Shri Bhanwarlal L. Gour, Baroda V. The ACIT., Cent. Circle-2, Baroda

MA 289/AHD/2017

• Counselvise Citation: [2018] 123 COUNSELVISE.COM (IT) 5713 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 month(s) 20 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 12-02-2018
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2009-2010
• Appeal Filed On: 22-11-2017
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: MAHESH TIWARI
• Assessee Lawyers: M K PATEL
• Keywords: Unexplained investment; Income from undisclosed sources
• Section: 69

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD A BENCH BEFORE: SHR I RAJPAL YADAV , JUDICIAL MEMBER AND SHRI AMARJIT SINGH, ACCOUNTANT MEMBER SHRI BHANWARLAL L. GOUR, 10 - 11, ATMARAJ SOCIETY, MEHSANANAGAR GARBA GROUND ROAD, OPP. NANUBHAI LEISURE WORLD, NIZAMPURA, VADODAR - 390007 PAN: AFSPG4789H (APPELLANT) VS THE ACIT, CIRCLE - 2 , AHMEDABAD (RESPONDENT) REVENUE BY : S H RI MAHESH TIWARI , SR. D . R. ASSESSEE BY: S H RI M.K. PATEL , A.R. DATE OF HEARING : 19 - 01 - 2 018 DATE OF PRONOUNCEMENT : 12 - 02 - 2 018 / ORDER P ER : AMARJIT SINGH, ACCOUNTANT MEMBER : - THIS MA IS ARISING OUT OF IT(SS)A NO. 109/AHD/2013 FOR ASSESSMENT YEAR 2009 - 10 VIDE ORDER DATED 01 ST JUNE, 2017. THE CONTENTS OF THE MISCELLANEOUS APPLICATION OF THE ASSESSEE IS AS FOLLOWS: - THE APPLICANT ABOVE NAMED MOST RESPECTFULLY BEGS TO SUBMIT AS UNDER: - (1) THAT THE APPEAL FILED BY THE ASSESSEE ABOVE - NAMED FOR THE ASSESSMENT YEAR 2009 - 10 BEARING IT(SS)A.NO.109/AHD/2013 IS DECIDED BY HON'BLE ITAT, AHMEDABAD BENCH 'A', AHMEDABAD VIDE ORDER DATED 01.06.2017. (2) ON PERUSAL OF THE SAID ORDER, IT IS HUMBLY PRAYED THAT THE FOLLOWING MISTAKES APPARENT ON RECORD ARE NOTICED, WHICH MAY KINDLY BE CONSIDERED: MA NO . 289 / A HD/20 17 (ARISING OUT OF IT (SS) A N O. 109/AHD/2013 ) A SSESSMENT YEAR 20 09 - 10 M A NO. 289 /AHD/2017 {ARISING OUT OF IT (S) A NO. 109 /AHD/20 13} A.Y. 20 09 - 10 PAGE NO SHRI BHANWARLAL L. GAUR VS. ACIT 2 (3) ON PAGE 2 PARA 3 OF THE ORDER IT IS MENTIONED THAT THE FACTS OF THE APPEALS FOR A.Y.2006 - 07 (IT(SS)A. NO 108/AHD/2013) AND A.Y.2009 - 10 (IT(SS)A.NO. 109/AHD/2013) ARE SIMILAR. HOWEVER, IT IS RESPECTFULLY SUBMITTED THAT THE FACTS ARE NOT SIMILAR AT ALL. (4) IN A.Y. 2006 - 07, THE ADDITION OF RS.1,10,00,OOO/ - WAS MADE AS UNEXPLAINED IN VESTMENT IN RESPECT OF TRANSACTION OF PURCHASE OF PROPERTY AS JOINT OWNERS ALONGWITH THE ASSESSEE'S WIFE AND SATYAPRAKASH GARG AND NARENDRAKUMAR GARG. THIS ADDITION WAS MADE MAINLY RELYING ON A SEIZED BANAKHAT DATED 3/3/2006 FOR RS.4.25 CRORE FOUND FROM AS SESSEE' S PREMISES AND THE TOTAL SALE CONSIDERATION SHOWN OF RS.2,0 5,00,000 / - . THE HON'BLE ITAT HAS ALSO CONFIRMED THE SAID ADDITION BY MAINLY RELYING ON THE SAID BANAKHAT WHICH PERTAINED TO THE PURCHASE OF PROPERTY IN A.Y.2006 - 07. (5) IN A.Y. 2009 - 10, THE ASSESSEE AND HIS WIFE PURCHASED THE 50% SHARE OF GARG FAMILY FOR A TOTAL CONSIDERATION