Shri Jai Prakash Aggarwal, New Delhi v. ACIT, New Delhi

ITA 276/DEL/2012 | 2008-2009
Pronouncement Date: 30-03-2012 | Result: Allowed

Appeal Details

RSA Number 27620114 RSA 2012
Assessee PAN AAFDA2191R
Bench Delhi
Appeal Number ITA 276/DEL/2012
Duration Of Justice 2 month(s) 12 day(s)
Appellant Shri Jai Prakash Aggarwal, New Delhi
Respondent ACIT, New Delhi
Appeal Type Income Tax Appeal
Pronouncement Date 30-03-2012
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted D
Tribunal Order Date 30-03-2012
Assessment Year 2008-2009
Appeal Filed On 18-01-2012
Judgment Text
ITA NO. 276/DEL/2012 1 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH D NEW DELHI BEFORE SHRI RAJPAL YADAV JUDICIAL MEMBER AND SHRI SHAMIM YAHYA ACCOUNTANT MEMBER I.T.A. NO. 276/DEL/2012 A.Y. : 2008-09 SHRI JAI PRAKASH AGGARWAL A-45 SWASYTHA VIHAR DELHI 110092 (PAN : AAFDA 2191 R) VS. ASSTT. COMMISSIONER OF INCOME TAX CIRCLE-36(1) NEW DELHI (APPELLANT ) (APPELLANT ) (APPELLANT ) (APPELLANT ) (RESPONDENT ) (RESPONDENT ) (RESPONDENT ) (RESPONDENT ) ASSESSEE BY : SH. A.K. CHADHA CA DEPARTMENT BY : SH. AROOP SINGH D.R. ORDER ORDER ORDER ORDER PER SHAMIM YAHYA: AM PER SHAMIM YAHYA: AM PER SHAMIM YAHYA: AM PER SHAMIM YAHYA: AM THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST T HE ORDER OF THE LD. COMMISSIONER OF INCOME TAX (APPEALS) DATED 23.11. 2011 PERTAINING TO ASSESSMENT YEAR 2008-09. 2. THE GROUNDS RAISED READ AS UNDER:- 1. THAT THE IMPUGNED ORDER U/S. 250 OF LD. COMMISSION ER OF INCOME TAX (APPEALS)-XXVII NEW DELHI DATED 23.11.2011 IS BAD IN LAW AND WRONG INCORRECT AND ITA NO. 276/DEL/2012 2 ILLEGAL AND ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND THE LEGAL POSITION. 2. THAT ON THE FACTS AND IN CIRCUMSTANCES OF THE CA SE LD. COMMISSIONER OF INCOME TAX (APPEALS) ERRED IN LAW IN CONFIRMING ADDITION OF ` 1 46 00 000/- WHEN THE ASSESSING OFFICER ERRED IN INVOKING SECTION 68 OF THE IT ACT 1961 IN RESPECT OF THE AMOUNTS FOUND CREDITED IN THE LAST PREVIOUS YEAR 2006-07 AND THERE WAS NO QUESTION OF DEEMING ANY INCOME IN ASSESSMENT YEAR 2008-09 PARTICULARLY WHEN NO AMOUNTS WERE RECEIVED IN FY 2007-08 AND ERRED IN IGNORING THE SUPREME COU RT AND HIGH COURT JUDGEMENT CITED BY THE APPELLANT. 3. WITHOUT PREJUDICE TO THE GROUND NO. (2) ABOVE. (I) THE CONFIRMATIONS FILED FOR FY 2006-07 AND FY 2007-08 PROVED THAT AMOUNTS RECEIVED WERE GENUINE BANK TRANSACTIONS RECEIVED FROM ASSESSEE REGULARLY ASSESSED TO INCOME TAX WHICH WERE NOT DISPUTED BY THE ASSESSING OFFICER AND THE LD. COMMISSIONER OF INCOME TAX (APPEALS); AND ITA NO. 276/DEL/2012 3 (II) THE SUMS CREDITED WERE PROVED SINCE THE CREDITORS OF THE APPELLANT