NUTAN SHARMA, BHARATPUR v. ITO, BHARATPUR

ITA 107/JPR/2016 | 2011-2012
Pronouncement Date: 28-09-2016 | Result: Partly Allowed

Appeal Details

RSA Number 10723114 RSA 2016
Assessee PAN AEMPS5035H
Bench Jaipur
Appeal Number ITA 107/JPR/2016
Duration Of Justice 7 month(s) 24 day(s)
Appellant NUTAN SHARMA, BHARATPUR
Respondent ITO, BHARATPUR
Appeal Type Income Tax Appeal
Pronouncement Date 28-09-2016
Appeal Filed By Assessee
Order Result Partly Allowed
Bench Allotted Not Allotted
Tribunal Order Date 29-09-2016
Assessment Year 2011-2012
Appeal Filed On 04-02-2016
Judgment Text
- VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL JAIPUR BENCHES (SMC) JAIPUR JH HKKXPUN] YS[KK LNL; DS LE{K BEFORE: SHRI BHAGCHAND ACCOUNTANT MEMBER VK;DJ VIHY LA-@ ITA NO. 107/JP/2016 FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2011-12 SMT. NUTAN SHARMA W/O SHRI K.K. SHARMA 148 KRISHNA NAGAR BHARATPUR CUKE VS. THE ITO WARD 1 BHARATPUR LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO .: AEMPS 5035 H VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY: SHRI RAJENDRA AGARWAL CA JKTLO DH VKSJ LS@ REVENUE BY:SHRI R.A. VERMA ADDL.CIT - DR LQUOKBZ DH RKJH[K@ DATE OF HEARING : 27/09/2016 ?KKS'K .KK DH RKJH[K@ DATE OF PRONOUNCEMENT : 29 /09/2016 VKNS'K@ ORDER PER BHAGCHAND AM THE ASSESSEE HAS FILED AN APPEAL AGAINST THE ORDER OF THE LD. CIT(A) ALWAR DATED 26-11-2015 FOR THE ASSESSMENT Y EAR 2011-12 RAISING THEREIN FOLLOWING GROUNDS OF APPEAL. (I) THE LD. CIT(A) HAS ERRED IN CONFIRMING THE ADDITION OF RS. 21.50 LACS ON ACCOUNT OF ADVANCES AGAINST AGREEMENT FOR SALE OF LAND U/S 68 OF THE I.T. ACT 1961 ITA NO. 107/2016 SMT. NUTAN SHARMA VS. ITO WARD- 1 BHARATPUR 2 (II) CONFIRMING THE ADDITION OF RS. 2 87 850/- OUT OF ADDITION OF RS. 3 87 850/- ON ACCOUNT OF DISALLOWA NCE OF LAND DEVELOPMENT CHARGES. 2.1 APROPOS GROUND NO. 1 BRIEF FACTS OF THE CASE A S EMERGES FROM THE ORDER OF THE LD. CIT(A) ARE AS UNDER:- 4.5 I HAVE PERUSED THE ASSESSMENT ORDER AS WELL A S REMAND REPORT OF THE AO AND SUBMISSIONS MADE INCLUDING JUD ICIAL CITATIONS AND CROSS REPLY OF THE APPELLANT AND FIND THAT AN A DDITION OF RS. 21 50 000/- (WRONGLY MENTIONED BY THE APPELLANT IN THE GROUNDS OF APPEAL AS RS. 21 90 000/-) HAS BEEN MADE BY THE AO ON ACCOUNT OF UNEXPLAINED ADVANCES RECEIVED AGAINST SALE OF LAND. THE APPELLANT HAS FAILED TO FURNISH ANY EVIDENCE TO PROVE THE IDE NTITY OF THE PAYER IN THE FORM OF NAME AND ADDRESS OF THE PERSON WHO HAS GIVEN