Bodh Raj Narang,, Panchkula v. ITO,, Panchkula

ITA 51/CHANDI/2010 | 2006-2007
Pronouncement Date: 30-08-2010 | Result: Partly Allowed

Appeal Details

RSA Number 5121514 RSA 2010
Assessee PAN AAKPN2656F
Bench Chandigarh
Appeal Number ITA 51/CHANDI/2010
Duration Of Justice 7 month(s) 19 day(s)
Appellant Bodh Raj Narang,, Panchkula
Respondent ITO,, Panchkula
Appeal Type Income Tax Appeal
Pronouncement Date 30-08-2010
Appeal Filed By Assessee
Order Result Partly Allowed
Bench Allotted A
Tribunal Order Date 30-08-2010
Date Of Final Hearing 20-04-2010
Next Hearing Date 20-04-2010
Assessment Year 2006-2007
Appeal Filed On 11-01-2010
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL CHANDIGARH BENCHES A CHANDIGARH BEFORE SHRI G.S.PANNU ACCOUNTANT MEMBER AND MS SUSHMA CHOWLA JUDICIAL MEMBER ITA NO. 51/CHD/2010 ASSESSMENT YEAR: 2006-07 SHRI BODH RAJ NARANG VS THE INCOME TAX OFFICER H.NO. 447 SECTOR 10 WARD-1 PANCHKULA PANCHKULA. PAN: AAKPN 2656 F (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI S.K. MUKHI & MS JYOTI RESPONDENT BY: SMT. JAI SHREE SHARMA ORDER PER SUSHMA CHOWLA JM THE APPEAL BY THE ASSESSEE IS AGAINST THE ORDER OF CIT(A)- PANCHKULA DATED 16.10.2009 RELATING TO ASSESSMENT YEAR 2006-07 AGAINST THE ORDER PASSED UNDER SECTION 144 OF THE I.T. ACT. 2. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS O F APPEAL:- 1 THAT THE ORDERS OF THE LD. CIT(A) PANCHKULA UPHO LDING THE ASSESSMENT ORDER IS ERRONEOUS AND UNCALLED FOR AS NO SUFFICIENT OPPORTUNITY WAS GIVEN TO THE APPELLAN T. 2 THAT THE ASSESSING OFFICER AS WELL AS THE LD. CI T(A) ERRED IN PASSING THE ORDER IGNORING APPRECIATION OF PROPER FACTS WHILE PASSING THE CRYPTIC ORDER MAKING ADDITIONS AND IGNORING THAT THE OLD MAN OF 73 YEARS BEING A SENIOR CITIZEN WAS NOT IN A POSITION TO REP RESENT HIS CASE PROPERLY ALSO BEING NOT REPRESENTED BY ANY PROFESSIONAL EXPERT. 3 THAT THE ADDITIONS MADE BY THE ASSESSING OFFICER AND UPHELD BY THE LD. CIT(A) BEING BASED ON NON APPRECIATION OF PROPER FACTS AND EVIDENCES ARE BAD IN LAW AND NEEDS DUE INTERFERENCE BY THIS HON'BLE BENC H. 2 4 THAT WITHOUT PREJUDICE TO THE ABOVE GROUNDS OF AP PEAL THE APPELLANT DISPUTES THE ADDITIONS CONFIRMED BY T HE APPELLATE AUTHORITY AS HIGHLY EXCESSIVE. 3. THE ASSESSEE HAS NOT PRESSED THE GROUND NO.1 AG AINST NON ALLOWANCE OF SUFFICIENT OPPORTUNITY HENCE THE SAME IS DISMISSED AS NOT PRESSED. 4. