VASUDEV DEWANI, Jaipur V. ITO, Jaipur

ITA 765/JPR/2016

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 2195 (ITAT-JAIPUR)
• Duration Of Justice: 7 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-04-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2009-2010
• Appeal Filed On: 19-08-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: POONAM RAI DCIT DR DHK
• Keywords: Unexplained investment; Difference of opinion; Assessment record; Change of opinion
• Section: 143(3); 147; 131; 148

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 HKKXPUN] YS[KK LNL; DS LE{K BEFORE: SHRI BHAGCHAND, ACCOUNTANT MEMBER VK;DJ VIHY LA-@ ITA NO. 765/JP/2016 FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2009-10 M/S. VASUDEV DEWANI B-17, SANSAR CHAND ROAD OUTSIDE CHANDPOLE BAZAR, JAIPUR CUKE VS. THE ITO WARD- 3(4) JAIPUR LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO .: ABRPD 4077 E VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY: SHRI SANDEEP JHANWAR, CA JKTLO DH VKSJ LS@ REVENUE BY :SMT. POONAM RAI, DCIT-. DR LQUOKBZ DH RKJH[K@ DATE OF HEARING : 12/04/2017 ?KKS'K .KK DH RKJH[K@ DATE OF PRONOUNCEMENT : 13 /04/2017 VKNS'K@ ORDER PER BHAGCHAND, AM THE ASSESSEE HAS FILED AN APPEAL AGAINST THE ORDER OF THE LD. CIT(A)-1, JAIPUR DATED 01-03-2016 FOR THE ASSESSMEN T YEAR 2009-1- RAISING THEREIN FOLLOWING GROUNDS:- 1. UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) HAS ERRED IN NOT QUASHING THE REOPEN ING PROCEEDINGS U/S 147/148 OF THE I.T. ACT, 1961. THE SAID REOPENING PROCEEDINGS U/S 147/148 IS BAD IN LAW AND DESERVES TO BE QUASHED. ITA NO.765/JP/2016 SHRI VASUDEV DEWANI VS. ITO, WARD- 3(4 ), JAIPUR . 2 2. UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) HAS ERRED IN UPHOLDING THE ACTION OF AND CONFIRMING THE FOLLOWING ADDITIONS MADE BY AO BY AP PLYING THE PROVISION OF SECTION 69/69B. (I) ADDITION OF RS. 11,00,000/- IN RESPECT OF ALLEGED UNEXPLAINED INVESTMENTS FOR PURCHASE OF IMM OVABLE PROPERTY. (II) ADDITION OF RS. 1,48,380/-IN RESPECT OF ALLEG ED UNEXPLAINED REGISTRY EXPENSES OF LAND. 2.1 APROPOS GROUND NO. 1 OF THE ASSESSEE, I HAVE HE ARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIALS AVAILABLE ON RECORD. IT IS NOTED THAT ORIGINAL ASSESSMENT IN THIS CASE U/S 143(3) OF THE ACT WAS FINALIZED BY THE AO VIDE HIS ORDER DATED 27-12-2011. IT IS FURTHER NOTED THAT THE AO WHILE RECORDING REASONS FOR ISSUE OF NOTICE U/S 148 OF TH E ACT IN THE CASE OF THE ASSESSEE OBSERVED AS UNDER:- AS SEEN FROM THE ASSESSMENT RECORDS/DOCUMENTS OBT AINED AND AVAILABLE ON RECORD THAT DURING THE YEAR UNDER CONSIDERATION, THE ASSESSEE HAS PURCHASED A RESIDEN TIAL PLOT NAMELY B-107 SITUATED AT SUNDER NAGAR, BADANPURA, GOPALPURA BYE-PASS ROAD, JAIPUR FOR A SALE CONSIDER ATION OF RS. 15,51,000/- THROUGH REGISTERED SALE DEED DATED 28-11- 2008. AS PER SALE DEED DATED 28-11-2008, THE ASSESS EE HAS MADE PAYMENT FOR PURCHASE OF ABOVE RESIDENTIAL PLOT AS UNDER:- 1. RS. 11,00,000/- PAID IN CASH BEFORE EXECUTE OF SALE DEED DATED 28-11-2008. 