CONFIRMED PAYMENTS MADE AS AT 31.3.2007 ` 2 16 15 00/- (` 1 56 00 000 + ` 60 15 000) WERE RECOVERABLE BY THE CREDITOR FROM THE APPELLANT AND THE PROPRIETORSHIP FIRM OF APPELLANT AND OTHER CREDITOR ALSO CONFIRMED HAVING MADE PAYMENT OF ` 25 00 000/- ON 18.11.2006 AT THE APPELLANT; AND (III) THE ACCOUNTS INTER SE BETWEEN THE CREDITORS AND APPELLANT AS AT 31.3.2008 STOOD RECONCILED AND WERE NOT DISPUTED BY THE ASSESSING OFFICER / LD. COMMISSIONER OF INCOME TAX (APPEALS). (IV) ADDITION WAS CONFIRMED WITHOUT APPRECIATING T HE ENTIRE FACTS PLACED ON RECORD AND WITHOUT GIVING REASONABLE OPPORTUNITY TO THE APPELLANT TO REBUT T HE ADVERSE INFERENCE DRAWN AGAINST THE APPELLANT. (V) THE ADDITION WAS BASED ON NO MATERIAL / EVIDEN CE AND / OR ON IRRELEVANT MATERIAL / EVIDENCE AND / OR BY IGNORING RELEVANT MATERIAL / EVIDENCE AND WAS BASED ON MERE SUSPICION AND IS PERVERSE. ITA NO. 276/DEL/2012 4 4(I) THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF T HE CASE AND THE LEGAL POSITION THE LD. COMMISSIONER OF INCOM E TAX (APPEALS) ERRED IN LAW IN ADOPTING AND ASSESSIN G FULL VALUE OF SALE CONSIDERATION AT ` 29 58 668/- I N RESPECT OF PROPERTY AT M-43 VASUNDRA GHAZIABAD BASED ON TWO COMPARABLE CASES UNDER SECTION 50C OF THE INCOME TAX ACT 1961 AS AGAINST THE ACTUAL SALE CONSIDERATION OF ` 20 00 000/- AND THE VALUE OF TH E SAID PROPERTY ASSESSED AT ` 19 43 750/- BY GOVERNMENT APPROVED VALUER AT ` 19 43 750/- AND (II) WITHOUT PREJUDICE TO GROUND NO. 4(I) ABOVE THE VALUATION ASSESSED AND ADOPTED AT ` 29 58 768/- IS BASED ON IRRELEVANT MATERIAL / EVIDENCE AND / OR BY IGNORING RELEVANT MATERIAL /EVIDENCE BASED ON SURMISES AND IS PERVERSE. 5. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND LEGAL POSITION THE LD. COMMISSIONER OF INCOME TAX (APPEALS) HAS ERRED IN CONFIRMING INTEREST AT ` 17 57 876/- PARTICULARLY ON THE GROUND THAT THE S AME IS NOT LEVIABLE AT ALL PARTICULARLY WHEN THE APPEL LANT ITA NO. 276/DEL/2012 5 COULD NEVER HAVE ESTIMATED OR IMAGINED SUCH AN ARBITRARY ADDITION IN THE INCOME. 6. THAT THE APPELLANT CRAVES LEAVES TO ADD ALTER D ELETE MODIFY SUBSTITUTE AMEND ANY GROUND OF APPEAL BEFORE OR AT THE TIME OF HEARING OF APPEAL. 3. IN THIS CASE FROM A PERUSAL OF THE BALANCE SHEET OF THE ASSESSEE THE ASSESSING OFFICER NOTICED THAT THERE WAS A CLO SING BALANCE OF ` 1 96 00 000/- IN THE ACCOUNT OF ONE OF THE CREDITOR S SH. RAMESH CHAND AGGARWAL. DURING THE COURSE OF THE ASSESSMENT PROC EEDINGS THE ASSESSEE FILED SOME CONFIRMATIONS INCLUDING THAT OF S H. RAMESH CHAND AGGARWAL WHICH WERE PURPORTEDLY SIGNED BY HIM. ON SPECIFIC ENQUIRY FROM THE ASSESSING OFFICER VIDE HIS LETTER DATED 24 .12.2010 