Mr. Avinash Singh Grewal, Chandigarh V. ITO, Chandigarh

ITA 899/CHANDI/2017

• Counselvise Citation: [2018] 126 COUNSELVISE.COM (IT) 5310 (ITAT-CHANDIGARH)
• Duration Of Justice: 7 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-01-2018
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: Not Allotted
• Assessment Year: 2013-2014
• Appeal Filed On: 01-06-2017
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: GULSHAN RAJ
• Assessee Lawyers: NEERAJ ARORA

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL CHANDIGARH BENCHES A, CHANDIGARH BEFORE SHRI SANJAY GARG, JUDICIAL MEMBER & DR. B.R.R. KUMAR, ACCOUNTANT MEMBER ITA NO. 899/CHD/2017 ASSESSMENT YEAR: 2013-14 MR AVINASH SINGH GREWAL, VS. THE ITO, WARD 5(1), SCO 59, 2 ND FLOOR, MADHYA MARG, CHANDIGARH SECTOR 26, CHANDIGARH PAN NO. ACFPG8979B (APPELLANT) (RESPONDENT) APPELLANT BY : SH. NEERAJ ARORA RESPONDENT BY : SH. GULSHAN RAJ, CIT DR DATE OF HEARING : 25.01.2018 DATE OF PRONOUNCEMENT : 25.01.2018 ORDER PER SANJAY GARG, JUDICIAL MEMBER: THE PRESENT APPEAL HAS BEEN PREFERRED BY THE ASSESS EE AGAINST THE ORDER DATED 29.03.2017 OF THE COMMISSIONER OF INCOM E TAX (APPEALS), [HEREINAFTER REFERRED TO AS CIT(A)]-2, CHANDIGARH. 2. THE ASSESSEE HAS TAKEN THE FOLLOWING GROUNDS OF APPEAL:- 1. THAT THE LD. C1T(A) WAS NOT JUSTIFIED IN UPH OLDING AN ADDITION OF RS.2,80,00,000/- RECEIVED IN CASH BY THE ASSESSEE AND DEPOSITED IN HIS BANK ACCOUNTS: 2. THAT THE LD. C1T (A) WAS NOT JUSTIFIED IN DENYING A N OPPORTUNITY TO THE ASSESSEE TO PRODUCE SH. KAPIL DE V SHARMA TO EXPLAIN HIS SOURCE OF PAYMENT TO THE ASSE SSEE. 2 BEFORE UPHOLDING THE ADDITION MADE BY THE ASSESSING OFFICER, THE LD. C1T(A) DID NOT TAKE INTO ACCOUNT T HE EVIDENCE SUBMITTED BEFORE HIM AND THE EVIDENCE THAT WAS ALSO SUBMITTED BEFORE THE ASSESSING OFFICER. 3. THAT THE LD. CIT(A) WAS NOT JUSTIFIED IN UPHOLDING AN ADDITION OF RS. 25,20,740/- ON ACCOUNT OF CASH RECE IPTS FROM AGRICULTURAL INCOME AND DEPOSITED BY THE ASSE SSEE IN HIS BANK ACCOUNT. THE ADDITION WAS UPHELD DESPIT E THE FACT THAT ALL THE DOCUMENTS REGARDING AGRICULTURAL INCOME WERE FURNISHED BEFORE THE ASSESSING OFFICER AND THE AGRICULTURAL INCOME OF RS. 41,04,000/- AS SHOWN IN THE RETURN OF INCOME WAS ACCEPTED BY THE ASSESSING OFFICER WHILE FRAMING THE ASSESSMENT ORDER. 4. THAT THE LD. CIT(A) WAS NOT JUSTIFIED TO UPHOLD AN ADDITION OF RS. 3,31,537/- IN RESPECT OF CASH PAYME NTS MADE TOWARDS SETTLEMENT OF CREDIT CARD BILLS. THE ADDITION WAS UPHELD DESPITE THE FACT THAT THE SAME WAS PAID OUT OF AGRICULTURAL INCOME AND THE AGRICULTURA L INCOME AS SHOWN IN THE RETURN OF INCOME WAS ACCEPTE D BY THE ASSESSING OFFICER WHILE FRAMING THE ASSESSMENT ORDER. 