Sh. Jagjit Singh, Amritsar. V. The Income tax Officer, Amritsar.

MA 44/ASR/2013

• Counselvise Citation: [2016] 124 COUNSELVISE.COM (IT) 4401 (ITAT-AMRITSAR)
• Duration Of Justice: 3 year(s) 2 month(s) 18 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 16-06-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 08-04-2016
• Assessment Year: 2007-2008
• Appeal Filed On: 28-03-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: A N MISRA
• Assessee Lawyers: P N ARORA

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH; AMRITSAR BEFORE SH. A.D.JAIN, JUDICIAL MEMBER AND SH. T.S.KAPOOR, ACCOUNTANT MEMBER M. A. NO.44 (ASR)/2013 (ARISING OUT OF ITA NO.363(ASR)/2011) ASSESSMENT YEAR: 2007-08 SHRI JAGJIT SINGH S/O S. AMRIK SINGH, GALI GUJJRAN, JANDIALA GURU AMRITSAR. PAN: AWNPS5528A VS. ITO, WARD-4(2), AMRITSAR. (APPELLANT) (RESPONDENT) APPELLANT BY: SH. P.N.ARORA (ADV.) RESPONDENT BY: SH. A.N.MISRA (DR) DATE OF HEARING: 27.05.2016 DATE OF PRONOUNCEM ENT:16.06.2016 ORDER PER T. S. KAPOOR (AM): THIS MISCELLANEOUS APPLICATION HAS BEEN FILED BY A SSESSEE AGAINST THE ORDER OF TRIBUNAL DATED 11.09.2012. 2. IN THE MISCELLANEOUS APPLICATION THE ASSESSEE SU BMITTED THAT THE HONBLE TRIBUNAL WHILE DECIDING THE ISSUE UNDER APP EAL FILED BY REVENUE HAS SKIPPED CERTAIN IMPORTANT DOCUMENTS SUCH AS POW ER OF ATTORNEY DATED 24.07.2006 IN FAVOUR OF SH. JAGJIT SINGH (ASS ESSEE) AND SUBSEQUENT CANCELLATION OF SUCH POWER OF ATTORNEY ON 17.11.200 6, THE STATEMENT OF PURCHASER OF GAS AGENCY AND FURTHER ENTRIES IN THE OBC BANK EXPLAINING THE ENTRIES OF RECEIPT OF SALE CONSIDERATION ETC. T HE LEARNED AR SUBMITTED THAT ASSESSEE HAD FILED A PAPER BOOK CONTAINING 38 PAGES WHEREIN ALL ITA NO.44 (ASR)/2013 ASST. YEAR : 2007-08 2 THESE DOCUMENTS WERE FILED BUT WHICH THE HON,BLE TR IBUNAL HAD FAILED TO TAKE INTO CONSIDERATION. THE LEARNED AR IN THIS RES PECT ALSO HAS FILED AN AFFIDAVIT OF SH. ATMA RAM DOGRA, ADVOCATE, WHO HAD REPRESENTED THE CASE BEFORE THE TRIBUNAL WHEREIN THE ADVOCATE MR. D OGRA HAD AFFIRMED ABOUT FILING OF PAPER BOOK CONTAINING 38 PAGES AND HAD ALSO AFFIRMED THAT THESE ALL DOCUMENTS WERE ARGUED BEFORE THE HONBLE ITAT BUT THE SAME DO NOT FIND MENTION IN THE ORDER OF THE TRIBUNAL. T HE LEARNED AR SUBMITTED THAT IT IS AN UNDISPUTED FACT THAT MR. PA RAMDEEP SINGH WAS OWNER OF AMRITSAR GAS AGENCY WHICH WAS EVIDENT FROM THE DOCUMENTS IN PAPER BOOK AND SH. JAGJIT