OF RS.57 LACS VIDE SALE DEED DATED 27/07/2008. HOWEVER, THE AO MADE A SIMILAR ADDITION OF RS.1,10,00,000/ - AS MADE IN A.Y.2006 - 07 SIMPLY ON PRESUMPTION. IT IS SUBMITTED THAT FOR THE PURCHASE OF 50% SHARE OF GARG FAMILY THERE IS NO BANAKHAT MADE OR FOUND. THE BANAKHAT WAS ONLY PERTAINING TO THE ORIGINAL PURCHASE OF PROPERTY IN A.Y.2006 - 07. AS FAR AS A.Y. 2009 - 10 IS CONCERNED, THERE IS NO SUCH BANAKHAT NOR IT THERE ANY OTHE R ADVERSE EVIDENCE FOUND, AND THIS FACT IS ALSO RECORDED BY LEARNED CIT (A) IN PARA 6.21 OF HIS ORDER. THIS FACT WAS ALSO POINTED OUT AND ARGUED DURING THE COURSE OF HEARING OF THE APPEALS. (6) HENCE, IT IS RESPECTFULLY SUBMITTED THAT THE FACTS OF BOTH TH E YEARS AND BOTH THE TRANSACTIONS ARE DIFFERENT AND THE ADDITION MADE IN A.Y. 2009 - 10 IS ONLY ON BASIS OF PRESUMPTION AND NOT ON ANY EVIDENCE, AND HENCE DESERVES TO BE DELETED. 7) THIS FACT IS NOT AT ALL DISCUSSED IN THE ORDER OF HON'BLE ITAT AND HENCE IT IS HUMBLY PRAYED THAT THE ORDER MAY KINDLY BE RECALLED/ MODIFIED TO THE ABOVE EXTENT, AND OBLIGE. (8) SUPPORTING AFFIDAVIT IS ENCLOSED HEREWITH. 2. THE BRIEF FACTS OF THE ISSUE IN MISC. APPLICATION IS THAT T HE ASSESSING OFFICER HELD THAT THE ACTUAL SALE CONSIDERATION PAID FOR THE SAID PROPERTY WAS RS. 4.25 CRORES AS AGAINST DOCUMENT PRICE OF RS. 2.05 CRORE . T HE BALANCE RS. 2.20 CRORE, OVER AND ABOVE THE DOCUMENT PRICE WAS PAID IN CASH WHICH REPRESENTS THE UNACCOUNTED INCOME OF THE PURCHASERS WITHIN T HE MEANING OF SECTION 69 OF THE ACT. THE ASSESSING OFFICER FURTHER HELD THAT ASSESSEE AND HIS WIFE WAS HAVING 50% SHARE IN THE LAND PROPERTY AND THE ASSESSEE ADMITTED THAT THE TRANSACTIONS OF HIS WIFE ACTUALLY REPRESENTS HIS TRANSACTIONS ONLY. THEREFORE, THE ASSESSING OFFICER HELD THAT R.S. 1,10,00,000/ - BEING 50% OF THE TOTAL UNACCOUNTED INVESTMENT OF RS. 2.20 CRORE WAS THE INCOME OF THE ASSESSEE DURING THE YEAR UNDER CONSIDERATION (A.Y.2008 - 09). SUBSEQUENTLY, THE SHARE OF THE GARG FAMILY WAS ALSO PU RCHASED BY THE GOUR FAMILY(ASSESSEE'S FAMILY) FOR A TOTAL CONSIDERATION OF RS. 57.00 LAKHS AS PER SALE DEED NO. 11515 DATED 27 - 07 - 2008. M A NO. 289 /AHD/2017 {ARISING OUT OF IT (S) A NO. 109 /AHD/20 13} A.Y. 20 09 - 10 PAGE NO SHRI BHANWARLAL L. GAUR VS. ACIT 3 THEREFORE THE ASSESSING OFFICER HELD THAT 50% OF THE TOTAL UNACCOUNTED INVESTMENT OF RS.2.20 CRORES WAS THE INCOME OF T HE ASSESSEE ALSO TO BE TAXED IN THE ASSESSMENT YEAR 2009 - 10. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIAL ON RECORD CAREFULLY. 