INCOME TAX OFFICER, BHIWADI V. SHRI BIRENDRA SINGH , ALWAR

ITA 783/JPR/2017

• Counselvise Citation: [2018] 121 COUNSELVISE.COM (IT) 6156 (ITAT-JAIPUR)
• Duration Of Justice: 6 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-05-2018
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2009-2010
• Appeal Filed On: 26-10-2017
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: J C KULHERI
• Assessee Lawyers: P C PARWAL CA DHK
• Keywords: Income from undisclosed sources
• Section: 2(14); 68; 148

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHE S, JAIPUR JH FOT; IKY JKWO] U;KF;D LNL; ,OA JH FOE FLAG ;K NO ] YS[KK LNL; DS LE{K BEFORE: SHRI VIJAY PAL RAO, JM AND SHRI VIKRAM SING H YADAV, AM VK;DJ VIHY LA-@ IN ITA NO. 783/JP/2017 FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2009-10. THE INCOME TAX OFFICER, WARD BHIWADI. CUKE VS. SHRI BIRENDRA SINGH S/O SHRI SHRI CHAND, VILLAGE-BANBEERPUR, VIA-TAPUKARA, TEH.TIJARA, DISTT. ALWAR. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN NO. AYEPB 7460 R VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT JKTLO DH VKSJ LS@ REVENUE BY : SHRI J.C. KULHERI (JCIT) FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY : SHRI PC. PARWAL (CA) LQUOKBZ DH RKJH[K@ DATE OF HEARING : 12.03.2018. ?KKS'K .KK DH RKJH[K@ DATE OF PRONOUNCEMENT : 08.05.2018. VKNS'K@ ORDER PER VIJAY PAL RAO, JM : THIS APPEAL BY THE REVENUE IS DIRECTED AGAINST THE ORDER DATED 17 TH AUGUST, 2017 OF LD. CIT (A), ALWAR FOR THE ASSESSMENT YEA R 2009-10. THE REVENUE HAS RAISED THE SOLITARY GROUND AS UNDER :- ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW LD.CIT (A) ERRED IN DELETING THE ADDITION OF RS. 65,00,000/- M ADE BY THE AO U/S 68 OF THE I.T. ACT, 1961 ON ACCOUNT OF CASH DEPOSIT ED IN BANK ACCOUNT FROM UNDISCLOSED SOURCES WITHOUT APPRECIATION THE M ATERIAL FACTS OF THE CASE. 2. THE AO NOTED THAT THE ASSESSEE HAS DEPOSITED RS. 65,00,000/- ON 29 TH SEPTEMBER, 2008 IN CASH IN THE BANK MAINTAINED WITH PUNJAB NATIONAL BANK, TAPUKARA. THE AO ASKED THE ASSESSEE TO EXPLAIN THE SOURCE OF CASH DEPOSIT VIDE NOTICE DATED 5 TH DECEMBER, 2016. IN RESPONSE, THE ASSESSEE FILED WR ITTEN REPLY DATED 2 ITA NO. 783/JP/2017 SHRI BIRENDRA SINGH, ALWAR. 14 TH DECEMBER, 2016 STATING THEREIN THAT THE ASSESSEE H AS DEPOSITED RS. 65,00,000/- AS A CONSIDERATION RECEIVED BY THE ASSESSEE UNDER T HE AGREEMENT TO SALE OF HIS ANCESTRAL AGRICULTURAL LAND KHASRA NO. 263 AT VILLA GE BANBEERPUR, TEHSIL-TIJARA. THE ASSESSEE HAS ALSO FILED A COPY OF MUTATION OF HOLDI NG OF LAND. THE ASSESSEE THEREAFTER FILED COPY OF AGREEMENT DATED 25 TH SEPTEMBER, 2008. THE AO NOTED THAT THE ASSESSEE HAS NOT FILED THE COPY OF SALE DEED AN D SINCE THE ALLEGED AGREEMENT WAS NOT REGISTERED WITH THE STAMP DUTY AUTHORITY, T HEREFORE, THE AO DID NOT ACCEPT THE EXPLANATION OF THE ASSESSEE THAT THE SAID