Mr. Rajneesh Gupta, Kurukshetra V. ITO, Kurukshetra

ITA 953/CHANDI/2016

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 9995 (ITAT-CHANDIGARH)
• Duration Of Justice: 2 year(s) 8 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-05-2019
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: Not Allotted
• Next Hearing Date: 01-05-2019
• Assessment Year: 2011-2012
• Appeal Filed On: 30-08-2016
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: Q SHRI MANJIT SINGH
• Keywords: Cost of acquisition; Capital Gains

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL, CHANDIGARH BEN CH B, CHANDIGARH !, ' # $ . .., & , '( # BEFORE: SMT. DIVA SINGH, JM & DR. B.R.R. KUMAR, AM ITA NO. 953/CHD/2016 ASSESSMENT YEAR : 2011-12 MR. RAJNEESH GUPTA HOUSE NO. 12, SECTOR -13 KURUKSHETRA, HARYANA THE ITO WARD-1, KURUKSHETRA PAN NO: AAOPG0231F APPELLANT RESPONDENT !' ASSESSEE BY : SHRI. SUDHIR SEHGAL, ADVOCATE #!' REVENUE BY Q : SHRI. MANJIT SINGH, CITDR $ %! & DATE OF HEARING : 01/05/2019 '()*! & DATE OF PRONOUNCEMENT : 28/05/2019 ')/ ORDER PER DR. B.R.R. KUMAR, A.M THE PRESENT APPEAL HAS BEEN FILED BY THE ASSESSEE A GAINST THE ORDER OF THE LD. CIT(A), KARNAL DT. 30/06/2016. 2. ASSESSEE HAS RAISED THE FOLLOWING CONCISE GROUND S OF APPEAL: 1. THAT THE LD. COMMISSIONER OF INCOME TAX (APPEALS ) HAS ERRED IN SUSTAINING THE ADDITION OF RS.38,93,000/- OUT OF THE ADDITION OF R S. 51,43,0007- AS MADE/BY THE ASSESSING OFFICER ON ACCOUNT OF CASH DEPOSITS AND O F THE LONG TERM CAPITAL GAIN AS UNDER :- A). THE C1T(A) HAS ERRED IN SUSTAINING THE PAR T ADDITION OF RS. 99,000/- WHICH WAS CLAIMED TO BE OUT OF PAST SAVINGS OF THE ASSESS EE FAMILY. B). THE LD.CIT(A) HAS ERRED IN SUSTAINING THE ADDITION OF RS. 9,50,000/- ON ACCOUNT OF CASH DEPOSIT MADE IN THE REGULAR BANK AC COUNT OF THE ASSESSEE ON 28.07.2010, WHICH WAS OUT OF RS. 13 LACS RECEIVED F ROM SHRI JAGJIT LAL' AGAINST THE MORTGAGED /SECURITY OF FLAT IN GULMOR CITY. C. THAT THE LD. CIT(A) HAS ERRED IN SUSTAINING THE ADDITION OF RS. 5 LACS ON ACCOUNT OF CASH DEPOSIT MADE IN THE BANK ACCOUNT ON 14.12.2010 OUT OF THE EARLIER WITHDRAWALS FROM THE SAME BANK ACCOUNT MADE ON 30.07.2010 AND 05.08.2010, TOTALING TO RS. 6,50,000/-. D).THAT THE LD. CIT(A) HAS ERRED IN SUSTAINING AN ADDITION OF RS. 9,94,000/-, OUT OF THE AMOUNT RECEIVED FROM NEPHEW MR. ANKIT TO WHOM T HE AMOUNT HAD BEEN GIVEN EARLIER BY MAKING WITHDRAWAL FROM THE BANK AC COUNT ON 15.09.2010 AND PARTLY OUT OF CASH AVAILABLE WITH THE ASSESSEE OUT OF EARLIER WITHDRAWALS. E) THAT THE LD. CIT(A) HAS ERRED IN SUSTAINING THE ADDITION OF RS. 