Sharma Tyagi, New Delhi V. ITO, New Delhi

ITA 873/DEL/2013

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 81762 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 7 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-09-2014
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: G
• Next Hearing Date: 16-07-2014
• Assessment Year: 2006-2007
• Appeal Filed On: 12-02-2013
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Unexplained investment
• Section: 32; 147; 90; 69

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: G NEW DELHI BEFORE SHRI S. V. MEHROTRA , ACCOUNTANT MEMBER AND SHRI C. M. GARG, JUDICIAL MEMBER I.T.A .NO. - 873 /DEL/2013 (A SSESSMENT YEA - 2006 - 0 7 ) SMT. SHARMA TYAGI VS. IT O, 4 86, INDIRA COLONY WARD 1(1), ROORKEE ROAD, MUZZAFFARNAGAR. MUZZAFFARNAGAR. PAN: A GWPT3535B (APPELLANT) (RESPONDENT) I.T.A. NO. 944 /DEL/2013 ASSESSMENT YEAR : 2006 - 0 7 ITO VS. SMT. SHARMA TYAGI WARD 1(1), 486, IND IRA COLONY MUZZAFFARNAGAR ROORKEE ROAD, MUZZAFFARNAGAR. PAN: AGWPT3535B (APPELLANT) (RESPONDENT) ASSESSEE BY: - SH. ANIL JAIN , ADV. REVENUE BY: - SH. RAKESH KUMAR , SR. DR ORDER PER C. M. GARG, JM. TH E ABOVE CAPTIO N APPEAL S HA VE BEEN PREFERRED BY THE REVENUE AND THE ASSESSEE AGAINST THE ORDER OF CIT (APPEALS) - MUZAFFARNAGAR , DATED 2 3. 11 .201 2 IN APPEAL NO. 338 / 11 - 12 /MZR/ FOR THE ASSESSMENT YEAR 2006 - 07 . FOR THE SAKE OF CLARITY, BREVITY AND CONVENIENCE WE HAVE CLUBBED BOTH AND DISPOSING THEM BY THIS CONSOLIDATED ORDER. I.T.A .NO. - 873/DEL/2013 & I.T.A. NO. 944/DEL/2013 2 ITA NO. 873/DEL/2013 2. THE ASSESSEE HAS RAISED SOLE GROUND IN THIS APPEAL WHICH READS AS UNDER: 1. THE LD. CIT(A) HAS ERRED IN CONFIRMING THE ORDER OF THE ASSESSING OFFICER IN RESPECT OF ADDITION OF RS.1,35,000/ - U/S 69 BEING UNEXPLAINED INVESTMENT. 3. APROPOS ABOVE GROUND OF THE ASSESSEE, THE LD. COUNSEL APPEARING FOR THE ASSESSEE SUBMITTED THAT THE AO WRONGLY HOLD THAT THE EXPLANATION OFFERED BY THE ASSESSEE WAS NOT SATISFACTORY AND THE AO HAS ERR ED ON FACTS AND IN LAW IN MAK ING THE ADDITION TO THE INCOME OF THE ASSESSEE BY HOLDING THE AMOUNT OF RS.1,35,000/ - AS UNEXPLAINED INVESTMENT U/S 69 OF THE INCOME TAX ACT 1961, (FOR SHORT, THE ACT ) . 4. THE L D . COUNSEL FOR THE ASSESSEE FURTHER SUBMITTED TH AT THE ASSESSEE HA D PROPER SOURCE OF INCOME IN THE PREVIOUS YEARS RELEVANT TO THE A.Y. UNDER CONSIDERATION FROM FAMILY PENSION AND AGRICULTURAL INCOME WHICH WERE NOT SUBJECTED TO THE I NCOME T AX ACT , IN THE PRECEDING YEARS. 4.1 THE LD. COUNSEL FOR THE ASSE SSEE FURTHER SUBMITTED THAT OUT OF THESE TAX FREE RESOURCES THE ASSESSEE SAVED AN AMOUNT OF RS.1,35, 000/ - WHICH WAS ACTUALLY THE SAVING COLLECTED DURING EARLIER YEARS BY THE ASSESSEE AND WHICH I.T.A .NO. - 873/DEL/2013 & I.T.A. NO. 944/DEL/2013 3 WAS INVES TED IN THE PURCHASE OF PROPERTY, T HEREFORE, THE AO WAS NOT JUSTIFIED IN HOLDING THA T THE ASSESSEE NEVER DISCLOSED INCOME TO THE DEPARTMENT. 4.2 THE COUNSEL FOR THE ASSESSEE ALSO SUBMITTED THAT THE FACT OF THE EARNING FROM FAMILY PENSION AND AGRICULTUR AL INCOME , PRIOR TO RELEVANT ASSESSMEN T YEAR 2006 - 07 CANNOT BE DENIED ON THE GROUND THAT THE ASSESSEE DID NOT DISCLOSE THE SAME TO THE REVENUE DEPARTMENT A S THE SAME INCOME WAS OUT OF AMBIT OF TAXABLE INCOME LIMITS . T HE COUNSEL FOR THE ASSESSEE DRAWN OU R ATTENTION TOWARDS PAPER BOOK PAGE NO S . 