Rajmohan Agrawal (Ind), Bhopal V. ACIT2(1), Bhopal

ITSSA 04/Ind/2019

• Counselvise Citation: [2021] 107 COUNSELVISE.COM (IT) 5995 (ITAT-INDORE)
• Duration Of Justice: 2 year(s) 7 month(s) 14 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 07-09-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 23-07-2021
• Assessment Year: 2006-2007
• Appeal Filed On: 24-01-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S S MANTI
• Assessee Lawyers: GIRISH AGRAWAL; NISHA LAHOTI A RS
• Keywords: Set aside
• Section: 143(3); 142(1); 153A; 143(2); 13; 131; 132; 2

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL, INDORE BENCH, INDORE BEFORE HONBLE RAJPAL YADAV, VICE PRESIDENT AND SHRI MANISH BORAD, ACCOUNTANT MEMBER VIRTUAL HEARING IT(SS)A NO.04/IND/2019 ASSESSMENT YEAR: 2006-07 RAJMOHAN AGARWAL (IND), BHOPAL PAN:AAXPA4984A : APPELLANT V/S ACIT 2(1) BHOPAL : RESPONDENT APPELLANT BY SHRI GIRISH AGRAWAL & MS. NISHA LAHOTI, ARS REVENUE BY SHRI S.S. MANTI, CIT-DR DATE OF HEARING 05.08.2021 DATE OF PRONOUNCEMENT 07.09.2021 O R D E R PER MANISH BORAD, A.M THE ABOVE CAPTIONED APPEAL FILED AT THE INSTANCE O F THE ASSESSEE FOR ASSESSMENT YEAR 2006-07 IS DIRECTED AG AINST THE ORDER OF LD. COMMISSIONER OF INCOME TAX(APPEALS) (I N SHORT LD. CIT],-3 BHOPAL DATED 29.11.2018 WHICH IS ARISING O UT OF THE SHRI RAJ MOHAN AGARWAL IT(SS)A NO.04/IND/2019 2 ORDER U/S 143(3) OF THE INCOME TAX ACT 1961(IN SHO RT THE ACT) DATED 31.12.2009 FRAMED BY ACIT-2(1), BHOPAL. 2. BRIEF FACTS OF THE CASE AS CULLED OUT FROM THE R ECORDS ARE THAT THE ASSESSEE IS AN INDIVIDUAL CONNECTED TO AGRAWALS , TAPARIAS AND THE SINGHDCOS GROUP OF BHOPAL WHICH WAS SUBJECT ED TO SEARCH U/S 132 OF THE ACT ON 13.11.2007 AND ASSESS EES RESIDENTIAL PREMISES WERE ALSO SEARCHED. NOTICE U/S 153A OF THE ACT ISSUED FOR FILING THE RETURN. IN RESPONSE RETUR N OF INCOME FOR A.Y. 2006-07 FILED ON 19.06.2008 DECLARING INCOME O F RS.24,13,180/-. NOTICES U/S 143(2) & 142(1) OF THE ACT DULY SERVED UPON THE ASSESSEE. 3. DURING THE COURSE OF ASSESSMENT PROCEEDINGS LD. AO PERUSED THE SEIZED MATERIAL IN THE FORM OF SALE DEEDS OF AG RICULTURAL LANDS PURCHASED BY THE ASSESSEE. AS PER THESE SALE DEEDS ASSESSEE HAS PURCHASED AGRICULTURAL LAND FROM SHRI ARVIND KUMAR AND SHRI LAXMI NARAYAN FOR CONSIDERATION OF RS.8,75,000/- EA CH. LD. AO ISSUED NOTICE U/S 131 OF THE ACT TO BOTH THE SELLER S. STATEMENTS WERE RECORDED WHEREIN MR. ARVIND KUMAR STATED HAVIN G RECEIVED THE SALE CONSIDERATION OF RS.12,60,000/- AND MR. LA XMI NARAYAN SHRI RAJ MOHAN AGARWAL IT(SS)A NO.04/IND/2019 3 STATED TO HAVE RECEIVED AT RS.10,50,000/-. THE ASSE SSEES SHARE IN THE ALLEGED LAND WAS 50%. DIFFERENCE IN SALE CON SIDERATION SHOWN IN THE REGISTERED DEEDS AND SALE CONSIDERATIO N STATED IN THE STATEMENT U/S 131 OF THE ACT AS WELL AS THE AFF IDAVIT WORKED OUT TO RS.4,60,000/-. ASSESSEES SHARE WAS CALCULAT ED AT RS.2,80,000/-. LD. AO AFTER CONSIDERING THE SUBMISS IONS COMPLETED THE ASSESSMENT MAKING ADDITION OF RS.2,80 ,000/- THEREBY ASSESSING INCOME OF RS.26,93,180/-. 