ASKING HIM TO AUTHENTICATE THE CONFIRMATIONS PRODUCED BY THE AS SESSEE HE FILED HIS REPLY DATED 29.12.2010 VIDE WHICH HE INFORMED T HAT NONE OF THE CONFIRMATIONS PRODUCED BY THE ASSESSEE WERE SIGNED B Y HIM. THUS IN CASE OF LOAN FROM SHRI RAMESH CHAND AGGARWAL THE LE NDER SH. RAMESH AGGARWAL HAD CATEGORICALLY STATED THAT HE HAD NOT SIGNED THE CONFIRMATION WHICH WAS PRODUCED BY THE ASSESSEE DURI NG THE ASSESSMENT PROCEEDINGS. THE ASSESSING OFFICER CONF RONTED THESE FACTS TO THE LD. AUTHORISED REPRESENTATIVE AND HE WAS AS KED AS TO WHY THE CLOSING BALANCE OF LOAN FROM SH. RAMESH CHAND AGGARWA L SHOULD NOT ITA NO. 276/DEL/2012 6 BE ADDED TO THE ASSESSEES INCOME AS INCOME FROM UNDI SCLOSED SOURCES. ALONGWITH THIS REPLY THE ASSESSEE FURNI SHED A CONFIRMATION FORM HILLARY ESTATES PVT. LTD. AND A COPY OF THE BANK STATEMENT. AFTER CONSIDERING THE ASSESSEES REPLY AND THE SUPPORTING DOCUMENTS THE ASSESSING OFFICER ACCEPTED THE TRANSACTIONS WITH H ILLARY ESTATES BUT REJECTED THE TRANSACTION WITH M/S GREEN MEADOWS PVT. L TD. ON THE GROUND THAT FROM THE BALANCE SHEET M/S GREEN MEADOWS PVT. LTD. IT WAS SEEN THAT THIS COMPANY HAD SHOWN NO LOANS OR ADV ANCE TO MR. JP AGGARWAL THE ASSESSEE. THUS OUT OF A TOTAL SU M OF ` 1 96 00 000/- WHICH WAS ORIGINALLY CLAIMED TO BE A LOAN / ADVANCE FROM SH. RAMESH AGARWAL ` 50 LACS WAS CONSIDERED EXPLAINED AS LOAN FROM HILLARY ESTATES PVT. LTD. AND THE BALANCE AMOUNT OF ` 1 46 00 000/- WAS TREATED AS INCOME OF THE ASSESSEE U/S 68 OF THE ACT . 4. UPON ASSESSEES APPEAL LD. COMMISSIONER OF INCOME TAX (APPEALS) NOTED THE ASSESSEES SUBMISSIONS. HE OBSE RVED THAT DURING THE YEAR UNDER CONSIDERATION THERE WAS CLOSING BALA NCE OF ` 1 96 00 000/- IN ACCOUNT OF SHRI RAMESH AGGARWAL. HE NOTED THAT ASSESSEE WAS REQUIRED TO PROVIDE DOCUMENTARY EVIDEN CE FOR PROVIDING THE IDENTITY OF THE CREDITOR GENUINENESS OF THE TR ANSACTION AND THE CREDITWORTHINESS OF THE CREDITOR. LD. COMMISSIONER OF INCOME TAX (APPEALS) NOTED THAT THE CREDITOR SH. RAMESH CHAND AGGARWAL IN ITA NO. 276/DEL/2012 7 RESPONSE TO SPECIFIC QUERY HAD DENIED HAVING SIGNED ANY CONFIRMATION FIELD BY THE ASSESSEE BEFORE THE ASSESSING OFFICER. UNDER THE CIRCUMSTANCES LD. COMMISSIONER OF INCOME TAX (APPEALS ) HELD THAT THE ONUS WAS ON THE ASSESSEE TO PROVE THE GENUINENE SS OF THE CREDIT ENTRIES OF ` 1 96 00 000/- IN THE NAME OF SH. RAMESH CHAND AGGARWAL. THE EXPLANATION FILED BY THE ASSESSEE TO THE EXTENT OF ` 50 LACS RECEIVED FROM HILLERY ESTATES P LTD. WAS ACCEPTED B Y THE ASSESSING OFFICER AFTER CONSIDERING THE DOCUMENTARY EVIDENCE FILED DURING THE COURSE OF ASSESSMENT PROCEEDINGS. IN SUCH CIRCUMSTA NCES SHRI RAMESH CHAND AGGARWAL HIMSELF HAS DENIED HAVING SI GNED ANY CONFIRMATION FILED BY THE ASSESSEE BEFORE THE ASSESS ING OFFICER U/S. 68 ON ACCOUNT OF UNEXPLAINED CREDIT BALANCE IN THE AC COUNT OF SH. RAMESH CHAND AGGARWAL WAS CONFIRMED. 