90 TO 97 RELEVANT TO THE PERIOD FROM FEBRUARY 2000 TO DECEMBER 2006 AND SUBMITTED THAT THERE WAS WITHDRAWAL OF RS.7, 09,000/ - DURING SAID LONG PERIOD TH EREFORE, ACCUMULATION OF SAVING OF R S.1,35,000/ - FROM EARLIER YEAR S SAVING IS JUSTIFIED , H ENCE , THE AO GROSSLY ERRED IN MAKIN G THE ADDITION U/S 69 OF THE ACT, AS UNEXPLAINED INVESTMENT OF THE ASSESSEE. THE LD. COUNSEL FOR THE ASSESSEE ALSO CONTENDED THAT THE LD. AO IN HIS REMAND REPORT DID NOT COMMENT ON THE ARGUMENTS MADE BY THE ASSESSEE AND THE A.O. ONLY REITERATED THE OBSERVA TION OF THE ASSESSMENT ORDER , T HEREFORE, ADDITION MADE BY THE AO AND UPHELD BY THE LD. CIT(A) IS NOT SUSTAINABLE. 5. REPLYING TO THE ABOVE , THE LD. DEPARTMENTAL REPRESENTATIVE (DR) SUBMITTED THAT EVEN ON SPECIFIC QUERY BY THE AO THE ASSESSEE DID NOT FILE ANY ACCEPTABLE EXPLANATION OR DOCUMENTARY EVIDENCE IN SUPPORT OF HER CLAIM. THE LD. DR FURTHER CONTENDED THAT THE EXPLANATION PLACED BY THE ASSESSEE BEFORE THE AO WAS NOT FOUND TO BE SATISFACTORY , T HEREFORE, THE AO MADE I.T.A .NO. - 873/DEL/2013 & I.T.A. NO. 944/DEL/2013 4 ADDITION TO THE INCOME OF ASSESSEE B Y HOLDING THAT THE UNEXPLAINED INVESTMENT U/S 69 OF THE ACT IS TAXABLE IN THE HANDS OF THE ASSESSEE. 5.1 THE LD. DR ALSO DRAWN OUR ATTENTION TOWARDS THE REMAND REPORT AND SUBMITTED THAT THERE WAS NO DOCUMENTARY EVIDENCE TO SHOW THAT THE ASSESSEE MADE INVE STMENT OF RS.1,35,000/ - OUT OF HER SAVINGS DURI NG THE PRECEDING FINANCIAL YEAR , T HEREFORE, THE AO WAS RIGHT IN MAKING ADDITION U/S 69 OF THE ACT , AND THE SAME WAS CONFIRMED BY THE LD. CIT(A) ON LEGAL COGENT AND SUBSTANTIAL BASIS. 6. ON A CAREFUL CONSIDERA TION OF ABOVE SUBMISSIONS AND CONTENTION OF BOTH THE SIDES AND PERUSAL OF IMPUGNED ORDER WE OBSERVE THAT THE LD. CIT(A) SUSTAINED AND UPHELD THE ADDITION OF RS.1,35,000/ - MADE BY THE AO U/S 69 OF THE ACT WITH FOLLOWING OBSERVATIONS AND CONCLUSIONS: THE F ACTS O F TH E C ASE, WRITTEN S UBMIS S ION S MAD E B Y THE APPELL A NT , R E MAND REPORT OF THE AO AND REJOIND E R O F THE A PP E LLANT H AVE B EE N C AR E FULL Y CONSIDER E D . IT IS OBSERVED TH A T THE A O HAD MADE ADDIT I O N O F RS.L , 35 , 000/ - ON THE GROUND THAT THE APPELL A N T HAD N E ITHER F URNI S H E D RE TURNS OF INCOME FOR TH E PR E CEDING YEARS NOR A N Y D ETA IL S AND EV ID ENCES REGA RDI N G PAST SA V IN G S WERE FURNISHED B Y TH E APPE LL AN T . ON TH E O T H ER HAN D I T H AS B EE N CONT EN D E D B Y THE AP P E LL A NT THAT SHE HA D EX PL A IN E D SOURCE OF INCOME I N THE P REV IO US YEARS AS FA MIL Y PENSION AN D AGRICU L TURAL INCOME W HICH WER E NOT SUBJ ECTE D TO T AX IN EAR LI E R YE ARS. IT IS OB SE RV E D THA T TH E APPELLANT HA S EARNED A VERAGE MON T HL Y PENSION O F RS . 4 , 600 / - T OT ALING T O RS.52 , 800/ - PER I.T.A .NO. - 873/DEL/2013 & I.T.A. NO. 944/DEL/2013 5 ANNUM . BESIDES THAT AG RICULTURAL INCOME H AS AL SO B EEN SHOWN. . IT APP EA RS THAT THE APPELLANT WAS REGULARLY M A I N TAININ G B A N K A CCOUNT NO.9521 W ITH ALLAHABAD BAN K A ND IT HAS BEEN CLAIMED TH AT SINC E FEBRUARY , 2000 , A SUM OF RS.7 , 09 , 000/ - - W ERE WITHDRA W N FROM THI S ACCOUNT FOR JUSTI FY IN G TH E CASH IN H A ND FR OM P A ST SAVINGS A T RS.1 , 35 , 000/ - . THE APPELLANT ' S ARGUMENT GOES AGA IN S T HERSELF A S A V ERA GE YEA RL Y WITHDRAWAL FROM FEBRUAR Y, 2000 TO MARCH , 2005 COMES TO RS . 1 , 41 , 800/ - . THUS ENTIRE PENSION INCOME AND OTHER FUNDS WERE CONSUMED B Y TH E APPELLANT IN THE PA S T 5 YEARS A ND BALANCE AS ON 31 - 03 - 2005 REMAIN E D JU S T RS.1,209/ - ONLY. THE PATTERN OF WITHDRAWALS SHOWS THAT THE APPELLANT WAS SOLEL Y DEPEND E NT UPON THE PENSION INCOM E AND THE MOMENT PENSION W A S CREDITED IN , THE BANK ACCOUNT , THE SAME W AS ' WITHDRAWN IN SMALL A MOUNT S R EFLECTING THE CONSUMPTION , RATHER THAN THE SAVINGS. ALTERNATI V EL Y, THE APPELLANT W A S E A RLIER HA V ING FDRS ( E NCASHMENT OF WHICH HAS BEEN S HOWN AT RS.3 , 26 , 849/ - ON 25 - 04 - 2005) . SUCH FDR MUST HA V E BEEN PR E PARED FROM EARLIER FUNDS AVAILABLE WITH THE APPELLANT I N THIS BANK ACCOUNT . HAD THERE BEEN AN Y SURPLUS F UND , THE SAM E C O ULD HA V E BEE N IN TH E FO RM OF B A NK DEPOSITS OR FDRS BUT NOTHIN G OF SORT WAS AVAILABL E W ITH T H E ' A PPELLANT . THEREFORE , IT COULD NOT B E B E LIEVED THAT THE APP E LLAN T W A S HAVING RS . 