4. AGGRIEVED ASSESSEE PREFERRED AN APPEAL BEFORE TH E LD. CIT(A) RAISING LEGAL GROUNDS CHALLENGING THE ADDITION BEIN G MADE WITHOUT REFERENCE TO ANY INCRIMINATING MATERIAL FOU ND DURING THE COURSE OF SEARCH AND ALSO THE QUANTUM ADDITION BUT FAILED TO SUCCEED ON ANY OF THE GROUNDS. 5. NOW ASSESSEE IS IN APPEAL BEFORE THIS TRIBUNAL R AISING FOLLOWING GROUNDS OF APPEAL: 1. THAT ON THE FACTS IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LEARNED LOWER AUTHORITIES ARE NOT JUSTI FIED IN MAKING/SUSTAINING ADDITION OF RS.192500 FOR THE ALL EGED ON MONEY PAYMENTS FOR PURCHASE OF LAND FROM ARVIND KUM AR, THE SAID UNLAWFUL AND UNJUSTIFIED ADDITION OF RS. 1 92500 BE KINDLY DELETED. SHRI RAJ MOHAN AGARWAL IT(SS)A NO.04/IND/2019 4 (2) THAT ON THE FACTS & IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LEARNED LOWER AUTHORITIES ARE NOT J USTIFIED IN MAKING/SUSTAINING ADDITION OF RS.87500 FOR THE ALLE GED ON MONEY PAYMENTS FOR PURCHASE OF LAND FROM LAXMI NARA YAN DEVI PRASAD, THE SAID UNLAWFUL AND UNJUSTIFIED ADDI TION OFRS. 87500 BE KINDLY DELETED. (3) THAT ON THE FACTS & IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE ADDITIONS OF RS. 192500 & RS. 87500 ARE UNLAWFUL AND UNSUSTAINABLE IN LAW AS IN THE SEARCH, NO INCRIMINATING MATERIALS/ ANY POSITIVE/CONCRETE EVID ENCE WERE FOUND WHICH SUGGESTED THAT THE ASSESSEE HAD PAID ON MONEY RS. 192500 & RS. 87500 ON PURCHASE OF LAND AND, THEREFORE, THE SAID TWO ADDITIONS BE KINDLY DELETED. (4) THAT ON THE FACTS & IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE IMPUGNED ASSESSMENT YEAR IS NON-ABA TED ASSESSMENT YEAR AND, THEREFORE, WITHOUT ANY INCRIMI NATING MATERIALS, THE ADDITION OF RS. 192500 & RS. 87500 IS UNLAWFUL AND UNJUSTIFIED AND, THEREFORE, BE DELETED . (5) THAT ON THE FACTS & IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LEVY OF INTEREST ULS. 234A,234B & 234C ARE UNLAWFUL AND HENCE BE CANCELLED. 6. LD. COUNSEL FOR THE ASSESSEE VEHEMENTLY ARGUED R EFERRING TO THE WRITTEN SUBMISSIONS FILED ON 05.07.2021 AND ALSO RE FERRED TO THE SHRI RAJ MOHAN AGARWAL IT(SS)A NO.04/IND/2019 5 PAPER BOOK RUNNING FROM PAGES 1 TO 41AND PRAYED FO R DELETION OF ADDITION. 7. PER CONTRA LD. DR VEHEMENTLY ARGUED SUPPORTING T HE ORDERS OF THE BOTH LOWER AUTHORITIES. 8. WE HAVE HEARD RIVAL CONTENTIONS AND PERUSED THE RECORDS PLACED BEFORE US. AS FAR AS THE LEGAL GROUND RAISED BY THE ASSESSEE IN GROUND NO.4 CHALLENGING THE ADDITION CO NTENDING THAT THE YEAR UNDER APPEAL IS NON-ABATED ASSESSMENT YEAR AND NO INCRIMINATING MATERIAL WAS REFERRED WHILE MAKING AD DITION AND PLACED RELIANCE ON FEW JUDICIAL PRONOUNCEMENTS. 