5. AGAINST THE ABOVE ORDER THE ASSESSEE IS IN APPEA L BEFORE US. 6. WE HAVE HEARD THE RIVAL CONTENTIONS IN LIGHT OF THE MATERIAL PRODUCED AND PRECEDENT RELIED UPON. LD. COUNSEL OF THE ASSESSEE TOOK UP TO THE PAPER BOOK BY REFERRING ITS PAGE NO. 5. HE SUBMITTED THAT SHRI RAMESH CHAND AGGARWAL HAS DULY CONFIRMED THE OU TSTANDING. LD. COUNSEL CLAIMED THAT THOUGH HE SUBMITTED THIS CONFIR MATION BEFORE THE AUTHORITIES BELOW THE SAME WAS NOT TAKEN INTO CONS IDERATION BY THE AUTHORITIES BELOW. WE HAVE CAREFULLY CONSIDERED TH E SUBMISSIONS. WE ITA NO. 276/DEL/2012 8 FIND THAT THE INTEREST OF JUSTICE WILL BE SERVED IF THE MATTER OF CONFIRMATION OF SHRI RAMESH CHAND AGGARWAL IS TAKEN INTO ACCOUNT IN ADJUDICATING THE MATTER. IN THE INTEREST OF JUSTIC E WE REMIT THIS ISSUE TO THE FILE OF THE ASSESSING OFFICER TO CONSIDER T HE ISSUE AFRESH IN LIGHT OF THE SUBMISSION BEING MADE BY THE ASSESSEE. NEEDLE SS TO ADD THAT THE ASSESSEE SHOULD BE GIVEN ADEQUATE OPPORTUNITY O F BEING HEARD. BOTH THE COUNSEL FAIRLY AGREED THAT THE MATTER IS TO BE REMITTED TO THE FILE OF THE ASSESSING OFFICER TO CONSIDER THE ISSU E AFRESH. 7. APROPOS THE SECOND ISSUE ADDITION U/S. 50C IN THIS CASE THE AIR INFORMATION WAS RECEIVED FORM SUB-REGISTRAR GHAZIABAD IN THE ASSESSEES CASE ACCORDING TO WHICH THE ASSESSEE HAD SOLD A PROPERTY DURING THE YEAR. AS PER THE DET AILS FILED BY THE LD. AUTHORISED REPRESENTATIVE DURING THE COURSE OF THE ASSESSMENT PROCEEDINGS IT WAS SUBMITTED THAT THE ASSESSEE HAD S OLD THE PROPERTY AT M-43 VASUNDHARA GHAZIABAD FOR ` 20 LACS AND A CAPITAL GAIN OF ` 5 04 500/- WAS DULY SHOWN IN THE RETURN OF INCOME. HOWEVER IT WAS GATHERED FROM THE SALE DEED THAT THE STAMP VALUATION AUTHORITY (I.E. SUB REGISTRAR GHAZIABAD) HAD ADOPTED THE VALUE OF THE PROPERTY AT ` 46 20 000/-. THE LD. AUTHORISED REPRESENTATIVE OF THE ASSESSEE WAS ASKED BY THE ASSESSING OFFICER AS TO WHY THE VALUE OF THE PROPERTY AS ADOPTED BY SUB-REGISTRAR SHOULD NOT BE TAKEN AS FUL L VALUE OF ITA NO. 276/DEL/2012 9 CONSIDERATION FOR WORKING OUT THE CAPITAL GAINS. IN REPLY THE LD. AUTHORISED REPRESENTATIVE FURNISHED A VALUATION RE PORT FORM SHRI SN BANSAL A GOVT. APPROVED VALUER WHO HAD VALUED THE PROPERTY AT ` 19 83 750/- AND COPIES OF THE REGISTRATION DEEDS TO TWO COMPARABLE CASES IN THE SAME LOCALITY. THE ASSESSING OFFICER DID NOT ACCEPT THE ASSESSEES CONTENTION AND MADE AN ADDITION OF 26 2 0 000/- TO THE INCOME OF THE ASSESSEE UNDER THE HEAD STCGS BY DEE MING THE FULL VALUE OF CONSIDERATION OF THE PROPERTY AT ` 46 20 0 00/- I.E. THE SAME VALUE AS ADOPTED BY THE STAMP VALUATION AUTHORITY. 