5. THAT THE APPELLANT CRAVES LEAVE TO ADD, AMEND OR DE LETE ANY OF THE GROUNDS OF APPEAL ON OR BEFORE THE DISPO SAL OF THE PRESENT APPEAL. 3. GROUND NOS. 1 & 2 ARE RELATING TO THE ADDITIONS MADE BY THE ASSESSING OFFICER ON ACCOUNT OF AMOUNT RECEIVED IN CASH BY THE ASSESSEE AND FOUND DEPOSITED IN THE BANK ACCOUNT. T HE ASSESSEE EXPLAINED BEFORE THE ASSESSING OFFICER THAT THE AMO UNT WAS RECEIVED OUT OF CONSIDERATION SETTLED VIDE AGREEMENT TO SALE OF LAND WITH ONE MR. KAPIL DEV SHARMA. HOWEVER, THE ASSESSING OFFICE R FOUND THAT AN 3 AGREEMENT TO SELL OF THE SAME PIECE OF LAND WAS ENT ERED INTO BY THE ASSESSEE WITH ONE M/S AKN DEVELOPERS (P) LTD ALSO. THE ASSESSING OFFICER, THEREFORE, CALLED FOR THE ASSESSEE TO FURN ISH THE EVIDENCES REGARDING THE RECEIPT OF PAYMENTS FROM THE AFORESAI D PERSONS. THOUGH, THE ASSESSING OFFICER WAS SATISFIED ABOUT THE PAYME NTS RECEIVED DURING THE YEAR FROM M/S AKN DEVELOPERS (P) LTD AS THE SA ME WAS REMITTED THROUGH BANKING CHANNEL, HOWEVER, THE ASSESSING OFF ICER WAS NOT SATISFIED ABOUT THE EXPLANATION OF THE ASSESSEE REG ARDING THE RECEIPT OF AMOUNT IN CASH OF RS. 2.80 CRORES FROM ONE MR. KAPI L DEV SHARMA ALLEGEDLY IN RELATION TO THE AGREEMENT TO SELL OF T HE SAME PIECE OF LAND WHICH WAS SUBJECT MATTER OF THE SALE AGREEMENT WIT H M/S AKN DEVELOPERS (P) LTD. THOUGH, THE ASSESSEE PRODUCED M R. KAPIL DEV SHARMA BEFORE THE ASSESSING OFFICER BUT HE COULD NO T FURNISH THE EVIDENCES SUCH AS BANK STATEMENT AND THE SOURCE OF AMOUNT PAID TO THE ASSESSEE AND HIS CREDITWORTHINESS. MR. KAPIL DEV SH ARMA SOUGHT TIME FROM THE ASSESSING OFFICER TO PRODUCE THE RELEVANT EVIDENCES. THEREAFTER. MR. KAPIL DEV SHARMA FAILED TO APPEAR B EFORE THE ASSESSING OFFICER ON SUBSEQUENT HEARINGS. THE ASSE SSEE EXPLAINED TO THE ASSESSING OFFICER THAT SAID MR. KAPIL DEV SHARM A WAS OUT OF COUNTRY. THOUGH AVAILING OPPORTUNITIES FOR HIS PROD UCTION, THE ASSESSEE FAILED TO PRODUCE MR. KAPIL DEV SHARMA BEFORE THE A SSESSING OFFICER. THE ASSESSING OFFICER, THEREFORE, TREATED THE AMOUN T ALLEGED TO HAVE BEEN RECEIVED FROM MR. KAPIL DEV SHARMA AS UNEXPLAI NED INCOME OF THE ASSESSEE. 