1 , 35 , 000/ - FROM HER PAST SA V INGS. THE APPELLANT HAD NOT FURNISHED DETAILS OF WITHDRAWALS FOR HOU SE HOLD EXPENSES NEITH E R DURING ASSESSMENT PROCEEDINGS NOR DURING APPELLATE PROCEEDINGS . THUS CONSIDERING THE A GE OF THE APPELLANT I.T.A .NO. - 873/DEL/2013 & I.T.A. NO. 944/DEL/2013 6 A ND OTHER FACTORS (LIK E M E DI C AL EXPENSES) , IT IS HELD THAT THE RECEIPTS FROM PENSION AS WELL AS A G RICULTURAL INCOME WERE CONSUMED BY THE APPELLANT ON HOUSEHOLD E X P E NSES . THEREFORE , IT CANNOT BE SAID THAT THE APP E LLANT WAS ACTUALL Y IN A PO S ITION TO ACCUMULATE SAVINGS FROM PENSION INCOME A ND AGRICULT URE. THU S SOURC E O F RS.L , 35 , 000 / - REMAINED UNE X PLAINED AND AO WAS FULLY JUSTIFIED IN M A K I NG ADDITION OF RS . 1 , 35 , 000/ - IN APP E LLANT 'S IN COM E . TH E SAM E I S H E R E B Y SUSTAINED. GROUND OF APPEAL NO . 2 IS D I SMIS S ED . 7. IN VIEW OF THE ABOVE , WE CLEARLY OBSERVE TH AT THE LD. CIT(A) HAS CONSIDERED THE EXPLANATION AND SUBMISSION OF THE ASSESSEE WITH COMMENTS OF THE AO IN THE REMAND REPORT AND REJOINDER FILED BY THE ASSESSEE THEREON AND ADJUDICATED THE ISSUE CATEGORICALLY ON THE BASIS OF LOGICAL ANALYSIS. FROM THE ASSE SSMENT ORDER WE OBSERVE THAT THE AO MADE ADDITION OF RS.1,35,000/ - BY HOLDING THAT THE ASSESSEE HAD NEITHER FURNISH ED RETURNS OF INCOME FOR THE PRECEDING YEARS NOR ANY DETAILS AND EVIDENCES REGARDING PAST SAVING S WERE FURNISHED BY THE ASSESSEE . ON THE OTHE R HAND, IT HAS BEEN CONTENDED BY THE LD. AR THAT THE ASSESSE E HAD EXPLAINED SOURCE OF INCOME IN THE EARLIER YEAR S FROM FAMILY PENSION AND AGRICULTURAL INCOME WHICH WERE NOT SUBJECTED TO TAX IN THE EARLIER YEARS AND SINCE FROM FEBRUARY 2000 TO MARCH 2005 TH E ASSESSEE WITHDRAWN A SUM OF RS.7,09,000/ - FROM HER BANK ACCOUNT WITH ALLAHABAD BANK SAVING ACCOUNT NO. 9521 WHICH CLEARLY SHOW THAT THE I.T.A .NO. - 873/DEL/2013 & I.T.A. NO. 944/DEL/2013 7 ASSESSEE COLLECTED SAVING OF RS.1,35,000/ - OUT OF THESE WITHDRAWALS FROM HER OWN SAVINGS ACCOUNT. 8. FROM CAREFUL PER USAL OF THE RELEVANT PART OF THE IMPUGNED ORDER AS REPRODUCED HEREIN ABOVE , W E OBSERVE THAT THE LD. CIT(A) HAS CONFIRMED THE ADDITION BY HOLDING THAT AVERAGE YEARLY WITHDRAWAL FROM BANK DURING FEBRUARY 2000 TO MARCH 2005 COMES TO RS.1,41,800/ - , THUS ENTIRE PENSION INCOME AND OTHER FUNDS WERE CONSUMED BY THE ASSESSEE DURING THE EARLIER 5 YEARS AND THERE WA S A BALANCE OF RS.1,209/ - ONLY AS ON 31 ST MARCH, 2005. THE LD. CIT(A) FURTHER HELD THAT THE PATTERN OF WITHDRAWAL SHOWS THAT THE ASSESSEE WAS SOLELY DEPEND EN D ON THE PENSION INCOME AND THE MOMENT PENSION INCOME WAS CREDITED TO HER BANK ACCOUNT, THE SAME WAS WITHDRAWN IN SMALL AMOUNTS REFLECTING THE ACTUAL CONSUMPTION RATHER THAN THE SAVINGS. THE LD. CIT(A) FURTHER OBSERVED THAT HAD THERE BEEN ANY SURPLUS FUN DS OR SAVINGS, THE SAME COULD HAVE BEEN IN THE FORM OF BANK DEPOSITS OR FDRS BUT NOTHING OF THIS KIND OF EVIDENCE WAS AVAILABLE WITH THE ASSESSEE , T HEREFORE, IT COULD NOT BE BELIEVED THAT THE ASSESSEE COLLECTED A SUM OF RS.1,35,000/ - FROM HER PAST SAVINGS D URING PRECEDING PERIOD OF 5 YEARS . 