Smt. Kusum Agrawal, Indore V. The ACIT, 3(1), Indore

ITSSA 216/IND/2012

• Counselvise Citation: [2013] 121 COUNSELVISE.COM (IT) 9139 (ITAT-INDORE)
• Duration Of Justice: 10 month(s) 11 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 02-04-2013
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: DB
• Assessment Year: misc
• Appeal Filed On: 22-05-2012
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: MRIDULA BAJPAI
• Assessee Lawyers: KAMLESH JAIN
• Keywords: Unexplained investment; Gift; Block assessment

Judgement Text

1 INCOME TAX APPELLATE TRIBUNAL INDORE BENCH, INDORE BEFORE SHRI JOGINDER SINGH, JUDICIAL MEMBER AND SHRI R.C. SHARMA, ACCOUNTANT MEMBER IT(SS)A NO. 216/IND/2012 BLOCK PERIOD - 1.4.1996 TO 13.11.2002 SMT. KUSUM AGRAWAL, INDORE PAN ABTPA 5654 L :: APPELLANT VS ACIT-3(1), INDORE :: RESPONDENT AND, IT(SS)A NO. 213/IND/2012 BLOCK PERIOD - 1.4.1996 TO 13.11.2002 ACIT-3(1), INDORE :: APPELLANT VS SMT. KUSUM AGRAWAL, INDORE PAN ABTPA 5654 L :: RESPONDENT 2 ASSESSEE BY SHRI KAMLESH JAIN REVENUE BY SMT. MRIDULA BAJPAI DATE OF HEARING 02.4.2013 DATE OF PRONOUNCEMENT 02.4.2013 O R D E R PER JOGINDER SINGH, JUDICIAL MEMBER THE ASSESSEE AS WELL AS REVENUE ARE AGGRIEVED BY THE IMPUGNED ORDER DATED 6.2.2012 OF THE LEARNED CIT(A)-I I, INDORE. FIRST, WE SHALL TAKE UP THE APPEAL OF THE ASSESS EE WHEREIN THE LEARNED COUNSEL FOR THE ASSESSEE SHRI KAM LESH JAIN CONTENDED THAT GROUND NOS.1 TO 3 ARE OF GENERAL NATURE, THEREFORE, REQUIRES NO DELIBERATION FROM OUR S IDE. GROUND NO.5 WAS ALSO NOT PRESSED BY THE LEARNED COUNS EL FOR THE ASSESSEE, THEREFORE, IT IS DISMISSED AS NOT P RESSED. 3 2. THE NEXT GROUND I.E. GROUND NO.4 PERTAINS TO DETERMINING THE UNEXPLAINED INVESTMENT IN PURCHASE OF LAND AT PALDA MEASURING 7300 SQ.FT. @150 PER SQ.FT. THE STAND OF THE ASSESSEE IS THAT THE IMPUGNED LAND WAS PURCHASE FOR RS.55,786/- INCLUSIVE OF STAMPS AND REGISTRATION CHARGES FOR WHICH OUR ATTENTION WAS INVITE D TO THE PURCHASE DEED AVAILABLE ON RECORD ALONG WITH PAGE 29 OF THE PAPER BOOK. IT WAS SUBMITTED THAT NO ADDITION I S REQUIRED TO BE MADE. ON THE OTHER HAND, MRS. MRIDULA BAJPAI, LD. CIT/DR DEFENDED THE ADDITION BY SUBMITTIN G THAT NO EVIDENCE SUPPORTING THE CLAIM OF THE ASSESSEE WAS PRODUCED AT ANY STAGE. 