The Dy. CIT, Agra v. Smt. Laxmi Jain, Agra

ITA 217/AGR/2009 | 2000-2001
Pronouncement Date: 18-03-2011 | Result: Dismissed

Appeal Details

RSA Number 21720314 RSA 2009
Assessee PAN AARPJ3210C
Bench Agra
Appeal Number ITA 217/AGR/2009
Duration Of Justice 1 year(s) 10 month(s) 10 day(s)
Appellant The Dy. CIT, Agra
Respondent Smt. Laxmi Jain, Agra
Appeal Type Income Tax Appeal
Pronouncement Date 18-03-2011
Appeal Filed By Department
Order Result Dismissed
Bench Allotted DB
Tribunal Order Date 18-03-2011
Date Of Final Hearing 04-02-2011
Next Hearing Date 04-02-2011
Assessment Year 2000-2001
Appeal Filed On 08-05-2009
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL AGRA BENCH AGRA BEFORE SHRI P.K. BANSAL ACCOUNTANT MEMBER AND SHRI H.S. SIDHU JUDICIAL MEMBER ITA NO. 217 & 218 /AGRA/2009 ASSTT. YEAR : 2000-01 & 2005-06 DY. COMMISSIONER OF INCOME-TAX VS. SMT. LAXMI J AIN CENTRAL CIRCLE AGRA. 17-18 GOPAL KUNJ NEW AG RA. (PAN AARPJ 3210 C) C.O. NO. 26/AGR./2009 (IN ITA NO. 217 /AGRA/2009) ASSTT. YEAR : 2000-01 SMT. LAXMI JAIN VS. DY. COMMISSIONER OF INCOM E-TAX 17-18 GOPAL KUNJ NEW AGRA. CENTRAL CIRCLE AGRA . (APPELLANT) (RESPONDENT) FOR REVENUE : SHRI HOMI RAJVANSH CIT DR. FOR ASSESSEE : SHRI K.C. AGARWAL ADVOCATE. ORDER PER BENCH: THE REVENUE HAS FILED THESE APPEALS AGAINST THE O RDERS OF CIT(A) DATED 23.01.2009 FOR A.Y. 2000-01 AND 2005-06. THE ASSESSEE HAS ALSO FIL ED CROSS OBJECTION IN APPEAL FOR ASSESSMENT YEAR 2000-01. ASSESSMENT YEAR 2000-01 : 2. THE ONLY ISSUE INVOLVED IN APPEAL OF REVENUE REL ATES TO DELETION OF ADDITION OF RS.13 79 008/- MADE BY ASSESSING OFFICER ON ACCOUNT OF UNEXPLAINED INVESTMENT IN HER RESIDENTIAL BUILDING. THE BRIEF FACTS APROPOS THIS ISSUE ARE THAT IN THE SEARCH PROCEEDINGS CONDUCTED AT THE RESIDENTIAL PREMISES OF ASSESSEE U /S. 132(1) A VALUATION CERTIFICATE IN RESPECT OF ASSESSEES RESIDENTIAL PROPERTY AT 17 GOPAL KUNJ A GRA WAS FOUND AS ANNEXURE A-2 PAGE 29 TO 34 SHOWING THE COST OF CONSTRUCTION AT RS.10 84 054/-. AND TOTAL COST AT RS.28 97 000/-. BESIDES THE 2 SEARCH PARTY ALSO NOTICED THAT SUBSTANTIAL RENOVATI ON/CONSTRUCTION WAS UNDERTAKEN IN THIS PROPERTY WITHIN LAST FIVE TO SIX YEARS. THE HUSBAND OF ASSES SEE SHRI SATYA NARAIN JAIN ALSO ADMITTED IN HIS STATEMENTS IN RESPONSE TO QUESTION NO. 16 THAT HE A ND HIS WIFE JOINTLY INVESTED ABOUT 5 TO 6 LACS RUPEES INCLUDING RS.1 LAC TAKEN AS LOAN FROM LIC FO R HOUSE CONSTRUCTION. THE ASSESSING OFFICER OBSERVED THAT THE ASSESSEE HOWEVER DECLARED THE I NVESTMENT IN THE ABOVE PROPERTY AT