9. T HE LD. CIT(A) FURTHER OBSERVED THAT THE ASSESSEE HAD NOT FURNISHED DETAILS OF WITHDRAW ALS FOR HOUSE HOLD EXPENSES NEITHER DURING THE ASSESSMENT PROCEEDINGS NOR DURING THE APPELLATE PROCEEDINGS , THEREFORE, CONSIDERING THE OLD AGE OF THE ASSESSEE AND OTHER RELEVANT FACTOR S LIKE MEDICAL EXPENSES ETC. IT CAN SAFELY , B E HOLD THAT THE RECEIPTS FROM FAMIL Y PENSION AS WELL AS I.T.A .NO. - 873/DEL/2013 & I.T.A. NO. 944/DEL/2013 8 AGRICULTURAL INCOME WERE CONSUMED BY THE ASSESSEE ON HOUSEHOLD EXPENSES AND OTHER DAY TO DAY LIVELIHO OD NEEDS. IN VIEW OF ABOVE & LOGICAL AND FORTIFIED CONCLUSION OF THE CIT(A) AND AFTER CAREFUL CONSIDERATION ALL THE CONTENTIONS AND SUBMISSIONS OF THE ASSESSEE ASSAILED BEFORE US WE ARE OF THE CONSIDERED OPINION THAT THERE IS NOTHING BEFORE US , TO CONTROVE RT ABOVE FINDINGS OF THE LD. CIT(A) AND WE ARE IN AGREEMENT WITH THE CONCLUSION OF THE LD. CIT(A) THAT IT CANNOT BE ACCEPTED THAT THE ASSESSEE WAS ACTUALLY IN A POSITION TO ACCUMULATE SAVINGS FROM FAMILY PENSION AND AGRICULTUR AL INCOME. THEREFORE, THE SOUR CE OF INCOME OF RS.1,35,000/ - REMAINED UNEXPLAINED AND THE AO WAS FULLY JUSTIFIED IN MAKING ADDITION TO THE ASSESSEE S INCOME U/S 69 OF THE ACT. 10. ON TH E BASIS OF FOREGOING DISCUSSION, W E REACH THE CONCLUSION THAT THE LD. CIT (A) AFTER ELABORATE DISCUSSI ONS DRAWN A LOGICAL FINDING THAT THE SOURCE OF INVESTMENT OF RS.1,35,000/ - IN CASH BY THE ASSESSEE REMAINED UNEXPLAINED AND THE ADDITION U/S 69 OF THE ACT WAS FULLY JUSTIFIED. 11 . WE UNABLE TO SEE ANY PERVERSITY , AMBIGUITY OR ANOTHER VALID REASON TO INTER FERE WITH THE IMPUGNED ORDER AND THUS, WE UPHOLD THE SAME. ACCORDINGLY , SOLE GROUND OF THE ASSESSEE IS DISMISSED. ITA NO. 944/DEL/2013 1 2 . THE REVENUE HAS ALSO RAISED SOLE GROUND IN THIS APPEAL WHICH READS AS UNDER: I.T.A .NO. - 873/DEL/2013 & I.T.A. NO. 944/DEL/2013 9 1. ON THE FACTS AND IN THE CIRCUMSTANC ES OF THE CASE, THE LD. COMMISSIONER OF INCOME TAX (APPEALS), MUZAFFARNAGAR HAS ERRED IN LAW IN DELETING THE ADDITION OF RS.12,50,000/ - MADE BY THE ASSESSING OFFICER ON ACCOUNT OF INCOME FROM OTHER SOURCES WHICH WAS SHOWN BY THE ASSESSEE AS ADVANCE RECEIPT FOR SALE OF PLOTS, WITHOUT APPRECIATING THE FACT THAT THERE IS NO NEXUS BETWEEN THE DATE OF PURCHASE OF NEW PROPERTY AND THE AMOUNT RECEIVED BY THE ASSESSEE AS ADVANCE. 1 3 . APROPOS ABOVE GROUND OF THE REVENUE THE LD. DEPARTMENTAL REPRESENTATIVE (DR) SUB MITTED THAT THE LD. CIT(A) HAS ERRED ON THE FACTS AND CIRCUMSTANCES OF THE CASE IN DELETING THE ADDITION OF RS.12,50,000/ - MADE BY THE AO ON ACCOUNT OF INCOME FROM OTHER SOURCES WHICH WAS SHOWN BY THE ASSESSEE AS AN ADVANCE AMOUNT RECEIVED FOR SALE OF PLOT S WITHOUT APPRECIATING AND IGNORING THE FACT THAT THERE WAS NO NEXUS BETWEEN THE DATE OF PURCHASE OF PROPERTY AND THE DATE OF RECEIPT OF ADVANCE OR SALE CONSIDERATION AMOUNT BY THE ASSESSEE . THE LD. DR DRAWN OUR ATTENTION TOWARDS ASSESSMENT ORDER AND SUBMI TTED THAT THE ASSESSEE INVESTED RS.12,50,000/ - TOWARDS PURCHASE OF LAND AND THE SAME WAS CLAIMED TO BE AN INVESTMENT MADE FROM ADVANCE RECEIVED FROM INTENDED / PROPOSED PURCHASERS SHRI RUKMESH PAL, SHRI RAJESH PAL, SHRI RAVI NDRA KUMAR PAL AND KUNTESH PAL A MOUNTING TO RS.5,00,000/ - , ADVANCE FROM SHRI JEET SINGH AND SMT. KUSUM DEVI AMOUNTING TO RS.5,00,000/ - AND ADVANCE FROM SHRI VIJAY SINGH AMOUNTING TO RS.2,50,000/ - . (TOTAL RS.12,50,000/ - ) I.T.A .NO. - 873/DEL/2013 & I.T.A. NO. 944/DEL/2013 10 14. THE LD. DR VEHEMENTLY CONTENDED THAT THE ASSESSEE RECEIVED PAYME NTS FROM THE PURCHASERS IN CASH ON 12.01.2006 I.E. ON THE DATE OF EX ECUTION OF SALE DEED BY THE ASSESSEE AND THERE IS NO STIPULATION IN THE SALE DEED ABOUT THE AMOUNT AND DATE OF RECEIPT OF ADVANCE BY THE ASSESSEE. THE LD. DR FURTHER CONTENDED THAT THE ASS ESSEE HAD PURCHASE PROPERTY ON 18.11.2005 AND THE ASSESSEE RECEIVED PAYMENT FROM SAID PURCHAS ERS ON 12.01.2006 THEREFORE, IT CANNOT BE PRESUMED THAT THE