8. UPON ASSESSEES APPEAL LD. COMMISSIONER OF INCOME TAX (APPEALS) NOTED THE SUBMISSIONS OF THE ASSESSEE. HE NOTED THAT SECTION 50C OF THE ACT REVEALS THAT THE FAIR MARKET VALUE OF THE PROPERTY IS LESS THAN THE VALUE ADOPTED BY THE STAMP VALUATION AUTHORITY THE ASSESSING OFFICER MAY REFER THE PROP ERTY TO THE VALUATION OFFICER FOR KNOWING CORRECT FULL OF VALU E CONSIDERATION. NO SUCH REFERENCE HAS BEEN MADE BY THE ASSESSING OFFICE R TO THE VALUATION OFFICER. ASSESSEE HAS SUBMITTED THAT VALU ATION REPORT FROM GOVERNMENT APPROVED VALUER. LD. COMMISSIONER OF INCOM E TAX (APPEALS) NOTED THAT VALUATION REPORT BY THE GOVE RNMENT VALUER CANNOT BE RELIED UPON. LD. COMMISSIONER OF INCOME T AX (APPEALS) REFERRED TO THE COMPARABLE INSTANCES FILED BY THE AS SESSEE AND ON THAT BASIS HE HELD THAT THE ADDITION OF ` 9 58 768/- WA S WARRANTED. HENCE HE DIRECTED THE ASSESSING OFFICER TO RESTRI CT THE ADDITION OF ` 9 58 768/-. ITA NO. 276/DEL/2012 10 9. AGAINST THE ABOVE ORDER THE ASSESSEE IS IN APPEA L BEFORE US. 10. WE HAVE HEARD THE RIVAL CONTENTIONS IN LIGHT OF THE MATERIAL PRODUCED AND PRECEDENT RELIED UPON. WE FIND THAT SECTION 50C MANDATES THAT IF ASSESSEE IS PLEADING THAT THE FAIR MARKET PRICE IS LESS THAN MARKET VALUE ADOPTED BY THE STAMP VALUATION AUTH ORITY THE ASSESSING OFFICER SHOULD REFER THE PROPERTY TO T HE VALUATION OFFICER FOR KNOWING CORRECT FULL OF VALUE CONSIDERATION. IN THIS CASE WE FIND THAT NO SUCH REFERENCE HAS BEEN DONE BY THE ASSESSI NG OFFICER. UNDER THE CIRCUMSTANCES IN THE INTEREST OF JUSTICE WE DE EM IT FIT TO REMIT THIS ISSUE TO THE FILE OF THE ASSESSING OFFICER TO FOLLOW THE PROVISIONS OF SECTION 50C(2). THE ASSESSING OFFICER SHALL REMIT THE MATTER TO THE DVO FOR ASCERTAINING THE VALUE OF THE IMPUGNED PROPER TY. BOTH THE COUNSEL FAIRLY AGREED TO THIS PROPOSITION. 11. IN THE RESULT THE APPEAL FILED BY THE ASSESSEE STANDS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 30/3/2012. SD/- SD/- [ [[ [RAJPAL YADAV RAJPAL YADAV RAJPAL YADAV RAJPAL YADAV] ]] ] [SHAMIM YAHYA] [SHAMIM YAHYA] [SHAMIM YAHYA] [SHAMIM YAHYA] JUDICIAL MEMBER JUDICIAL MEMBER JUDICIAL MEMBER JUDICIAL MEMBER ACCOUNTANT MEMBER ACCOUNTANT MEMBER ACCOUNTANT MEMBER ACCOUNTANT MEMBER DATE 30/3/2012 SRBHATNAGAR SRBHATNAGAR SRBHATNAGAR SRBHATNAGAR COPY FORWARDED TO: COPY FORWARDED TO: COPY FORWARDED TO: COPY FORWARDED TO: - -- - 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT (A) 5. DR ITAT TRUE COPY BY ORDER ASSISTANT REGISTRAR ITAT DELHI BENCHES