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSE E HAD FURNISHED RETURN OF INCOME SHOWING TOTAL INCOME OF RS. 1 43 913/-. T HE ASSESSING OFFICER ISSUED SEVERAL NOTICES FOR COMPLIANCE WHICH WERE N OT COMPLIED WITH BY THE ASSESSEE. THE ASSESSING OFFICER NOTED THAT THE ASSESSEE WAS MAINTAINING A BANK ACCOUNT WITH CENTURION BANK OF P UNJAB LTD IN WHICH THERE WERE SEVERAL DEPOSITS AND WITHDRAWALS AS INCO RPORATED AT PAGES 1 & 2 OF THE ASSESSMENT ORDER. THE ASSESSING OFFICER CO MPUTED THE PEAK DEPOSITS IN THE SAID BANK ACCOUNT AT RS. 13 04 610/ -. AS THE ASSESSEE HAD FAILED TO FURNISH ANY EVIDENCE TO PROVE THE GENUINE NESS OF THE SOURCE OF DEPOSITS IN THE BANK ACCOUNTS THE SAME WERE TREATE D AS INCOME OF THE ASSESSEE UNDER THE PROVISIONS OF SECTION 68 OF THE INCOME TAX ACT. BEFORE THE CIT(A) THE ASSESSEE APPEARED IN PERSON AND FURNISHED WRITTEN SUBMISSIONS. THE CONTENTION OF THE ASSESSEE WAS TH AT HE AND HIS FAMILY MEMBERS HAD SOLD SOME PORTION OF THEIR ANCESTRAL AG RICULTURAL LAND IN DISTRICT SIRSA HARYANA FOR WHICH TWO SALES DEEDS WERE EXECUTED ON 5.5.2005 FOR CONSIDERATION OF RS. 2 54 000 AND RS. 2 91 000/- RESPECTIVELY. THE WHOLE CONSIDERATION OF THE LAN D WAS RETAINED BY THE ASSESSEE BEING THE YOUNGEST AMONGST THE FOUR BROTHE RS AND DEPOSITED IN HIS BANK ACCOUNT. IT WAS FURTHER CLAIMED BY THE AS SESSEE THAT THE AGRICULTURAL LAND SOLD DID NOT FALL WITHIN ANY MUNI CIPALITY TOWN OR 3 NOTIFIED AREA COMMITTEE AND HENCE WAS EXEMPT FROM C APITAL GAIN TAX. FURTHER A SUM OF RS. 9 LACS WAS RECEIVED ON SALE O F AGRICULTURAL LAND MEASURING 3 KANALS IN DISTRICT SIRSA HARYANA AND THE AMOUNT WAS DEPOSITED ON 8.10.2005. THE SAID LAND ALSO BELONG ED TO THE ASSESSEE AND HIS BROTHERS. THE WRITTEN SUBMISSIONS OF ASSESSEE A RE INCORPORATED AT PAGE 2 OF THE APPELLATE ORDER. THE CIT(A) NOTED FROM T HE PERUSAL OF THE TWO SALE DEEDS PRODUCED OF RS. 2 54 000 + RS. 2 91 000/ - RESPECTIVELY THAT THERE WERE NINE CO-OWNERS OF THE LAND AND THE ASSES SEES SHARE IN THE SALE CONSIDERATION CAME TO ABOUT RS. 60 000/-. FURTHER THE LAND WAS SOLD ON 5.5.2005 AND THE TWO DEPOSITS OF RS. 2 LACS EACH WE RE MADE ON 24.8.2005. BEFORE THE CIT(A) THE ASSESSEE FAILED TO FILE ANY CONFIRMATION FROM THE OTHER EIGHT CO-OWNERS WITH REGARD TO HIS CLAIM THAT THE WHOLE OF THE SALE CONSIDERATION WAS RETAINED BY HIM AND DEPOSITED IN HIS ACCOUNT AND HENCE THE SAME WAS REJECTED. THE CIT(A) ALSO OBSERVED TH AT THE ASSESSEE HAD FURNISHED ON RECORD POWER OF ATTORNEY GIVEN BY ASSE SSEE AND HIS BROTHER TO ONE SHRI JUGAL KISHORE DATED 10.5.2005 WITH RE GARD TO