2. RS. 3,51,000/- PAID THROUGH CHEQUE NO. 792500 DATED 21-11-2008 ITA NO.765/JP/2016 SHRI VASUDEV DEWANI VS. ITO, WARD- 3(4 ), JAIPUR . 3 3. RS. 1,00,000/-PAID IN CASH ON THE DATE OF EXECUTING SALE DEED DATED 28-11-2008. DURING THE COURSE OF HEARING, THE LD. AR OF THE ASS ESSEE DREW THE ATTENTION OF THE BENCH TO THE EFFECT THAT THIS ISSU E WAS CONSIDERED BY THE AO WHILE MAKING ORIGINAL ASSESSMENT ORDER DATED 27- 12-2011. THE LD. AR FURTHER DREW THE ATTENTION OF THE BENCH AS TO TH E REPLY SUBMITTED BY THE ASSESSEE ON 4-10-2011 TO THE AO (APB PAGE 1) WH EREIN THE COPY OF THE SALE DEED WAS ENCLOSED AND IT IS PLACED AT PAGE S 2 TO 9 OF THE ASSESSEE'S PAPER BOOK. THE LETTER OF ADDL. COLLECTO R (STAMPS), JAIPUR DATED 4-05-2010 WHICH IS PLACED AT APB PAGES 10 AND 11, THE COPY OF RAAJI NAMA BETWEEN SHRI DINESH SHARMA AND VASUDEV D EWANI WHICH IS PLACED AT APB PAGE 13, COPY OF STATEMENT RECORDE D U/S 131 OF THE ACT OF SHRI VASUDEV DEWANI ON 14-12-2011 WHICH ARE PLAC ED AT APB PAGE 13 TO 19, COPY OF STATEMENT RECORDED U/S 131 OF THE AC T OF SHRI DINESH SHARMA ON 15-12-2011 WHICH ARE PLACED AT APB PAGE 2 0 TO 22, COPY OF THE AFFIDAVIT SUBMITTED BY SHRI VASUDEV DEWANI WHIC H ARE PLACED AT APB PAGES 23 TO 24. IT IS ALSO NOTED THAT ALL THE DOCUM ENTS PLACED FROM PAGES 1 TO 24 OF THE PAPER BOOK WERE BEFORE THE AO PRIOR TO FINALISATION OF THE ASSESSMENT ORDER DATED 27-12-2011 U/S 143(3) OF TH E ACT. THUS IT IS AMPLY CLEAR THAT THE AO HAS MADE THE ASSESSMENT ORD ER AFTER CONSIDERING ALL THESE DOCUMENTS IN HIS MIND AND THE AO ISSUED T HE NOTICE ON THE BASIS ITA NO.765/JP/2016 SHRI VASUDEV DEWANI VS. ITO, WARD- 3(4 ), JAIPUR . 4 OF THESE DOCUMENTS ONLY. THEREFORE, THIS IS A CLEAR CASE OF CHANGE OF OPINION AND THE AO HAS NO POWER TO ISSUE NOTICE U/S 148 OF THE ACT ON THE BASIS OF CHANGE OF OPINION. DURING THE COURSE OF HE ARING, THE LD. AR OF THE ASSESSEE RELIED ON FOLLOWING CASE LAWS TO THIS EFFECT. 