2.1 WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PERUS ED THE MATERIAL AVAILABLE ON RECORD. THE FACTS, IN BRIEF, ARE THAT ONE PIECE OF LAND WAS PURCHASED BY THE ASSESSEE FOR A S UM OF RS.50,000/- ON 18.4.2000 ON WHICH STAMP DUTY OF RS.4500/- AND REGISTRATION CHARGES OF RS.1286/- WERE 4 INCURRED, THUS, THE TOTAL AMOUNT COMES TO RS.55,786/- . THE IMPUGNED ADDITION WAS MADE BY THE ASSESSING OFFIC ER AS DISCUSSED ON PAGE 5 OF THE ASSESSMENT ORDER ON THE BASIS THAT PAPER RELATING TO THE DIVERSION OF TAX WAS P AID FOR KHASRA NO.335/36 AND THE AMOUNT WAS PAID OUT OF UNDISCLOSED SOURCES. ANOTHER REASON FOR MAKING THE ADDITION IS THAT THE CLAIMED PRICE IS LESS. HOWEVER, W E FIND THAT IN THE SALE DEED (PAGES 30 TO 34 OF THE PAPER BOOK ), THE PLOT WAS PURCHASED ON 18.4.2000 WHEREIN KHASRA NO.333/36 HAS BEEN DULY MENTIONED FOR THE LAND MEASURING 7100 SQ.FT. THE SALE PRICE HAS BEEN MENTIONED AT RS.50,000/- ON WHICH THE STAMP DUTY AT RS.3750/-, PANCHAYAT DUTY AT RS.500/-, UPKAR AT RS.188/- ETC. HAVE BEEN MENTIONED. THERE IS NO EVIDENCE ON RECORD THAT ANY UNDERHAND MONEY WAS TRANSACTED BETWEEN THE PARTIES. IN THE ABSENCE OF SUCH EVIDENCE, NO ADDITION IS WARRANTED ON PRESUMPTIVE BASIS, MORE SPECIFICALLY, WHEN THE PRICE 5 MENTIONED IN THE REGISTERED SALE DEED ALONG WITH OTHE R EXPENSES IS AVAILABLE ON RECORD. EVEN OTHERWISE, NO MATERIAL WAS FOUND DURING SEARCH SUGGESTING THAT THE ASSESSEE ACQUIRED ANY OTHER LAND THAN THE ONE FOR WHICH NOTICE OF DEMAND OF DIVERSION OF TAX WAS FOUND. THIS GROUND OF THE ASSESSEE IS ALLOWED. 3. IN GROUND NO.6, VARIOUS ADDITIONS HAVE BEEN CHALLENGED. THE FIRST ONE IS RS.49,870/- AS UNEXPLAIN ED CASH. THE CRUX OF ARGUMENTS ON BEHALF OF THE ASSESSEE I S THAT A REASONABLE VIEW MAY BE TAKEN. THE LD. CIT/DR DEFENDED THE ADDITION. 3.1 THE FACTS, IN BRIEF, ARE THAT DURING THE COURSE OF THE SEARCH OF THE BEDROOM OF THE ASSESSEE AND HER HUSBAND SHRI MUKESH AGRAWAL, A SUM OF RS.55,870/- WAS FOUND. THE STATEMENT OF THE ASSESSEE WAS RECORDED WHEREIN IT WAS TENDERED THAT A SUM OF RS.10,000/- WAS LEFT WITH THE ASSESSEE BY HER SISTER-IN-LAW SMT. BHAVNA AGRAWAL OF 6 BHOPAL ON 10.11.2000. AN AFFIDAVIT OF SHRI GYARSILAL AGRAWAL (PAGE 5 OF THE PAPER BOOK), FATHER-IN-LAW OF SM T. BHAVNA WAS FILED CONFIRMING THAT A SUM OF RS.10,000/- WAS WITHDRAWN FROM BUSINESS CASH BOOK ON 9.11.2002 AND WAS GIVEN AS A GIFT TO THE ASSESSEE. THE AMOUNT OF RS.5,000/- IS BELONGING TO TWO SONS WAS CLAIMED TO BE RECEIVED ON VARIOUS OCCASIONS. ANOTHER SUM OF RS.10, 000/- WAS CLAIMED TO BE RECEIVED BY THE HUSBAND OF THE ASSESS EE AS GIFT. WITHOUT GOING INTO MUCH DELIBERATION, THE TH EORY OF GIFT CANNOT BE FULLY ACCEPTED. HOWEVER, TO CUT-SHORT THE MATTER AND TO PUT AN END TO THE LITIGATION, THE ADDITION IS REDUCED TO RS.25,000/- AGAINST RS.49,870/-. 