THE ADVANCE TO THE APPELLANT GENUINENESS OF THE TRANSA CTION DETAILS OF THE PAYMENT MADE CREDITWORTHINESS OF THE PAYER C OPY OF THE BANK ACCOUNT COPY OF THE ITRS PAN ETC. IN THE ABS ENCE OF THESE DETAILS THE APPELLANT HIMSELF FILED A LETTER BEFORE THE AO (A COPY OF WHICH IS FILED IN THE PRESENT PROCEEDINGS ALSO) DAT ED 28-03-2014 THEREBY AGREEING TO OFFER THE SAID AMOUNT OF ADVANC ES RECEIVED FROM THE FOLLOWING PERSONS FOR TAXATION AS ADDITION AL INCOME WHICH HAS NOT BEEN DISCLOSED IN THE ITR. (A) JAGDISH LAWANIA RS. 3 50 000/- (B) RUKMANI DEVI RS. 4 00 000/- MADAN LAL SHARMA RS. 4 00 000/- (D) KALAWATI SAINI RS. 10 00 000/- TOTAL RS. 21 50 000/- 4.6 THEREFORE IN THE ABSENCE OF ANY DETAIL BEING F URNISHED TO SUBSTANTIATE THE SOURCES OF RECEIPTS OF RS. 21 5 0 000/- STATED TO HAVE BEEN RECEIVED AS ADVANCE AGAINST SALE OF LAND AND ON THE BASIS OF LETTER OF SURRENDER BEING FILED BEFORE THE AO T HE SAID AMOUNT OF RS. 21 50 000/- WAS ADDED TO THE INCOME OF THE APPE LLANT AS EXPLAINED CREDITS U/S 68 OF THE I.T. ACT. ITA NO. 107/2016 SMT. NUTAN SHARMA VS. ITO WARD- 1 BHARATPUR 3 4.7 THE APPELLANT HAS STATED THAT THE AMOUNT OFFERE D FOR SURRENDER WAS WITHDRAWN BY FILING A LETTER BEFORE T HE AO ON 2 ND APRIL 2014 AS THE AMOUNT OF RS. 21 50 000/- WAS SU RRENDERED ON THE CONDITION THAT NO PENALTY PROCEEDINGS WOULD BE INITIATED BY THE AO. SINCE THE AO HAS INITIATED PENALTY PROCEEDINGS U/S 271(1) (C )OF THE I.T. ACT THEREFORE THE LETTER OF SURRE NDER OF INCOME WAS WITHDRAW. 4.8 HAVING CONSIDERED THE SUBMISSION MADE IN THIS R EGARD AND EVIDENCE FILED IN THE COURSE OF REMAND PROCEEDI NGS I FIND THAT THE APPELLANT HAS NOT BEEN ABLE TO FURNISH ANY EVID ENCE AS STATED IN PARA 4.5 ABOVE SO AS TO PROVE THE IDENTITY OF THE PAYER GENUINENESS OF THE TRANSACTION AND CREDITWORTHINESS OF THE PAYE R. THE APPELLANT HAS MERELY REITERATED THE BALD STATEMENTS THAT THE AMOUNT HAVE BEEN RECEIVED FROM THESE PARTIES BUT FAILED TO FILE ANY EVIDENCE TO PROVE THIS FACT. FURTHER VARIOUS COURTS HAVE HELD THAT THERE CANNOT BE A CONDITIONAL SURRENDER OF INCOME AS REGARDS THE ISSU E OF IMPOSITION OF PENALTY IS CONCERNED THE SAME IS NOT THE SUBJEC T MATTER IN THIS APPEAL. 4.9 THEREFORE IN THE ABSENCE OF ANY EVIDENCE TO CO NTRADICT THE FINDINGS GIVEN BY THE AO I HOLD THAT AO WAS JU STIFIED IN MAKING AN ADDITION OF RS. 21 50 000/- TO THE INCOME OF THE APPELLANT. ACCORDINGLY I CONFIRM THE ADDITION OF R S. 21 50 000/- ON ACCOUNT OF UNEXPLAINED ADVANCES RECEIVED BY TH E APPELLANT. 