Shrimati. Archana Agrawal, , Bhopal V. Dypti Commissioner Of Income Tax, (Central)-1, Bhopal

ITSSA 189/Ind/2017

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 7505 (ITAT-INDORE)
• Duration Of Justice: 10 month(s) 24 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 15-01-2019
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC
• Assessment Year: 2008-2009
• Appeal Filed On: 21-02-2018
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: ASHIMA GUPTA
• Assessee Lawyers: S S DESH
• Keywords: Unexplained investment; Salary income; Opportunity of being heard; Opportunity of cross examination
• Section: 143(3); 153A; 234B; 132

Judgement Text

ARCHANA AGRAWAL IT(SS)NOS.189, 190/IND/2017 & ITA NO.503/IND/2017 1 , , IN THE INCOME TAX APPELLATE TRIBUNAL, INDORE BENCH, INDORE BEFORE HONBLE KUL BHARAT, JUDICIAL MEMBER AND HONBLE MANISH BORAD, ACCOUNTANT MEMBER IT(SS) NO.189, 190/IND/2017 & ITA NO.503/IND/2017 ASSESSMENT YEARS 2008-09, 2011-12 & 2012-13 REVENUE BY SMT. ASHIMA GUPTA, CIT ASSESSEE BY S/ SHRI S.S. DESHPAN DE & MANOJ AYACHIT, C.AS DATE OF HEARING 1 0 . 0 1 . 201 9 DATE OF PRONOUNCEMENT 15 . 01.2019 O R D E R PER MANISH BORAD, AM. THE ABOVE CAPTIONED BUNCH OF THREE APPEALS FILED AT THE INSTANCE OF ASSESSEE PERTAINING TO ASSESSMENT YEAR 2008-09, 2011- 12 AND 2012-13 ARE DIRECTED AGAINST THE ORDERS OF L D. COMMISSIONER OF INCOME TAX (APPEALS)-3 (IN SHORT L D.CIT(A)], BHOPAL DATED 21.04.2-017 WHICH ARE ARISING OUT OF THE ORDER U/S 153A R.W.S. 143(3) OF THE INCOME TAX ACT 1961(IN S HORT THE ACT) DATED 19.02.2014 FRAMED BY DCIT (CENTRAL), BHOPAL. SMT. ARCHANA AGRAWAL, THE SAGAR, E-2/4, ARERA COLONY, BHOPAL VS. D CIT CENTRAL - 1, BHOPAL ( APPELLANT ) (RESPONDENT ) PAN NO.AASPA9447R ARCHANA AGRAWAL IT(SS)NOS.189, 190/IND/2017 & ITA NO.503/IND/2017 2 2. AS ALL THESE APPEALS PERTAINS TO SAME ASSESSEE, THESE WERE HEARD TOGETHER AND BEING DISPOSED OFF BY THIS COMMO N ORDER FOR THE SAKE OF CONVENIENCE AND BREVITY. 3. BRIEF FACTS AS CULLED OUT FROM THE RECORDS ARE T HAT THE ASSESSEE IS AN INDIVIDUAL EARNING INCOME FROM SALARY AND BU SINESS. POST SEARCH U/S 132 OF THE ACT CONDUCTED ON 22.10.2011 A T THE BUSINESS PREMISES OF THE ASSESSEE AND OTHER BUSINESS ASSOCIA TES AND ASSESSMENT PROCEEDINGS U/S 153A R.W.S 143(3) OF THE ACT WERE CARRIED OUT FOR THE ASSESSMENT YEAR 2006-07 TO 2011 -12. ADDITIONS FOR THE UNDISCLOSED ON-MONEY PAYMENT FOR ASSESSMENT YEAR 2008- 09 & 2011-12 AND ADDITION FOR UNDISCLOSED JEWELLERY FOR ASSESSMENT YEAR 2012-13 WERE MADE. ASSESSEE FILED APPEAL BEFO RE LD.CIT(A) BUT FAILED TO SUCCEED. 