The ACIT, 5(1), Indore v. Smt. Nirmala Agrawal, Indore

ITA 481/IND/2010 | 2006-2007
Pronouncement Date: 09-11-2011 | Result: Dismissed

Appeal Details

RSA Number 48122714 RSA 2010
Assessee PAN ABGPA4909F
Bench Indore
Appeal Number ITA 481/IND/2010
Duration Of Justice 1 year(s) 3 month(s) 25 day(s)
Appellant The ACIT, 5(1), Indore
Respondent Smt. Nirmala Agrawal, Indore
Appeal Type Income Tax Appeal
Pronouncement Date 09-11-2011
Appeal Filed By Department
Order Result Dismissed
Bench Allotted DB
Tribunal Order Date 09-11-2011
Assessment Year 2006-2007
Appeal Filed On 14-07-2010
Judgment Text
1 IN THE INCOME TAX APPELLATE TRIBUNAL INDORE BENCH INDORE BEFORE SHRI JOGINDER SINGH JUDICIAL MEMBER AND SHRI R.C. SHARMA ACCOUNTANT MEMBER ITA NO.483/IND/2010 A.Y. 2006-07 ASSTT. COMMR. OF INCOME TAX 5(1) INDORE ... APPELLANT VS SHRI SANJAY AGRAWAL PROP M/S ADITYA ANIKET & BROS. 33- TIMBER SCHEME NAVLAKHA INDORE ... RESPONDENT PAN AA2PA-9219N ITA NO.482/IND/2010 A.Y. 2006-07 ASSTT. COMMR. OF INCOME TAX 5(1) INDORE ... APPELLANT VS SHRI SUDHIR AGRAWAL 33- TIMBER SCHEME NAVLAKHA INDORE ... RESPONDENT PAN ADBPA-8173E 2 ITA NO.481/IND/2010 A.Y. 2006-07 ASSTT. COMMR. OF INCOME TAX 5(1) INDORE ... APPELLANT VS SMT. NIRMALA AGRAWAL PROP M/S. SANJAY DAL & BESAN MILLS 6/6 NAVLAKHA INDORE PAN ABGPA 4909 F ... RESPONDENT DEPARTMENT BY : SHRI A. DEWAN SR. DR ASSESSEE BY : SHRI KAMLESH JAIN ADVOCATE DATE OF HEARING : 09.11.2011 DATE OF PRONOUNCEMENT : 09.11.2011 O R D E R PER JOGINDER SINGH THESE THREE APPEALS ARE BY THE REVENUE FOR ASSESSM ENT YEAR 2006-2007 AGAINST THE IMPUGNED ORDER DATED 31/ 03/2010 ON THE COMMON GROUND THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE THE LD. CIT (A) ERRED IN DELETING THE ADDITION MADE U/S 68 OF THE ACT BY THE ASSESSING OF FICER FOR THE 3 PRICE REALISED FROM THE SALE OF LAND AND DIRECTION TO COMPUTE LTCG BASED ON THE ACQUISITION ACCEPTED IN EARLIER Y EARS IN THE CASE OF THE RESPECTIVE ASSESSEE TAKING INTO CONSIDE RATION THE PROVISION OF SECTION 50 C OF THE ACT WHICH THE APP ELLANT HAVE THEMSELVES ACCEPTED BY FILING A LETTER TO THIS EFF ECT DURING ASSESSMENT PROCEEDINGS . 2) DURING HEARING OF THESE APPEALS AT THE OUTSET T HE LD COUNSEL FOR THE ASSESSEE ASSERTED THAT THE ISSUE IS COVERED IN FAVOUR OF THE ASSESSEE BY THE ORDER OF THE HON'BLE JURISDICTI ONAL HIGH COURT IN CIT VS. SURESH CHAND GOYAL ( 298 ITR 277) AND CIT VS. SMT. SARASVATI JAISWAL (264 ITR 358) AND THE DE CISION IN RAMSWAROOP SAINI HUF VS ACIT ( 15 SOT 470 (DELHI) ). FURTHER RELIANCE WAS PLACED UPON THE IMPUGNED ORDER . THESE ASSERTION OF THE ASSESSEE WAS NOT CONTROVERTED BY T HE REVENUE BEING FACTUALLY CORRECT. 3) WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PE RUSED THE MATERIAL AVAILABLE ON THE FILE. SINCE FACTS ARE IDENTICAL IN BOTH THE APPEALS OF THE REVENUE THEREFORE THESE C AN BE 4 DISPOSED OFF BY THE COMMON AND CONSOLIDATED ORDER . THE FACTS IN BRIEF ARE THAT THE APPELLANTS DURING THE YEAR U NDER CONSIDERATION EARNED INCOME FROM HOUSE PROPERTY S HARE PROFIT FROM PARTNERSHIP FIRM AND INCOME FROM LONG TERM CAP ITAL GAINS ( IN SHORT L.T.C.G. HEREINAFTER) ON SALE OF LAND AT V ILLAGE LIMBODI AND NAYTAMUNDLA AND FILED RETURNS OF INCOME ON 31.01.2007DERCLARING TOTAL INCOME AT RS. 51 08 810/ - ( IN THE CASE OF SHRI SUDHIR AGRAWAL) AND RS. 34 24 150/- ( IN THE CASE OF SANJAY AGRAWAL) AFTER CLAMMING BENEFIT OF INDEXA TION IN RESPECT OF COST OF ACQUISITION OF THE LAND SOLD FOR THE PURPOSES OF LTCG. IN THE CASE OF SUDHIR AGRAWAL THE TOTAL LT CG DECLARED STOOD AT RS. 31 84 240/- WHEREAS IN THE CA SE OF SHRI SANJAY AGRAWAL RS.60 88 250/- ( FROM THE SALE CONS IDERATION RECEIVED AT RS. 85 30 300/-. ) 4) IN THE CASE OF SHRI SANJAY AGRAWAL LONG LTCG OF RS. 2442050/- WAS SHOWN AS RECEIPT FROM SALE OF LAND AT GRAM LIMBODI AMOUNTING TO RS. 8530300/- WHEREAS IN THE CASE OF SUDHIR AGRAWAL RS. 31 84 240/- WAS SHOWN AS LTCG FR OM THE SALE AMOUNTING TO RS. 91 12 45 475/- AS PER THE REV ENUE NO 5 EVIDENCE OF SALE OF LAND OR COST OF ACQUISITION WAS FILED BY THE ASSESSEE THEREFORE THE ASSESSING OFFICER TREATED RS. 91 12 475 /- AN UNEXPLAINED CREDIT AND THUS ADDED R S. 74 55 000/- TO THE TOTAL INCOME OF THE ASSESSEE IN CASE OF SUDHIR AGRAWAL AND RS. 85 30 300/- AS UNEXPLAINED C ASH CREDIT IN THE CASE OF SHRI SANJAY AGRAWAL AND ADDITION OF RS. 60 88 250/- ( INDEX COST OF ACQUISITION OF LAND AS CLAIMED BY THE ASSESSEE). 5) ON APPEAL BEFORE THE CIT (A) IT WAS HELD AS UND ER:- FACTS ON RECORD FINDINGS GIVEN BY THE AO IN THE ASSESSMENT ORDER AS WELL AS THE REMAND REPORT AND THE CONTENTIONS ADVANCED BY THE APPELLANT IN THE WRITTE N SUBMISSION AND COPIES OF DOCUMENTS FILED IN APPEAL PROCEEDINGS ARE CAREFULLY EXAMINED. 4.1 THE APPELLANT IN THE COMPUTATION OF INCOME FILE D HAD GIVEN THE WORKING OF LTCG FROM SALE OF LAND AT GRAM LIMBODI AGGREGATING RS. 85 30 300/- AND SUCH FIGURE HAS NOT BEEN DISPUTED BY THE ASSESSING OFFICER. THE APPELLANT HAS FURTHER GIVEN THE LIST IF PERSONS TO WHOM SUCH PROPERTY WERE SOLD DURING THE RELEVANT YEAR AND HAS ALSO FILED RELEVANT DOCUMENTS OF OWNERSHIP FORM THE REVENUE RECORDS INCLUDING DOCUMENTS CONCERNING DIVERSION OF LAND WHICH WAS THE SUBJECT MATTER OF S ALE DURING THE YEAR UNDER CONSIDERATION. THE AO IN SUBSEQUENT REPORT ALSO HAS NOT OFFERED ANY ADVERSE COMMENTS ON THE APPELLANT'S SUBMISSION ABOUT OWNERSHIP AND ACQUISITION OF LAND NOR THERE IS ANY ADVERSE FINDING ABOUT REALIZATION OF CAPITAL GAIN I N THE CASE OF THE APPELLANT IN THE EARLIER YEARS. THE AO HAS MERELY ADDED THIS SUM AS UNEXPLAINED FOR WANT OF SA LE DEED. THE AO AS WELL APPELLANT HAS BOTH MADE EFFORT S WITH THE OFFICE OF THE DISTRICT REGISTRAR FOR OBTAI NING THE COPY OF SALE DEED BUT IN ABSENCE OF SPECIFIC DEED NUMBER AND RELEVANT DETAILS THE SAME COULD NOT BE 6 SUPPLIED BY THE OFFICE OF THE DISTRICT REGISTRAR EI THER TO AO OR APPELLANT. THE APPELLANT AS PER REQUISITION M ADE IN COURSE OF APPEAL PROCEEDINGS HAS FILED A COPY OF SALE DEED FOR A PLOT OF LAND WITHIN THE SAME LARGER PLOT AREA INHERITED WITH THE OTHER FAMILY MEMBERS WHOSE APPEA LS HAVE ALSO BEEN TAKEN UP FOR CONSIDERATION AND HAS OFFERED OTHER CLARIFICATIONS. 4.1.1 IN THESE FACTS THE APPELLANT'S VERSION THAT THE AMOUNT WAS REALIZED FROM SALE OF VARIOUS PLOTS OF L AND IN THE YEAR UNDER CONSIDERATION CANNOT BE DISBELIEV ED. THE APPELLANT HAS ALSO FURNISHED STATEMENT ACCOUNT FOR THE LAND AT GRAM LIMBODI OWNED IN CO-OWNERSHIP BY T HE APPELLANT WITH OTHER CO-OWNERS ISSUED BY SUPERINTENDENT LAND RECORD INDORE WHEREIN THE NAM E OF THE PURCHASERS OF THE LAND HAS BEEN TAKEN ON REC ORD IN RESPECT OF LAND SOLD TO THEM. THUS IN THESE FA CTS THE ASSESSING OFFICERS ACTION IN MAKING ADDITION FOR T HE PRICES REALIZED FROM THE SALE OF LAND U/S 68 CANNOT BE SUSTAINED BOTH IN FACTS AND IN LAW AND ACCORDINGLY SUCH ADDITION IS DIRECTED TO BE DELETED AND THE AMOUNT REALIZED FROM SALE OF PLOTS OF LAND IS REQUIRED TO BE CONSIDERED AS LONG TERM CAPITAL GAIN ONLY. 4.12 IT WAS WORTHWHILE TO NOTE THAT THE APPELLANT IN COURSE OF ASSESSMENT PROCEEDINGS HAS FILED A LETTER ADDRESSED TO ACIT WHEREIN APPELLANT OFFERED TO BE ASSESSED ON LTCG BASED ON THE STAMP DUTY VALUATION APPLICABLE IN THE YEAR UNDER CONSIDERATION FOR THE LAND AREA SOLD AT RS.1500 PER SQ.MT AND THE SALE CONSIDERATION WAS WORKED OUT AT RS.89 41 500/AGAINS T SALE PROCEEDS ACTUALLY RECEIVED AND INCORPORATED IN THE COMPUTATION OF INCOME AT RS.85 30 300 / - WITH RESULTANT FURTHER AMOUNT OF CAPITAL GAIN OF RS.4 11 200/- . IT APPEARS THAT THE AO OMITTED TO CONSIDER SUCH O FFER BY THE APPELLANT AS HE HAS ADDED THE AMOUNT ON SALE PROCEEDS REALIZED U/S.68. THE AO HAS BROUGHT TO TAX THE DIFFERENCE BETWEEN THE AMOUNT OF LTCG OFFERED B Y THE APPELLANT FOR TAXATION AT RS.25 42 050/- AND TH E SALE PROCEEDS REALIZED AT RS.85 30 300/- WHICH INCIDENTA LLY IS THE DEDUCTION CLAIMED BY THE APPELLANT FOR INDEXED COST OF ACQUISITION. THE AO SHALL NOW BE REQUIRED TO COMPUT E LTCG BASED ON THE ACQUISITION COST ACCEPTED IN THE CASE OF THE APPELLANT IN EARLIER YEAR TAKING INTO CONSID ERATION THE PROVISION OF SECTION SOC WHICH THE APPELLANT HA S HERSELF ACCEPTED BY FILING A LETTER TO THIS EFFECT IN COURSE OF ASSESSMENT PROCEEDINGS AFTER NECESSARY VERIFICATION AND IN ACCORDANCE WITH LAW . 