Ashwin Kumar, Bangalore V. ITO, Bangalore

ITA 812/BANG/2009

• Counselvise Citation: [2009] 115 COUNSELVISE.COM (IT) 0640 (ITAT-BANGALORE)
• Duration Of Justice: 3 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-11-2009
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 18-11-2009
• Assessment Year: 2006-2007
• Appeal Filed On: 13-08-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: V S SREELEKHA
• Assessee Lawyers: D DEVARAJ
• Keywords: Unexplained investment
• Section: 64

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL BANGALORE B BENCH, BANGALORE BEFORE SHRI SHAILENDRA KUMAR YADAV, JM AND SHRI AKBER BASHA, AM ITA NO.812(BNG)/2009 (ASSESSMENT YEAR : 2006-07) SHRI ASHWIN KUMAR, 455, 64 TH CROSS ROAD, 5 TH BLOCK, RAJAJINAGAR, BANGALORE-560 010. APPELLANT VS THE INCOME-TAX OFFICER, WARD-14(7), BANGALORE RESPONDENT APPELLANT BY: SHRI D. DEVARAJ RESPONDENT BY: SMT. V.S. SREELEKHA O R D E R PER SHAILENDRA KUMAR YADAV,JM: THIS APPEAL HAS BEEN FILED BY THE ASSESSEE AGAINST THE ORDER OF CIT(A), BANGALORE DATED 11-06-2009 ON THE FOLLOWING GROUNDS; 1. THE ORDER OF LAA IS BAD IN LAW. 2. THE LAO ERRED IN MAKING AN ADDITION OF RS.7.00 LAKHS AS UNEXPLAINED INVESTMENT. HE FAILED TO APPRECIATE THE FACTS OF THE CASE AND HELD THE APPELLANT NOT HAVING GIVEN PROPER EXPLANATION FOR A N INVESTMENT WHICH HAD NOT TAKEN PLACE AT ALL. THE LA A ERRED IN CONFIRMING THE ORDER OF THE LAO WITHOUT PROPER CONSIDERATION OF THE FACTS OF THE CASE. THE LAA FURTHER ERRED IN NOT APPRECIATING THE FACT THAT THE SELLER HAD CONFIRMED THAT THE MONEY WAS RECEIVED BY ITA NO.812(B)/09 2 HIM ON THE DATE OF REGISTRATION I.E ON 20-03-2006 A ND NOT ON 25-02-2006. 2. THE FACTS OF THE CASE ARE THAT THE ASSESSEE ALON GWITH HIS BROTHER PURCHASED A PROPERTY VIDE SALE DEED DATE 20 -03-2006. COPY OF THE SAME IS ANNEXED AT PAGE 1 TO 10 OF THE PAPER BO OK. ACCORDING TO THE SALE DEED CONSIDERATION OF RS.52.00 LAKHS WAS S HOWN TOWARDS PURCHASE OF PROPERTY. PRIOR TO THIS, THE ASSESSEE HAD ENTERED INTO AN AGREEMENT FOR SALE DATED 25-02-2006. COPY OF THE S AME IS ANNEXED AT PAGE-11 TO 15 OF THE PAPER BOOK FILED BY THE ASSESS EE. IN THE SAID AGREEMENT THE AMOUNT AGREED TO BE PAID WAS RS.87.00 LAKHS. THE AO SAW DISCREPANCY AND ASSESSED THE INVESTMENT IN THE SAID PROPERTY AT RS.87.00 LAKHS, AS AGREED IN THE SALE DEED WHICH HA S NOT BEEN DISPUTED BY THE ASSESSEE. HOWEVER, THE AO MADE AN A DDITION OF RS.17,18,000/- BECAUSE AS PER SALE DEED THE SAID AM OUNT HAS BEEN MENTIONED TO BE PAID IN CASH ON 25-02-2006. THE ST AND OF THE ASSESSEE IS THAT THE SAID AMOUNT OF RS.17,18,000/- WAS PAID AT THE TIME OF SALE DEED AND WRONGLY MENTIONED IN THE SALE DEED. FURTHER LEARNED AR POINTED OUT THAT SELLER HAS FILED THE CO NFIRMATION, INTER-ALIA, HE HAS MENTIONED THAT CASH IN QUESTION WAS PAID ON 20-03-2006, INSTEAD ON 25-02-2006. IN THIS REGARD, LEARNED AR ALSO DREW OUR ATTENTION TO THE FACT THAT SELLER HAS REFLECTED THE WHOLE AMOUNT INCLUDING THE CASH IN RELEVANT INCOME-TAX RETURN. I N THIS BACKGROUND, ITA NO.812(B)/09 3 IT WAS ARGUED THAT THE CASH OF RS.17,18,000/- AT TH E TIME OF SALE DEED SHOULD BE ACCEPTED. MOREOVER, CASH PAYMENT OF RS.1 7,18,000/- MADE AT THE TIME OF SALE DEED HAS BEEN DULY ACCOUNTED FO R BY THE ASSESSEE, SO THE ADDITION IN QUESTION BE DELETED. 3. ON THE OTHER HAND, LEARNED DR HEAVILY RELIED ON THE DATE MENTIONED IN THE SALE DEED, BUT AT THE SAME TIME, D R WAS NOT ABLE TO JUSTIFY REJECTION OF THE CONFIRMATION FILED ON BEHA LF OF THE SELLER WHICH HAS BEEN DULY ACCOUNTED FOR INCOME-TAX RETURN AS WE LL. 4. AFTER GOING THROUGH THE RIVAL SUBMISSION AND MA TERIAL ON RECORD, WE ARE NOT INCLINED TO INTERFERE WITH THE F INDING OF CIT(A). THE SELLER HAS CATEGORICALLY STATED THAT HE HAS RECEIVE D THE AMOUNT OF RS.17,18,000/- ON THE DATE OF SALE DEED AND HE HAS ALSO ACCOUNTED THE SAME IN THE INCOME-TAX RETURN. THE REVENUE AUTHORI TIES HEAVILY RELIED ON THE DATE MENTIONED IN THE SALE DEED. BUT, TAKIN G OVERALL FACTS AND CIRCUMSTANCES, WE DO NOT FIND ANY LOGIC IN REJECTIN G THE CONFIRMATION FILED BY THE SELLER IN THIS REGARD, WHO HAS ACCOUNT ED FOR THIS CASH TRANSACTION INTER-ALIA SUBMITTED THAT HE HAS BEEN R ECEIVED THE SAME AT THE TIME OF SALE DEED AND ACCOUNTED FOR INCOME-TAX RETURN. THE AO WAS HAVING OPPORTUNITY TO CROSS EXAMINE AND DEMOLISH TH E CONTENTS OF ABOVE SAID CONFIRMATION FILED ON BEHALF OF SELLER O F PROPERTY IN QUESTION, BUT NO EFFORT HAS BEEN MADE IN THIS REGARD. UNDER T HE FACTS AND ITA NO.812(B)/09 4 CIRCUMSTANCES, ADDITION MADE ON THIS ACCOUNT ARE NO T JUSTIFIED, SO THE SAME IS DIRECTED TO BE DELETED. 5. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON THE ( AKBER BASHA) (SHAILENDRA KUMAR YADAV) ACCOUNTANT MEMBER JUDICIAL MEMBER PLACE: BANGALORE DATED: AM * COPY TO : 1. THE ASSESSEE 2. THE REVENUE 3. CIT(A) 4. CIT 5. DR 6. GF(BLORE) 7. GF(DELHI AR, ITAT, BANGALORE