SHARAD MISHRA, Jaipur V. DCIT, Jaipur

ITA 959/JPR/2013

• Counselvise Citation: [2017] 130 COUNSELVISE.COM (IT) 5622 (ITAT-JAIPUR)
• Duration Of Justice: 3 year(s) 2 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-02-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2007-2008
• Appeal Filed On: 05-12-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: R A VERMA CIT DR DHK
• Section: 27

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES , JAIPUR JH HKKXPUN] YS[KK LNL; ,O JH DQY HKKJR] U;KF;D L NL; DS LE{K BEFORE: SHRI BHAGCHAND, AM & SHRI KUL BHARAT, JM VK;DJ VIHY LA-@ ITA NO. 959/JP/2013 FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2010-11 SHRI SHARAD MISHRA D-120, KABIR MARG, BANI PARK, JAIPUR CUKE VS. THE DCIT CENTRAL CIRCLE- 3, JAIPUR LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO .: AFWPM 4586 N VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY: SHRI ROHAN SOGANI, CA AND SHRI RAJEEV SOGANI, CA JKTLO DH VKSJ LS@ REVENUE BY:SHRI R.A. VERMA, ADDL. CIT-. DR LQUOKBZ DH RKJH[K@ DATE OF HEARING : 10/02/2017 ?KKS'K .KK DH RKJH[K@ DATE OF PRONOUNCEMENT : 14/02/2017 VKNS'K@ ORDER PER BHAGCHAND, AM THE ASSESSEE HAS FILED AN APPEAL AGAINST THE ORDER OF THE LD. CIT(A), CENTRAL, JAIPUR DATED 07-10-2013 FOR THE ASSESSMENT YEAR 2007- 08 WHEREIN THE ASSESSEE IS AGGRIEVED THAT THE LD. C IT(A) HAS ERRED IN CONFIRMING THE PENALTY OF RS. 10,46,766/- U/S 271(1 )(C) OF THE ACT. 2.1 AT THE OUTSET OF THE HEARING, THE LD. AR OF THE ASSESSEE PRAYED THAT THE QUANTUM ADDITION IN FAVOUR OF THE ASSESSEE HAS BEEN DECIDED BY THE COORDINATE BENCH VIDE ITS ORDER DATED 25-11-2016 I N ITA NO. ITA NO. 959/JP/2013 SHRI SHARAD MISHRA VS. DCIT CENTRAL CIRCL E-,3, JAIPUR . 2 467/JP/2011 ASSESSEE AND ITA NO. 519/JP/2011 REVE NUE FOR THE ASSESSMENT YEAR 2007-08. 2.2 THE LD. DR RELIED ON THE ORDERS OF THE LOWER AU THORITIES. 2.3 WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIALS AVAILABLE ON RECORD. IT IS OBSERVED THAT THE ISSUE OF QUANTUM WAS DECIDED IN FAVOUR OF THE ASSESSEE BY COORDINATE BENCH VID E ITS ORDER DATED 25-11-2016 IN ITA NO. 467/JP/2011 ASSESSEE AND ITA NO. 519/JP/2011 REVENUE FOR THE ASSESSMENT YEAR 2007-08 BY OBSERVI NG AS UNDER:-. 5.2. WE HAVE HEARD RIVAL CONTENTIONS, PERUSED THE MATERIAL AVAILABLE ON RECORD AND GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW. THE AO MADE THE ADDITION ON THE BASIS OF THE STATEMENT OF THE SELLER OF THE LAND, WHO IN HIS STATEMENT BEFORE THE DDIT (INV.) HAS STA TED THAT THE SALE CONSIDERATION WAS AT RS. 2,10,000/- PER BIGHA AND H E HAD RECEIVED TOTAL SALE CONSIDERATION OF RS. 35,00,000/-. THE LD. COUNSEL HAS NOT REFUTED THE STATEMENT. HOWEVER, HE SUBMITTED THAT THE STATEMENT WAS NOT BONAFIDE BUT SHRI HANUMAN YADAV WAS BLACK MAILING THE ASSESSEE. HE S UBMITTED THAT