4. BEFORE LD. CIT(A), THE ASSESSEE SUBMITTED THAT H E COULD NOT 4 PRODUCE MR. KAPIL DEV SHARMA BEFORE THE ASSESSING O FFICER BECAUSE OF HIS NON- AVAILABILITY AS HE WAS OUT OF COUNTRY. IT WAS FURTHER REQUESTED THAT THE ASSESSEE MAY BE GIVEN AN OPPORTU NITY TO PRODUCE MR. KAPIL DEV SHARMA ALONG WITH RELEVANT EVIDENCES TO PROVE THE CREDITWORTHINESS OF MR. SHARMA AND GENUINENESS OF T HE TRANSACTION OF ALLEGED AGREEMENT TO SELL BUT THE LD. CIT(A) DID NO T ACCEDE TO THE REQUEST OF THE ASSESSEE AND CONFIRMED THE ADDITIONS MADE BY THE ASSESSING OFFICER ON THIS ISSUE. 5. BEFORE US, MR. NEERAJ ARORA, LD. COUNSEL FOR THE ASSESSEE HAS SUBMITTED THAT NON-PRODUCTION OF THE EVIDENCES ESPE CIALLY THE APPEARANCE OF SHRI KAPIL DEV SHARMA BEFORE THE ASSE SSING OFFICER WAS NOT INTENTIONAL BUT OWING TO THE CIRCUMSTANCES BEYO ND THE CONTROL OF THE ASSESSEE. HE, THEREFORE, HAS PLEADED THAT THE A SSESSEE MAY BE GIVEN AN OPPORTUNITY TO PROVE HIS CASE REGARDING THE SOUR CE OF DEPOSIT OF THE AMOUNT OF RS. 2.80 CRORES IN THE BANK ACCOUNT OF TH E ASSESSEE. 6. THE LD. DR, ON THE OTHER HAND, STRONGLY OPPOSED TO THE REMAND OF THE CASE TO THE ASSESSING OFFICER STATING THAT A SSESSEE HAS ALREADY BEEN GIVEN MANY OPPORTUNITIES BY THE ASSESSING OFFI CER IN THIS RESPECT. 7. WE HAVE CONSIDERED THE RIVAL CONTENTIONS. THE AS SESSEE HAS EXPLAINED THAT THE NON-PRODUCTION OF MR. KAPIL DEV SHARMA WAS BEYOND HIS CONTROL AS THE SAID KAPIL DEV SHARMA WAS OUT OF COUNTRY. EVEN THE ASSESSEE ONCE HAD PRODUCED MR. KAPIL DEV S HARMA BEFORE THE ASSESSING OFFICER. IN OUR VIEW, THE ASSESSING OFFI CER WAS ALSO 5 EMPOWERED TO SECURE THE APPEARANCE OF MR. KAPIL DEV SHARMA BY EXERCISING HIS POWERS UNDER THE RELEVANT PROVISIONS OF THE ACT, BUT NO SUCH EXERCISE WAS DONE BY THE ASSESSING OFFICER ALS O. UNDER THE CIRCUMSTANCES, IN OUR VIEW, INTEREST OF JUSTICE WIL L BE WELL SERVED, IF, THE ASSESSEE IS GIVEN AN OPPORTUNITY TO PRODUCE MR. KAPIL DEV SHARMA BEFORE ASSESSING OFFICER ALONG WITH THE RELEVANT EV IDENCES. ACCORDINGLY, THIS ISSUE IS RESTORED TO THE FILE OF THE ASSESSING OFFICER WITH A DIRECTION TO GIVE AN OPPORTUNITY TO THE ASSE SSEE TO PRODUCE MR. KAPIL DEV SHARMA BEFORE HIM AND TO ADMIT AND RECEIV E THE RELEVANT EVIDENCES, IF ANY, SOUGHT TO BE FURNISHED BY THE AS SESSEE TO PROVE THE SOURCE OF AMOUNT OF RS. 2.80 CRORES DEPOSITED IN TH E BANK ACCOUNT OF THE ASSESSEE AND THE GENUINENESS OF THE TRANSACTION S. THE ASSESSING OFFICER AFTER APPRAISAL OF THE EVIDENCES, IF ANY, F URNISHED BY THE ASSESSEE IN THIS RESPECT WILL DECIDE THIS ISSUE AFR ESH BY WAY OF A SPEAKING ORDER. 