4. NOW THE ASSESSESSEE IS IN APPEAL BEFORE THE TRIB UNAL. 5. FIRST WE WILL TAKE UP ITA NO.189&190/IND/2017 WH EREIN THE COMMON ISSUE RELATING TO THE UNDISCLOSED ON-MONEY P AYMENT FOR PURCHASE OF IMMOVEABLE PROPERTY. ARCHANA AGRAWAL IT(SS)NOS.189, 190/IND/2017 & ITA NO.503/IND/2017 3 6. AT THE OUTSET LD. COUNSEL FOR THE ASSESSEE SUBMI TTED THAT THERE IS AN ALLEGATION ON THE ASSESSEE THAT SHE HAS PAID ON-MONEY TO MR. ABDUL VAHID KHAN AND SHRI JANAK SINGH AT R S.7,00,000/- AND RS.1,02,45,000/- RESPECTIVELY FOR THE PURCHASE OF LAND. HOWEVER THE DOCUMENTS HAVE BEEN REGISTERED AS PER T HE STAMP DUTY/VALUATION AND NO SUCH ON-MONEY HAS BEEN PAID. THOUGH THE STATEMENT OF BOTH THE ABOVE REFERRED PERSONS HAVE B EEN TAKEN BY THE LD. A.O BUT NO OPPORTUNITY OF CROSS EXAMINATION HAVE BEEN PROVIDED TO THE ASSESSEE. LD. COUNSEL FOR THE ASSE SSEE THEREFORE PRAYED THAT IN THE INTEREST OF JUSTICE AN OPPORTUNI TY OF CROSS EXAMINATION SHOULD BE GIVEN. 7. PER CONTRA LD. DEPARTMENTAL REPRESENTATIVE THOUG H SUPPORTED THE ORDERS OF LOWER AUTHORITIES BUT DID NOT OPPOSE THE REQUEST OF THE ASSESSEE OF PROVIDING OPPORTUNITY OF CROSS EXAMINAT ION WITH THE SELLERS WHO HAVE STATED TO HAVE RECEIVED ON-MONEY. 8. WE HAVE HEARD RIVAL CONTENTIONS AND PERUSED THE RECORDS PLACED BEFORE US. ASSESSEE IS AGGRIEVED WITH THE A DDITION FOR UNACCOUNTED INVESTMENT OF RS.7,00,000/- AND RS.1,02 ,45,000/- FOR THE ALLEGED ON-MONEY PAYMENT FOR THE PURCHASE OF LA ND FROM SHRI ARCHANA AGRAWAL IT(SS)NOS.189, 190/IND/2017 & ITA NO.503/IND/2017 4 ABDUL WAHID KHAN AND SHRI JHANAK SINGH FOR ASSESSM ENT YEAR 2008-09 AND 2011-12 RESPECTIVELY. THE COMMON FACTS ARE THAT THE ASSESSEE PURCHASED IMMOVEABLE PROPERTY FROM SHRI AB DUL WAHID KHAN AND SHRI JHANAK SINGH. BOTH THESE PERSONS STAT ED ON OATH BEFORE THE LD. A.O THAT THEY HAVE RECEIVED THE ON-M ONEY IN CASH AT RS.7,00,000/- AND RS.1,02,45,000/- OVER AND ABOVE T HE CONSIDERATION MENTIONED IN THE REGISTERED SALE DEED AT RS.8,40,000/- AND RS.44,55,000/- RESPECTIVELY. 9. DURING THE COURSE OF APPEARING IT HAS BEEN PRAYE D BY THE LD. COUNSEL FOR THE ASSESSEE THAT NO OPPORTUNITY OF CRO SS EXAMINATION WAS PROVIDED TO THE ASSESSEE WITH SHRI ABDUL WAHID KHAN AND SHRI JHANAK SINGH. REVENUE HAS NOT RAISED ANY OBJECTION TO THIS REQUEST. WE THEREFORE IN THE GIVEN FACTS AND CIRCU MSTANCES OF THE CASE AND IN THE INTEREST OF JUSTICE ARE OF THE VIEW THAT ASSESSEE DESERVES TO BE GIVEN AN OPPORTUNITY TO CROSS EXAMIN E BOTH THE SELLERS WITH WHOM SHE TRANSACTED TO PURCHASE IMMOVE ABLE PROPERTY. WE THEREFORE SET ASIDE ALL THE ISSUES RAISED IN BOT H THESE APPEALS OF THE ASSESSEE FOR ASSESSMENT YEAR 2008-09 AND 2011-1 2 TO THE FILE OF LD. CIT(A) WHO SHALL CALL FOR