Ajay Kumar Mamgain, Rishikesh V. ITO, Ward-1(4)(1), Rishikesh

ITA 9/DDN/2019

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 1361 (ITAT-DEHRADUN)
• Duration Of Justice: 1 year(s) 10 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-05-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2015-2016
• Appeal Filed On: 03-05-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Section: 147; 68; 148; 44AD

Judgement Text

1 INCOME TAX APPELLATE TRIBUNAL [DEHRADUN BENCH] BEFORE SHRI SUDHANSHU SRIVASTAVA, JUDICIAL MEMBER AND SHRI PRASHANT MAHARISHI, ACCOUNTANT MEMBER ITA NO 09/ DDN/2019 A Y 2015 - 16 APPELLANT RESPONDENT AJAYKUMAR MAMGAIN S/O SHRI VED PRAKASH VILLAGE KALUWALA BADOWALA BHANIAWALA DEHRADUN 248140 PAN : CEYPM 0160F VS. THE INCOME TAX OFFICER WARD 1 (4) (1) RISHIKESH ( APPELLANT ) ( RESPONDENT ) DATE OF HEARING: - 28/02/2020 DATE OF ORDER: - 1 3 / 0 5 / 2 0 2 0 O R D E R PER PRASHANT MAHARISHI, A.M.: 1 . THIS APPEAL IN ITA 09/DDN/2019 FOR ASSESSMENT YEAR 2015 - 16 IS FILED BY AN INDIVIDUAL , ASSESSEE , AGAINST THE ORDER OF THE COMMISSIONER OF INCOME TAX A , DEHRADUN DATED 15/03/2019 RAISING SEVERAL GROUNDS OF APPEAL CHALLENGING CONFIRMATION OF ACTION UNDER SECTION 148 OF THE INCOME TAX ACT AS WELL AS CONFIRMATION OF ADDITION U/S 68 OF RS 11 LAKHS. 2 . BRIEF FACTS OF THE CASE SHOWS THAT ASSESSEE IS AN INDIVIDUAL WHO FILED HI S RETURN OF INCOME ON 31 - 3 - 2016 DECLARING AN INCOME OF 3 74340/ . ACTION UNDER SECTION 147 OF THE INCOME TAX ACT WAS INITIATED AND THE NOTICE UNDER SECTION 148 WAS ISSUED ON 24/3/2017. 2 IN RESPONSE TO THAT NOTICE , ASSESSEE SUBMITTED ITS ORIGINAL RETURN F ILED . ASSESSEE HAS DECLARED HIS INCOME FROM THE BUSINESS OF SALE AND PURCHASE OF PLOTS. SUCH INCOME WAS DECLARED UNDER THE PROVISIONS OF SECTION 44AD OF THE INCOME TAX ACT . ASSESSEE IN THE INCOME TAX RETURN HAS DISCLOSED H IS GROSS RECEIPTS AT 4898020 AND CONSEQUENT PROFIT THEREON OF RS. 4 02341/ WAS DECLARED . 3 . HOWEVER, DURING THE COURSE OF ASSESSMENT PROCEEDINGS FOR ASSESSMENT YEAR 2014 15 , LD AO NOTICED THAT ASSESSEE HAS DEPOSITED CASH OF RS. 2 5 , 50 , 000/ IN HIS SAVINGS BANK ACCOUNT NUMBER 76001642669 WITH UTTARAKHAND GRAMIN BANK, IN THE FINANCIAL YEAR RELEVANT TO THE ASSESSMENT YEAR 2014 15. IN THAT ASSESSMENT YEAR , ASSESSEE EXPLAINED THAT HE HAS ENTERED INTO AN AGREEMENT TO SALE PROPERTY WITH 10 DIFFERENT PEOPLE ON 8/12/2013 AND HAD RECEIVED CASH A MOUNTING TO 30 LAKHS FROM THESE PERSONS. H E FURTHER STATED THAT IN THE MONTH OF JUNE 