RS.2 89 992/- SINCE THE 1999-2000 AND THE LOAN FROM LIC WAS TAKEN IN THE SAME YEAR. SINCE THE ASSESSEE COULD NOT FURNISH THE DETAILS OF LOAN TAKE N OR EXPLAIN THE SOURCE OF INVESTMENT A REFERENCE WAS MADE TO THE VALUATION OFFICER WHO DE TERMINED THE INVESTMENT IN THE COST OF PROPERTY AT RS.16 69 000/- IN THE ASSESSMENT YEAR 1 999-2000 AND 2000-01 BUT NO YEAR-WISE BREAK-UP WAS GIVEN. THE ASSESSEE WAS REQUIRED TO EX PLAIN THE REASON FOR DIFFERENCE IN THE VALUATION OF PROPERTY. IN RESPONSE THE ASSESSEE CO NTENDED THAT NO INVESTMENT WAS MADE IN THE PROPERTY DURING THE YEAR UNDER CONSIDERATION AND TH E INVESTMENT WHATSOEVER MADE IN THE PROPERTY WAS DURING THE PERIOD PRIOR TO THE YEAR IN DISPUTE. THE LEARNED ASSESSING OFFICER HOWEVER DID NOT ACCEPT THE EXPLANATION OF ASSESSEE AND AFTER CONSIDERING THE VALUATION REPORT OF DVO STATEMENTS OF ASSESSEES HUSBAND VALUATION CE RTIFICATE FOUND DURING THE SEARCH AND FOR WANT OF PROPER EXPLANATION REGARDING THE DIFFERENCE IN VALUATION DECLARED BY ASSESSEE AND THAT DETERMINED BY VALUATION OFFICER THE ASSESSING OFFI CER TREATED THE DIFFERENCE OF RS.13 79 008/- AS UNEXPLAINED INVESTMENT MADE BY ASSESSEE IN THE S AID PROPERTY U/S. 69A OF THE ACT AND ADDED THE SAME TO THE TOTAL INCOME OF ASSESSEE FOR THE AS SESSMENT YEAR 2000-01. 3. BEFORE THE LEARNED CIT(A) IT WAS SUBMITTED BY A SSESSEE THAT THE FACTS NARRATED IN THE ASSESSMENT ORDER ARE INCORRECT AND AGAINST THE FACT S ON RECORD. THE ASSESSEE WITH HIS WRITTEN REPLY DATED 21.09.2007 SUBMITTED VARIOUS ANNEXURES SUCH A S COPY OF ASSESSMENT ORDERS FOR ASSESSMENT YEAR 1990-91 OF HERSELF AND HER HUSBAND COPIES OF THEIR CAPITAL ACCOUNTS AND BALANCE SHEETS FOR 3 A.Y. 1991-92 THEIR STATEMENT OF AFFAIRS FOR A.Y. 1 990-91 AND THE PURCHASE DEED OF PLOT AT 17 GOPAL KUNJ AGRA ETC. BOTH BEFORE THE ASSESSING OFF ICER AND THE VALUATION OFFICER. IT WAS ALSO EXPLAINED IN THE WRITTEN REPLY THAT THE IMPUGNED PL OT WAS PURCHASED BY ASSESSEE ON 30 TH MARCH 1988 FOR RS.55 146/- AND WAS CONSTRUCTED IN F.Y. 19 88-89 1989-90 AND 1990-01 JOINTLY BY THE ASSESSEE AND HER HUSBAND SRI SATYA NARAIN JAIN AND OUT OF THE TOTAL INVESTMENT OF RS.4 79 992/- THE ASSESSEE MADE INVESTMENT OF RS.2 89 992/- FROM 1988-89 TO 1990-91 AND HER HUSBAND AT RS.1 90 000/- DURING THIS PERIOD AND THESE AMOUNTS ARE REFLECTED IN THE BALANCE SHEETS OF ASSESSEE AND HER HUSBAND FOR THE RESPECTIVE YEARS. IT WAS AL SO SUBMITTED THAT THE ASSESSMENT ORDERS FOR A.Y. 1990-91 OF ASSESSEE AND HER HUSBAND HAVE A SPE CIFIC MENTION OF CONSTRUCTION OF THIS