M/S OM SHIV PROPERTIES PVT. LTD., JAIPUR V. INCOME TAX OFFICER, WARD-6-5, JAIPUR

ITA 942/JPR/2017

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 0343 (ITAT-JAIPUR)
• Duration Of Justice: 1 year(s) 8 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 02-09-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2012-2013
• Appeal Filed On: 05-12-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: J C KULHARI
• Assessee Lawyers: S K GOGRA
• Keywords: Additional evidence
• Section: 40A(3)

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENC H A JAIPUR JH FOT; IKY JKO] U;KF;D LNL; ,OA JH FOE FLAG ;KNO] YS[KK LNL; DS LE{K BEFORE: SHRI VIJAY PAL RAO, JM & SHRI VIKRA M SINGH YADAV, AM VK;DJ VIHY LA- @ ITA NO. 942/JP/2017 FU/KZKJ.K O'K Z @ ASSESSMENT YEAR :2012-13 M/S OM SHIV PROPERTIES PVT. LTD., 12 MILL, TONK ROAD, JAIPUR CUKE VS. THE ITO, WARD 6(5), JAIPUR LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO.: AAACO7986Q VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ L S@ ASSESSEE BY : SHRI S. K. GOGRA (CA) JKTLO DH VKSJ LS @ REVENUE BY : SHRI J. C. KULHARI (JCIT) LQUOKBZ DH RKJH[ K@ DATE OF HEARING : 21/08/2019 MN?KKS'K.KK DH RKJH[ K@ DATE OF PRONOUNCEMENT: 02/09/2019 VKNS'K@ ORDER PER: VIKRAM SINGH YADAV, A.M. THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER OF LD. CIT(A), AJMER DATED 28.09.2017 WHEREIN THE ASSESSEE HAS TAK EN THE FOLLOWING GROUNDS OF APPEAL:- 1. THE ADDITION U/S 40A(3) BY LD. AO AT TIME OF PA SSING OF ASSESSMENT BY NOT CONSIDERING THE PREVAILING CIRCUM STANCES WHEREIN APPELLANT WAS FORCED TO MAKE PAYMENT IN CASH MAY PL EASE BE DECLARED AS ILLEGAL. 2. THAT ADDITION U/S 40A(3) BY LD. AO AND FURTHER C ONFIRMED BY LD. CIT(A) MERELY ON THE BASIS OF NOT FALLING OF CASH P AYMENT IN EXCEPTION LIST U/S 6DD IS AN ERRONEOUS ACTION WHICH BEING ILL USTRATIVE IN NATURE AND IS NOT EXHAUSTIVE IN NATURE DESPITE OF HAVING SUBMI TTED MAP OF KHASRA PURCHASED IN MIDDLE OF COLONIZATION SCHEME AND LETT ERS OF BROKERS WHEREIN PAYMENT WAS REQUIRED TO BE MAKE IN CASH ONL Y. ITA NO. 942/JP/2017 M/S OM SHIV PROPERTIES PVT. LTD., JAIPUR VS. ITO, JAIPUR 2 2. AT THE OUTSET, THE LD. AR SUBMITTED THAT THE ASS ESSEE HAS MOVED AN APPLICATION UNDER RULE 29 OF THE I.T. RULES FOR SUB MISSION OF ADDITIONAL EVIDENCES IN SUPPORT OF ITS GROUNDS OF APPEAL AND T HE SAME READS AS UNDER:- THE HUMBLE APPELLANT BEG TO SUBMIT APPLICATION U/R ULE 29 OF INCOME TAX APPELLATE TRIBUNAL RULES,1963 WHEREBY REQUESTING TO ADMIT ADDITIONAL EVIDENCE WHICH ARE SUBSTANTIAL IN NATURE AND ARE NE CESSARY FOR DECIDING THE CASE AS BELOW:- THAT WHILE PASSING THE IMPUGNED ASSESSMENT ORDER BY LD. AO THE DISALLOWANCE OF CASH PAYMENT OF RS.30,90,841/- IS M ADE U/S. 40A(3) AND ADDED INTO TOTAL INCOME. THAT APPELLANT HAS MADE TH E PAYMENT OF RS. 30,90,841/- TO FOLLOWING AGRICULTURIST AGAINST SALE CONSIDERATION OF THEIR AGRICULTURAL LAND OF WHICH DETAILS ARE GIVEN BELOW: - SR. NO. NAME OF SELLER & ADDRESS AGRICULTURAL LAND KHASRA NUMBER SOLD DATE OF CASH PAYMENT