2014 , HE RECEIVED 1033000 , BEING SECOND INSTALLMENT FROM THESE PERSONS. THE SUM OF 30 LAKHS RECEIVED BY THE ASSESSEE IN ASSESSMENT YEAR 2014 15 WAS ADDED BY THE L EARNED ASSESSING OFFICER IN THAT AY AS ASSESSEE FAILED TO PROVE THE GENUINENESS OF THE TRANSACTION AND CREDITWORTHINESS OF THOSE PERSONS. THE ABOVE SUM OF 30 LAKHS WAS DEPOSITED IN THE MONTH OF DECEMBER 2013. HOWEVER 10 , 33 , 000 WAS DEPOSITED IN THE M ONTH OF JUNE 2014 AND THEREFORE THE ABOVE SUM PERTAIN ED TO FINANCIAL YEAR 2014 15 RELEVANT TO THE ASSESSMENT YEAR 2015 16 . AS THIS SUM REMAINS UNEXPLAINED IN THE HANDS OF THE ASSESSEE BEING RECEIVED ALLEGEDLY ON AGREEMENTS TO SALE THE PROPERTIES AND T HEREFORE IT HAS ESCAPED THE ASSESSMENT AND ACCORDINGLY ACTION UNDER SECTION 147 OF THE INCOME TAX WAS INITIATED. THE LD AO OBTAINED APPROVAL OF THE JOINT COMMISSIONER OF INCOME TAX, RANGE 4 ON 22/3/2017 AND THEREAFTER NOTICE UNDER SECTION 148 WAS ISSUED ON 24/3/2017. 4 . ON THE MERITS OF THE ADDITION, THE ASSESSEE WAS ASKED TO FURNISH THE DEEDS OF PROPERTIES PURCHASED AND SOLD DURING THE RELEVANT FINANCIAL YEAR AND TO EXPLAIN THE SOURCE OF CASH DEP OSIT OF RS . 1033000 / - MADE BY HIM IN HIS BANK ACCOUNT. ASSESSEE FURNISHED THE COPIES OF THE PURCHASE AND SALE DEED EXECUTED DURING THE YEAR UNDER CONSIDERATION AND FURTHER WITH RESPECT TO THE AMOUNT OF CASH DEPOSIT IT WAS SUBMITTED THAT ABOVE SUM WAS DEPOS ITED FROM THE SALE PROCEEDS FROM LAND SOLD ON 20/ 05 /2014 AND SOME OTHER CASES ADVANCES RECEIVED FROM THE PROSPECTIVE BUYERS FOR THE PURCHASE OF LAND. ASSESSEE FURTHER SUBMITTED A CASH FLOW STATEMENT ON 14/12/2017 FOR THE PERIOD ENDED ON 31/3/2015 3 SHOWING THAT THE ASSESSEE HAS RECEIVED 11 LAKHS FROM THE PROSPECTIVE BUYERS AGAINST THE AGREEMENT TO SALE OF THE PROPERTIES > H OWEVER SALE DEEDS WERE NOT EXECUTED AND THE AMOUNT IS RECEIVED IN ADVANCE AGAINST THE SALE OF LAND WAS REPAID. ASSESSEE FURTHER EXPLA INED THAT THERE ARE NO FORMAL CANCELLATION AGREEMENTS ENTERED INTO. THE ASSESSING OFFICER ASKED THE ASSESSEE TO PRODUCE THE PERSON FROM WHOM ADVANCE AGAINST THE AGREEMENT TO S ALE HAS BEEN CLAIMED TO BE RECEIVED. ASSESSEE SUBMITTED THAT STATEMENT OF THE S IX PERSONS WERE ALREADY RECORDED DURING THE COURSE OF ASSESSMENT PROCEEDINGS FOR ASSESSMENT YEAR 2014 15 AND CONFIRMATION OF THE OTHER TWO PERSON WAS ALSO SUBMITTED. ASSESSEE ALSO STATED THAT ASSESSEE HAS ALREADY CANCELLED THE AGREEMENT FROM THEM; HENCE, IT WOULD NOT BE POSSIBLE FOR HIM TO PRODUCE THEM BEFORE THE ASSESSING