13,50,000/- AS 2 DEPOSITED IN THE BANK ACCOUNT OUT OF SALE OF FLAT I N GULMOR CITY AS PER EVIDENCES FILED BEFORE HIM. F) THAT THE LD. CIT(A) HAS ERRED IN ASSESSING THE L ONG TERM CAPITAL OF RS. 9 LACS WITHOUT GIVING ANY CREDIT FOR THE PURCHASE COST, WH ICH WAS DULY CLAIMED BEFORE THE CIT(A) ALONGWITH EVIDENCE 2. THAT THE LD. CIT(A) HAS FAILED TO APPRECIATE THE FACT THAT ALL THE EVIDENCES WITH REGARD TO DEPOSITS IN THE JOINT BANK ACCOUNT O F SELF AND WIFE HAD BEEN EXPLAINED WITH DOCUMENTARY EVIDENCES AND ALSO THAT THE AMOUNT WAS WITHDRAWN ONLY A FEW MONTHS EARLIER FOR ADMISSION OF THE DAUG HTER OF THE ASSESSEE IN MEDICAL COLLEGE AND THE SAME WAS RE-DEPOSITED, SINCE THE AD MISSION OF THE DAUGHTER IN THE MEDICAL COLLEGE COULD NOT MATERIALIZE. 3. THAT THE ADDITION HAS BEEN MADE AGAINST THE FACT S AND CIRCUMSTANCES OF THE CASE. 3. BRIEF FACTS OF THE CASE ARE THAT THE REVENUE FOU ND RS. 51,43,000/- IN THE SAVING BANK ACCOUNT PERTAINING TO THE ASSESSEE MAINTAINED WITH HARYANA GRAMIN BANK. 4. DURING THE ASSESSMENT PROCEEDINGS, THE ASSESSEE EXPLAINED THAT HE HAS RECEIVED RS. 9,00,000/- DURING THIS PERIOD ON ACCOUNT OF SAL E OF AGRICULTURAL LAND AND HENCE THE BALANCE AMOUNT OF RS. 42,43,000/- IS TREATED AS UNE XPLAINED INCOME BY THE ASSESSING OFFICER. 5. THE LD. CIT(A) CONFIRMED THE ADDITION OF RS. 99, 000/- ON ACCOUNT OF CASH BALANCE. BEFORE US, THE LD. AR ARGUED THAT THE WIFE OF THE ASSESSEE IS A BAMS DOCTOR FILING INCOME TAX RETURNS REGULARLY FOR THE PAST SO MANY YEARS AND CAN HAVE CASH IT HAND OF RS. 1,99,000/- OUT OF THE PAST SAVINGS. THE LD. DR ARGUED THAT PROVISION HAS ALREADY BEEN GIVEN BY THE LD. CIT(A)ON A REASONABLE ESTIMAT ION OF RS. 1,00,000/- AS CASH IN HAND, HENCE NO FURTHER BENEFIT CAN BE ACCORDED. BAS ED ON THE TAX HISTORY OF THE WIFE OF THE ASSESSEE AND THE PROFESSION OF THE ASSESSEE, WE CONSIDER THAT RS. 1,99,000/- MAY BE ACCEPTED AS CASH IN HAND. 6. REGARDING GROUND NO. 1(B) AND 1(E) RELATES TO RS . 13,00,000/- PURPORTED TO HAVE BEEN RECEIVED FROM JAGJIT LAL, IT WAS ARGUED THAT T HE AMOUNT HAS BEEN RECEIVED FROM JAGJIT LAL AGAINST THE SALE OF AGRICULTURAL LAND AN D THE COPY OF THE AGREEMENT HAS BEEN SUBMITTED. 7. WE HAVE GONE THROUGH THE COPY OF THE AGREEMENT A ND FIND THAT THE LD. CIT(A) HAS RIGHTLY ACCEPTED THE CASH DEPOSIT OF RS. 9,00,0 00/-. AT THE SAME TIME THERE IS ANOTHER AGREEMENT WITH JAGJIT LAL FOR THE SALE OF F LAT AT GULMOHAR CITY, DERABASI AGAINST WHICH THE ASSESSEE HAD RECEIVED RS. 13,00,000/- AND THE SAME WAS SAID TO HAVE BEEN RETURNED TO JAGJIT SINGH OWING TO NON MATERIALIZATI ON OF THE SALE OF THE FLAT AND THE MONIES