AMOUNT OF CASH PAID POSITION OF KHASRA IN PLOTTING 1 DAULAT SINGH S/O. DASHRATH SINGH, VILLAGE: MANPUR BHATAWALA, TEHSIL: SANGANER, JAIPUR 207, 211,212, 214, 215,216, 244, 245, 247, 273, 274, 275, 276,277,278 25.8.2011 90,33,41/- KHASRA NO. 244, 247 FALLING IN BETWEEN OF 2 SHRI NARAIN 323 12.7.2011 10,00,00/- KHASRA NO. 323 FALLING IN PART OF 3 SHRI RAMULAL, SHRI GANDI LAL 328/487 31.10.2011 19,00,00/- KHASRA NO. 328 FALLING IN PART AT ENTRY GATE AND IN GREEN BELT OF ITA NO. 942/JP/2017 M/S OM SHIV PROPERTIES PVT. LTD., JAIPUR VS. ITO, JAIPUR 3 4 SHRI NARAIN S/O PRATAP, LAXMINARAIN S/O RAGHUNA TH 259,343 13.10.2011 18,97,500/- KHASRA NO. 259 IS FALLING IN MIDDLE OF PLOTTING SCHEME TOTAL 30,90,841/- APPELLANT HEREBY SUBMITS THE FOLLOWING DOCUMENTS AS ADDITIONAL EVIDENCES WHICH COULD NOT BE SUBMITTED DUE TO NOT B EING AVAILABLE AT TIME OF PASSING OF ASSESSMENT ORDER AND AT TIME OF DECIDE OF THE APPEAL CASE. AND FURTHER SOME OTHER COUNSEL WERE ARGUING T HE CASE AND COULD NOT LEAD THESE ESSENTIAL EVIDENCES BEFORE THE LOWER AUTHORITIES. 1. AFFIDAVIT OF SELLERS OF AGRICULTURAL LAND REQUIR ING SALE PAYMENT IN CASH ONLY (A) MR. DAULAT SINGH S/O. DASHRATH SINGH, RESIDENT OF V ILLAGE: MANPUR BHATAWALA, TEHSIL: SANGANER, JAIPUR WHEREBY EXPLAIN ING THE PREVAILING CIRCUMSTANCES UNDER WHICH SELLER REQUIRED PAYMENT F ROM APPELLANT IN CASH ONLY. (AFFIDAVIT DT. 24.12.2018) (LAND SOLD BY MR. DAULAT SINGH HAVING KHASRA NO. 207, 211, 212, 214, 215, 216, 244, 245, 247, 273, 274, 275, 276, 277, 278) (B) MR. NATHU SIO. PRATAP, AND LAXMINARAIN S/O. RAGHUNA TH, RESIDENT OF VILLAGE: MANPUR BHATAWALA, TEHSIL: SANGANER, JAIPUR WHEREBY EXPLAINING THE PREVAILING CIRCUMSTANCES UNDER WHICH SELLER REQ UIRED PAYMENT FROM APPELLANT IN CASH ONLY. (AFFIDAVIT DT. 24.12.2018) (LAND SOLD HAVING KHASRA NO. 259,343) 2. LAND MAP TO EXPLAIN POSITION OF LAND KHASRAS OF WHICH PAYMENT MADE IN CASH ITA NO. 942/JP/2017 M/S OM SHIV PROPERTIES PVT. LTD., JAIPUR VS. ITO, JAIPUR 4 THAT THE APPELLANT IS SUBMITTING HEREWITH LAY OUT P LAN OF PLOTTING SCHEME OF 'SHIV SAGAR-A' AT VILLAGE: MANPUR BHATAWALA, TEH :SANGANER, DISTT:JAIPUR IN WHICH CASH PAYMENT MADE TO AGRICULT URIST OF RS. 30,90,841/-. THE DETAILS OF KHASRAS WHICH HAVE BEEN PURCHASED BY APPELLANT FROM AGRICULTURIST SHOWING THEREIN THE PO SITION OF THOSE KHASRA IN PLOTTING SCHEME TO JUSTIFY THAT IF THESE KHASRA WOULD NOT HAVE BEEN PURCHASED IN ACCORDANCE WITH CONDITION OF SELLER, T HEN ENTIRE PLOTTING SCHEME WOULD HAVE BEEN FLOPPED DOWN AS IN SOME KHAS RA WHICH ARE FALLING AT ENTRY GATE OF PLOTTING SCHEME AND WITHOU T ENTRY IT WOULD HAVE BEEN DIFFICULT TO SELL THE SAME. THAT ABOVE ADDITIONAL EVIDENCES COULD NOT BE SUBMIT TED DUE TO NON AVAILABILITY OF AFFIDAVITS FROM SELLER OF AGRICULTU RAL LAND. AND FURTHER LAY OUT PLAN IS ALWAYS AN INTEGRAL PART OF THE ASSESSME NT ORDER AND IS NOT ABSOLUTELY AN ADDITIONAL EVIDENCE BUT IS SUBSTANTIA TION OF RECORD FILE TO BETTER UNDERSTANDING OF FACTS OF THE CASE. THAT AN AFFIDAVIT WITH REGARD TO APPLICATION UNDER RULE 29 OF ITAT RULES, 1963 IS EN CLOSED HEREWITH. YOUR HONOUR IS REQUESTED TO KINDLY ALLOW TO ADMIT A BOVE ADDITIONAL EVIDENCES WHICH ARE FORMING PART OF THE GROUND NO. 1 OF ASSESSEES APPEAL AND BE CONSIDERED WHILE DECIDING THE APPEAL ON MERITS & OBLIGE. 