REMAND REPORT FROM THE LD. A.O ARCHANA AGRAWAL IT(SS)NOS.189, 190/IND/2017 & ITA NO.503/IND/2017 5 DIRECTING HIM TO SUMMON BOTH THE ALLEGED SELLERS SH RI ABDUL WAHID KHAN AND SHRI JHANAK SINGH AND GIVE THE OPPORTUNIT Y FOR CROSS EXAMINATION TO THE ASSESSEE AND RECORD THE MINUTES OF THE CROSS EXAMINATION OF ALL THE THREE PARTIES AND SEND IT AL ONG WITH THE REMAND REPORT. IF AFTER THE CROSS EXAMINATION IT I S CONFIRMED THAT THE ON-MONEY HAS BEEN PAID BY THE ASSESSEE TO BOTH THE PERSONS AT RS.7,00,000/- AND RS.1,02,45,000/- THEN THE IMPUGNE D ADDITION SHALL STANDS CONFIRMED. NEEDLESS TO MENTION THAT R EASONABLE OPPORTUNITY OF BEING HEARD SHOULD BE PROVIDED TO TH E ASSESSEE. IN THE RESULT ITA NO.189&190/IND/2017 FILED BY THE AS SESSEE ARE ALLOWED FOR STATISTICAL PURPOSES. 10. NOW WE TAKE UP ITA NO.503/IND/2017 WHEREIN THE ASSESSEE HAS RAISED FOLLOWING GROUNDS OF APPEAL; 1. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF T HE CASE AND IN LAW, THE ASSESSEE SUMMITS THAT HAVING REGARD TO THE EXPLANATION FURNISHED BEFORE THE LEARNED LOWER AUTHORITIES, THE LEARNED CIT(A) IS NOT JUSTIFIED IN HER FINDINGS THAT THE ENTIRE JE WELLERY POSSESSED BY THE ASSESSEE IN EXCESS OF 800 GMS. REPRESENT HER UNEXPLAINED INVESTMENT OF THE IMPUGNED ASSESSMENT YEAR, HENCE T HE ADDITION SUSTAINED FOR THE VALUE OF JEWELLERY IN EXCESS OF 8 00 GMS. IS WHOLLY UNJUSTIFIED AND UNLAWFUL AND, THEREFORE, THE SAME BE ARCHANA AGRAWAL IT(SS)NOS.189, 190/IND/2017 & ITA NO.503/IND/2017 6 KINDLY DELETED. 2. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF TH E CASE AND IN LAW, THE LEARNED CIT(A) ERRED AND NOT JUSTIFIED IN HER FINDINGS THAT THE CASH FOUND WITH THE ASSESSEE RS. 64815 IS AN UN EXPLAINED CASH REPRESENTING HER UNEXPLAINED INVESTMENT. THE S AID UNJUSTIFIED AND UNLAWFUL ADDITION OF RS. 64815 BE K INDLY DELETED. 3. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF TH E CASE AND IN LAW, THE LEVY OF INTEREST U/S 234B IS CONTRARY TO T HE PROVISIONS OF SUB-SECTION (3) OF SECTION 234B, HENCE THE SAME BE KINDLY QUASHED. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE ORDER OF THE ID. CIT (A) IS INCORRECT AND BAD I N LAW. 11. WE HAVE HEARD RIVAL CONTENTIONS AND PERUSED THE RECORDS PLACED BEFORE US. 12. AS REGARDS GROUND NO.1 FACTS IN BRIEF ARE THAT DURING THE COURSE OF SEARCH GOLD JEWELLERY WAS FOUND AND SEIZE D FROM THE RESIDENCE AND BANK LOCKER OWNED BY THE ASSESSEE. G OLD JEWELLERY WEIGHING 2027 GRAM WAS FOUND (1127 GRAM FROM RESIDE NCE AND 900 GRAM FROM LOCKER NO.12/29). THE ASSESSEE WAS UNABLE TO EXPLAIN THE SOURCE OF THE GOLD JEWELLERY FOR WHICH ADDITION WAS MADE. AGAINST THE ADDITION FOR