PROPERTY AND INVESTMENT OF TOTAL RS.4 15 000/- BY B OTH THE ASSESSEE AND HER HUSBAND SHRI SATYA NARAIN JAIN AND THE ASSESSMENTS WERE ACCORDINGLY CO MPLETED. THEREAFTER THE ASSESSEE HAD MADE NO INVESTMENT IN THE SAID PROPERTY. IT WAS ALSO CON TENDED THAT SHRI SATYA NARAIN JAIN IN HIS STATEMENT HAS NEVER STATED THAT ANY INVESTMENT WAS MADE IN THE SAID PROPERTY IN THE YEAR UNDER CONSIDERATION. IT WAS THEREFORE SUBMITTED THAT ES TIMATION OF INVESTMENT IN THE SAID PROPERTY IN THE YEAR UNDER CONSIDERATION IS NOT AT ALL JUSTIFIE D. THE LEARNED CIT(A) AFTER SEEKING THE REMAND REPORT ON REPLY OF ASSESSEE AND CONSIDERING THE SAM E DELETED THE ADDITION HOLDING THAT THE INVESTMENT ESTIMATED ON THE BASIS OF VALUATION REPO RT FOR THE YEAR UNDER REFERENCE IS UNCALLED FOR. 4. THE LEARNED DR RELYING ON THE ASSESSMENT ORDER CONTENDED THAT THE LEARNED CIT(A) WAS NOT JUSTIFIED IN ACCEPTING THE PLEA OF ASSESSEE THA T THE CONSTRUCTION OF THE PROPERTY WAS COMPLETE IN THE YEAR 1990-91 WITHOUT BRINGING ON RECORD ANY EVIDENCE AND IGNORING THE STATEMENT OF ASSESSEES HUSBAND THAT INVESTMENT IN THE CONSTRUCT ION OF THE IMPUGNED PROPERTY WAS MADE DURING THE PERIOD UNDER CONSIDERATION. THE DETAILS OF LOAN TAKEN FROM LIC WERE ALSO NOT 4 FURNISHED BEFORE THE ASSESSING OFFICER. HE THEREFO RE CONTENDED TO SUSTAIN THE ADDITION MADE BY THE ASSESSING OFFICER. 5. LEARNED AR ON THE OTHER HAND REITERATED THE SU BMISSIONS MADE BEFORE THE LEARNED CIT(A) AND RELIED ON THE ORDER OF FIRST APPELLATE A UTHORITY. 6. WE HAVE CAREFULLY CONSIDERED THE RIVAL SUBMISSIO NS AND HAVE ALSO GONE THROUGH THE MATERIAL AVAILABLE ON RECORD AND WE FIND NO MATERIA L ON RECORD WHICH MAY LEAD US TO INTERFERE WITH THE ORDER OF LEARNED CIT(A). IT IS NOTABLE THA T DVO HAD ESTIMATED THE VALUE OF PROPERTY AS IN THE F.Y. 1999-2000 WHILE THE EXISTENCE OF PROPER TY IN THE YEAR 1990-91 STOOD PROVED BY VARIOUS DOCUMENTARY EVIDENCES SUCH AS ASSESSMENT OR DERS OF ASSESSEE AND HER HUSBAND FOR A.Y. 1990-91 THEIR BALANCE SHEETS FOR A.Y. 1991-92 PUR CHASE DEED OF PLOT AND THE INVESTMENT SHOWN BY ASSESSEE AND HER HUSBAND IN THE SAID PROPERTY FR OM 1988-89 TO 1990-91 IN THEIR RESPECTIVE BALANCE SHEETS. THE COPIES OF ALL THESE DOCUMENTS W ERE PLACED BY ASSESSEE BEFORE THE LEARNED ASSESSING OFFICER AS WELL AS BEFORE THE VALUATION O FFICER WITH HER REPLY DATED 21.09.2007. WE HAVE ALSO GONE THROUGH THE STATEMENT OF SHRI SATYA NARAIN JAIN RECORDED DURING THE SEARCH OPERATION AND WE FIND THAT HE NOWHERE STATED THAT I NVESTMENT IN THE CONSTRUCTION OF PROPERTY