Shri Amarchand Board, SRIGANGANAGAR V. ITO, SRIGANGANAGAR

ITA 77/JODH/2014

• Counselvise Citation: 7723314 RSA 2014
• Duration Of Justice: 7 month(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-09-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 16-09-2014
• Assessment Year: 2001-2002
• Appeal Filed On: 12-02-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Unexplained investment; Income from undisclosed sources
• Section: 143(3); 234B; 147; 148

Judgement Text

IN THE INCOMETAX APPELLATE TRIBUNAL JODHPUR BENCH: J ODHPUR ( BEFORE SHRI H ARI OM MARATHA, JUDICIAL MEMBER AND SHRI N.K. SAINI, ACCOUNTANT MEMBER ) I.T.A. NO. 77 /JODH/201 4 (A.Y. 200 1 - 0 2 ) SHRI AMAR CHAND BOR A D V S ITO, 22 - E - BLOCK, WARD - 1, SRIGAN GANAGAR. SRIGANGANAGAR. PAN NO. AKRPB0437F (APPELLANT) (RESPONDENT) ASSESSEE BY : - SHRI SURESH OJHA. DEPARTMENT BY : - SHRI MAHESH KUMAR - D.R. DATE OF HEARING : 16 /0 9 /201 4 DATE OF PRONOUNCEMENT : 17/ 0 9 /2014 O R D E R P E R HARI OM MARATHA, J.M. : THIS APPEAL OF THE ASSESSEE, FOR A.Y. 2001 - 02K IS DIRECTED AGAINST THE ORDER OF LD. CIT(A) DATED 24.12.2013. 2 2. BRIEFLY STATED THE FACTS OF THE CASE RE THAT IN THIS ASSESSEES CASE ORIGINAL ASSESSMENT ORDER, FOR A.Y. 2001 - 02, WAS MADE U/S 147 / 143(3) WHEN NO RETURN WAS FILED BUT LATER ON FILED IN RESPONSE TO NOTICE ISSUED U/S 148 OF THE ACT ON 01.05.2006. IN THIS ORDER ADDITION OF RS. 13 LAKHS U/S 69, ADDITION OF RS. 1,50,000/ - INCOME FROM REALTORS BUSINESS AND OF RS. 60, 000/ - INCOME FROM LEGAL PROFESSION WERE MADE. WHEN THIS MATTER TRAVELLED UPTO ITAT, THE APPEAL OF THE ASSESSEE WAS RESTORED TO THE FILE OF THE A.O. THIS ORDER WAS MADE ON 08.10.2009 IN ITA NO. 411/JODH/2008, WHEN REVENUE FILED APPEAL AND THE ASSESSEE FILED CROSS OBJECTIONS (C.O.). IN THE SECOND ROUND, IN HIS ORDER PASSED U/S 143(3) R.W.S. 254 OF THE ACT , THE A.O. HAS MADE TWO ADDITIONS (1) ONE OF RS. 13 LAKHS ON ACCOUNT OF INCOME FROM UNDISCLOSED SOURCES AND (2) OF RS. 1 LAKH ON ACCOUNT OF INCOME FROM DEAL ING IN A PROPERTY. IN THE SECOND ROUND THE LD. CIT(A) HAS CONFIRMED THE ADDITIONS MADE BY THE A.O. THE ASSESSEE HAS FILED THIS APPEAL. 2.1 WE HAVE HEARD RIVAL SUBMISSIONS ON THE FOLLOWING GROUNDS RAISED BY THE APPELLANT : - 1. THAT THE ORDER PASSED BY THE ASSESSING OFFICER AND SUSTAINED BY THE COMMISSIONER OF INCOME - TAX (APPEALS) IS ILLEGAL AND AGAINST THE LAW. 3 2. THAT THE REOPENING OF THE ASSESSMENT IS ILLEGAL AND AGAINST THE LAW. 3. THAT THE COMMISSIONER OF INCOME - TAX (APPEALS) SHOULD NOT HAVE SUSTAINED THE A DDITION OF RS. 13.00 LACS MADE BY THE INCOME - TAX OFFICER BECAUSE THE INCOME - TAX OFFICER FAILS TO FOLLOW THE DIRECTIONS OF THE TRIBUNAL AND THE COMMISSIONER OF INCOME - TAX (APPEALS) FAILS TO APPRECIATE, THEREFORE, THE ORDER IN RESPECT OF SUSTAINING THE ADDI TION IS ILLEGAL AND AGAINST THE LAW. 4. THE CIT (A) ERRED IN SUSTAINING ADDITION OF RS. 13.00 LACS BY HOLDING AS UNEXPLAINED INVESTMENT IN PURCHASE OF LAND IN ABSENCE OF ANY MATERIAL. 5. THAT THE COMMISSIONER OF INCOME - TAX (APPEALS) SHOULD HAVE ACCEPTED THE AP PEAL FOLLOWING THE STATEMENT OF SH. KULVANT, RAKESH GUPTA, SH. SHYAMLAL JAIN AND SH. RAKESH JAIN ETC. 6. THAT THE CONTENTS OF THE AFFIDAVIT WAS NOT ACCEPTED BY THE ASSESSING AUTHORITY AS WELL AS BY THE CIT(A), WHEREAS THE SAME IS HAVING THE CHARACTER OF BIND ING NATURE IN VIEW OF THE JUDGMENT REPORTED IN 30 ITR PAGE 181 IN CASE OF M/S MEHTA PAREKH AND CO. THE GROUND WAS NOT ACCEPTED MAY KINDLY BE DECLARED AGAINST JUDICIAL DISCIPLINE. 