9. WE FIND THAT THE YEAR UNDER APPEAL IS A.Y. 2006- 07. TIME LIMIT OF ISSUANCE OF NOTICE U/S 143(2) OF THE ACT FOR SEL ECTING ASSESSEES CASE FOR SCRUTINY EXPIRES ON 30 TH SEPTEMBER 2007. SEARCH WAS CONDUCTED ON 13.11.2007. EXCEPT REGISTERED SALE DEE D NO OTHER INCRIMINATING MATERIAL WAS FOUND. CONSIDERATION MEN TIONED IN THE REGISTERED SALE DEED IS DULY ACCOUNTED FOR. OTH ER EVIDENCES ARE GATHERED BY THE LD. AO BY ISSUING NOTICE U/S 13 1 OF THE ACT AND STATEMENT OF THE SELLERS WERE RECORDED DURING T HE COURSE OF ASSESSMENT PROCEEDINGS. THE YEAR UNDER APPEAL IS A NON-ABATED ASSESSMENT YEAR. ADDITION IN SUCH NON-ABATED ASSESS MENT YEARS SHRI RAJ MOHAN AGARWAL IT(SS)A NO.04/IND/2019 6 CAN BE MADE ONLY ON THE BASIS OF INCRIMINATING MATE RIAL FOUND DURING THE COURSE OF SEARCH. 10. OUR THIS PROPOSITION IS SUPPORTED BY THE JUDGME NT OF HON'BLE DELHI HIGH COURT IN THE CASE OF CIT VS. KABUL CHAWLA 280 ITR 570 AND IN THE CASE OF PR. CIT VS. MEETA GUTGUTIA 395 ITR 526 . WE HAVE ALSO FOLLOWED THIS RATIO IN THE CASE OF SATISH NEEMA IT(SS)A NO.149/IND/2016 DATED 07.02.2020 . LD. DR FAILED TO BRING ANY OTHER BINDING PRECEDENCE IN ITS FAVOUR. WE, THEREFO RE, RESPECTFULLY FOLLOWING THE ABOVE REFERRED DECISIONS ALLOW THE LE GAL GROUND RAISED BY THE ASSESSEE AND DELETE THE IMPUGNED ADDI TION. 11. AS REGARDS GROUND NO. 1 TO 3 RAISED ON MERITS C HALLENGING THE ADDITION OF RS.2,80,000/-, WE FIND THAT THE PURCHAS E CONSIDERATION PAID BY THE ASSESSEE IS NOT BELOW THE GUIDELINE RATE APPLICABLE FOR CALCULATING STAMP DUTY. BOTH THE SEL LERS NAMELY MR. ARVIND KUMAR AND MR. LAXMI NARAYAN HAVE SIGNED THE REGISTERED DEED IN THE PRESENCE OF THE SUB-REGISTR AR FOR REGISTERING THE DOCUMENTS. FURTHER, THE ASSESSEE HA S NOT BEEN PROVIDED ANY OPPORTUNITY TO CROSS EXAMINE ALLEGED S ELLERS NOR THE LD. AO HAS INITIATED ANY PROCEEDINGS AGAINST THE SE LLERS FOR MAKING ADDITIONS IN THEIR HANDS FOR UNACCOUNTED REC EIPTS. SHRI RAJ MOHAN AGARWAL IT(SS)A NO.04/IND/2019 7 12. WE, THEREFORE, UNDER THE GIVEN FACTS AND CIRCUM STANCES OF THE CASE, ARE OF THE CONSIDERED VIEW THAT LD. AO WAS NO T JUSTIFIED IN MAKING THE ADDITION OF RS.2,80,000/- IN THE HANDS O F ASSESSEE. WE, THUS, SET ASIDE THE FINDING OF LD. CIT(A) AND D ELETE THE ADDITION AND ALLOW GROUND NO. 1 TO 3 RAISED BY THE ASSESSEE. GROUND NO.5 IS GENERAL IN NATURE WHICH NEEDS NO ADJ UDICATION. 13. IN THE RESULT, ASSESSEES APPEAL IN IT(SS)ANO.04/IND/2019 IS ALLOWED. THE ORDER PRONOUNCED AS PER RULE 34 OF ITAT RULES, 1963 ON 07.09.2021. SD/- SD/- (RAJPAL YADAV) (MANISH BORAD) VICE PRESIDENT ACCOUNTANT ME MBER / DATED : 07.09.2021 PATEL/PS COPY TO: THE APPELLANT/RESPONDENT/CIT CONCERNED/CIT (A) CONCERNED/ DR, ITAT, INDORE/GUARD FILE. BY ORDER, ASSTT.REGISTRAR, I.T.A.T., INDORE