WERE RETURNED. SINCE THE MATTER HAS NOT BEEN EXAMINED IN THE RIGHT PERSPECTIVE, IT IS HEREBY DIRECTED THAT THE ASSESSI NG OFFICER MAY EXAMINE THE AGREEMENT AND THE REPAYMENT OF THE ADVANCES RECEIVE D TO JAGJIT SINGH AND TO TAKE A DECISION IN ACCORDANCE WITH LAW. 3 8. REGARDING GROUND NO. 1(C) THE LD. AR EXPLAINS TH AT THE DEPOSIT OF RS. 5,00,000/- ON 14/12/2010 WAS OUT OF THE EARLIER WITHDRAWALS MA DE ON 30/07/2010 AND ON 05/08/2010. IT WAS ARGUED THAT THE ASSESSEE MADE WI THDRAWALS IN CONNECTION WITH THE ADMISSION OF THE DAUGHTER AND THE SAME WAS DEPOSITE D WITHIN A SPAN OF FOUR MONTHS AS THE ADMISSION PROCESS COULD NOT MATERIALIZE. WE FIN D THAT THE LD. CIT(A) HAS CONFIRMED THIS ADDITION ON THE GROUNDS THAT THE ASSESSEE HAS NOT BEEN ABLE TO EXPLAIN LARGE TIME GAP OF FIVE MONTHS BETWEEN THE WITHDRAWALS AND DEPO SITS. ON GOING THROUGH THE BANK STATEMENTS WE FIND THAT THE ASSESSEE HAS ALSO WITHD RAWN AN AMOUNT OF RS. 7,00,000/- ON 04/09/2010 AND THERE WERE NO TRANSACTIONS IN THE BA NK ACCOUNT BEFORE DEPOSITING OF THE CASH. SINCE THE AVAILABILITY OF THE CASH IS NOT DISPROVED OWING TO THE WITHDRAWALS, KEEPING THE OVERALL FACTS AND CIRCUMSTANCES OF THE CASE WE HOLD THAT THE DEPOSIT OF RS. 5,00,000/- MAY BE TREATED AS EXPLAINED. 9. REGARDING THE GROUND NO. 1(D) THE LD. AR ARGUES THAT THE AMOUNT OF RS. 9,94,000/-HAS BEEN RECEIVED FROM A PERSON NAMED ANK IT TO WHOM THE AMOUNT HAS BEEN ADVANCED EARLIER. THE LD. AR COULD NOT BRING A NYTHING ON RECORD REGARDING THE LENDING OF THE AMOUNTS EARLIER TO SHRI ANKIT. HENCE , THE MATTER IS HEREBY REMANDED BACK TO THE FILE OF THE ASSESSING OFFICER TO ADJUDI CATE THE ISSUE AFRESH AFTER TAKING INTO CONSIDERATION THE SUBMISSIONS OF THE ASSESSEE AND O N AFFORDING AN OPPORTUNITY TO EXPLAIN THE AVAILABILITY OF THE CASH PRIOR TO LENDI NG. 10. REGARDING THE GROUND NO. 1(F) WHEREIN THE LD. C IT(A) HAS NOT GIVEN THE BENEFIT OF COST OF ACQUISITION WHILE COMPUTING THE CAPITAL GAI NS ON SALE OF AGRICULTURE LAND, THE MATTER IS BEING SENT BACK TO THE FILE OF THE ASSESS ING OFFICER TO RIGHTLY COMPUTE THE CAPITAL GAINS BY TAKING INTO CONSIDERATION THE COST OF ACQUISITION AND ALSO BY GIVING THE DUE BENEFIT OF INDEXATION WHILE COMPUTING THE LONG TERM CAPITAL GAINS. 11. AS A RESULT, APPEAL OF THE ASSESSEE IS PARTLY A LLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT. SD/- SD/- ! . .., & , (DIVA SINGH ) ( DR. B.R .R. KUMAR, AM) ' #/ JUDICIAL MEMBER '( #/ ACCOUNTANT MEMBER AG 28/05/2019 (+! ,-.- COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT 3. $ / CIT 4. $ / 01 THE CIT(A) -2 45&456789 DR, ITAT, CHANDIGARH