7. THAT THE COMMISSIONER OF INCOME - TAX (APPEALS) SHOULD HAVE FOLLOWED THE JUDIC IAL DECORUM AND JUDICIAL DISCIPLINE AND SHOULD HAVE FOLLOWED THE ORDER OF TRIBUNAL AND OTHER HIGHER AUTHORITIES REFERRED BEFORE HIM. 4 8. THAT THE CIT(A) ERRED IN SUSTAINING ADDITION OF ONE LAC BY HOLDING THAT THE ASSESSEE HAS EARNED PROFIT IN THE DEALING OF LAND. 9. THAT THE ORDER SUSTAINED BY THE CIT(A) IS WITHOUT FOLLOWING THE INSTRUCTIONS OF HON'BLE INCOME - TAX APPELLATE TRIBUNAL, THEREFORE, ILLEGAL AND BAD IN LAW. 10. THAT THE CHARGING OF INTEREST U/S 234A & 234B IS ILLEGAL AND AGAINST THE LAW. 2.2 IN FACT, TH E A.O. WHILE DEALING WITH THE ASSESSMENT PROCEEDINGS OF SHRI SRIPAL JAIN PROP. OF M/S. BISHAN MAL INDERJEET, FOUND THAT SHRI SRIPAL JAIN HAD PURCHASED ONE PLOT FROM THIS APPELLANT. THIS FACT WAS REVEALED FROM THE COPY OF AN AGREEMENT TO SALE OF A PIECE O F LAND PRODUCED BY SRIPAL J AIN BEFORE A.O. THE ORIGINAL OWNER OF THIS LAND WAS INTERESTED IN SELLING IT AND FOR THAT MATTER THE LAND WAS DIVIDED INTO 48 PLOTS WHICH WERE SOLD TO DIFFERENT PARTIES. ONE OF SUCH PURCHASERS I S ASSESSEES DAUGHTER. THE ORIGINAL O WNERS ISSUED ONE SINGLE POWER OF ATTORNEY IN THE NAME OF SHRI RAKESH GUPTA. THE ORIGINAL OWNER WAS READY TO SIGN ALL THE 48 SALE DEEDS. BUT THE BROKER W ANTED THIS ASSESSEE TO EXECUTE / CREATE) AN AGREEMENT FOR SALE IN BEING A LEGAL PROFESSIONAL. THE ASSESSE E LENT HIS NAME FOR THIS PURPOSE. THE A.O. RECORDED THE STATEMENT ON OATH OF ASSES SEE, OF SHRI KULWANT SINGH AND S HRI RAKESH GUPTA. BOTH THE ABOVE PERSONS HAVE DENIED AND HAVE 5 STATED THAT THE ASSESSEE IS ONLY A NAME LENDER RATHER THEY BOTH NEVER MET THIS A SSESSEE. THE PURCHASERS WERE MADE THROUGH BROKERS NAMELY SHRI RATAN LAL AND SHRI OM PRAKASH. THE A.O. HAS REPEATED ADDITIONS OF 13 LAKHS AND ONE LAKHS (REDUCED RS. 50 THOUSAND ONLY). 2.3 AFTER HEARING BOTH THE SIDES, WE HAVE FOUND THAT NEITHER THERE IS P ROOF OF ANY SALE BY THIS ASSESSEE NOR ANY PERSON CONNECTED WITH THIS AGREEMENT HAS PROVED THE FINDING OF THE A.O. THEREFORE, THE PLEA THAT THE ASSESSEE IS ONLY A NAME LENDER, IS FOUND CONVINCING IN THE GIVEN FACTS AND THE CIRCUMSTANCES OF THIS CASE. THE SE LLERS AND THE PURCHASERS HAVE GIVEN THEIR STATEMENT ON OATH AND HAVE ALSO FILED THEIR DULY SWORN - IN - AFFIDAVITS WHICH REMAINED UNCONTROVERTED. THEREFORE, IN VIEW OF THE SETTLED POSITION OF LAW ON THIS ISSUE REFERENCE MADE TO THE CASE OF MEHTA PARIKH & CO. V S. CIT 30 ITR 181 (SC) AND JODHPUR BENCHS DECISION REPORTED AS 36 TAXWORLD 1 (JODH), WE ACCEPT THIS CONTENTION OF THE ASSESSEE AND ORDER DELETION OF RS. 13 LAKHS FROM HIS STAND. CONCOMITANTLY, ADDITION OF RS. 1 LAKH ADDED ON ACCOUNT OF COMMISSION EARNED I N THE TRANSACTION ALSO GETS DELETED. 6 3. IN THE RESULT, THE APPEAL OF THE ASSESSEE ON MERITS IS ALLOWED. ORDER PRONOUNCED IN THE COURT ON 17 TH SEPTEMBER , 2014. SD/ - SD/ - (N.K.S AINI) [HARI OM MARATHA] ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 17 TH SEPTEMBER , 2014 VL/ - COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT BY ORDER 4. THE CIT(A) 5. THE DR SENIOR PRIVATE SECRETARY ITAT, JODHPUR