Asstt.Commissioner of Income tax Circle-2(1), BILASPUR(CG) v. Shri Anil Mundra, BILASPUR(CG)

ITA 36/BIL/2012 | 2005-2006
Pronouncement Date: 31-07-2015 | Result: Dismissed

Appeal Details

RSA Number 3624714 RSA 2012
Assessee PAN ABLPM4571E
Bench Raipur
Appeal Number ITA 36/BIL/2012
Duration Of Justice 3 year(s) 4 month(s) 23 day(s)
Appellant Asstt.Commissioner of Income tax Circle-2(1), BILASPUR(CG)
Respondent Shri Anil Mundra, BILASPUR(CG)
Appeal Type Income Tax Appeal
Pronouncement Date 31-07-2015
Appeal Filed By Department
Order Result Dismissed
Bench Allotted DB
Tribunal Order Date 31-07-2015
Assessment Year 2005-2006
Appeal Filed On 07-03-2012
Judgment Text
1 ITA NO. 36/BLPR/2012 IN THE INCOME TAX APPELLATE TRIBUNAL RAIPUR BENCH RAIPUR BEFORE SHRI MUKUL K. SHRAWAT JUDICIAL MEMBER AND SHRI SHAMIM YAHYA ACCOUNTANT MEMBER. I.T. A. NO. 36/BLPR/2012 ASSESSMENT YEAR : 2005-06. ASSTT. COMMISSIONER OF INCOME-TAX SHRI ANIL MUNDRA CIRCLE-2(1) BILASPUR. V/S. S/O SHRI VISHNU MUNDRA TIKRAPARA. BILASPUR (C.G.) PAN ABLPM4571E (APPELLANT) RESPONDENT. APPELLANT BY : SHRI H.M. MAHARANA. RESPONDENT BY : SHRI DINESH AGRAWAL. DATE OF HEARING : 19-06-2015 DATE OF PRONOUNCEMENT : 31 ST JULY 2015. O R D E R PER SHRI SHAMIN YAHYA A.M . THIS APPEAL BY THE REVENUE IS DIRECTED AGAINST THE ORDER OF LEARNED CIT(APPEALS) BILASPUR DATED 22-01-2010 AND PERTAI NS TO ASSESSMENT YEAR 2005- 06. THE GROUNDS OF APPEAL READ AS UNDER : 1 (A) THAT ON THE FACTS AND IN THE CIRCUMSTANCES O F THE CASE THE LEARNED CIT(A) HAS ERRED IN LAW AND ON FACTS IN DELETING T HE ADDITION OF ` .15 92 759/- MADE BY THE A.O. U/S 69B BEING THE UN DISCLOSED INVESTMENT IN PROPERTY WITHOUT APPRECIATION OF THE FACTS PROP ERLY. RELIANCE IS MADE ON THE DECISION OF SMT. AMAR KUMAQR SURANA [266 ITR 3 44 (RAJ)] HANEMP 2 ITA NO. 36/BLPR/2012 PROPERTIES P. LTD. [285 ITR (AT) 26 (DELHI) C.B. GAUTAM [199 ITR 530 (SC)]. (B) HAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE THE LEARNED CIT(A) HAS ERRED IN LAW AND ON FACTS IN DELETING THE ABOV E ADDITION AND ALSO FAILED TO APPRECIATE THE METICULOUS FINDINGS OF THE A.O. WHI CH HAS BEEN BASED ON THE REPORT OF THE APPROVED VALUER. 2. IN THIS CASE THE ASSESSING OFFICER OBSERVED THAT DURING THE SEARCH & SEIZURE OPERATION UNDER SECTION 132(1) IN THE RESIDENTIAL P REMISES OF SHRI MAHENDRA LAL SALUJA AT TIKRAPARA BILASPUR SALE DEEDS PERTAININ G TO THE ASSESSEE REGARDING INVESTMENT IN REAL ESTATE WERE SEIZED VIDE PANCHANA MA DATED 01/02/2007. THEREFORE PROCEEDINGS UNDER SECTION 153C WERE MAND ATED.. FURTHER MORE IN THE COURSE OF ASSESSMENT PROCEEDINGS THE ASSESSING OFFI CER NOTICED THAT DURING THE YEAR UNDER CONSIDERATION THE ASSESSEE HAS PURCHASE D FOUR SEPARATE PIECES OF LANDS WITH CO-OWNERS AS