SINGH HAD RECEIVED THE SA LE CONSIDERATION FOR SALE OF GAS AGENCY ON BEHALF OF SH PARMINER SINGH O WNER OF GAS AGENCY AND THEREFORE, THE HONBLE TRIBUNAL WITHOUT CONSIDE RING THE DOCUMENTS ON RECORD HAD HELD THAT SH. JAGJIT SINGH TO BE THE OWNER OF THE GAS AGENCY AND HAD ALLOWED THE APPEAL OF REVENUE. IT WA S SUBMITTED THAT HAD THE MATERIAL ON RECORD WAS CONSIDERED THE ASSES SEE COULD NOT HAVE BEEN HELD TO BE OWNER OF GAS AGENCY. HE SUBMITTED T HAT NON CONSIDERATION OF MATERIAL ON RECORD AMOUNTS TO A MI STAKE APPARENT FROM THE RECORD AND THEREFORE, NEEDS TO BE RECALLED. THE LEARNED DR, ON THE OTHER HAND, HEAVILY RELIED UPON THE ORDER OF TRIBUN AL. 3. WE HAVE HEARD THE RIVAL PARTIES AND HAVE GONE TH ROUGH THE MATERIAL PLACED ON RECORD. THE MISCELLANEOUS APPLIC ATION WAS EARLIER HEARD ON 5.2.2016, HOWEVER, THE SAME WAS RE-FIXED F OR CLARIFICATIONS AND WAS FINALLY HEARD ON 27.05.2016. WE FIND THAT THE F ACTS IN THE PRESENT ITA NO.44 (ASR)/2013 ASST. YEAR : 2007-08 3 CASE ARE THAT ONE MR. JAGJIT SINGH (THE ASSESSEE) I N THIS CASE AS POWER OF ATTORNEY HOLDER OF SH. PARMINDER SINGH SOLD GAS AGE NCY NAMELY M/S. AMRITSAR GAS AGENCY FOR CONSIDERATION OF RS.80 LACS AND HAS CLAIMED TO HAVE PAID THE ABOVE AMOUNT OF CONSIDERATION TO THE OWNER MR. PARMINDER SINGH. THE LEARNED CIT(A) HAD ALLOWED THE APPEAL OF ASSESSEE WHEREBY HE HAD DELETED THE ADDITION OF RS.80 LACS MADE IN THE HANDS OF ASSESSEE. HOWEVER, THE HONBLE TRIBUNAL BY ITS ORDER DATED 11 .09.2012 HAS REVERSED THE ORDER OF LEARNED CIT(A) BY HOLDING AS UNDER: 7.1 AS REGARDS THE ISSUE IN DISPUTE, THE ASSESSEE HAD CLAIMED TO BE POWER OF ATTORNEY HOLD OF SH. PARAMDEEP SINGH, THE OWNER OF M/S. AMRITSAR GAS SERVICE, PUTLIGHAR, AMRITSAR AND AFTER OBTAINING THE POWER OF ATTORNEY, THE ASSESSEE HAD TRANSFERRED THE AGENCY T O SH. SADHA SINGH AND SH. NIRMALJIT SINGH BEING SHARE AND SH. SWINDER S INGH BEING THE ANOTHER SHARE OF CONSIDERATION OF RS.80 LAKHS AS PER AGREEMENT DATED 29.08.2006. IT WAS EXPLAINED BY THE ASSESSEE THAT T HIS AMOUNT DOES NOT BELONG TO HIM AND WHATEVER AMOUNT RECEIVED ON BEHAL F OF M/S. AMRITSAR GAS SERVICE, HAS BEEN DULY PAID BACK TO M/S. AMRITS AR GAS SERVICE AND HE HAS MERELY DONE THE DUTY OF AN AGENT BEING HOLDER O F POWER OF ATTORNEY. IT WAS CLAIMED THAT THE AMOUNT HAS BEEN HANDED OVER TO THE REAL OWNER I.E. SH. PARAMDEED SINGH. THE CONFIRMATION HAS BEEN GIVE N BY SH. HARDALBIR SINGH S/O