3 . THE LD. CIT(A) HAD SUSTAINED THE ADDITION MADE BY THE ASSESSING OFFICER . THE PART OF THE OBSERVATION OF THE LD.CIT(A) ARE REPRODUCED AS UNDER: - 6.21 SO FAR AS AY 2009 - 10 IS CONCERNED, IT IS NOTED THAT THE APPELLANT AND HIS WIFE HAVE PURCHASED BACK THE 50% SHARE IN THE PROPERTY BELONGING TO THE GARG FAMILY AT A DOCUMENTED CONSIDERATION OF RS.57 LAKHS AS PER TH E SALE DEED DATED 27 - 7 - 2008. IT IS NOTED THAT THE APPELLANT HAS PURCHASED BACK 50% SHARE IN THE PROPERTY AT THE SAME DOCUMENTED PRICE AT WHICH IT WAS PURCHASED ON 26 - 05 - 2006 EVEN AFTER A PERIOD OF 2 YEARS WHEREAS IN REALITY THE PRICE OF REAL ESTATE HAS BEE N INCREASING OVER THE YEARS. HOWEVER, SINCE THERE IS NO ADVERSE EVIDENCE AVAILABLE ON RECORD, REGARDING THE ACTUAL CONSIDERATION PAID, THE AO HAS HELD THAT RS.1,10,00,000/ - BEING 50% OF THE TOTAL UNACCOUNTED INVESTMENT OF RS.2,20,00,000/ - IS THE INCOME OF THE APPELLANT FOR AY 2009 - 10 ALSO, IN TERMS OF SECTION 69 OF THE ACT ON THE SAME LINE AS THE ADDITION HAS BEEN MADE IN AY 2006 - 07. CONSIDERING THE ABOVE, THE ADDITION MADE BY THE AO ON ACCOUNT OF UNEXPLAINED INVESTMENT IN AY 2009 - 10 OF RS.1,10,00,000/ - IS ALSO CONFIRMED. THE FIRST GROUND OF APPEAL FOR BOTH THE YEARS IS ACCORDINGLY, DISMISSED. 4 . WE HAVE CLEARLY REFERRED THE AFORESAID FINDINGS OF THE LD.CIT(A) IN THE ORDER DATED 1/6/2017 OF THE ITAT. IT WAS ALSO STATED THAT AS PER THE BANAKHAT DATED 03 - 0 3 - 2006 THE TOTAL COST OF THE SAID PROPERTY INCLUDING LAND AND ASSETS WAS OF RS. 4.25 CRORES. IT WAS ALSO STATED THAT THE BANAKHAT DATED 03 - 03 - 2006 WAS DULY NOTARIZED DOCUMENT . IT WAS ALSO MENTIONED THAT THE ASSESSEE COULD NOT JUSTIF Y THE REASON BEHIND S UBSEQUENT REFLECTING OF TREMENDOUS FALL INTO THE VALUE OF HE SAID PROPERTY WITHOUT CANCELLING THE DULY NOTARIZED BANAKHAT DATED 3 - 03 - 2006. THE LD. CIT(A) HAS STATED IN HIS FINDINGS THAT THE ASSESSEE AND HIS WIFE HAVE PURCHASED BACK THE 50% SHARE IN THE PRO PERTY BELONGING TO THE GARG FAMILY AT A DOCUMENTED CONSIDERATION OF RS.57 LAKHS AS PER THE SALE DEED DATED 27 - 7 - 2008. IN HIS FINDINGS HE HAS ALSO STATED THAT AO HAS HELD THAT RS.1,10,00,000/ - BEING M A NO. 289 /AHD/2017 {ARISING OUT OF IT (S) A NO. 109 /AHD/20 13} A.Y. 20 09 - 10 PAGE NO SHRI BHANWARLAL L. GAUR VS. ACIT 4 50% OF THE TOTAL UNACCOUNTED INVESTMENT OF RS.2,20,00,000 / - IS THE INCOME OF THE APPELLANT FOR AY 2009 - 10 ALSO, IN TERMS OF SECTION 69 OF THE ACT ON THE SAME LINE AS THE ADDITION HAS BEEN MADE IN AY 2006 - 07. CONSIDERING THE ABOVE, THE ADDITION MADE BY THE AO ON ACCOUNT OF UNEXPLAINED INVESTMENT IN AY 2009 - 10 OF RS.1,10,00,000/ - WAS CONFIRMED. TO COVER THE WHOLE FINDINGS OF THE LD. CIT(A) IN THE ITAT ORDER IT WAS HELD THAT THAT AFTER CONSIDERING THE FINDINGS OF THE LD.CIT(A) THERE WAS NO REASONS TO INTERFERE IN THE DECISION OF THE LD. CIT(A) . AFTER CONSIDERING THE AB OVE FACTS AND CIRCUMSTANCES WE DO NOT FIND ANY APPARENT MISTAKE FROM RECORD, THEREFORE, THE MISC. APPLICATION OF THE ASSESSEE IS DISMISSED. 5. IN THE RESULT , THE MISC. APPLICATION OF THE ASSESSEE IS DISMISSED. ORDER PR ONOUNCED IN THE OPEN C OURT ON 12 - 02 - 201 8 SD/ - SD/ - ( RAJPAL YADAV ) ( AMARJIT SINGH ) JUDICIAL MEMBER ACCOUNTANT MEMBER AHMEDABAD : DATED 12 /02 /2018 / COPY OF ORDER FORWARDED TO: - 1. ASSESSEE 2. REVENUE 3. CONCERNED CIT 4. CIT (A) 5. DR, ITAT, AHMEDABAD 6. GUARD FILE. BY ORDER/ , / ,