Sudesh Kumar(Through legal heir Ashish Kumar), New Delhi V. DCIT, Central Circle-3, New Delhi

ITA 9876/DEL/2019

• Counselvise Citation: [2023] 140 COUNSELVISE.COM (IT) 131648 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 6 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-06-2023
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: G
• Next Hearing Date: 02-04-2023
• Assessment Year: 2016-2017
• Appeal Filed On: 29-12-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Gift; Document seized
• Section: 153A

Judgement Text

THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH ‘G’, NEW DELHI Before Dr. B. R. R. Kumar, Accountant Member Ms. Astha Chandra, Judicial Member ITA No. 9875/Del/2019: Asstt. Year: 2014-15 ITA No. 9876/Del/2019: Asstt. Year: 2016-17 Sudesh Kumar ( Through legal heir Ashish Kumar), 248, 1 st Floor, Gujaranwalan Town, Part-3, New Delhi-110009 Vs. DCIT, Central Circle-3, New Delhi (APPELLANT) (RESPONDENT) PAN No. AHFPK5915J Assessee by : Sh. G. N. Gupta, Adv. Revenue by : Sh. H. K. Choudhary, CIT DR Date of Hearing: 03.04.2023 Date of Pronouncement: 30.06.2023 ORDER Per Dr. B. R. R. Kumar, Accountant Member: The present appeals have been filed by the assessee against the orders of ld. CIT(A)-23, New Delhi dated 31.10.2019. 2. In ITA No. 9875/Del/2019, the assessee has raised the following grounds of appeal: “1. That on the facts and circumstances of the case and in law, the order passed by CIT (A)-23, New Delhi (hereinafter referred to as CIT (A)), is bad in law. 2. That on the facts and circumstances of the case and in law the CIT (A) was not justified in sustaining the addition made by the AO aggregating to Rs. 9,70,000/- by erroneously holding that Rs. 16,70,000/- was paid in cash to Mrs. Shelly Vashisth by the assessee (including Rs. 7,00,000/- received from Mrs. Lalita) as 40% share for ITA No. 9875 & 9876/Del/2019 Sudesh Kumar 2 investment in property located at 2/30 Roop Nagar, Delhi. 3. That on the facts and circumstances of the case and in law, the CIT (A) has erred in confirming the addition of Rs. 16,70,000/- minus Rs. 7,00,000/- i.e. Rs. 9,70,000/- (Being 40% share of alleged under valuation in sale of property) made in the assessment order by alleging that property located at 2/30 Roop Nagar, Delhi was sold for 70,00,000/- as against the sale consideration of Rs. 28,25,000/- declared by the assessee. 4. That on the facts and circumstances of the case and in law, the CIT (A) was not justified in confirming the actions of AO and in not referring the matter to the DVO for the purpose of determining fair market value of the property as due to distress sale the property was actually sold for Rs. 28,75,000/- and not Rs. 70,00,000/-. 5. That on the facts and circumstances of the case and in law, the CIT(A) has erred confirming the actions of AO in making additions in a non- abated assessment completed u/s 153A in the absence of any incriminating material in view of the decision laid down by the jurisdictional high court in the case of CIT vs. Kabul Chawla 61 Taxmann.com 412.” 3. In ITA No. 9876/Del/2019, the assessee has raised the following grounds of appeal: “1. That on the facts and circumstances of the case and in law, the order passed by CIT (A)-23, New Delhi (hereinafter referred to as CIT (A)), is bad in law. 2. That on the facts and circumstances of the case and in law the CIT (A) was not justified in sustaining the addition made by the AO aggregating to Rs. 23,18,000/- on account of alleged failure on part of assessee in explaining the source of payment of Rs. 23,18,000/- made for purchase of property from Shefali Aggarwal. 