MENTIONED IN COLUMN 2 BELOW WITH EQUAL SHARE AT A PRICE MUCH BELOW THE FAIR MARKET VALUE DETERMINED BY THE STATE AUTHORITIES FOR STAMP DUTY PURPOSES. HE REFERRED THE MATTER TO DVO AND GOVERNM ENT APPROVED VALUER FOR DETERMINATION OF FAIR MARKET VALUE. THE REPORT OF T HE DVO WAS NOT RECEIVED TILL THE DATE OF PASSING THE ASSESSMENT ORDER AND ON RECEIPT OF THE APPROVED VALUERS REPORT THE ASSESSING OFFICER COMPARED THE PURCHASE PRICE FAIR MARKET VALUE AS PER STAMP DUTY AUTHORITIES AND FMV DETERMINED BY APPROV ED VALUER AS UNDER : 3 ITA NO. 36/BLPR/2012 S. NO. NAME OF PURCHASER KH. NO. PURCHASE PRICE. FMV AS PER STAMP AUTHORITY FMV AS PER AV DIFFERENCE 1. ANIL KUMAR MUNDRA SHRI MAHENDRA LAL SALUJA SHRI UMESH BHAWNANI. 54/99 150000 315000 790860 640860 (1/3 RD OF 640860 = 213620 2 ANIL KUMAR MUNDRA SHRI MAHENDRA LAL SALUJA SHRI UMESH BHAWNANI. 54/93 150000 210000 527240 377240 (1/3 RD OF 377240 = 125746 3. ANIL KUMAR MUNDRA SHRI MAHENDRA LAL SALUJA SHRI UMESH BHAWNANI. 54/98 1750000 420000 790860 615860 (1/3 RD OF 615869 = 205286 4. ANIL KUMAR MUNDRA SHRI MANOJ AGRAWAL SHRI JITENDRA SALUJA. 120/04 2200000 3300200 5344332.5 3144322.5 (1/3 RD OF 3144322= 1048107 HE FURTHER OBSERVED THAT ALL THESE PROPERTIES ARE SITUATED IN PRIME LOCATION AND AFTER CREATION OF SEPARATE STATE OF CHHATTISGAR H IN 2000 THE DEVELOPMENT WAS IN FULL SWING. THE VALUE OF THE PROPERTY WAS ESCALA TED BEYOND IMAGINATION. THE BILASPUR TOWNSHIP WAS GROWING AT UNPRECEDENTED PACE DUE TO CREATION OF HIGH COURT RAILWAY DIVISION AND POWER PROJECT OF NTPC SECL ETC. THE COST OF LAND SHOWN BY THE ASSESSEE WAS INSIGNIFICANT IN COMPARIS ON TO THE RATE PREVALENT IN THE AREA. THE ASSESSING OFFICER WAS OF THE VIEW THAT TH OUGH THERE IS NO DIRECT EVIDENCE 4 ITA NO. 36/BLPR/2012 TO SUGGEST THAT THE ASSESSEE HAS PAID MORE CONSIDER ATION THAN SHOWN IN THE SALE DEED AT THE SAME TIME IT CANNOT BE IGNORED THAT NO EVIDENCE HAS BEEN ADDUCED BY THE ASSESSEE AS TO WHY THE PLOT OF LAND HAS BEEN SOLD TO THE ASSESSEE FOR THE VALUE FAR BELOW THE PREVALENT MARKET RATE. IN ABSENCE OF ALL THAT THE ONLY INFERENCE WHICH CAN BE DRAWN IS THAT THE ASSESSEE HAS CONCEALED ACT UAL CONSIDERATION PAID TO THE SELLER. THE ASSESSING OFFICER RELIED ON THE JUDGME NT IN THE CASE OF SMT. AMARKUMARI SURANA V/S. CIT 134 CTR 313 (RAJ) WHEREI N IT WAS HELD THAT IN VIEW OF VALUATION REPORT OF THE VALUER ADDITION CAN BE MADE UNDER SECTION 69B. ACCORDINGLY ADDITION WAS MADE TO THE ASSESSEES IN COME BESIDES ADHOC DISALLOWANCE OF ` .20 000/- OUT OF MISC. AND STATIONARY EXPENSES. 