP/2016_ AMAR SINGH SHARMA VS ITO 7 INSPECTOR HAS ALSO REPORTED THAT SMT. SUBHADRA DEVI , W/O- SHRI BANWARI LAL, R/O- VILLAGE- CHIKSOLI, TEHSIL- CHATA, DISTRIC T- MATHURA (UP) HAS ALSO STATED THAT SHE HAD PURCHASED A PLOT (NOHRA) FOR RS . 5.00 LACS AND THE REGISTRY AMOUNT WAS ONLY RS. 1.10 LACS AND THE AMOUN T OF RS. 3.90 LACS WERE RECEIVED IN FRONT OF THE PANCH PATEL OF THE VIL LAGE. I HAVE ALSO GONE THROUGH THE DIRECTION SOUGHT BY THE ASSESSING OFFIC ER FROM THE JCIT, BHARATPUR VIDE LETTER DATED 14/3/2014, WHICH IS PLA CED AT PAGE NO. 19 OF THE PAPER BOOK. I HAVE ALSO GONE THROUGH THE DIRECT ION ISSUED BY THE LD. JCIT VIDE ITS LETTER NO. F.NO.: JT.CIT/RANGE/BHARATP UR/018-DIRECTIONS U/S 144A/2013-14/1252 DATED 14/03/2014. THE ASSESSING OF FICER SOUGHT DIRECTION ON 14/3/2014 AND THE LD. JCIT ISSUED THE DIRECTION ON THE SAME DATE. THERE IS NO EVIDENCE ON RECORD TO JUSTIFY OR CONFIRM THE FACT THAT ASSESSEE WAS PROVIDED ADEQUATE AND EFFECTIVE HEARING WITH REGARD TO THE DIRECTION SOUGHT AND PROVIDED. PROVISIONS OF SECTIO N 144A CLEARLY PROVIDE THAT NO DIRECTION WHICH ARE PREJUDICIAL TO THE ASSES SEE SHALL BE ISSUED BEFORE AN OPPORTUNITY IS GIVEN TO THE ASSESSEE TO B E HEARD. THE FACTS OF THE CASE SHOWS THAT THE ASSESSEE HAS NOT BEEN PROVI DED AN EFFECTIVE OPPORTUNITY OF BEING HEARD WITH REGARD TO DIRECTIONS ISSUED BY THE LD. JCIT, WHICH IS A MANDATORY REQUIREMENT OF LAW. THEREFO RE, BY KEEPING IN VIEW OF ALL THESE FACTS, I RESTORE ALL THE ISSUES TO THE FILE OF THE ASSESSING ITA 758/JP/2016_ AMAR SINGH SHARMA VS ITO 8 OFFICER TO DECIDE DE NOVO AFTER GIVING ADEQUATE AND SUFFICIENT OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 7. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSES ONLY. ORDER PRONOUNCED IN THE OPEN COURT ON 20/12/2016. SD/- HKKXPAN (BHAGCHAND) YS[KK LNL;@ ACCOUNTANT MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 20 TH DECEMBER, 2016 *RANJAN VKNS'K DH IZFRFYFI VXZSFKR @ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ @ THE APPELLANT- SHRI AMAR SINGH SHARMA, BHARATPUR. 2. IZR;FKHZ @ THE RESPONDENT- THE ITO, WARD-3, BHARATPUR. 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. 758/JP/2016) VKNS'KKUQLKJ @ BY ORDER, LGK;D IATHDKJ @ ASST. REGISTRAR