AMOUN T OF RS. 65,00,000/- WAS RECEIVED BY THE ASSESSEE ON ACCOUNT OF TRANSFER OF THE LAND UNDER THE AGREEMENT. HENCE THE AO HELD THAT THE ASSESSEE HAS FAILED TO P ROVE THE IMMEDIATE SOURCE OF CASH OF RS. 65,00,000/- DEPOSITED IN THE BANK ACCOU NT. ACCORDINGLY, THE AO TREATED THE SAID AMOUNT AS INCOME OF THE ASSESSEE FROM UNDI SCLOSED SOURCE UNDER SECTION 68 OF THE IT ACT. THE ASSESSEE CHALLENGED THE ACTIO N OF THE AO BEFORE THE LD. CIT (A) AND CONTENDED THAT THE SOURCE OF THE SAID DEPOSIT O F RS.65,00,000/- IS SALE CONSIDERATION OF THE AGRICULTURAL LAND AND, THEREFO RE, THE SAME IS NOT AN INCOME CHARGEABLE TO TAX AS PER THE PROVISIONS OF SECTION 2(14) OF THE ACT. THE LD. CIT (A) ACCEPTED THE CONTENTION OF THE ASSESSEE AND ACCORDI NGLY DELETED THE ADDITION MADE BY THE AO. 3. BEFORE US, THE LD. D/R HAS SUBMITTED THAT THE LA ND WAS SOLD BY THE ASSESSEE THROUGH A SALE DEED DATED 15 TH SEPTEMBER, 2011 FOR A CONSIDERATION OF RS. 20,00,000/-. THEREFORE, THE SOURCE OF DEPOSIT OF RS . 65,00,000/- ON 29 TH SEPTEMBER, 2008 IN THE BANK ACCOUNT OF THE ASSESSEE HAS NOT BE EN EXPLAINED BY THE ASSESSEE WITH A VALID DOCUMENTARY EVIDENCE. HE HAS FURTHER CONTENDED THAT THE ALLEGED AGREEMENT DATED 25 TH SEPTEMBER, 2008 IS NOTHING BUT AN AFTER-THOUGHT SE LF-SERVING 3 ITA NO. 783/JP/2017 SHRI BIRENDRA SINGH, ALWAR. DOCUMENT WHICH IS NOT REGISTERED. THEREFORE, THE SA ID DOCUMENT CANNOT BE CONSIDERED AS A LEGAL AND VALID DOCUMENT. THE LD. D /R HAS FURTHER CONTENDED THAT THE ENTIRE TRANSACTION OF SALE OF AGRICULTURAL LAND IS A DUBIOUS TRANSACTION AND, THEREFORE, THE ASSESSEE HAS GROSSLY FAILED TO DISCH ARGE ITS ONUS TO EXPLAIN THE SOURCE OF DEPOSIT OF CASH OF RS. 65,00,000/- IN THE BANK A CCOUNT. HE HAS RELIED UPON THE ORDER OF THE AO. 3.1. ON THE OTHER HAND, THE LD. A/R OF THE ASSESSEE HAS SUBMITTED THAT THE ASSESSEE IS AN AGRICULTURIST AND HAS NO SOURCE OF I NCOME OTHER THAN AGRICULTURE. THE ASSESSEE NEVER FILED ANY RETURN OF INCOME AS HE HAD NO INCOME CHARGEABLE TO TAX. THE ASSESSEE INHERITED THE AGRICULTURAL LAND BEARIN G KHASRA NO. 263 SITUATED AT VILLAGE BANBEERPUR, TEHSIL TIJARA FROM HIS UNCLE LA TE SHRI DALU RAM THROUGH WILL DATED 7 TH FEBRUARY, 1992. THE SAID AGRICULTURAL LAND WAS SOL D TO SHRI KALU RAM VIDE AGREEMENT DATED 25 TH SEPTEMBER, 2008 FOR A CONSIDERATION OF RS. 65,00,0 00/-, OUT OF WHICH THE ASSESSEE RECEIVED A SUM OF RS. 53,00,0 00/- AT THE TIME OF AGREEMENT AND BALANCE OF RS. 12,00,000/- WAS TO BE RECEIVED A T THE TIME OF REGISTRATION WHICH WAS TO BE EXECUTED BY 29 TH SEPTEMBER, 2008. THE LD. A/R HAS SUBMITTED THAT TH E SOURCE OF RECEIPT OF RS. 53,00,000/- FROM SHRI KALU RAM IS VERIFIABLE FROM HIS BANK ACCOUNT. THEREAFTER SHRI KALU RAM DIRECTED THE ASS ESSEE TO EXECUTE POWER OF ATTORNEY IN FAVOUR OF ONE SHRI RAJESH MALIK ON 29 TH SEPTEMBER, 2008 WHICH WAS EXECUTED BY THE ASSESSEE