3. BEFORE THE LEARNED CIT(APPEALS) IT WAS SUBMITTED THAT NOTHING INCRIMINATING WAS FOUND DURING THE COURSE OF SURVEY OPERATION IN THE PREMISES OF SHRI MAHENDRA LAL SALUJA. THE PRICE MENTIONED IN THE IMPUGNED REG ISTERED SALE DEED WAS ACTUAL PRICE BASED ON NEGOTIATION. THE SELLER CONFIRMED TH E SALE CONSIDERATION RECEIVED BY HIM THE COPY OF WHICH WAS FILED BEFORE THE ASSESSI NG OFFICER. IT WAS FURTHER ARGUED THAT IN THE CASE OF THE CO-OWNERS SHRI MAHEN DRA LAL SALUJA AND SHRI JITENDRA SALUJA ADDITION UNDER SECTION 69B MADE ON THE BASIS OF THE SAME REPORT OF THE REGISTERED AUTHORIZED VALUER ON SAME PIECE OF LAND WAS DELETED BY THE LEARNED CIT(APPEALS) BILASPUR WHICH WAS CONFIRMED BY THE I TAT. CONSIDERING THE ABOVE LEARNED CIT(APPEALS) HELD AS UNDER : I CONSIDERED THE SUBMISSION MADE BY THE LD. AR W ITH REFERENCE TO THE FACTS AVAILABLE FROM THE RECORD AND FIND THAT NOTH ING INCRIMINATING EVIDENCE WAS FOUND DURING SEARCH OR THEREAFTER TO SUBSTANTI ATE THE ALLEGATION OF SUPPRESSED INVESTMENT IN THE PURCHASE OF THESE PRO PERTIES. THIS FACT WAS NOT DISPUTED BY THE AO IN THE ORDER APPEAL AGAINST. THE SELLERS CONFIRMED THE CONSIDERATION RECEIVED BY THEM IN THEIR CONFIRMATI ON FILED BEFORE THE AO 5 ITA NO. 36/BLPR/2012 AND THESE HAVE NOT BEEN PROVED AS FALSE. RECORD AL SO EVIDENCES THE FACT THAT THE AO HAS NOT EXAMINED THE BOOKS AND QUANTIFIED THE SUPPRESSED INVESTMENT. HE HAD NOT MADE ANY ENQUIRY FOR INVEST IGATION TO BRING TO RECORD POSITIVE MATERIAL ON SUPPRESSED INVESTMENT. RECORD SHOWS THAT THE AO HAS MADE A REFERENCE TO THE DEPARTMENTAL VALUATION CELL BUT WITHOUT WAITING FOR THE REPORT FROM THE CELL HE MADE THE IMPUGNED ADDITION ON THE BASIS OF REGISTERED VALUER REPORT. IN THE CASE OF THE CO-OW NERS OF SAME PIECES OF LAND SHRI MAHENDRA SALUJA AND SHRI JITENDRA SALUJ A WHEREIN THE AO MADE ADDITION U/S 69B AS UNEXPLAINED INVESTMENT IN PUR CHASE OF PIECES OF LAND LOCATED AT KH. NO. 54/99 54/93 54/98 AND 120/04 LINGIADIH AND JUNA BILASPUR THE CIT(A) BILASPUR DELETED THE ADDITIO NS. THE HONBLE ITAT BILASPUR BENCH BILASPUR VIDE ORDER IN ITA NO. 73 TO 79/BLPR/2010 80 TO 82/BLPR/2010 221 TO 226/BLPR/2010 DATED 21-10-201 1 AFFIRMED THE ORDER BY OBSERVING THAT CIT(A) BILASPUR IS JUSTIFIED I N HOLDING THAT THE SALE CONSIDERATION MENTIONED IN THE SALE DEED FOUND DUR ING THE COURSE OF SEARCH CANNOT BE DISBELIEVED FOR INVOKING THE PROVISIONS OF SECTION 69B MERELY ON THE BASIS OF THE REPORT OF THE APPROVED VALUER UNL ESS THE UNDERSTATEMENT OF INVESTMENT IS ESTABLISHED BY DIRECT OR CORROBORATI VE EVIDENCES WHICH HAS NOT BEEN DONE IN THIS CASE. RECORDS REVEALS THAT THE A PPELLANT IS THE CO-OWNER OF SAME PIECES OF LAND ALLOCATED IN KH. NO. 54/99 54 /93 54/98 AND 120/04 LINGIADIH AND JUNA BILASPUR. THAT APART THE INVE STMENT IN FIRST THREE PIECE OF LAND HAS BEEN DISCLOSED IN THE INCOME TAX RETUR N OF ANIL MUNDRA HUF AND THAT OF THE FOURTH PIECE OF LAND IN INCOME TAX RE TURN OF M/S SHAKTI CONSTRUCTIONS