UNEXPLAINED GOLD JEWELLERY ASSESSEE PREFERRED APPEAL BEFORE LD.CIT(A) WHO KEEPING IN VI EW THE CBDT ARCHANA AGRAWAL IT(SS)NOS.189, 190/IND/2017 & ITA NO.503/IND/2017 7 INSTRUCTION NO.1916 DATED 11.5.1994 GAVE THE BENEFI T OF 800 GRAM OF GOLD JEWELLERY TREATING IT TO BE BELONG TO THE A SSESSEE, HER HUSBAND AND TWO SONS COMPRISING OF 500 GRAM FOR LAD Y ASSESSEE, 100 GRAM EACH FOR THREE MALES. 13. NOW THE ASSESSEE IS IN APPEAL CHALLENGING THE R EMAINING AMOUNT OF ADDITION FOR 1227 GRAMS OF GOLD JEWELLERY . LD. COUNSEL FOR THE ASSESSEE PLEADED CASUALLY SUBMITTED THAT TH E ASSESSEE BELONGS TO A RICH FAMILY AND SUCH ACQUISITION OF G OLD JEWELLERY ARE QUITE REASONABLE IN SUCH FAMILIES. HOWEVER WE ARE NOT INCLINED TO GIVE ANY BENEFIT TO THIS CONTENTION OF LD. COUNSEL FOR THE ASSESSEE AS IT WAS NOT SUPPORTED BY ANY FACTS, EVIDENCES OR ANY OTHER DETAILS WHICH COULD PROVE THE SOURCE OF THE UNEXPLAINED GOL D JEWELLERY. WE THEREFORE IN THE GIVEN FACTS AND CIRCUMSTANCES OF T HE CASE ARE OF THE CONSIDERED VIEW THAT THE LD.CIT(A) HAS RIGHTLY SUST AINED THE ADDITION OF UNEXPLAINED GOLD JEWELLERY OF 1127 GRAM S AND THE SAME NEEDS TO BE CONFIRMED. IN THE RESULT GROUND NO.1 R AISED BY THE ASSESSEE STANDS DISMISSED. 14. APROPOS GROUND NO.2 WHICH RELATES TO ADDITION F OR UNEXPLAINED CASH AMOUNT OF RS.64,815/-, WE OBSERVE THAT THIS ARCHANA AGRAWAL IT(SS)NOS.189, 190/IND/2017 & ITA NO.503/IND/2017 8 CASH AMOUNT WAS FOUND IN THE BANK LOCKER WHICH WAS TREATED AS UNEXPLAINED BY BOTH THE LOWER AUTHORITIES. WE ARE OF THE VIEW THAT LOOKING TO THE INDIAN CUSTOMS AND ACCUMULATION OF S TREEDHAN OF THE ASSESSEE FOR PAST MANY YEARS WHICH IS NORMALLY SAVED BY THE INDIAN LADIES, AS WELL AS LOOKING TO THE SMALLNESS OF THE AMOUNT AND THE FACT THAT THE ASSESSEE IS REGULARLY FILING INCO ME TAX RETURN, WE FIND NO JUSTIFICATION IN THE ADDITION OF RS.64,815/ - CONFIRMED BY BOTH THE LOWER AUTHORITIES. WE ACCORDINGLY DELETE THE ADDITION OF RS.64,815/- FOR THE ALLEGED UNEXPLAINED INVESTMENT AND ALLOW GROUND NO.2 RAISED BY THE ASSESSEE. 15. GROUND NO.3 IS GENERAL IN NATURE WHICH NEEDS NO ADJUDICATION. 16. ACCORDINGLY ITA NO.189 & 190/IND/2017 OF THE APPEAL OF THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSE AND IT A NO.503/IND/2017 IS PARTLY ALLOWED. THE ORDER PRONOUNCED IN THE OPEN COURT ON 15.01.201 9. SD/- SD/- ( KUL BHARAT) (MANISH BORAD) JUDICIAL MEMBER ACCOUNTANT MEMBER / DATED : 15 JANUARY, 2019 /DEV ARCHANA AGRAWAL IT(SS)NOS.189, 190/IND/2017 & ITA NO.503/IND/2017 9 COPY TO: THE APPELLANT/RESPONDENT/CIT CONCERNED/CIT (A) CONCERNED/ DR, ITAT, INDORE/GUARD FILE. BY ORDER, ASSTT.REGISTRAR, I.T.A.T., INDORE