INVESTMENT IN PURCHASE OF LAND WAS MADE BY THE ASSESSEE FROM THE AMOUNT OF THE ADVANCE RECEIVED FROM TH E PURCHASERS. THE LD. DR FURTHER CONTENDED THAT THE ASSESSEE HAD RECEIVED RS.5,00,000/ - FROM SHRI AJEET SINGH AND SMT. KUSUM DEVI ON 07.12.2005 AND RS.2,50,000/ - FROM SHRI VIJAY SINGH ON 07.12.2005 THEREFORE , IT CANNOT BE PRESUMED THAT THE ASSESSEE MADE IN VESTMENT OUT OF ADVANCE RECEIVED FROM PURCHASERS OF THE LAND. 15. THE LD. DR FURTHER CONTENDED THAT THE EXPLANATION ADVANCED BY THE ASSESSEE THAT SHE RECEIVED ADVANCE OF RS.12,50,000/ - FROM PURCHASERS IS NOT CORRECT BECAUSE , IF THE PURCHASERS HAVE PAID IN ADVANCE AT EARLY STAGE, THE SAME WOULD HAVE BEEN SHOWN/ INCORPORATED/REFLECTED IN THE SALE DEEDS EXECUTED BY THE ASSESSEE IN FAVOUR OF SAID PURCHASERS BUT THERE IS NO SUCH FACTS HAVE BEEN INCORPORATED OR MENTIONED IN THE SALE DEEDS EXECUTED BY THE ASSESSEE . M ERELY FI LING OF AFFIDAVIT BY THE PERSON S OR SAID PURCHASERS DOES NOT SUBSTANTIATE THE FACT OF RECEIPT OF ADVANCE PRIOR TO 18.11.05 I.E. DATE OF EXECUTION OF SALE DEED IN FAVOUR OF THE ASSESSEE, WHICH IS CLEARLY CONTRARY TO I.T.A .NO. - 873/DEL/2013 & I.T.A. NO. 944/DEL/2013 11 THE STIPULATION MADE BY THE AS SESSEE IN THE SALE DEEDS. THE LD. DR FURTHER CONTENDED THAT DURING THE COURSE OF ASSESSMENT THE ASSESSEE HAD NEVER PRODUCED ANY SUPPORTIVE AND COGENT EVIDENCE S SUCH AS COPY OF THE SAVING BANK ACCOUNT OF THE CENTRAL BANK , IN WHICH CERTAIN ENTRIES OF ADVANCE OF RS.3,00,000/ - AND 2,00,000/ - STATED TO BE PAID BY SHRI JAGJEET SINGH AND SMT. KUSUM DEV I THROUGH ACCOUNT PAYEE CHEQUES AND THE LD. DR FURTHER CONTENDED THAT THE COPIES OF PASSBOOK SUBMITTED BEFORE THE LD. CIT(A) DOES NOT ESTABLISH ANY NEXUS THAT SUCH A MOUNTS RELATED TO THE ADVANCE WAS GIVEN TO THE ASSESSEE PRIOR TO 18.11.05 BY THE SAID PURCHASERS OF THE PROPERTY AND THE VERY SAME AMOUNT WAS USED BY THE ASSESSEE FOR INVESTMENT IN LAND FOR WHICH A SALE DEED WAS EXECUTED IN FAVOUR OF THE ASSESSEE ON 18.11. 2005. THE LD. DR FURTHER SUBMITTED THAT THE LD. CIT(A) WAS WRONG IN DELETING THE ADDITION AS THE SOURCE OF INV ESTMENT BY THE ASSESSEE COULD NOT BE SUBSTANTIATED AND THE SAME REMAIN UNEXPLAINED AND THEREFORE, THE AO WAS QUITE JUSTIFIED IN MAKING THE ADDITIO N U/S 69 OF THE ACT. 1 6 . THE LD. COUNSEL FOR THE ASSESSEE REPLIED THAT FROM BANK ACCOUNTS ENTRIES OF RS.5,00,000/ - , IT IS CLEAR THAT AFTER PURCHASE OF SAID PROPERTY THERE WAS NO SUCH ENTRY IN THE PASSBOOK OF SH. SANTOSH CHAND TYAGI, HENCE IT IS CLEARLY PR O VED THAT SHRI JAGJEET SINGH AND SMT. KUSUM DEVI , PAID THE SAID AMOUNT BY CHEQUE S AS ADVANCE TO THE ASSESSEE WHICH WERE DIRECTLY CREDITED IN THE BANK ACCO UNT OF MRS. SUBHADRA TYAGI AND SHRI SANTOSH CHAND TYAGI (OWNER OF THE LAND WHICH WAS PURCHASED BY THE ASSESSEE ON 18.11.05), I.T.A .NO. - 873/DEL/2013 & I.T.A. NO. 944/DEL/2013 12 T HEREFORE, IMPUGNED ADDITION IS LIABLE TO BE DELETED. TH E LD. COUNSEL FOR THE ASSESSEE DRAWN OU R ATTENTION TOWARDS PARAGRAPH 3.3 OF THE IMPUGNED ORDER AND REITERATED ASSESSEE S SUBMISSIONS BEFORE THE LD. CIT(A) WHICH HAVE BEEN REPROD UCED IN THE IMPUGNED ORDER. 17 . THE LD. COUNSEL FOR THE ASSESSEE STRONGLY CONTENDED THAT THE ASSESSEE SUBMITTED COPIES OF THE PASSBOOK OF THE PURCHASERS, COPIES OF THE PASS BOOK OF THE SELLER, COPIES OF THE PASSBOOK OF THE ASSESSEE HERSELF , AND COPIES OF THE PURCHASE AND SALE DEEDS WHICH CLEARLY REFLECTS T HE NEXUS BETWEEN THE AMOUNT RECEIVED BY THE ASSESSEE AS ADVANCE FROM THE PURCHASERS AND ITS FURTH ER UTILIZATIONS FOR PURCHASING OR FOR MAKING INVESTMENT IN PURCHASE OF LAND . THEREFORE, THE AO WAS NOT JUST IFIED IN MAKING ADDITION AND THE SAME WAS RIGHTLY DELETED BY THE LD. CIT(A) ON COGENT AND JUSTIFIED GROUNDS. 