3. That on the facts and circumstances of the case and in law, the CIT (A) has erred in upholding the action of AO in not taking cognizance of the fact that out of Rs. 23,18,000/-, Rs. 10,00,000/- was paid by cheque. “ ITA No. 9875 & 9876/Del/2019 Sudesh Kumar 3 A.Y. 2014-15 Cash Paid: 4. During search initiated on 02.05.2016 at 248, Gujrawala Town, the residence of Sh. Sudesh Kumar documents annexurised at pages 48-56 of Annexure-1 (Team-1) relate to the- purchase of the property no. 2/30, Roop Nagar, Delhi jointly by Shri Arvind Manchanda and Shri Sudesh Kumar, in the ratio of 60% and 40%. 5. As per the document seized as pages 29-33 of Annexure 1, by an agreement this property was agreed to be sold by the assessee at a sale consideration of Rs. 70 lakhs to Smt. Lalita w/o Late Shri Sudesh Kumar. An amount of Rs. 9 lakhs had been paid as an advance for this property as per the receipt dated 30.08.2013 (page 29, annex 1). An amount of Rs. 7 lakhs out of this was paid in cash. As per deed executed & seized at page 48-56, it was found that this property was sold for Rs. 28,25,000/- to Shri Sudesh Kumar ( 40% of undivided share) and Shri Arvind Manchanda (60% undivided share) during the F.Y. 2013-14. 6. The seized material proves that Rs. 7 lakhs was paid in cash by Smt. Lalita. However, there was no evidence that an amount of Rs. 41,75,000/- was paid to Smt. Shelly Vashisth in cash by the two vendee i.e. Shri Sudesh Kumar (since deceased) and Shri Arvind Manchanda. Hence, relying on the judgment of Hon’ble Supreme Court in the case of K.P. Varghese Vs. ITO (131 ITR 597), the addition of Rs.9,70,000/- made by the AO is hereby directed to be deleted. ITA No. 9875 & 9876/Del/2019 Sudesh Kumar 4 A.Y. 2016-17 Purchase of Asset: 7. During the search at the premises of the assessee, a document “agreement to sale & purchase” dated 10.10.2015 was found. As per the agreement Smt. Shefali Aggarwal wife of Sh. Rameshwar Das Aggarwal received Rs.70,00,000/- in cash from two persons namely, Sh. Satish Kumar and Sh. Parvesh Kumar. This fact has not been disputed in Assessment Order (para 4). The addition has been made in the hands of the assessee (since deceased). The assessee has also explained the sources of the availability of the cash from various sources namely gifts as per the returns, confirmations, cash as per the books, interest income, an amount received from the mother & brothers. The details are as under: 1. cash withdrawn from books of wife (Smt. Lalita) F.Y. 2013-14 Rs.13, 00,000/- 2. cash withdrawn from books of wife (Smt. Lalita) F.Y. 2014-15 Rs.21, 00,000/- 3. Cash available with appellant as per books Rs.11, 82,000/- 4. Gift from son (Sh. Ashish Kumar) Rs.7,00,000/- 5. Interest received from parties Rs.6,00,000/- 6. Advance forfeited form Sh. Rajesh Rs.6,00,000/- 7. Cash contributed by Brother (Sh. Satish Kumar) Rs.2,50,000/- 8. Cash contributed by Mother (Smt. Ram Pyari) Rs.2,50,000/- 9. Others Rs. 18,000/- 10. Cheque paid by Shri Pravesh Kumar Rs. 10,00,000/- Total Rs. 80,00,000/- ITA No. 9875 & 9876/Del/2019 Sudesh Kumar 5 8. The AO made addition of Rs.23,18,000/- out of Rs.70,00,000/-. On going through the evidences filed by the assessee, we hold that the assessee has discharged his burden of proving the source of investment and hence, the addition made by the AO of Rs.23,18,000/- is directed to be deleted. 9. In the result, both the appeals of the assessee are allowed. Order Pronounced in the Open Court on 30/06/2023. Sd/- Sd/- (Astha Chandra) (Dr. B. R. R. Kumar) Judicial Member Accountant Member Dated: 30/06/2023 *Subodh Kumar, Sr. PS* Copy forwarded to: 1. Appellant 2. Respondent 3. CIT 4. CIT(Appeals) 5. DR: ITAT ASSISTANT REGISTRAR