SH. SADHA SINGH ON 10.09.2009. IN THE PRE SENT CASE, NO CONFIRMATION IS ON RECORD OF THE ACTUAL BUYER OF TH E POWER OF ATTORNEY I.E., SADHA SINGH AND NIRMALJIT SINGH BEING SHARE PURCH ASER AND SH. SWINDER SINGH BEING ANOTHER SHARE AS PURCHASER. S ECONDLY, THERE IS NO CONFIRMATION OR ANY AFFIDAVIT OF SH. PARAMDEEP SING H HAVING RECEIVED SUCH AN AMOUNT OF RS.80 LAKHS FROM THE ASSESSEE SH. JAGI T SINGH ASSESSEE SH. JAGJIT SINGH THERE ARE NO INCOME TAX PARTICULARS OF SH. PARAMDEEP SINGH BROUGHT ON RECORD BY THE ID. CIT(A) WHILE DELETING THE ADDITIONS THAT THE AMOUNT HAS ACTUALLY BEEN TRANSFERRED TO SH. PARAMDE EP SINGH OR THE SAME HAS BEEN CLAIMED AS PURCHASE CONSIDERATION BY SH PA RAMDEEP SINGH IN ITA NO.44 (ASR)/2013 ASST. YEAR : 2007-08 4 HIS RETURN OF INCOME. NO PERSONAL DEPOSITION OF SH. PARAMDEEB SINGH HAS BEEN MADE EITHER BEFORE THE AO OR BEFORE THE LD. CIT(A). IF AT ALL, SH. PARAMDEEP SINGH HAD RECEIVED RS.80 LAKHS THEN HE MUST HAVE DECLARED THE SAME IN HIS RETURN OF INCOME BUT NOTHING HAS BEEN BROUGHT ON RECORD BY THE LD. C1T(A) BEFORE DELETING THE ADDITION. IN NUTSHELL, THERE IS NOTHING ON RECORD TO PROVE THAT IN THE FORM OF ANY CONFIRMATION, AFFIDAVIT OR INCOME TAX RETURN OR INC OME TAX PARTICULARS OF SH. PARAMDEEP SINGH TO PROVE THAT HE HAS RECEIVED THE P URCHASE CONSIDERATION OF RS.80 LAKHS THROUGH SH. JAGJIT SINGH, THE POWER OF ATTORNEY HOLDER. THE LD. CIT(A) WITHOUT BRINGING ON RECORD SUCH VITAL FA CTS HAS DELETED THE ADDITION AND ACCEPTED THE EXPLANATION OF THE ASSESS EE. THE LD. CIT(A) HAS PUT ALLEGATIONS ON THE AO THAT AO SHOULD HAVE QUEST IONED THE O.B.C. BANK FOR FAILURE TO CLAIM CASH TRANSACTIONS OF RS. 10 LA KHS AND ABOVE. HE FURTHER ALLEGED THAT AO SHOULD HAVE CONSIDERED THE NECESSIT Y OF PASSING INFORMATION TO THE AO OF AMRITSAR GAS AGENCY AS WEL L AS THREE VENDEES BUT THE AO HAS NOT DONE SO. IN OUR VIEW, WHEN THE FACTS OF THE CASE WERE SO APPARENT AND CLEAR TO THE ID. CIT(A) THAT SUCH A CA SE CANNOT BE DECIDED N FAVOUR OF THE ASSESSEE WITHOUT CONFIRMING THE SALE CONSIDERATION HAVING BEEN RECEIVED BY SH. PARAMDEEP SINGH FROM HIS INCOME TAX RECORDS OR FROM THREE VENDEES, THEN DECISION OF THE ID. CIT(A) IN FAVOUR OF ASSESSEE REVERSING THE ORDE R OF THE AC), IS CONSIDERED TO BE BAD AND CANNOT BE SUSTAINED. THE O RDER OF THE ID. CIT(A) FOR THE REASONS MENTIONED HEREINABOVE IS PER VERSE OF THE FACTS AS MENTIONED IN THE ASSESSMENT ORDER AND AS M ENTIONED HEREINABOVE. THEREFORE, THE DECISION MADE BY THE ID . C1T(A) IS REVERSED AND THE ORDER OF THE ASSESSING OFFICER IS RESTORED. THUS, ALL THE GROUNDS OF THE REVENUE ARE ALLOWED. 