1. CIT VS. HINDUSTAN ZINC LTD., 70 TAXMANN.COM 262 (RAJ) 2. ALLIED STRIPS LTD. VS. ACIT, 69 TAXMANN. COM 444 (DEL.) 3. MANISH KUMAR TULSIDAS KANERIYA VS. DCIT , 73 TAXMANN.COM 11) (GUJ) 4. MOHAN GUPTA HUF VS. CIT, 44 TAXMANN.COM 171 (DEL.) 5. ACIT VS. ICICI BANK SECURITY PRIMARY DEALERSHIP LTD. 24 TAXMANN.COM 310 (SC) 6. ARONI COMMERCIALS LTD. VS. DCIT , 44 TAXMANN.COM 304 (BOM.) 7. PLUS PAPER FOOD PAC LTD. VS. ITO, 56 TAXMANN.COM 467 (BOM.) 8. CIT VS. KELVINATOR OF INDIA LTD. , 123 TAXMAN 43 3 (DEL.) 9. ACIT VS. MAERSK GLOBAL SERVICE CENTRE (INDIA) (P ) LTD., 16 TAXMANN.COM 47 (ITAT MUMBAI BENCH) 10. DCIT VS. PASUPATI SPINNING & WEAVING MILS LTD. , 20 TAXMANN.COM 160 (ITAT DELHI BENCH) ITA NO.765/JP/2016 SHRI VASUDEV DEWANI VS. ITO, WARD- 3(4 ), JAIPUR . 5 11. EPCOS INDIA (P) LTD. VS. ACIT, 72 TAXMANN.COM 6 6 (ITAT KOLKATA BENCH) 2.2 THE LD. DR DURING THE COURSE OF HEARING RELIED ON THE ORDERS OF THE LOWER AUTHORITIES. 2.3 CONSIDERING ALL THESE FACTS AND CASE LAWS, I HO LD THAT THE ASSESSEE HAS SUBMITTED ALL THE RELEVANT MATERIALS AND FACTS ON RECORD DURING THE COURSE OF ORIGINAL ASSESSMENT PROCEEDINGS WITH REGA RD TO THE PAYMENT OF RS. 11.00 LACS FOR PURCHASE OF LAND. THE AO ACCEPTE D THE ASSESSEE'S CONTENTION WITHOUT ANY ADVERSE FINDINGS IN THIS REG ARD. THERE WAS NO NEW INFORMATION BEFORE THE AO. THUS ON THE BASIS OF THE SAME FACTS OF THE CASE, THE AOS ACTION AMOUNTS TO CHANGE OF OPINION AS HAS BEEN HELD IN VARIOUS CASES BY HON'BLE HIGH COURTS AND HON'BLE SUPREME COURT (SUPRA). THEREFORE, THE DECISION OF REOPENING OF THE ASSESSMENT BY THE AO ON THE BASIS OF CHANGE OF OPINION IS NOT LAWFUL. ONCE THE ASSESSEE HAS MADE FULL DISCLOSURE OF ALL RELEVANT FACTS AND THE AO HAS ACCEPTED THE SAME AND LATER ON BY RE-APPRECIATION OF THE SAME MA TERIAL AVAILABLE ON RECORD WHICH WAS SUBMITTED DURING ORIGINAL SCRUTINY ASSESSMENT BEFORE THE AO SHALL DEFINITELY AMOUNT TO CHANGE OF OPINIO N WHICH IS PATENTLY NOT LEGAL. THEREFORE, I ALLOW THIS GROUND OF APPEAL OF THE ASSESSEE. ITA NO.765/JP/2016 SHRI VASUDEV DEWANI VS. ITO, WARD- 3(4 ), JAIPUR . 6 3.1 AS REGARDS THE GROUND NO. 2 OF THE ASSESSEE, IT IS NOTED THAT SINCE THE REOPENING OF THE ASSESSMENT PROCEEDINGS U/S 147 /148 IS QUASHED THEREFORE, THERE IS NO NEED TO ADJUDICATE UPON THE GROUND NO. 2 OF THE ASSESSEE. 4.0 IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED AS INDICATED ABOVE. ORDER PRONOUNCED IN THE OPEN COURT ON 13/04/2017 . SD/- HKKXPUN ( BHAGCHAND) YS[KK LNL;@ ACCOUNTANT MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 13 /04/ 2017 *MISHRA VKNS'K DH IZFRFYFI VXZSF'KR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT- SHRI VASUDEV DEWANI, JAIPUR 2. IZR;FKHZ@ THE RESPONDENT- THE ITO, WARD- 3(4), JAIPUR 3. VK;DJ VK;QDRVIHY@ CIT(A). 4. VK;DJ VK;QDR@ CIT, 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ@ DR, ITAT, JAIPUR 6. XKMZ QKBZY@ GUARD FILE (ITA NO. 765/JP/2016 ) VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ @ ASSISTANT. REGISTRAR