1 8 . THE LD. COUNSEL FOR THE ASSESSEE ALSO DRAWN OUT ATTENTION TOWARDS PARAGRAPH 3.3.2 OF THE IMPUGNED ORDER AND SUBMITTED THAT THE LD. CIT(A) RIGH TLY HELD THAT THE ASSESSEE BY FURNISHING EVIDENCE , REQUISITE DETAILS AND EXPLANATION VERY WELL E STABLISHED THAT THE AMOUNT OF RS.12,50,000/ - INVESTED FOR PURCHASE OF LAND REPRESENTED ADVANCE RECEIVED AGAINST THE SALE OF PLOTS/SHOPS TO THE AFOREMENTIONED PE RSONS THEREFORE, THE ADDITION MADE BY THE AO WAS RIGHTLY DELETED. 1 9 . ON CAREFUL CONSIDERATION OF ABOVE SUBMISSIONS, WE OBSERVE THAT THE LD. CIT(A) DELETED THE ADDITION WITH THE FOLLOWING OBSERVATIONS : I.T.A .NO. - 873/DEL/2013 & I.T.A. NO. 944/DEL/2013 13 THE FACTS OF THE CASE, WRITTEN SUBMISSIONS MADE BY T HE APPELLANT, REMAND REPORT OF THE AO AND REJOINDER OF THE APPELLANT HAVE BEEN CAREFULLY CONSIDERED. IT IS AN ARRANGEMENT MADE BY THE APPELLANT SHOWING GOOD BUSINESS ACUMEN THAT WITH THE CONSENT OF SH. S.C. TYAGI (OWNER OF THE LAND) FOR PURCHASE OF LAND, T HE APPELLANT DIVIDED THE LAND INTO SMALL PIECES MEANT FOR SHOPS AND AFTER MUTUAL CONSENT FROM THE PURCHAS E RS FROM WHOM SHE RECEIVED ADVANCE MONEY (SOME OF THEM THROUGH ACCOUNT P AY EE CHEQUES DIRECTLY IN THE NAME OF SH. S.C. TYAGI). SUCH ADVANCE MONE Y UTILIZ ED TO FORMALIZE THE PURCHASE DEED IN HER NAME PAYING THE SAME T HE SELLER. IT IS OBSERVED THAT THE AO HAD MADE ADDITION OF RS. .1 2 , 50,000 / - ON THE GROUND THAT THE SALE DEEDS REVEALED THAT THE SALE O N CONSIDERATION WERE RECEIVED BY THE ASSESSEE IN CASH ON THE DATES O F RE GISTRIES OF LAND / SHOPS ITSELF AT LATER DATES, WHEREAS , THE INVESTMENT IN P R OPERTY WAS MADE MUCH EARLIER. ON THE OTHER HAND IT HAS BEEN C O NTENDED BY THE APPELLANT THAT SHE PURCHASED PLOT OF LAND MEASURING 1 16.99 SQ.MTS . ON 18 - 11 - 2005 FOR RS.14,0 0 , 000 / - AND THE TOTAL I NVESTMENT INCLUDING STAMP DUTY PAID ALONG WITH REGISTRATION EXPENSES W ERE INCURRED AT RS.15 , 48 , 000/ - . OUT OF THIS LAND, THE APPELLANT SOLD 107.285 SQ . MTS. PLOT OF LAND FOR A TOTAL CONSIDERATION OF RS . L4 , 90,000/ - . THE APPELLANT HAS AL SO FURNISHED COPIES OF SALE DEEDS IN SUPPORT OF HER CONTENTION. HOWEVER , IN THE SALE DEEDS THE APPELLANT DID NOT SELL THE RIGHT OF ROOFS TO THE PURCHASERS. THE APPELLANT HAS ALSO FURNISHED THE DETAILS OF SALE MADE WHICH ARE REPRODUCED AS UNDER: - S . NO, NA ME OF ADVANCE DATE OF RECEIPT SH. VIJAY SINGH RS . 2 , 50 , 000 / - 07 - 12 - 2005 SH. JEET SINGH RS.2 , 50 , 000 / - 07 - 12 - 2005 SMT . KUSM DE V I RS.2,50 , 000 / - 07 - 12 - 2005 SH. RUKMESH LAL RS . 5,00 , 000 / - 12 - 01 - 200 5 SMT . RAJESH PAL SH. RAVINDRA & KUNTESH PAL SMT . RAMESHO RS.2 , 40,000 / - 13 - 03 - 2006 RS.149 0 ,000/ - IT HAS BEEN EXPLAINED THAT THE APPELLANT HAD RECEIVED THE AMOUNT OF RS.12,50 , 000/ - IN ADVANCE AGAINST S ALE OF PLOTS OF LAND/SHOPS WAS MADE BY THE AFORESAID PERSONS AND THE SAME WAS FURTHER INVESTED IN THE PURCHASE OF PLOT OF LAND MEASURING 116.99 SQ. MTS. ON 18 - 11 - 2005. THE APPELLANT HAS ALSO FURNISHED AFFIDAVITS OF THE AFORESAID PURCHASERS WHEREIN THE AFOR ESAID PURCHASERS HA V E DEPOSED TO HAVE ADVANCED AMOUNTS TO THE ORIGINAL SELLER SH. SANTOSH CHAND TYAGI , ORIGINAL OWNER (HUSBAND OF SMT . SUBHDRA TYAGI) AGAINST PURCHASE OF PLOTS OF LAND / SHOP. IT HAS BEEN ARGUED THAT IN THE SALE DEEDS NO I.T.A .NO. - 873/DEL/2013 & I.T.A. NO. 944/DEL/2013 14 SPECIFIC DATE HAS BEE N WRITTEN IN RESPECT OF RECEIVING THE AMOUNT B Y THE APPELL A NT A ND INSTEAD , THE S ENTENC E ' K U L VIKRA Y A MUL Y A DHAN D W IT Y A P A K S H SE NAKAD P E SHTAR PRAP T KA R LI Y A HAI . . ' THE APPELLANT HAS D E FMED THE W ORD ' PESHTAR ' W HICH I S A N U RDU