AND CONSEQUENTLY THE ASSES SEE RECEIVED THE BALANCE AMOUNT OF RS. 12,00,000/-. THUS THE LD. A/R HAS SUB MITTED THAT THE RIGHTS IN THE AGRICULTURAL LAND ACQUIRED BY SHRI KALU RAM WAS TRA NSFERRED TO SHRI RAJESH MALIK. SUBSEQUENTLY SHRI RAJESH MALIK HAS EXECUTED THE SAL E DEED IN HIS OWN FAVOUR AS A POWER OF ATTORNEY-HOLDER ON 15 TH SEPTEMBER, 2011 FOR RS. 20,00,000/-. THE LD. A/R 4 ITA NO. 783/JP/2017 SHRI BIRENDRA SINGH, ALWAR. HAS POINTED OUT THAT THE ASSESSEE FURNISHED THE AFF IDAVIT DATED 04.08.2017 OF SHRI KALU RAM IN SUPPORT OF THE TRANSACTION OF SALE OF A GRICULTURAL LAND AND, THEREFORE, THE ASSESSEE HAS EXPLAINED THE SOURCE OF DEPOSIT OF RS. 65,00,000/- IN THE BANK ACCOUNT OF THE ASSESSEE ON 29 TH SEPTEMBER, 2008. IN SUPPORT OF HIS CONTENTION HE H AS RELIED UPON THE DECISION OF MUMBAI BENCH OF THE TRIBUNAL I N CASE OF MEHUL V. VYAS VS. INCOME TAX OFFICER, 164 ITD 296 (MUMBAI). 4. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AS WELL AS THE RELEVANT MATERIAL ON RECORD. THE AO NOTED THAT THE ASSESSEE HAS DEPOSITE D CASH OF RS. 65,00,000/- IN THE BANK ACCOUNT MAINTAINED WITH PNB ON 29 TH SEPTEMBER, 2008. ACCORDINGLY, THE AO INITIATED PROCEEDINGS UNDER SECTION 148 ON 29 TH MARCH, 2016. IN RESPONSE TO THE NOTICE ISSUED BY THE AO FOR EXPLAINING THE SOURCE O F DEPOSIT OF RS. 65,00,000/-, THE ASSESSEE EXPLAINED THAT THE ASSESSEE HAS ENTERED IN TO AN AGREEMENT TO SALE DATED 25 TH SEPTEMBER, 2008 WITH ONE SHRI KALU RAM FOR A CONSI DERATION OF RS. 65,00,000/-. THE AO NOTED THAT THE SAID AGREEMENT TO SALE IS AN UNREGISTERED DOCUMENT AND THE ASSESSEE HAS NOT FILED THE COPY OF REGISTERED SALE DEED. ACCORDINGLY, THE AO MADE AN ADDITION OF THE SAID AMOUNT OF RS. 65,00,000/- B EING THE INCOME FROM UNDISCLOSED SOURCES UNDER SECTION 68 OF THE ACT. B EFORE THE LD. CIT (A) THE ASSESSEE FILED VARIOUS DOCUMENTS INCLUDING THE AGREEMENT TO SALE DATED 25 TH SEPTEMBER, 2008, POWER OF ATTORNEY DATED 29 TH SEPTEMBER, 2008, SALE DEED DATED 15 TH SEPTEMBER, 2011, COPY OF BANK ACCOUNT, STATEMENT OF SHRI KALU RAM. THE LD. CIT (A) HAD ACCEPTED THE CLAIM OF THE ASSESSEE BY CONSI DERING ALL THESE DOCUMENTS FILED BY THE ASSESSEE WHICH WERE NOT PRODUCED BEFORE THE AO. WE FURTHER NOTE THAT THE ASSESSEE CLAIMED TO HAVE RECEIVED RS. 65,00,000/- A S A CONSIDERATION OF TRANSFER OF AGRICULTURAL LAND IN QUESTION THROUGH THE AGREEMENT DATED 25 TH SEPTEMBER, 2008. 5 ITA NO. 783/JP/2017 SHRI BIRENDRA SINGH, ALWAR. HOWEVER, THE SAID DOCUMENT UNDISPUTEDLY IS NOT A RE GISTERED DOCUMENT AND FURTHER THE ASSESSEE HAS NOT PERFORMED HIS PART AS PER THE SAID AGREEMENT DATED 25 TH SEPTEMBER, 2008. RATHER, THE ASSESSEE EXECUTED THE POWER OF ATTORNEY IN FAVOUR OF ONE SHRI RAJESH MALIK. THE SAID POWER OF ATTORNEY IS ALSO AN UNREGISTERED DOCUMENT AND, THEREFORE, THERE IS NO INDEPENDENT SOURCE OF V ERIFICATION OF THE SAID ALLEGED