OFFICER. THEREFORE, THE LEARNED ASSESSING OFFICER HAD GONE THROUGH THE COPY OF THE AGREEMENT TO SALE DATED 8/12/2013 FILED BY THE ASSESSEE AND FOUND THAT AGREEMENTS ARE NOT REGISTERED A GREEMENT. HE FURTHER NOTED THAT WHEN THE AGREEMENT TO SALE WAS CANCELLED ON 10/5/2014 , THERE IS NO REASON WHY THE SECOND INSTALLMENT OF ADVANCES CLAIMED TO HAVE BEEN RECEIVED IN THE MONTH OF JUNE 2014 . THUS, GENUINENESS OF THE TRANSACTION IS NOT PROVED. HE FURTHER REFERRED TO H IS FINDING FOR ASSESSMENT YEAR 2014 15 MADE THE ADDITION OF 11 LAKHS AS ASSESSEE HAS FAILED TO PRODUCE THE BANK STATEMENT OF MOST OF THE PARTIES WHICH COULD HAVE DEMONSTRATED THE AVAILABILITY OF THE CASH FOR MAKING THE ALLEGE D ADVANCE OF 11 LAKHS TO THE ASSESSEE. LD AO WAS ALSO OF THE VIEW THAT THE LEARNED CIT A HAS ALREADY DISMISSED THE APPEAL OF THE ASSESSEE FOR ASSESSMENT YEAR 2014 15 CONFIRMING THE ABOVE ADDITION OF 3 0 LAKHS FOR THAT YEAR, THE CONSEQUENT ADDITION O F 11 LAKHS IN THIS YEAR ALSO DESERVES TO BE MADE IN THE HANDS OF THE ASSESSEE. THEREFORE, HE HELD THAT ASSESSEE HAS FAILED TO DISCHARGE ONUS CAST UPON H IM TO SATISFACTORILY EXPLAIN SOURCE OF CASH CREDIT OF 11 LAKHS AND HENCE IT WAS ADDED UNDER SECT ION 68 OF THE INCOME TAX ACT . AC CORDINGLY THE TOTAL INCOME OF THE ASSESSEE WAS DETERMINED U/S 143 (3) RWS 147 OF THE ACT AT 1 474340/ AGAINST THE RETURNED INCOME OF 3 74340 BY PASSING AN ORDER ON 28/12/2016. 5 . THE ASSESSEE AGGRIEVED WITH THE ORDER OF TH E LEARNED ASSESSING OFFICER PREFERRED AN APPEAL BEFORE THE COMMISSIONER OF INCOME TAX APPEALS. BEFORE THE LEARNED CIT A, ASSESSEE SUBMITTED THAT THE REOPENING HAS BEEN MADE BY THE LEARNED ASSESSING OFFICER BASED ON THE ASSESSMENT ORDER PASSED FOR ASSESSMENT YEAR 2014 15 WHICH TRAVELLED TO 4 THE INCOME TAX APPELLATE TRIBUNAL AND THE ADDITION GOT DELETED. AS THE FACTS AND CIRCUMSTANCES OF THE CASE FOR ASSESSMENT YEAR 2014 15 AND ASSESSMENT YEAR 2015 16 ARE SIMILAR AND ALSO THE PARTIES INVOLVED ARE THE SAME, THE ADDITION CANNOT BE SUSTAINED. THE LEARNED CIT A DISREGARDED THE CONTENTION OF THE ASSESSEE AND STATED THAT EACH ASSESSMENT YEAR IS SEPARATE , DIRECTED THE LEARNED ASSESSING OFFICER TO SUBMIT THE REMAND REPORT. THEREAFTER ON APPRECIATION OF THE REMAND REPORT, HE DISMISSED THE APPEAL OF THE ASSESSEE CONFIRMING THE ABOVE ADDITION. THEREFORE , ASSESSEE IS IN APPEAL BEFORE US. 6 . DESPITE NOTICE, NONE APPEARED ON BEHALF OF THE ASSESSEE. THEREFORE, THE ISSUE IS DECIDED ON THE MERITS OF THE CASE AS PER INFORMATION AVAILABLE ON THE RECORD. 