3. THE LD. DR IS HEARD WHO HAS SUBMITTED THAT THE A SSESSEE HAS NOT DEMONSTRATED WHAT PREVENTED HIM FROM SUBMITTING THE SE ADDITIONAL EVIDENCES BEFORE THE LOWER AUTHORITIES AND THEREFORE, THESE A DDITIONAL EVIDENCES SHOULD NOT BE ADMITTED AT THIS STAGE. IT WAS FURTHER SUBMI TTED THAT WHERE THE BENCH SO DECIDE TO ADMIT THE ADDITIONAL SO SUBMITTED BY THE ASSESSEE, THE MATTER MAY BE REMANDED BACK TO THE FILE OF THE ASSESSING OFFICER TO EXAMINE THE ADDITIONAL EVIDENCES SO SUBMITTED BY THE ASSESSEE. ITA NO. 942/JP/2017 M/S OM SHIV PROPERTIES PVT. LTD., JAIPUR VS. ITO, JAIPUR 5 4. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. WE FIND THAT THE ADDITIONAL EVIDENCES AR E IN THE FORM OF THE AFFIDAVITS FILED BY THE PERSONS WHO HAVE SOLD THEIR RESPECTIVE LAND PARCELS TO THE ASSESSEE. FURTHER, A COPY OF THE MAP OF THE HOUSING SCHEME BEING DEVELOPED BY THE ASSESSEE HAS BEEN SUBMITTED. WE FIND THAT TH OUGH THE AFFIDAVITS COULD NOT BE PRODUCED BEFORE THE LOWER AUTHORITIES, THESE ARE IN SUPPORT OF THE SALE DEEDS ALREADY PLACED ON RECORD AND IN SUPPORT OF TH E CONTENTIONS ALREADY RAISED BEFORE THE LOWER AUTHORITIES AND THE SAME GO ES TO THE CORE OF THE MATTER IN TERMS OF DETERMINING THE BUSINESS NECESSITY OF M AKING THE CASH PAYMENT BY THE ASSESSEE TO THESE LAND OWNERS WHICH IS SUBJECT MATTER OF DISALLOWANCE. IT IS SETTLED POSITION OF LAW THAT THE SUBSTANTIAL JUSTIC E SHOULD PREVAIL ON THE PROCEDURAL OR TECHNICAL ASPECTS. WE, THEREFORE, CON SIDERING THE FACT THAT THESE EVIDENCES WHICH ARE NOW SOUGHT TO BE ADMITTED WOULD BE IN THE INTEREST OF PROPER ADJUDICATION OF THE ISSUES AT HAND. THEREFOR E, THE REQUEST OF THE ASSESSEE IS ALLOWED AND THESE ADDITIONAL EVIDENCES BY WAY OF AFFIDAVITS AND MAP OF THE HOUSING PROJECT ARE HEREBY ADMITTED AND THE MATTER IS REMANDED BACK TO THE FILE OF THE ASSESSING OFFICER TO EXAMIN E THE SAME AFTER PROVIDING REASONABLE OPPORTUNITY TO THE ASSESSEE. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FO R STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 02/09/2019. SD/- SD/- FOT; IKY JKO FOE FLAG ;KNO (VIJAY PAL RAO) (VIKRAM SINGH YADAV) U;KF;D LNL;@ JUDICIAL MEMBER YS[KK LNL;@ ACCOUNTANT MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 02/09/2019 * GANESH KR. VKNS'K DH IZFRFYFI VXZSFKR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT- M/S OM SHIV PROPERTIES PVT. LTD., JA IPUR ITA NO. 942/JP/2017 M/S OM SHIV PROPERTIES PVT. LTD., JAIPUR VS. ITO, JAIPUR 6 2. IZR;FKHZ@ THE RESPONDENT- ITO, WARD 6(5), JAIPUR 3. VK;DJ VK;QDR@ CIT 4. VK;DJ VK;QDR@ CIT(A) 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ@ DR, ITAT, JAIPUR. 6. XKMZ QKBZY@ GUARD FILE {ITA NO. 942/JP/2017} VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASST. REGISTRAR