WAS MADE IN THE YEAR UNDER REFERENCE. WE HAVE ALSO PERU SED THE REMAND REPORT SOUGHT BY THE CIT(A) FROM THE ASSESSING OFFICER ON THE SUBMISSIONS OF AS SESSEE SUPPORTED BY DOCUMENTARY EVIDENCE AND WE FIND THAT THE ASSESSING OFFICER HAS MADE NO COMMENTS ON THE SAME RATHER ADMITTED THAT THE DOCUMENTS SENT IN THE REMAND PROCEEDINGS ARE NO T NEW DOCUMENTS AND THEY NEED NO COMMENTS. THE REVENUE HAS BROUGHT NO MATERIAL ON RE CORD TO SUGGEST THAT THE ASSESSEE HAS MADE IMPUGNED INVESTMENT DURING THE YEAR UNDER REFERENCE . PER CONTRA WE FIND VARIOUS DOCUMENTARY EVIDENCES AS REFERRED TO ABOVE TO SUBSTANTIATE TH E CLAIM OF ASSESSEE THAT THE INVESTMENT IN THE 5 SAID PROPERTY WHATSOEVER WAS MADE DURING THE PERI OD 1988-89 TO 1990-91 JOINTLY BY ASSESSEE AND HER HUSBAND. THEREFORE THE VALUATION REPORT OB TAINED BY THE ASSESSING OFFICER IN RESPECT OF CONSTRUCTION OF ENTIRE BUILDING IN THE YEAR UNDER R EFERENCE IS UNJUSTIFIED AS THE INVESTMENTS DO NOT RELATE TO THE YEAR UNDER CONSIDERATION. THERE B EING NO MATERIAL ON RECORD CONTRARY TO IT WE FIND NO REASON TO INTERFERE IN THE ORDER OF LEARNED CIT(A). THE GROUND RAISED IN REVENUES APPEAL THEREFORE STANDS DISMISSED. 7. IN THE CROSS OBJECTION OUT OF TWO GROUNDS GROU ND NO.2 HAS NOT BEEN PRESSED BY THE ASSESSEE. THE SAME IS THEREFORE DISMISSED AS NOT PRESSED. GROUND NO. 1 RELATES TO SUSTENANCE OF ADDITION OF RS.1 LAKH MADE ON ACCOUNT OF UNEXPLAINE D DEPOSIT IN THE BANK OF INDIA NEW AGRA ACCOUNT NO. 5015. THE BRIEF FACTS ARE THAT THE ASSE SSEE HAD DEPOSITED A SUM OF RS.100000/- ON 04.11.1999 IN HER BANK ACCOUNT IN BANK OF INDIA NE W AGRA ACCOUNT NO. 5015. THE ASSESSING OFFICER OBSERVED THAT THE ASSESSEE FAILED TO EXPLAI N THE SOURCE OF DEPOSIT AND THEREFORE HE ADDED THE SAME TO THE INCOME OF ASSESSEE TREATING IT TO B E UNEXPLAINED DEPOSIT. THE ASSESSEE EXPLAINED THE AVAILABILITY OF FUNDS BY FILING A CASH FLOW STA TEMENT PLACED AT PAGE 33 AND 34 OF THE PAPER BOOK BEFORE THE AUTHORITIES BELOW. HOWEVER FOR WAN T OF REGULAR BOOKS OF ACCOUNT OR ANY DIRECT EVIDENCE TO EXPLAIN THE NATURE AND SOURCE OF DEPOSI T THE LD. CIT(A) SUSTAINED THE ADDITION. 8. WE HAVE HEARD BOTH THE PARTIES AND HAVE CAREFULL Y CONSIDERED THE MATERIAL ON RECORD. WE FIND THAT THE CIT(A) HAS DOUBTED THE AUTHENTICITY O F CASH FLOW CHART SUBMITTED BY THE ASSESSEE IN ABSENCE OF REGULAR BOOKS OF ACCOUNTS. NO OTHER CRED IBLE EVIDENCE WAS FURNISHED TO PROVE THAT THE DEPOSIT OF RS.100000/- WAS MADE BY ASSESSEE IN THE BANK ACCOUNT OUT OF THE INCOME DULY ACCOUNTED FOR IN THE REGULAR BOOKS OF ACCOUNT. FOR WANT OF REGULAR BOOKS OF ACCOUNT OR ANY OTHER CREDIBLE EVIDENCE WE THEREFORE FIND NO INCONGRUI TY IN THE DECISION OF CIT(A) FOR NOT PLACING 6 CREDENCE ON THE AUTHENTICITY OF CASH FLOW CHART. TH EREFORE THE GROUND RAISED IN THE CROSS- OBJECTION IS DISMISSED. 