7 . THE LEARNED DEPARTMENTAL REPRESENTATIVE VEHEMENTLY SUPPORTED T HE ORDER OF THE LOWER AUTHORITIES. 8 . WE HAVE CAREFULLY CONSIDERED THE RIVAL CONTENTION AND FIND THAT THE REOPENING OF THE ASSESSMENT HAS BEEN MADE BY THE LEARNED ASSESSING OFFICER BASED ON THE OBSERVATION MADE BY HIM IN ORDER FOR ASSESSMENT YEAR 2014 15. T HE MATTER FOR ASSESSMENT YEAR 2014 15 , WHEREIN THE ADDITION OF 30 LAKHS WAS MADE BY THE LEARNED ASSESSING OFFICER , TRAVELLED UP TO THE INCOME TAX APPELLATE TRIBUNAL. THE INCOME TAX APPELLATE TRIBUNAL DELETED THE ABOVE ADDITION. THIS FACT IS UNCONTROV ERTED AND ACCEPTED BY THE LD CIT - A. THEREFORE, IT IS APPARENT THAT THE REASON FOR WHICH THE CASE OF THE ASSESSEE FOR ASSESSMENT YEAR 2015 16 WAS REOPENED DOES NOT SURVIVE. EVEN OTHERWISE, THERE IS NO CHANGE IN THE FACTS AND CIRCUMSTANCES OF THE CASE INC LUDING THE PARTIES COVERED IN THE ASSESSMENT PROCEEDINGS FOR ASSESSMENT YEAR 2014 15 FROM W HOM ADVANCES HAVE BEEN RECEIVED. AS THE ISSUE FOR ASSESSMENT YEAR 2014 15 IS SQUARELY COVERED ISSUE IN FAVOUR OF THE ASSESSEE BY THE ORDER OF THE COORDINATE BEN CH, , WE FIND NO REASON TO NOT TO FOLLOW THE ORDER OF THE COORDINATE BENCH FOR THAT YEAR , WHEN THERE IS NO CHANGE IN THE FACTS AND CIRCUMSTANCES OF THE CASE. FURTHERMORE , THOUGH THE LEARNED CIT A H AS REMANDED THE CASE BACK TO THE ASSESSING OFFICER FOR S UBMITTING THE REMAND REPORT, HOWEVER, THE LOWER AUTHORITIES COULD NOT POINT OUT THAT WHAT IS THE DIFFERENCE BETWEEN THE FACTS IN THE CASE FOR ASSESSMENT YEAR 2014 15 DECIDED BY THE COORDINATE BENCH AND THE FACTS OF THE CASE OF THE ASSESSEE FOR THIS ASSES SMENT YEAR. UNLESS THAT IS POINTED OUT, FOLLOWING THE PRINCIPLES OF CONSISTENCY, WE DO NOT FIND ANY MERIT IN SUSTAINING THE ADDITION BY THE LEARNED CIT A. IN VIEW OF THIS, ON THE ISSUE OF REOPENING OF THE ASSESSMENT, AS THE 5 REASONS BASED ON WHICH THE RE OPENING HAS BEEN MADE DOES NOT SURVIVE, AS WELL AS ON THE MERITS OF THE CASE , AS ADDITION IN THE EARLIER YEAR HAS BEEN DELETED BY THE COORDINATE BENCH, ADDITION CANNOT BE SUSTAINED FOR THIS YEAR. THUS, ON BOTH THE COUNTS THE APPEAL OF THE ASSESSEE SU CCEEDS. 9 . IN THE RESULT, APPEAL FILED BY THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 1 3 / 0 5 / 2 0 2 0 - S D / - - S D / - (SUDHANSHU SRIVASTAVA) (PRASHANT MAHARISHI) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 1 3 / 0 5 / 2 0 2 0 COPY FORWARDED TO 1 . APPELLANTS; 2 . RESPONDENTS; 3 . CIT; 4 . CIT (APPEALS) 5 . DR: ITAT ASSISTANT REGISTRAR ITAT,