3.2 THE PART OF THE GROUND PERTAINS TO ADDITION OF RS.2,09,662/- AS UNEXPLAINED JEWELLERY. THE CRUX OF T HE ARGUMENTS IS THAT THE JEWELLERY OF THE DAILY USE WEIGH ING 485.300 GMS WAS FOUND FROM THE BEDROOM OF THE ASSESSE E, THEREFORE, KEEPING IN VIEW THE STATUS OF THE FAMILY, THE 7 BENEFIT SHOULD BE GIVEN. IT WAS ALSO EXPLAINED THAT THE ORNAMENTS WEIGHING 25 TO 35 TOLAS WERE GIVEN TO THE DAUGHTER AT THE TIME OF THE MARRIAGE FOR WHICH AN AFFIDAV IT HAS BEEN FILED. THE POSSESSION OF THE JEWELLERY WAS C LAIMED TO BE EXPLAINED. WITHOUT GOING INTO MUCH DELIBERATION , WE FIND THAT IDENTICALLY, THE TRIBUNAL IN THE CASE OF SMT. KAMLA AGRAWAL (SAME GROUP CASES) FOLLOWED THE INSTRUCTION O F THE CBDT AND DELETED THE ADDITION. NORMALLY, IN THE CASE OF A LADY, THE INSTRUCTIONS OF THE CBDT ARE THAT JEWELLERY UPTO 500 GMS MAY BE ALLOWED IN THE CASE OF A MARRIED WOMAN. KEEPING IN VIEW THE STATUS OF THE FAMILY, NO ADDITION IS WARRANTED UPTO THIS LIMIT, THEREFORE, THIS PART OF THE GROUND IS ALLOWED. 3.3 THIS NEXT ADDITION PERTAINS TO RS.6250/- AS UNEXPLAINED INVESTMENT IN SHARES/DIVIDEND RECEIVED. W E FIND THAT THE ADDITION WAS MADE ON PRESUMPTIVE BASIS T HAT THE ASSESSEE MADE INVESTMENT OF RS.5000/- IN PURCHASIN G 8 50 SHARES OF VYAPARIK AUDYOGIK SAHAKARI BANK AS DIVIDEND WARRANT WHICH WAS FOUND DURING THE SEARCH (PAGE 11 OF TH E PAPER BOOK). ADMITTEDLY, THE SHARES WERE PURCHASED ON 19.8.1994 AND THUS, THE PAYMENT WAS MADE PRIOR TO THE BLOCK PERIOD. THE CERTIFICATE OF THE BANK CONFIRMING THE PURCHASE OF SHARES ON 19.8.1994 (PAGE 12 OF THE PAPER BOOK) IS AVAILABLE ON RECORD. LIKEWISE, RS.1250/- WAS RECEIVED AS DIVIDEND FROM THE BANK IN RESPECT OF THES E SHARES. IN VIEW OF THESE FACTS, NO ADDITION IS WARRANTE D, THEREFORE, PART OF THIS GROUND IS ALLOWED. 3.4 THE NEXT ADDITION RELATES TO RS.66,500/- AS UNEXPLAINED DEPOSITS IN BANK. THE CRUX OF ARGUMENTS IS THAT THE AMOUNTS DEPOSITED ON VARIOUS DATES WERE WRONGL Y TREATED AS UNDISCLOSED INCOME, HOWEVER, AT ANY STAGE, TH E SOURCE OF SUCH DEPOSITS WAS NOT EXPLAINED BY THE ASSES SEE, THEREFORE, WE FIND NO JUSTIFICATION TO INTERFERE WIT H THE 9 CONCLUSION DRAWN IN THE IMPUGNED ORDER. THIS PART OF THE GROUND IS AFFIRMED. 3.5 THE LAST PART OF ADDITION PERTAINS TO RS.1,56,800/- AS UNEXPLAINED INCOME U/S 158BB OF THE IT ACT. THE CRUX OF THE ARGUMENTS IS THAT THIS AMOUNT WAS DULY SHOWN IN THE RETURN AND IDENTICALLY DECIDED IN FAVOUR OF THE ASSESSE E IN THE CASE OF SMT. KAMLABAI. THE LD. CIT/DR DEFENDED THE ADDITION. WE HAVE PERUSED THE RECORD AND FIND THAT THE ADDITION OF RS.1,56,800/- RELATES TO A.YS. 1997-98, 1 998- 99 AND 2000-01 TREATING AS UNDISCLOSED INCOME OF THE ASSESSEE. IN