9. IN THE RESULT THE APPEAL OF REVENUE AND CROSS-O BJECTION OF ASSESSEE ARE DISMISSED. ASSESSMENT YEAR : 2005-06 : 10. IN REVENUES APPEAL FOR A.Y. 2005-06 THE ONLY ISSUE INVOLVED RELATES TO DELETION OF ADDITION OF RS.35 25 000/- MADE ON ACCOUNT OF UNEXP LAINED LOANS RECEIVED FROM 12 PERSONS AND DISALLOWANCE OF INTEREST AMOUNTING TO RS.1 16 756/- ON SUCH LOANS. 11. THE BRIEF FACTS ARE THAT THE ASSESSEE RAISED UN SECURED LOANS TOTALING TO RS.35 25 000/- FROM 12 PERSONS AND PAID INTEREST OF RS.1 16 750/- ON SUCH LOANS THE DETAILS OF WHICH ARE ENUMERATED AT PAGE 1 OF THE ASSESSMENT ORDER. THE A SSESSEE WAS REQUIRED TO FURNISH COMPLETE ADDRESSES OF THE LENDERS THEIR COPY OF ACCOUNT DAT ES AND MODE OF RECEIPT OF LOANS THEIR CONFIRMATIONS AND TO JUSTIFY THE LOANS IN TERMS OF IDENTIFY OF CREDITORS THEIR CREDITWORTHINESS AND GENUINENESS OF TRANSACTIONS. HOWEVER THE ASSESSEE COULD NOT FURNISH REQUISITE DETAILS EXCEPT THE COPIES OF ACCOUNT OF THE DEPOSITORS ALONGWITH THEIR PAN AND ADDRESSES. THE ASSESSING OFFICER OBSERVED THAT THE ASSESSEE COULD NEITHER FURNISH TH E CONFIRMATIONS FROM THE CREDITORS NOR THEIR BANK STATEMENTS NOR COULD EXPLAIN THE SOURCE OF FUN DS WHICH WERE TRANSFERRED AS LOAN TO THE ASSESSEE. HE FURTHER NOTICED THAT THE ENTIRE AMOUN T TAKEN AS LOAN WAS TRANSFERRED BY THE ASSESSEE AS LOAN TO HIS COMPANY M/S. PADAMSHREE DEVELOPERS ( P) LTD. THUS THERE WAS NO NEED OF FUNDS TO THE ASSESSEE BUT IN FACT FUND WAS REQUIRED BY M /S. PADAMSHREE DEVELOPERS (P) LTD. AND WITH A VIEW TO GIVE COLOUR OF GENUINENESS TO THE TRANSACTI ON OF LOANS IN THE HANDS OF PADAMSHREE DEVELOPERS (P) LTD. THE ASSESSEE FIRST RAISED LOAN S IN HIS HANDS AND SUBSEQUENTLY TRANSFERRED THE 7 SAME TO HIS COMPANY. THE ASSESSING OFFICER AFTER R ELYING ON THE DECISION OF HONBLE SUPREME COURT IN THE CASE OF CIT VS. DURGA PRASAD MORE 82 ITR 540 (SC) ADDED THE ENTIRE AMOUNT OF LOANS OF RS.35 25 000/- TO THE TOTAL INCOME OF THE ASSESSEE AS UNEXPLAINED CASH CREDITS U/S. 68 AND ALSO DISALLOWED THE CLAIM OF INTEREST OF RS.1 16 75 0/- PAID BY ASSESSEE ON SUCH LOANS. 