POWER OF ATTORNEY. FINALLY, A SALE DEED DATED 15 TH SEPTEMBER, 2011 WAS EXECUTED BY SHRI RAJESH MALIK IN FAVOUR OF HIMSELF. IT IS A STRANGE CASE OF TRANSFER OF THE AGRICULTURAL LAND THROUGH THE ALLEGED DUBIOUS TRANS ACTIONS. THE VALUE OF THE LAND AS PER THE SALE DEED DATED 15 TH SEPTEMBER, 2011 IS SHOWN AT RS. 20,00,000/-. THEREFORE, EVEN IF THE TRANSACTION OF TRANSFER IS A CCEPTED, THE CONSIDERATION OF THE SAME AS PER THE REGISTERED DOCUMENT IS ONLY RS. 20, 00,000/- AND, THEREFORE, IN THE ABSENCE OF ANY OTHER INDEPENDENT VERIFIABLE DOCUMEN T TO PROVE THE TRANSACTION OF TRANSFER OF THE LAND IN QUESTION AGAINST THE ALLEGE D CONSIDERATION OF RS. 65,00,000/-, THE EXPLANATION OF THE ASSESSEE CANNOT BE ACCEPTED. THE DECISION RELIED UPON BY THE LD. A/R OF THE ASSESSEE CANNOT BE APPLIED IN THE CA SE OF THE ASSESSEE WHEN THE ASSESSEE IS NOT MAINTAINING ANY BOOKS OF ACCOUNTS. IN THE FACTS AND CIRCUMSTANCES OF THE CASE WHEN THE ALLEGED DOCUMENTS BEING AGREEMENT TO SALE AND POWER OF ATTORNEY WHICH ARE NOT REGISTERED DOCUMENT AND THE ASSET IN QUESTION IS AN IMMOVABLE PROPERTY BEING AGRICULTURAL LAND, THEREFO RE, THE TRANSFER OF THE SAID LAND IS NOT POSSIBLE WITHOUT A VALID LEGAL DOCUMENT. SINCE BOTH THE AGREEMENT TO SALE AS WELL AS THE POWER OF ATTORNEY ARE IN THE NAMES OF D IFFERENT PERSONS, THEREFORE, THE EXPLANATION OF THE ASSESSEE THAT THE AMOUNT IN QUES TION OF RS. 65,00,000/- WAS RECEIVED UNDER THE AGREEMENT TO SALE IS CONTRARY TO THE FACT THAT THE LAND WAS ULTIMATELY TRANSFERRED IN THE NAME OF THIRD PERSON AND NOT IN THE NAME OF THE 6 ITA NO. 783/JP/2017 SHRI BIRENDRA SINGH, ALWAR. PURCHASER UNDER THE AGREEMENT. HENCE, WE FIND THAT THE ASSESSEE HAS FAILED TO EXPLAIN THE SOURCE OF DEPOSIT IN THE BANK WITH AN I NDEPENDENT VERIFIABLE DOCUMENTARY EVIDENCE. ALL THE DOCUMENTS FILED BY T HE ASSESSEE ARE SELF-SERVING DOCUMENTS WHICH CANNOT BE VERIFIED FROM AN INDEPEND ENT SOURCE AS THEY ARE NOT REGISTERED DOCUMENTS. THE SALE DEED, WHICH HAS BEE N EXECUTED BY THE ALLEGED POWER OF ATTORNEY-HOLDER IN HIS OWN NAME IS ALSO A QUESTIONABLE DOCUMENT. ACCORDINGLY, WE SET ASIDE THE ORDER OF LD. CIT (A) AND RESTORE THE ORDER OF THE AO AND THEREBY CONFIRM THE ADDITION MADE BY THE AO. 5. IN THE RESULT, APPEAL OF THE REVENUE IS ALLOWED. ORDER IS PRONOUNCED IN THE OPEN COURT ON 08/05/2 018. SD/- SD/- ( FOE FLAG ;KNO ) ( FOT; IKY JKWO (VIKRAM SINGH YADAV ) (VIJAY PAL RAO) YS[KK LNL;@ ACCOUNTANT MEMBER U;KF;D LNL;@ JUDICIAL MEMBER JAIPUR DATED:- 08/05/2018. DAS/ VKNS'K DH IZFRFYFI VXZSF'KR@ COPY OF THE ORDER FORWARDED TO: 1. THE APPELLANT- THE ITO WARD BHIWADI. 2. THE RESPONDENT SHRI BIRENDRA SINGH, ALWAR. 3. THE CIT(A). 4. THE CIT, 5. THE DR, ITAT, JAIPUR 6. GUARD FILE (ITA NO. 783/JP/2017) VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASSISTANT. REGISTRAR 7 ITA NO. 783/JP/2017 SHRI BIRENDRA SINGH, ALWAR.