WORD MEANING ' ADVANCE RECEI V E D ' BEFORE EXECUTION OF THE SALE DE E DS AND DOES NOT MEAN THAT THE SALE CONSID E RATION WERE RECEIVED ON THE DAT E O F EXECUTION OF SALE DEED AS ALL E G E D B Y THE AO IN THE ASSES S MENT ORD E R . IT HAS FURTHER BEEN CONTENDED TH A T SH. JEET SINGH A ND S M T . K U S UM DEVI IN THEIR JOINT A F FID A VIT CLEARLY DEPOSED THAT THEY H A D IS S U E D CH E QU ES TH E NAME OF SH. S A NTOSH CHAND TYAGI (ORIGINAL OWNER) B E FOR E 18 - 1 1 - 2 0 0 5 WHO EXECU TE D SALE DEED IN FAVOUR OF THE APPELLANT . THIS VE R Y F ACT H A D BEEN NOT E D B Y THE AO IN THE R E ASONS RECORDED FO R INI T IA TION O F PR OCEEDINGS U / S 147 OF THE ACT . IT HAS BEEN POINTED OUT THAT NAME OF SH . RUK RNESH PAL HAD W RONGLY BEEN MENTIONED IN THE REASON S RECORD E D U / S 14 7 OF THE ACT IN STEA D OF SH. JEET SIN G H. THE A PPELLANT H AS AL SO F U RN I S H E D CO PIES OF A F FID A V I T S IN SUPPORT O F HER CONT E NTIONS. THE APP E LL A N T H AS AL S O FU RNISHED COP Y O F BAN K ACCOUNT OF SH. SANTOSH CH A ND T Y A G I , S HO WING E NTRIES OF CHEQUES AND CASH DEPOSITED FOR SALE AMOUNT ON DI F FERENT DATES PRIOR TO THE DATE OF E X ECUTION OF SALE DE E D. IT IS OB SE R VE D T HAT THE WORD ' P ES HTAR ' MEANS ' ADVANCE ' AND NOT I N S T A NT PAYMENT MADE IN CASH AS REFERRED TO IN THE SALE D E ED . THUS TH E AO HAS MISCONSTRUED THE WORD ' PESHTAR ' BY HOLDING THE SAME A S A PA Y MENT MADE ILL CASH BEFORE THE REGISTRAR AT THE TIME OF EXECUTION O F SALE D EED. THUS THE AO'S INFERENCE TO SUCH E F FECT IS ACCORDINGL Y R E J E CT E D. THE AO IN THE REMAND REPORT HAS MAINL Y REITER A T E D T H E F IND I N GS MADE IN THE ASSESSMENT ORDER. THE AO IN HIS REMAND REPORT HAD ADMITTED THAT THERE WERE CERTAIN ENTRIES OF RS.3,00,000/ - AND RS . 2 , 00,OOOI - STATED TO BE PAID BY SH . JAGJIT SINGH AND SMT . KUSUM DEVI THROUGH ACCOUNT PAYEE CHEQUES AS PER COP Y OF BANK ACCOUNT WITH CENTRAL BANK OF INDIA T HROUGH C LEARING ONL Y W AS PERUSED AND IT WAS FOUND THAT CERTAIN AMOUNTS W ERE CREDITED THROUGH CLE A RING ONL Y WHICH DID NOT PRO V E A N Y N EX US B E T W E E N T HE ADVANCE SO MADE AGAINST THE PURCHASE OF PROPERTIES. ADMITTEDLY , THERE ARE CREDIT ENTRIES TOTALING TO RS.16 , 50 , OOO/ - IN THE B A NK ACCOUNT W ITH CENTRAL BANK OF INDIA , MUZAFFARNAGAR. THE APPELLANT HAS AR G U E D T H E SAME AS AD V ANCE RECEIVED FROM PURCHA S ERS AND A F FIDA V IT S OF SUCH P E R S ON S HA V E BEEN FURN IS HED B Y THE APPELLANT . HOWEVER , ONCE T HE APPELL A NT H AS MADE SUCH A CLAIM ALONG WITH DOCUMENTARY EVID E NCE IT WA S TH E C AS E OF THE AO TO CONTROVERT THE SAME THAT THE I MPUGNED SUMS DID NOT REPR ES ENT AD V ANCE FROM CU S TOMERS BUT IN FACT WERE OTH E R RECEIPTS. HO W E VE R , THE I N FE R E NCE DRA W N B Y THE AO I S NOT BACK E D BY A D VE R SE M A T E R IA L ON REC ORD A ND T H ER E FOR E, S UCH IN FE R E NC E I S BA SE D ON PR ES UMPTION A ND A CC ORDINGLY RE JE C TE D . I.T.A .NO. - 873/DEL/2013 & I.T.A. NO. 944/DEL/2013 15 T H E A PPELLANT B Y FURNI S HING REQUISITE D E T AI LS A ND EV ID E N CES HAS ESTA BL IS H E D TH A T THE AM OUNT O F R S . L 2, 50 , O O O/ - R EP R ESENTE D ADVANCE RECEIVE D AGAINST SA L E O F PLOTS OF L AND / S H O P S . THUS I N THE L IGHT OF THE ABO V E FACTS, IT IS HE LD T H A T THE AO WAS N O T J U STIFIED TO MAK E ADDITION AT RS.12,50,000/ - . THE SAME IS DIRECTED TO BE DELETED. GROUND OF APPEAL NO.3 IS ALLOWED. 20 . AS PER THE FACTUAL MATRIX OF THE CASE THE ASSESSEE PURCHASED LAND FROM SMT. SUBHADRA TYAGI WIFE OF DR. S.C. TYAGI ON 18.11.2005 AND PURCH A SE PRICE WAS RS.14,00 , 000/ - AS PER STIPULATIONS IN THE SALE DEED EXECUTED IN F AVOUR OF THE PURCHASER ASSESSEE, A T PAGE NO. 4 OF THE SALE DEED AVAILABLE FROM PAGE NO S . 