4. WE FIND THAT HONBLE TRIBUNAL HAS DISBELIEVED TH E CONTENTION OF ASSESSEE THAT HE HAD SOLD THE GAS AGENCY ON BEHALF OF REAL OWNER SH. PARAMDEEP SINGH ON THE BASIS THAT NO CONFIRMATION F ROM SH. PARAMDEEP ITA NO.44 (ASR)/2013 ASST. YEAR : 2007-08 5 SINGH FOR RECEIVING AMOUNT FROM SH. JAGJIT SINGH WA S ON RECORD. THE HONBLE TRIBUNAL HAS FURTHER OBSERVED THAT NO INCOM E TAX PARTICULARS OF SH. PARAMDEEP SINGH WERE BROUGHT ON RECORD BY THE L EARNED CIT(A). WHILE HOLDING THIS FINDING THE HONBLE TRIBUNAL IGN ORED THE FACTUAL POSITION AS CONTAINED IN THE DOCUMENTS PLACED IN PA PER BOOK FROM PAGES 1 TO 38 WHEREIN THE COPY OF POWER OF ATTORNEY IN FA VOUR OF THE MR. JAGJIT SINGH IS PLACED WHEREIN MR. PARAMDEEP SINGH HAD AFF IRMED OF BEING OWNER OF THE SAID GAS AGENCY. WE FURTHER FIND THAT THIS POWER OF ATTORNEY IS DULY REGISTERED WITH THE SUB-REGISTRAR, AMRITSAR . WE FURTHER FIND THAT IN THE AGREEMENT TO SELL FOR GAS AGENCY AGAIN THE P OWER OF ATTORNEY HOLDER NAMELY SH. JAGJIT SINGH THAT IS ASSESSEE HAD ENTERED THE AGREEMENT ON BEHALF OF MR. PARAMDEEP SINGH. THE AGR EEMENT TO SELL IS ALSO REGISTERED WITH SUB-REGISTRAR, AMRITSAR. THE C OUNSEL OF THE ASSESSEE SH. ATMA RAM DOGRA WHO HAD REPRESENTED THE CASE BEF ORE THE TRIBUNAL HAD FILED AN AFFIDAVIT AFFIRMING THAT THE DOCUMENT CONTAINED IN THE PAPER BOOK WERE DULY BROUGHT INTO THE NOTICE OF HON,BLE T RIBUNAL AND ARGUMENTS WERE ALSO ADVANCED ON THESE DOCUMENTS BUT THESE WERE NOT DISCUSSED IN THE TRIBUNAL ORDER. WE FIND MERITS IN THE ARGUMENTS OF LEARNED AR AS THE NON CONSIDERATION OF DOCUMENTS IS A MISTAKE APPARENT FROM RECORD AND THEREFORE, WE RECALL THE ORDER OF T HE TRIBUNAL DATED 11.09.2012 AND THE REGISTRY IS DIRECTED TO FIX THE APPEAL FOR HEARING ON MERITS IN DUE COURSE OF TIME AFTER GIVING DUE NOTIC E TO THE PARTIES. ITA NO.44 (ASR)/2013 ASST. YEAR : 2007-08 6 5. IN VIEW OF THE ABOVE, THE MISCELLANEOUS APPLICAT ION FILED BY ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 16 TH JUNE, 2016. SD/- SD/- (A.D. JAIN) (T. S. KAPOOR) JUDICIAL MEMBER ACC OUNTANT MEMBER DATED: 16.06.2016. /PK/ PS. COPY OF THE ORDER FORWARDED TO: 1. THE ASSESSEE: 2. THE 3. THE CIT(A), 4. THE CIT, 5. THE SR DR, I.T.A.T., TRUE COPY BY ORDER