RESPONSE TO NOTICE U/S 158BB OF THE IT ACT, THE ASSESSEE FILED HER RETURN IN FORM 2B ON 12.4.200 4. IN THE RETURNS FOR A.YS. 1997-98, 1998-99 AND 2000-01, THE INCOME WAS BELOW TAXABLE LIMIT, THEREFORE, SUCH RETU RNS WERE NOT FILED. THE ASSESSING OFFICER TREATED THE IN COME OF RS.1,56,800/- FOR THESE YEARS AS UNDISCLOSED INCOME. THE ASSESSEE FILED PHOTOCOPIES OF THE RETURNS FILED FOR 1999-00 10 AND 2002-03 SHOWING THAT THOUGH THE RETURNS WERE FILE D BUT THE INCOME WAS BELOW TAXABLE LIMIT. IN THE BLOCK ASSESSMENT, THE SCOPE IS LIMITED IN THE SENSE THAT ADD ITION HAS TO BE MADE CONSEQUENT TO THE MATERIAL UNEARTHED DURING THE SEARCH BECAUSE THE ASSESSMENT FOR THE BLOC K PERIOD IS EXPECTED TO BE MADE ON THE BASIS OF EVIDENC E FOUND AS A RESULT OF THE SEARCH OR REQUISITION OF THE BOOKS OF ACCOUNTS OR DOCUMENTS AND SUCH OTHER MATERIAL OR INFORMATION AS AVAILABLE WITH THE ASSESSING OFFICER. IN VIEW OF THESE FACTS AND THE DECISION OF THE TRIBUNAL IN CASE OF THE SMT. KAMLABAI WIFE OF SHRI KAILASH CHAND (GROUP CASES), THERE IS NO JUSTIFICATION TO MAKE THE ADDITION, THEREF ORE, THIS PART OF THE GROUND IS ALLOWED. THIS GROUND IS PARTLY ALLOWED. FINALLY, THE APPEAL OF THE ASSESSEE IS PARTLY ALLOWED. 11 4. THE REVENUE IN ITS CROSS-APPEAL HAS CHALLENGED RESTRICTING THE ADDITION TO RS.10,65,000/- FOR THE L AND SITUATED AT PALDA. THE CRUX OF ARGUMENTS ADVANCED BY THE LD. CIT/DR IS THAT WHILE DISPOSING OF THE ISSUE, THE LD. FIRST APPELLATE AUTHORITY, WITHOUT SPECIFYING ANY REASON, RESTRICTED THE ADDITION TO RS.10,65,000/-. ON THE OT HER HAND, THE LEARNED COUNSEL FOR THE ASSESSEE DEFENDED TH E IMPUGNED ORDER. 4.1 WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PERUS ED THE MATERIAL AVAILABLE ON RECORD. THE ASSESSING OFFICE R MADE THE ADDITION @RS.185/SQ.FT. FOR THE YEAR OF ACQUISITION OF THE PLOT SITUATED AT PALDA WHICH WAS RESTRICTED TO RS.150/SQ.FT. BY THE LD. CIT(A). THERE WAS NO REASON WITH THE ASSESSING OFFICER TO ADOPT THE RATE AT RS.185/SQ.FT., THEREFORE, WE FIND NO JUSTIFICATION TO INTERFERE WITH THE CONCLUSION DRAWN IN THE IMPUGNED ORDER. IT IS 12 AFFIRMED, RESULTING INTO THE DISMISSAL OF THE APPEAL OF THE REVENUE. FINALLY, THE APPEAL OF THE ASSESSEE IS PARTLY ALLOWED WHEREAS THE APPEAL OF THE REVENUE IS DISMISSED. THIS ORDER WAS PRONOUNCED IN THE OPEN COURT IN THE PRESENCE OF LD. REPRESENTATIVES FROM BOTH SIDES AT TH E CONCLUSION OF THE HEARING ON 2.4.2013. SD SD (R.C.SHARMA) (JOGINDER SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 2.4.2013 COPY TO: APPELLANT, RESPONDENT, CIT, CIT(A), DR, GU ARD FILE !VYS!