22 TO 32 OF THE PAPER BOOK W E OBSERVE THAT THE SELLER HAS RECEIVED ENTIRE CONSIDER ATION IN CASH BEFORE WITNESSES FROM THE ASSESSEE (PURCHASER) ON THE SAME DATE I.E. 18.11.2005 . 21 . FROM THE COPIES OF THE SALE DEED AVAILABLE FROM PAGE NOS. 33 TO 81 OF THE PAPER BOOK EXECUTED BY THE ASSESSEE SELLER IN FAVOUR OF SHRI VIJAY SINGH, SHRI JEET SINGH, SMT. KUSUM DEVI, SHRI RUKMESH KUMAR PAL AND SMT. RAMESHO DEVI, WE CLEARLY OBSERVE THAT ALL THESE SALE DEEDS HAVE BEEN EXECUTED BY THE ASSESSEE AFTER EXECUTION OF SALE DEED IN HER FAVOUR ( THE ASSESSEE) I.E. AFTER 18.11.2005 . IN ALL THESE SALE DEEDS EXECUTED BY THE ASSESSEE (SELLER) IN FAVOUR OF THE AFOREMENTIONED PURCHASERS IT HAS BEEN STIPULATED THAT THE ASSESSEE ( SELLER ) HAS RECEIVED SALE CONSIDERATION BEFORE RESPECTIVE WITNESSES, BUT THE DETAIL AND DATE OF RECEIPT HAS NOT BEEN CLEARLY MENTIONED. F ROM COPIES OF THE PASSBOOKS OF DR. S.C. TYAGI AND HIS WIFE SMT. SUBHADRA TYAGI, (SELLER OF LAND TO THE ASSESSEE) WE OBSERVE THAT THERE I.T.A .NO. - 873/DEL/2013 & I.T.A. NO. 944/DEL/2013 16 ARE SOME CREDIT ENTRIES IN THEIR SAVING BANK ACCOUNT REFLECTING SOME RECEIPTS BUT IN ABSENCE OF RELEVANT DETAIL OF DEPOSI TOR AND OTHER DOCUMENTS SUCH AS CHEQUE, DEMAND DRAFT OR PAY ORDER , I T CANNOT BE ASCERTAINED THAT THE AMOUNT SO CREDITED IN THE ACCOUNT OF DR. S.C. TYAGI AND SMT. SUBHADRA TYAGI HAS BEEN MADE BY EITHER THE ASSESSEE OR ON THE DIRECTION OF THE ASSESSEE BY THE SAID PURCHASERS OF PLOTS. FROM COPY OF THE BANK PASSBOOK OF THE ASSESSEE AVAILABLE FROM PAGE NOS. 90 TO 97 WE CLEARLY OBSERVE THAT THERE WA S REGULAR WITHDRAWALS OF MONEY RANGING BETWEEN RS.1,000/ - TO RS.15,000/ - BUT DURING THE FINANCIAL YEAR 2005 THERE IS MAJOR WITHDRAWAL AND THE ASSESSEE HAS NOT SUBMITTED PAGE NO. 7 OF THIS PASSBOOK OF THE ASSESSEE. 22 . IN VIEW OF ABOVE, WE ARE OF THE CONSIDERED OPINION THAT THE AUTHORITIES BELOW HAVE NOT PROPERLY EXAMINED THE CLAIM AND THE SUBMISSIONS OF THE ASSESSEE TH AT THE ASSESSEE MADE INVESTMENT OF RS.1 2 , 5 0,000/ - OUT OF ADVANCE AMOUNT RECEIVED FROM VARIOUS PURCHASERS AS AN ADVANCE WHICH WAS DIRECTLY DEPOSITED TO THE ACCOUNT OF SELLER OF THE LAND TO THE ASSESSEE I.E. SMT. SUBHADRA TYAGI AND HER HUSBAND DR. S.C. TYAGI . THEREFORE, TO MEET ENDS OF JUSTICE, WE FIND AT APPROPRIATE TO RESTORE THE ISSUE TO THE FILE OF THE AO FOR T HOROUGH VERIFICATION AND EXAMINATION OF THIS FACT THAT WHICH WAS THE SOURCE OF INVESTMENT OF THE ASSESSEE IN PURCHASE OF LAND WHICH WAS PURCHASED O N 18.11.2005 FROM SMT. SUBHADRA TYAGI AND HER HUSBAND. THE AO SHALL ADJUDICATE THE ISSUE DE NOVO OFFERING DUE OPPORTUNITY OF HEARING FOR THE ASSESSEE WITHOUT BEING PREJUDICED FROM THE EARLIER ASSESSMENT AND IMPUGNED I.T.A .NO. - 873/DEL/2013 & I.T.A. NO. 944/DEL/2013 17 ORDER AND OUR AFOREMENTIONED OBSERVATION S MADE I N THIS ORDER . N EEDLESS TO SAY THAT A SSESSEE SHALL CO - OPERATE THE AO DURING ASSESSMENT PROCEEDINGS. WE ALSO MAKE IT CLEAR THAT THE CASE IS BEING REMITTED BACK TO THE FILE OF THE AO FOR LIMITED PURP OSE ON LY ON TH E ISSUE OF INVESTMENT OF RS.12,50,000/ - TOWARDS PURCHASE OF LAND ALLEGED BY THE AO AS UNEXPLAINED INVESTMENT OF THE ASSESSEE . 23 . ACCORDINGLY , SOLE GROUND OF THE REVENUE IS DEEMED TO BE ALLOWED FOR STATISTICAL PURPOSES. 2 4 . IN THE RESULT, APPEAL OF THE ASSESSEE IS DISMISSED AND APPEAL OF THE REVENUE IS DEEMED TO BE ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUN CED IN THE OPEN COURT ON 30 / 0 9 /2014. SD/ - SD/ - (S. V. MEHROTRA ) (C. M. GARG) ACCOUNTANT MEMBER JUDICIAL MEMBER DA TED: 30 / 0 9 /2014 *AK VERMA* COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR