Satyender Yadav, Gurgaon v. ITO, Gurgaon

ITA 4686/DEL/2015 | 2010-2011
Pronouncement Date: 28-09-2016 | Result: Allowed

Appeal Details

RSA Number 468620114 RSA 2015
Assessee PAN ABAPY2570L
Bench Delhi
Appeal Number ITA 4686/DEL/2015
Duration Of Justice 1 year(s) 2 month(s) 13 day(s)
Appellant Satyender Yadav, Gurgaon
Respondent ITO, Gurgaon
Appeal Type Income Tax Appeal
Pronouncement Date 28-09-2016
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted SMC 2
Tribunal Order Date 28-09-2016
Date Of Final Hearing 02-08-2016
Next Hearing Date 02-08-2016
Assessment Year 2010-2011
Appeal Filed On 15-07-2015
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: SMC-II NEW DELHI BEFORE SMT DIVA SINGH JUDICIAL MEMBER I.T.A .NO.-468 6/DEL/2015 (ASSESSMENT YEAR- 2010-11) SATYENDER YADAV A-113 WESTEND HEIGHTS DLF PHASE-V GURGAON-110092. PAN-ABAPY2570L (APPELLANT) VS ITO WARD-11(3) GURGAON. (RESPONDENT) APPELLANT BY SH.SAUBHAGYA AGARWAL ADV. RESPONDENT BY MS. ANIMA BAR A NWAL SR.DR ORDER THE PRESENT APPEAL HAS BEEN FILED BY THE ASSESSEE A SSAILING THE CORRECTNESS OF THE ORDER DATED 15.05.2015 OF CIT(A)-1 GURGAON PERTAIN ING TO 2010-11 ASSESSMENT YEAR ON VARIOUS GROUNDS. HOWEVER AT THE TIME OF HEARING THE LD.AR ARGUED ONLY GROUND NOS. 3 & 4. THE SAME ARE REPRODUCED HEREUNDER FOR READY-REF ERENCE:- 3. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW THE LD. COMMISSIONER ERRED IN NOT APPRECIATING THE FACT THA T THE APPELLANT WAS NOT GRANTED ANY OPPORTUNITY TO CROSS-EXAMINE THE PERSON S WHOSE STATEMENTS HAVE BEEN RELIED UPON BY THE ASSESSING OFFICER FOR MAKIN G ADVERSE INFERENCES AGAINST THE APPELLANT. 4. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW THE LD. COMMISSIONER ERRED IN NOT APPRECIATING THE FACT THA T THE STATEMENTS OF THE PERSONS RELIED UPON BY THE ASSESSING OFFICER HAVE B EEN RECORDED BEHIND THE BACK OF THE APPELLANT AND THAT NO OPPORTUNITY HAS B EEN GRANTED TO THE APPELLANT TO CONFRONT THE SAME. 2. ADDRESSING THE SAME IT WAS HIS LIMITED REQUEST THAT THE ISSUE BE RESTORED BACK TO THE AO SO THAT THE ASSESSEE IS PROVIDED AN OPPORTUNITY TO CROSS-EXAMINE THE PERSONS WHOSE ALLEGED STATEMENTS HAVE BEEN RELIED UPON BY THE TAX AUTHORITIES. IN THE FACTS OF THE PRESENT DATE OF HEARING 02.08.2016 DATE OF PRONOUNCEMENT 28. 09.2016 I.T.A .NO.-4686/DEL/2015 PAGE 2 OF 4 CASE IT WAS HIS SUBMISSION THAT THERE IS AN AGREEM ENT TO SELL ADMITTEDLY ON RECORD WHICH HAS BEEN SIGNED BY THE PARTIES. THE CONCLUSION DRA WN BY THE TAX AUTHORITIES THAT THE PARTIES PLEADED NO SUCH AGREEMENT HAD BEEN SIGNED IS CONTRA RY TO FACT AND RECORD. THE PRAYER FOR TIME WAS SOUGHT FOR FILING A PAPER BOOK WHICH CONTA INS AN AFFIDAVIT OF SH.GOPAL SINGH CHAUHAN WHEREIN HE OWNS UP THAT THE TRANSACTIONS WE RE DONE BY HIM. THE AFFIDAVIT OF SH.GOPAL SINGH CHAUHAN SIGNATORY OF THE AGREEMENT I T WAS SUBMITTED STATES THAT HE DID NOT UNDERSTAND WHAT WAS BEING ASKED BY THE INSPECTOR OF THE INCOME TAX. IT WAS ARGUED THAT THE INSPECTOR HAD NO AUTHORITY TO ADMINISTER OATH U NDER THE PROVISIONS OF THE INCOME TAX ACT 1961. 3. THE LD. SR. DR SUBMITTED THAT THE CIT(A) HAS GIV EN A FINDING THAT THE STATEMENT HAS BEEN RECORDED BY THE AO WHO HAD THE AUTHORITY TO AD MINISTER OATH U/S 131 OF THE INCOME TAX ACT 1961. HOWEVER IT WAS HIS SUBMISSION THAT ADMITTEDLY OPPORTUNITY TO CROSS-EXAMINE HAS NOT BEEN GIVEN TO THE ASSESSEE WHICH MAY BE PRO VIDED. 4. BOTH THE PARTIES HAVE BEEN HEARD. IT IS SEEN THA T THE ASSESSEES RETURN WAS PICKED UP FOR SCRUTINY AND EXPLAINING THE CASH DEPOSITS AMOUN TING TO RS.30 78 500/- IN SPECIFIC BANK ACCOUNT IN SYNDICATE BANK A/C NO.82462010009620 THE ASSESSEE EXPLAINED THAT RS.19.50 LAKHS WAS AN ADVANCE IN RESPECT OF SALE OF PLOT; A PART FROM THAT THERE WAS INCOME FROM SALARY; CONSULTANCY; AGRICULTURAL INCOME; SALE OF C AR ETC. THE ASSESSEE FURTHER EXPLAINED THAT THE AGREEMENT TO SELL WAS EXECUTED ON 03.03.2010 BE TWEEN THE SATYENDRA YADAV I.E. THE ASSESSEE AS A SELLER AND SH.SAHAB SINGH AND SH.GOPA L SINGH CHAUHAN AS PURCHASERS FOR WHICH RS.19.50 LAKHS WAS RECEIVED. THE SPECIFIC LA ND WAS DESCRIBED AS 1000 SQ YARD KHASRA NO.224 SITUATED IN THE REVENUE ESTATE OF LAL DORA V ILL. KHAIRA NAJAFGARH NEW DELHI-110043 ABADI KNOWN AS EXTENDED LAL DORA. I.T.A .NO.-4686/DEL/2015 PAGE 3 OF 4 5. IN PURSUANCE TO THE SAID AGREEMENT IT HAS BEEN STATED THAT THE PURCHASERS HAD GIVEN ADVANCE OF RS.19.50 LAKHS TO SELLER ON 03.03.2010 A ND THE TIME FOR REGISTRATION OF SALE DEED HAD BEEN AGREED TO AS ON OR BEFORE 03.072010. SIN CE THE SPECIFIC SALE DEED WAS NOT EXECUTED THE ASSESSEE AS PER AFFIDAVITS DATED 30.1 0.2012 EXTRACTED IN PARA 3.1 OF THE ASSESSMENT ORDER STATED THAT HE HAD RECEIVED THE AM OUNT FROM SH.SHAB SINGH AND SH.GOPAL SINGH CHAUHAN AGAINST AN AGREEMENT TO SELL AND SINC E THEY DID NOT EXECUTE THE SALE DEED THE AMOUNT WAS FORFEITED. THE TAX AUTHORITIES RELI ED UPON THE STATEMENT WHEREIN SH. SHAB SINGH STATED THAT HE DID NOT KNOW THE ASSESSEE WHO INFACT WAS KNOWN TO HIS SON SH. PANKAJ YADAV SH. GOPAL SINGH CHAUHAN SON OF SH.JAGDISH SI NGH CHAUHAN R/O-VILLAGE-WAZIRPUR DISTT.