8. GROUND NOS. 3 IS IN RELATION TO THE ADDITION OF RS. 25,20,740 MADE INTO THE INCOME OF THE ASSESSEE ON ACCOUNT OF UNEXPLAINED DEPOSITS IN THE BANK ACCOUNT OF THE ASSESSEE. THE A SSESSEE EXPLAINED BEFORE THE ASSESSING OFFICER THAT THE SAME WAS OUT OF THE AGRICULTURAL INCOME OF RS. 41.04 LACS RETURNED BY THE ASSESSEE I N THE INCOME TAX RETURN. THE ASSESSING OFFICE, HOWEVER, DID NOT AGRE E WITH THE SAME. THE CIT(A) ALSO CONFIRMED THE ADDITIONS SO MADE BY THE ASSESSING OFFICER. 9. BEFORE US, LD. COUNSEL FOR THE ASSESSEE HAS PLAC ED RELIANCE ON 6 THE ASSESSMENT ORDER ITSELF, WHEREIN, THE ASSESSING OFFICER WHILE ASSESSING THE INCOME OF THE ASSESSEE HAD ACCEPTED THE NET AGRICULTURAL INCOME OF RS. 41.04 LACS. THE CONTENTION OF THE LD. COUNSEL FOR THE ASSESSEE IS THAT THE SAID AMOUNT OF RS. 25,20,740/ - IS OUT OF THE SAID AGRICULTURAL INCOME OF RS. 41.04 LACS. SIMILARLY, GROUND NO. 4 IS ALSO IN RELATION TO THE ADDITION OF RS. 3,31,537/- IN RESPECT OF CASH PAYMENTS MADE BY THE ASSESSEE TOWARDS CREDIT CARD PAYMENTS, SOURCE OF THE SAME WAS ALSO E XPLAINED BY THE ASSESSEE AS FROM AGRICULTURAL INCOME. HOWEVER, THE ASSESSING OFFICER WAS NOT CONVINCED BY THE SAME AND, HENCE, RESULTING INTO THE IMPUGNED ADDITIONS. THE LD. CIT(A) HAS ALSO CONFIRMED THE AD DITIONS MADE BY THE ASSESSING OFFICER IN THIS RESPECT ALSO. 10. LD. COUNSEL FOR THE ASSESSEE HAS REITERATED THE SUBMISSIONS BEFORE US AS WERE MADE BEFORE THE LOWER AUTHORITIES . THE LD. DR, ON THE OTHER HAND, HAS SUBMITTED THAT THE ASSESSEE HAS FAILED TO LINK THE ABOVE PAYMENTS WITH THE AGRICULTURAL INCOME OF THE ASSESSEE. 11. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. A PER USAL OF THE ORDER OF THE ASSESSING OFFICER REVEALS THAT THE ASSESSEE WAS GIVEN NUMBER OF OPPORTUNITIES TO FURNISH THE CASH FLOW STATEMENTS A ND OTHER EVIDENCES TO LINK THE AFORESAID CASH PAYMENTS WITH THE AGRICU LTURAL INCOME. HOWEVER, DESPITE GETTING NUMEROUS OPPORTUNITIES IN THE RESPECT, THE ASSESSEE FAILED TO LINK THE AFORESAID CASH DEPOSIT AND CREDIT CARD PAYMENTS WITH THE INCOME RECEIVED BY THE ASSESSEE. 12. IN VIEW OF THIS, WE DO NOT FIND ANY INFIRMITY I N THE ORDER OF THE LOWER AUTHORITIES IN CONFIRMING THE AFORESAID ADDIT IONS IN RELATION TO 7 THE GROUNDS NOS. 3 & 4. IN VIEW OF THE ABOVE, GROUN D NOS. 3 & 4 OF THE APPEAL ARE DISMISSED. 13. GROUND NO. 5 IS GENERAL IN NATURE AND DOES NOT REQUIRE ANY ADJUDICATION. 14. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS TR EATED AS PARTLY ALLOWED FOR STATISTICAL PURPOSES. SD/- SD/- (DR. B.R.R. KUMAR) (SANJAY GARG) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 25.01.2018 RKK COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT 4. THE CIT(A) 5. THE DR