2.2 APROPOS GROUND NO. 2 BRIEF FACTS OF THE CASE AS EMERGES FROM THE ORDER OF THE LD. CIT(A) ARE AS UNDER:- 6.5 I HAVE PERUSED THE ASSESSMENT ORDER AS WELL A S REMAND REPORT OF THE AO SUBMISSIONS MADE INCLUDING JUDICI AL CITATIONS AND CROSS REPLY OF THE APPELLANT AND FIND THAT AN ADDIT ION OF RS. 3 87 850/- HAS BEEN MADE ON ACCOUNT OF LAND DEVELO PMENT CHARGES. AO HAS MADE THE ADDITION ON THE GROUND THA T NO SUPPORTING VOUCHERS COULD BE FILED BY THE APPELLANT TO SUBSTANTIATE THE EXPENSES INCURRED. THEREFORE NO VERIFICATION O F THE SAME IS POSSIBLE IN THE ABSENCE OF SUCH DETAILS OF NAME AND ADDRESS OF THE ITA NO. 107/2016 SMT. NUTAN SHARMA VS. ITO WARD- 1 BHARATPUR 4 PERSON TO WHOM PAYMENTS HAVE BEEN MADE. ALL THE EXP ENSES BILLS FILED BY THE APPELLANT WERE FOUND TO BE SELF MADE. 6.6 THE APPELLANT HAS REITERATED THE SUBMISSIONS FI LED BEFORE THE AO AND IN THE COURSE OF PRESENT PROCEEDI NGS AGAIN FILED A COPY OF THE SAME BILLS TO SUBSTANTIATE THE EXPENS ES INCURRED ON LAND DEVELOPMENT. THE EVIDENCE FILED BY THE APPELLA NT WAS FORWARDED TO THE FOR EXAMINATION IN THE COURSE OF R EMAND PROCEEDINGS. THE AO IN HIS REMAND REPORT HAS REITER ATED THE SAME FACTS. 6.7 HAVING CONSIDERED THE SUBMISSIONS MADE IN THIS REGARD I FIND THAT NO EVIDENCE COULD BE FILED BY T HE APPELLANT IN THE COURSE OF PRESENT PROCEEDINGS TO CONTRACT THE FINDI NGS GIVEN BY THE AO. HOWEVER AFTER GOING THROUGH THE BILLS FILED I FIND THAT THESE BILLS MAINLY PERTAIN TO WATER CHARGES OF THE TANKER AND FOR SOIL TROLLY ETC. THEREFORE I HOLD THAT IT WOULD BE JUST AND FA IR TO ALLOW THE EXPENSES OF RS. 1.00 LAC ON THIS ACCOUNT. ACCORDING LY I RESTRICT THE ADDITION MADE BY THE AO TO RS. 2 87 850/-UNDER THIS HEAD. 2.3 DURING THE COURSE OF HEARING THE LD. AR OF THE ASSESSEE PRAYED THAT THE ABOVE ADDITIONS I.E. RS. 21.50 LACS SUSTAINED B Y THE LD. CIT(A) U/S 68 OF THE ACT SHOULD BE DELETED AS THE ASSESSEE HAD SU BMITTED THE AGREEMENT MADE IN RESPECT OF THE ABOVE 4 PERSONS (SUPRA) BEF ORE THE AUTHORITIES BELOW AND THE LD. AR OF THE ASSESSEE FURTHER PRAYE D THAT ADDITION OF RS. 2 87 850/- SUSTAINED BY THE LD. CIT(A) ON ACCOUNT O F LAND DEVELOPMENT CHARGES SHOULD ALSO BE DELETED AS THE ASSESSEE HAD PRODUCED THE RELEVANT BILLS AND VOUCHERS BEFORE THE AUTHORITIES BELOW 2.4 THE LD. DR RELIED ON THE ORDERS OF THE AUTHORIT IES BELOW. ITA NO. 107/2016 SMT. NUTAN SHARMA VS. ITO WARD- 1 BHARATPUR 5 2.5 I HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIALS AVAILABLE ON RECORD. IT IS NOTED THAT THE ASSESSEE HAS SUBMITTED THE AGREEMENT MADE WITH THE ABOVE PARTIES AS TO TAKING THE RESPECTIVE ADVANCES AS MENTIONED HEREINABOVE AS PER PAGES 9 TO 12 OF THE PAPER BOOK. IT IS ALSO NOTED THAT THE ASSESSEE HAD SUBMIT TED THE BILLS AND VOUCHERS RELATING TO LAND DEVELOPMENT EXPENSE AS PE R PAGES 16-39 OF THE PAPER BOOK. IT IS ALSO CLAIMED BY THE LD. AR OF THE ASSESSEE'S THAT RESPECTIVE SALE DEEDS HAVE BEEN EXECUTED IN THE NAM E OF PERSONS FROM WHOM ADVANCES WERE RECEIVED. IT IS ALSO CLAIMED THA T MAJORITY OF THE ADVANCES WERE RECEIVED THROUGH BANKING CHANNELS. AF TER HEARING BOTH THE SIDES I FIND IT APPROPRIATE AND IN THE INTEREST OF JUSTICE TO RESTORE THE ISSUE TO THE FILE OF THE AO TO DECIDE IT AFRESH BY PROVI DING REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. THE ASS ESSEE SHALL PRODUCE THE SALE DEED EXECUTED WITH THE PERSONS FROM WHOM THE A DVANCES WERE OBTAINED. THE AO WILL VERIFY THE CLAIM OF THE ASSES SEE FROM THE REGISTERED SALE DEED WHETHER DETAILS OF SUCH ADVANCES HAVE BEE N MENTIONED IN THE SALE DEED OR NOT. THE LD. AR OF THE ASSESSEE ALSO S UBMITTED THAT OTHER ISSUE MAY ALSO BE RESTORED TO THE FILE OF THE AO FO R WHICH THE LD. DR WAS NOT HAVING ANY SERIOUS OBJECTION TO THIS. AFTER HEA RING THE CASE I RESTORE THIS ISSUE TO THE FILE OF THE AO. THE ASSESSEE SHAL L PRODUCE ALL THE RELEVANT ITA NO. 107/2016 SMT. NUTAN SHARMA VS. ITO WARD- 1 BHARATPUR 6 BILLS AND VOUCHERS RELATING TO LAND DEVELOPMENT EXP ENSES FOR VERIFICATION BY THE AO. THUS BOTH THE GROUNDS OF THE APPEAL OF T HE ASSESSEE ARE SET ASIDE AND RESTORED TO THE FILE OF THE AO TO DECIDE AFRESH BY PROVIDING ADEQUATE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE . THUS THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. 3.0 IN THE RESULT THE APPEAL OF THE ASSESSEE IS A LLOWED FOR STATISTICAL PURPOSES ORDER PRONOUNCED IN THE OPEN COURT ON 29/ 09/2016 SD/- HKKXPUN ( BHAGCHAND) YS[KK LNL;@ ACCOUNTANT MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 29 /09/ 2016 *MISHRA VKNS'K DH IZFRFYFI VXZSF'KR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT- SMT. NUTAN SHARMA JAIPUR 2. IZR;FKHZ@ THE RESPONDENT- THE ITO WARD- 1 BHARATPUR 3. VK;DJ VK;QDRVIHY@ CIT(A). 4. VK;DJ VK;QDR@ CIT 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ@ DR ITAT JAIPUR 6. XKMZ QKBZY@ GUARD FILE (ITA NO. 107/JP/2016) VKNS'KKUQLKJ@ BY ORDER LGK;D IATHDKJ @ ASSISTANT. REGISTRAR