-GURGAON STATED THAT HE KNEW THE ASSESSEE BUT HE DID EXECUTE ANY SUCH AGREEMENT. IT IS SEEN THAT BASED ON THESE FACTS THE ASSESSEE S CLAIM WAS DISALLOWED AND THE ADDITION WAS MADE IN THE HANDS OF THE ASSESSEE HOLDING THAT THE ASSESSEE HAS INTRODUCED UNACCOUNTED INCOME IN HIS BANK ACCOUNT. THE SAID F INDING WAS CONFIRMED IN APPEAL BY THE CIT(A). BEFORE THE CIT(A) THE ASSESSEE DID NOT RAI SE THE ISSUE WHETHER THE STATEMENT WAS RECORDED BY THE AO OR BY THE INSPECTOR. THE ISSUE EVEN BEFORE US HAS NOT BEEN RAISED IN THE PRESENT PROCEEDINGS BY THE LD.AR WHO CLARIFIED THAT HE HAS MERELY SOUGHT AN OPPORTUNITY TO CROSS-EXAMINE SH.GOPAL SINGH CHAUHAN AND SH. SHAB S INGH. REFERRING TO THE ASSESSMENT ORDER IT WAS SUBMITTED IN PARA 3.2 THAT SH. SHAB S INGH IS SUPPOSED TO HAVE SAID THAT HE DID NOT KNOW SH. SATYENDRA YADAV FOR WHICH PURPOSES HE SOUGHT AN OPPORTUNITY TO PLACE ON RECORD AS EVIDENCE AFFIDAVIT OF HIS SON. 6. I FIND THAT IN THE PECULIAR FACTS AND CIRCUMSTAN CES OF THE PRESENT CASE IT CAN NOT BE CONCLUSIVELY DECIDED WHETHER IT IS UNEXPLAINED INCO ME OF THE ASSESSEE OR NOT . IN THE FACTS OF THE PRESENT CASE ADMITTEDLY THE ASSESSEE IS HAV ING SAME CONSULTANCY INCOME STATED TO BE RELATED TO REAL ESTATE ETC. HOWEVER THE FACT WHICH REMAINS ON RECORD IS THAT AT THE RELEVANT I.T.A .NO.-4686/DEL/2015 PAGE 4 OF 4 POINT OF TIME THE ASSESSEE WAS IN THE POSSESSION OF A SPECIFIC PIECE OF LAND. THE AGREEMENT TO SELL IS IN REGARD TO THE SAID LAND. IT IS STATE D TO BE SIGNED BY ALL THE THREE PARTIES. HOWEVER I FIND THAT NO ATTEMPT HAS BEEN MADE BY AN YONE TO SEE AND AUTHENTICATE THE SIGNATURES OF THE PARTIES. THE FACTS NEED TO BE AP PRECIATED AFRESH. IT NEEDS TO BE ASCERTAINED WHETHER THE LAND CONTINUES TO STILL VES T WITH THE ASSESSEE OR WAS IT ASSIGNED TO SOME OTHER PARTY WHO PROCEEDED TO EXECUTE THE SALE ON THE BASIS OF THE VERY SAME PAYMENT MADE BY SH. SHAB SINGH AND SH. GULAB SINGH CHAUHAN. THE FACTS ARE NOT CLEAR AND THE EVIDENCES SOUGHT TO BE ADMITTED ARE CRUCIAL FOR DET ERMINING THE SAME. THUS CONSIDERING THE PRAYER OF THE PARTIES THE ISSUE IS RESTORED BACK TO THE FILE OF THE AO WITH A DIRECTION TO PROVIDE AN OPPORTUNITY TO CROSS-EXAMINE THESE TWO P ERSONS. THE ASSESSEE ALSO IS PROVIDED AN OPPORTUNITY TO PLACE THE EVIDENCES IT DEEMS FIT IN SUPPORT OF ITS CLAIM. 7. IN THE RESULT THE APPEAL OF THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSES. THE ORDER IS PRONOUNCED IN THE OPEN COURT ON 28 TH SEPTEMBER 2016. SD/- (DIVA SINGH) JUDICIAL MEMBER *AMIT KUMAR* COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTR AR ITAT NEW DELHI