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

ITSSA 4/Ind/2019

• Counselvise Citation: [2021] 104 COUNSELVISE.COM (IT) 9436 (ITAT-INDORE)
• Duration Of Justice: 2 year(s) 7 month(s) 14 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 06-09-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2006-2007
• Appeal Filed On: 23-01-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S.S. MANTI
• Section: 131; 132; 143(3); 142(1); 153A; 143(2)

Judgement Text

आयकर अपील य अ धकरण, इंदौर यायपीठ, इंदौर IN THE INCOME TAX APPELLATE TRIBUNAL, INDORE BENCH, INDORE BEFORE HON’BLE 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 of the Assessee for Assessment Year 2006-07 is directed against the order of Ld. Commissioner of Income Tax(Appeals) (in short ‘Ld. CIT],-3 Bhopal dated 29.11.2018 which is arising out 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 short the ‘Act’) dated 31.12.2009 framed by ACIT-2(1), Bhopal. 2. Brief facts of the case as culled out from the records are that the assessee is an individual connected to Agrawals, Taparias and the Singhdcos group of Bhopal which was subjected to search u/s 132 of the Act on 13.11.2007 and assessee’s residential premises were also searched. Notice u/s 153A of the Act issued for filing the return. In response return of income for A.Y. 2006-07 filed on 19.06.2008 declaring income of 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 agricultural 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/- each. Ld. AO issued notice u/s 131 of the Act to both the sellers. Statements were recorded wherein Mr. Arvind Kumar stated having received the sale consideration of Rs.12,60,000/- and Mr. Laxmi Narayan Shri Raj Mohan Agarwal IT(SS)A No.04/Ind/2019 3 stated to have received at Rs.10,50,000/-. The Assessee’s share in the alleged land was 50%. Difference in sale consideration shown in the registered deeds and sale consideration stated in the statement u/s 131 of the Act as well as the affidavit worked out to Rs.4,60,000/-. Assessee’s share was calculated at Rs.2,80,000/-. Ld. AO after considering the submissions 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 the Ld. CIT(A) raising legal grounds challenging the addition being made without reference to any incriminating material found 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 raising following grounds of appeal: “1. That on the facts in the circumstances of the case and in law, the learned lower authorities are not justified in making/sustaining addition of Rs.192500 for the alleged on money payments for purchase of land from Arvind Kumar, the said unlawful and unjustified addition of Rs. 192500 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 justified in making/sustaining addition of Rs.87500 for the alleged on money payments for purchase of land from Laxmi Narayan Devi Prasad, the said unlawful and unjustified addition 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 evidence 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-abated assessment year and, therefore, without any incriminating 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 referring to the written submissions filed on 05.07.2021 and also referred to the Shri Raj Mohan Agarwal IT(SS)A No.04/Ind/2019 5 paper book running from pages 1 to 41and prayed for deletion of addition. 7. Per contra ld. DR vehemently argued supporting the 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 contending that the year under appeal is non-abated assessment year and no incriminating material was referred while making addition 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 selecting assessee’s case for scrutiny expires on 30 th September 2007. Search was conducted on 13.11.2007. Except registered sale deed no other incriminating material was found. Consideration mentioned in the registered sale deed is duly accounted for. Other evidences are gathered by the Ld. AO by issuing notice u/s 131 of the Act and statement of the sellers were recorded during the course of assessment proceedings. The year under appeal is a non-abated assessment year. Addition in such non-abated assessment years Shri Raj Mohan Agarwal IT(SS)A No.04/Ind/2019 6 can be made only on the basis of incriminating material found during the course of search. 10. Our this proposition is supported by the judgment 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, therefore, respectfully following the above referred decisions allow the legal ground raised by the assessee and delete the impugned addition. 11. As regards ground no. 1 to 3 raised on merits challenging the addition of Rs.2,80,000/-, we find that the purchase consideration paid by the assessee is not below the guideline rate applicable for calculating stamp duty. Both the sellers namely Mr. Arvind Kumar and Mr. Laxmi Narayan have signed the registered deed in the presence of the Sub-Registrar for registering the documents. Further, the assessee has not been provided any opportunity to cross examine alleged sellers nor the Ld. AO has initiated any proceedings against the sellers for making additions in their hands for unaccounted receipts. Shri Raj Mohan Agarwal IT(SS)A No.04/Ind/2019 7 12. We, therefore, under the given facts and circumstances of the case, are of the considered view that Ld. AO was not justified in making the addition of Rs.2,80,000/- in the hands of assessee. We, thus, set aside the finding of Ld. CIT(A) and delete the addition and allow ground no. 1 to 3 raised by the assessee. Ground No.5 is general in nature which needs no adjudication. 13. In the result, Assessee’s 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 MEMBER दनांक /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