WHEREIN THE APPELLANT IS A PARTNER IN INDIVIDUAL CAPACITY. WHEN THE INVESTMENT IN SUCH LANDED PROPERTY HAS NO T BEEN DISCLOSED BY THE APPELLANT IN HIS INDIVIDUAL FOLDER THE INFERENCE OF UNDERSTATEMENT IN INVESTMENT AS MADE BY THE AO IS UNCALLED FOR AND UNWARRANTED. RESPECTFULLY FOLLOWING THE AFORESAID ORDER OF HON BLE ITAT THE IMPUGNED ADDITION U/S 69B OF THE ACT MADE AS UNDISCLOSED I NVESTMENT BY THE APPELLANT IN PURCHASE OF SAME PIECES OF LAND IS ALSO FOUND T O BE UNSUSTAINABLE AND HENCE THE SAME IS DELETED. 6 ITA NO. 36/BLPR/2012 4. AGAINST THE ABOVE ORDER OF LEARNED CIT(APPEALS) REVENUE IS IN APPEAL BEFORE US. 5. WE HAVE HEARD BOTH THE COUNSEL AND PERUSED THE R ECORDS. WE FIND THAT NO INCRIMINATING MATERIAL WAS FOUND DURING THE SEARCH. THE REGISTERED SALE DEED OF PROPERTY PURCHASED SHOWS THE PURCHASE PRICE AS PER THE VALUATION OF REGISTRATION AUTHORITIES. THE ASSESSING OFFICER HAS MADE THE IMP UGNED ADDITION ON THE BASIS OF REGISTERED VALUERS REPORT. THE ADDITION MADE ON TH E SAME REGISTERED VALUERS REPORT IN SAME CIRCUMSTANCES IN THE HANDS OF OTHER CO-OWNE RS HAS BEEN DELETED BY THE ITAT IN THE ORDER OF ITAT MENTIONED ABOVE. THE SELL ERS IN THIS CASE HAVE ALSO AFFIRMED THE PRICES PAID. NO DVOS REPORT HAS BEEN BROUGHT ON RECORD BY THE REVENUE. IN THESE CIRCUMSTANCES IN OUR CONSIDERED OPINION THERE IS NO REASON TO DEVIATE FROM THE VIEW TAKEN BY THE TRIBUNAL IN THE ORDERS MENTIONED ABOVE. IN THIS CASE IT WAS OBSERVED THAT IN THE ABSENCE OF ANY INC RIMINATING MATERIAL WHICH SHOW THAT ANY AMOUNT WAS PAID OVER AND ABOVE WHAT WAS ME NTIONED IN THE REGISTERED SALE DEED. NO ADDITION IS SUSTAINABLE. SINCE THE FA CTS ARE IDENTICAL AND IT IS ALSO NOT THE CASE THAT HONBLE JURISDICTIONAL HIGH COURT HAS REVERSED THE DECISION WE ARE INCLINED TO FOLLOW THE ABOVE SAID TRIBUNALS ORDER AND UPHOLD THE ORDER OF LEARNED CIT(APPEALS). WE FURTHER FIND THAT HONBLE APEX COU RT IN THE CASE OF HONDA CIEL POWER PRODUCTS CIVIL APPEAL NO. 5412 OF 2007 HAD HELD THAT NON CONSIDERATION OF THE COORDINATE BENCH DECISION CAN RENDER THE ORDER OF THE TRIBUNAL LIABLE FOR RECTIFICATION FOR MISTAKE APPARENT FROM RECORD. HE NCE IN THE BACKGROUND OF AFORESAID DISCUSSION AND PRECEDENT WE DO NOT FIND ANY INFIRMITY IN THE ORDER OF LEARNED CIT(APPEALS). ACCORDINGLY WE UPHOLD THE SAM E. 7 ITA NO. 36/BLPR/2012 6. IN THE RESULT THIS APPEAL FILED BY THE REVENUE STANDS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 31 ST DAY OF JULY 2015. SD/- SD/- (MUKUL K. SHRAWAT) ( SHAMIM YAHYA) JUDICIAL MEMBER ACCOUNTANT MEMBER. DATED: 31 ST JULY 2015. COPY OF ORDER FORWARDED TO : 1. THE ASSESSEE. 2. REVENUE. 3. THE CIT(A) 4. THE CIT 5. THE D.R. ITAT RAIPUR. 6. GUARD FILE. T RUE COPY. BY ORDER WAKODE ASSISTANT REGISTRAR ITAT NAGPUR