6) IF THE ASSERTION MADE BY THE LD RESPECTED COUNSEL AND THE CONCLUSION DRAWN IN THE 7 IMPUGNED ORDER ARE KEPT IN JUXTAPOSITION AND ANALYZED WE FIND THAT FOR WORKING L.T.C.G. FROM THE SALE OF LAND AND THE FIGURES FILED BY THE ASSESSEE BEFORE THE LD. ASSESSING OFFICER ARE NOT IN DISPUTE AT THE SAME TIME THE PERSONS TO WHOM THE PROPERTY WAS SOLD ALSO FILED THE DOCUMENTS OF OWNERSHIP FROM THE REVENUE RECORD AND MUTATION OF LAND IN THEIR NAMES EVEN THE LD ASSESSING OFFICER HAS NOT FILED ANY ADVERSE COMMENT EITHER BEFORE CIT(A) OR BEFORE THIS TRIBUNAL. WE FURTHER FIND THAT THE ADDITION WAS MADE IN RESPECT OF SALE CONSIDERATION OF LAND RECEIVED BY THE ASSESSEE. AFTER CONSIDERING ASSESSEES SUBMISSIONS AND REMAND REPORT THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) HAD DELETED THE ADDITION WITH DIRECTION TO THE ASSESSING OFFICER TO CONSIDER THE PROVISIONS OF SECTION 50C OF THE ACT. A BARE READING OF SECTION 68 SUGGEST THAT THERE HAS TO BE CREDIT OF 8 AMOUNTS IN THE BOOKS OF THE ASSESSEE AND THE ASSESSEE OFFERS NO EXPLANATION AND SOURCE OF SUCH CREDIT OR IF SUCH EXPLANATION IS NOT FOUND SATISFACTORY IT IS ONLY THEN THE SUM SO CREDITED MAY BE CHARGED TO INCOME TAX HOWEVER IN THE PRESENT APPEALS THE REQUIRED EXPLANATION AND SOURCE OF SUCH SUMS WERE DULY FILED BEFORE THE ASSESSING OFFICER. THEREFORE WE FIND NO INFIRMITY IN THE IMPUGNED ORDERS. THE SAME ARE UPHELD. SO FAR AS THE APPEAL IN CASE OF SMT. NIRMALA AGRAWAL IS CONCERNED THE LD. REPRESENTATIVES FROM BOTH SIDES CONTENDED THAT THE FACTS AND THE ISSUES IN THIS APPEAL ALSO ARE IDENTICAL TO THE AFORESAID APPEALS OF SHRI SANJAY AGRAWAL & SHRI SUDHIR AGRAWAL. WE HAVE PERUSED THE RECORD AND FOUND THAT THE FACTS AND THE ISSUE ARE IDENTICAL THEREFORE BY FOLLOWING SAME REASONING WE DO NOT FIND ANY INFIRMITY IN THE STAND OF THE LD. CIT(A) IN THIS APPEAL ALSO 9 CONSEQUENTLY THIS APPEAL OF THE REVENUE IS ALSO DISMISSED. FINALLY ALL THE APPEALS OF THE REVENUE ARE HAVING NO MERIT THEREFORE DISMISSED. THIS ORDER WAS PRONOUNCED IN THE PRESENCE OF LD. REPRESENTATIVES FROM THE BOTH SIDES AT THE CONCLUSION OF THE HEARING IN OPEN COURT. SD SD (R.C.SHARMA) (JOGINDER SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 09.11.2011 COPY TO: APPELLANT RESPONDENT CIT CIT(A) DR GU ARD FILE