INTERESTINGLY THE REVENUE HAS ACCEPTED THE SALE CON SIDERATION OF THE NEARBY VICINITY. THE LD. CIT (A) AFFIRMED THE VIEW OF THE AO IN THIS RESPECT. NOW THE ISSUE WHICH REQUIRES OUR CONSIDERATION IS WHETHER T HE ADDITION CAN BE SUSTAINED SOLELY ON THE BASIS OF THE STATEMENT OF S HRI HANUMAN YADAV, WHEN THERE IS NO MATERIAL PLACED ON RECORD THAT SHRI HAN UMAN YADAV HAS MADE ANY CLAIM AGAINST THE ASSESSEE IN ANY COURT OF LAW SEEK ING CANCELLATION OF SALE DEED OR FILING A RECOVERY SUIT. THE COORDINATE BEN CH OF THE TRIBUNAL AFTER FOLLOWING THE RATIO LAID DOWN BY HONBLE SUPREME CO URT UNDER THE SIMILAR CIRCUMSTANCES HAS HELD IN THE CASE OF SHRI GHANSHYA M DAS AGARWAL (SUPRA) THAT IN THE ABSENCE OF ANY CONCLUSIVE EVIDENCE THE DOCUMENT COULD NOT HAVE BEEN DISBELIEVED. THE LD. D/R COULD NOT POINT OUT ANY BINDING PRECEDENT WHEREIN IT HAS BEEN HELD THAT THE ORAL STATEMENT WO ULD OVER RIDE THE DOCUMENTARY EVIDENCE. THEREFORE, RESPECTFULLY FOLL OWING THE DECISION OF THE COORDINATE BENCH IN THE CASE OF SHRI GHANSHYAM DAS AGARWAL (SUPRA), WE ARE OF THE VIEW THAT THE AO WAS NOT JUSTIFIED TO MA KE ADDITION SOLELY ON THE BASIS OF THE STATEMENT OF SHRI HANUMAN YADAV WHEN T HERE WAS A REGISTERED SALE DEED AND MORE PARTICULARLY WHEN THE MAKER OF S TATEMENT HAS NOT CHALLENGED THE SALE DEED BEFORE ANY COURT OF LAW. IT IS ALSO NOT PLACED ON RECORD WHETHER THE SALE DEED WAS EXECUTED UNDER COE RCION. THEREFORE, CONSIDERING THE TOTALITY OF FACTS OF THE PRESENT CA SE, WE HEREBY DIRECT THE AO TO DELETE THE ADDITION. THIS GROUND OF THE ASSESSEES APPEAL IS ALLOWED. ITA NO. 959/JP/2013 SHRI SHARAD MISHRA VS. DCIT CENTRAL CIRCL E-,3, JAIPUR . 3 TAKING INTO CONSIDERATION THE ABOVE FACTS, CIRCUMST ANCES OF THE CASE AND ALSO THE ORDER OF COORDINATE BENCH IN ITA NO. 467/J P/2011 (ASSESSEE )FOR THE ASSESSMENT YEAR 2007-08 AS TO DELETION OF ADDIT ION OF RS. 30,92,000/- IN THE QUANTUM APPEAL OF THE ASSESSEE, WE DIRECT T O DELETE THE PENALTY OF RS. 10,40,766/- CONFIRMED BY THE LD. CIT(A) U/S 27 1(1) OF THE ACT. THUS THE APPEAL OF THE ASSESSEE IS ALLOWED. 3.0 IN THE RESULT, THE APPEAL OF THE ASSESSEE IS AL LOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 14 /0 2/2017 SD/- SD/- DQY HKKJR HKKXPUN (KUL BHARAT) ( BHAGCHAND) U;KF;D LNL; / JUDICIAL MEMBER YS[KK LNL;@ ACCOUNTANT MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 14 /02/ 2017 *MISHRA VKNS'K DH IZFRFYFI VXZSF'KR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT- SHRI SHARAD MISHRA, JAIPUR 2. IZR;FKHZ@ THE RESPONDENT- THE DCIT, CENTRAL CIRCLE- 3, JAIPU R 3. VK;DJ VK;QDRVIHY@ CIT(A). 4. VK;DJ VK;QDR@ CIT, 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ@ DR, ITAT, JAIPUR 6. XKMZ QKBZY@ GUARD FILE (ITA NO.959/JP/2013) VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ @ ASSISTANT. REGISTRAR