12. THE LEARNED CIT(A) DELETED THE ADDITION OBSERVI NG THAT THE ASSESSEE HAD FURNISHED ALL THE PAPERS WHICH ARE NECESSARY FOR PROVING THE GENUINE NESS OF THE LOANS AND IF THE ASSESSING OFFICER HAD ANY DOUBT ON THE DEPOSITS HE COULD HAVE ISSUED THE SUMMONS TO THE CREDITORS WHOSE NAMES ADDRESSES PAN IT RETURNS COPIES OF ACCOUNTS WERE FILED BY ASSESSEE IN THE ASSESSMENT PROCEEDINGS. THE LEARNED CIT(A) HAS ALSO CONSIDERED THE REMAND REPORT OF AO WHILE DELETING THE ADDITION. 13. WE HAVE CAREFULLY CONSIDERED THE RIVAL SUBMISSI ONS AND HAVE ALSO PERUSED THE ENTIRE MATERIAL ON RECORD. A PERUSAL OF IMPUGNED ORDER REV EALS THAT THE ASSESSEE HAD FURNISHED COMPLETE DETAILS OF LENDERS THEIR COMPLETE NAMES AND ADDRES SES ACKNOWLEDGEMENT FOR FILING OF RETURNS THEIR PAN THEIR COPIES OF BANK ACCOUNTS AND THEIR CONFIRMATIONS FOR HAVING GIVEN THE LOAN TO THE ASSESSEE. ALL THESE EVIDENCES ARE FOUND SUBMITTED I N SUPPORT OF ASSESSEES WRITTEN REPLY DATED 11.12.2008 WHICH WERE SENT TO THE ASSESSING OFFICE R FOR HIS COMMENTS. HOWEVER THE ASSESSING OFFICER HAS GIVEN NO COMMENTS ON THE AFORESAID EVID ENCES OBSERVING IN THE REMAND REPORT THAT NO FRESH MATERIAL/EVIDENCE HAS BEEN FURNISHED BY THE A SSESSEE AS THE EVIDENCES ENCLOSED ARE THE SAME WHICH WERE FURNISHED AND CONSIDERED DURING THE COURSE OF ASSESSMENT PROCEEDINGS. THE AO THEREFORE HAS NOT OFFERED ANY COMMENT NOR DID HE OBJECT TO THE ADMISSION OF THOSE EVIDENCES SUBMITTED BY ASSESSEE WITH HIS REPLY. THE DOCUMENTARY EVIDENCES FURNISHED BY ASSESSEE IN OUR OPINION GO TO SUBSTANTIATE THE ID ENTITY OF DEPOSITORS THEIR CREDITWORTHINESS AND 8 GENUINENESS OF TRANSACTIONS. THE CONFIRMATIONS IT RETURNS COPIES OF BANK ACCOUNTS ETC. IN OUR OPINION GO TO EXPLAIN THE NATURE AND SOURCE OF CRE DITS. THE ASSESSING OFFICER WHILE MAKING ADDITION U/S. 68 DID NOT DISCHARGE THE ONUS THAT LA Y UPON HIM. HE DID NOT BOTHER TO ISSUE SUMMONS TO ANY OF THE DEPOSITORS EVEN ON THE REQUES T OF ASSESSEE BEFORE DOUBTING THE CREDITS. THE DECISION IN THE CASE OF CIT VS. DURGA PRASAD MO RE (SUPRA) IS FOUND TO HAVE BEEN RENDERED BY HONBLE SUPREME COURT ON DIFFERENT FACTS AND HAS RI GHTLY BEEN DISTINGUISHED BY THE LD. CIT(A). WE FIND NO MATERIAL ON RECORD TO DISREGARD THE DECI SION REACHED BY THE LD. CIT(A). THEREFORE THE ORDER OF LD. CIT(A) DESERVES TO BE CONFIRMED. 14. IN THE RESULT THE APPEAL OF THE REVENUE IS DIS MISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 18.03.11. SD/- SD/- (H.S. SIDHU) (P.K. BANSAL) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 18 TH MARCH 2011 *AKS/- COPY OF THE ORDER FORWARDED TO : 1. APPELLANT 2. RESPONDENT 3. CIT(A) BY ORDER 4. CIT CONCERNED 5. DR ITAT AGRA 6. GUARD FILE ASSISTANT REGISTRAR TRUE COPY