THE AGRICULTURAL LAND MEASURING 3 KANALS IN VILLAGE TALWARAKHURD DI STT. SIRSA BUT NOTHING IS MENTIONED ABOUT THE SALE OF THE LAND AS PER THE POWER OF ATTORNEY. THE CIT(A) THUS HELD THAT THE POWER OF ATTORNEY DOES NO T PROVE ANYTHING WITH REGARD TO THE SOURCE OF DEPOSIT OF RS. 9 LACS IN TH E BANK ACCOUNTS. ACCORDINGLY ADDITION OF RS. 13 04 610/- WAS UPHELD BY THE CIT(A). THE ASSESSEE IS IN APPEAL BEFORE US. 5. THE LEARNED AR FOR THE ASSESSEE DREW OUR ATTENTI ON TO THE COPY OF SALE DEED FURNISHED AT PAGES 8 TO 12 OF THE PAPER B OOK FOR A TOTAL CONSIDERATION OF RS. 2 91 000/- AND AT PAGES 13 TO 17 IN RESPECT OF SALE OF LAND AT RS. 2 51 000/-. THE LEARNED AR POINTED OU T THAT THE ASSESSEE WAS 4 CLAIMING THE SOURCE OF DEPOSIT OF RS. 5 45 000/- OU T OF THE SALE PROCEEDS OF AGRICULTURAL LAND AND THE BALANCE OUT OF HIS SAV INGS AND SAVINGS OF HIS WIFE. THE LEARNED AR FURTHER PLACED RELIANCE ON T HE AFFIDAVIT FILED BEFORE CIT(A) BY THE OTHER CO-OWNERS UNDER WHICH THEY HAVE AFFIRMED TO HAVE GIVEN UP THEIR SHARE IN THE SALE PROCEEDS IN FAVOUR OF THE ASSESSEE. THE AFFIDAVITS ARE PLACED AT PAGES 1 TO 3 OF THE PAPER BOOK AND WERE AVAILABLE ON RECORD OF CIT(A) AS PRODUCED BEFORE US DURING TH E COURSE OF HEARING. IN RESPECT OF THE SAVINGS OF HIS WIFE THE LEARNED AR PLACED RELIANCE ON THE RETURN OF INCOME FILED BY THE WIFE NECESSARY S UPPORTS FOR WHICH ARE PLACED AT PAGES 21 TO 25 OF THE PAPER BOOK. THE LEARNED DR FOR THE REVENUE POINTED OUT THAT THE FACTUM OF THE SALE OF AGRICULTURAL LAND WAS NOT DECLARED IN THE RETURN OF INCOME. FURTHER THE DATE OF RECEIPT OF SALE PROCEEDS DO NOT TALLY WITH THE DEPOSITS MADE IN THE BANK ACCOUNT AND THE TWO ARE SIGNIFICANT AS THE DATE OF DEPOSIT IS BEING LINKED WITH THE TRANSACTION OF SALE OF LAND. THE LEARNED DR FURTHE R POINTED OUT THAT ASSESSEES SHARE IN THE AFORESAID TRANSACTIONS WORK S TO ONLY RS. 60 000/- AS THE LAND HOLDING IS OWNED BY 9 CO-OWNERS. THE L EARNED DR ALSO POINTED OUT THAT NO EVIDENCE OF BALANCE SALE OF LAN D HAS BEEN FILED. 6. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE RECORDS. THE ASSESSEE DURING THE YEAR UNDER CONSIDERATION HAD MA DE CERTAIN DEPOSITS IN HIS BANK ACCOUNT WITH CENTURION BANK OF PUNJAB. TH E ASSESSEE FAILED TO FURNISH ANY EXPLANATION BEFORE THE ASSESSING OFFICE R. HOWEVER BEFORE THE CIT(A) THE CLAIM OF THE ASSESSEE WAS THAT PART OF THE DEPOSITS WERE OUT OF THE SALE PROCEEDS OF AGRICULTURAL LAND SOLD FOR CONSIDERATION OF RS. 2 54 000 AND RS. 2 91 000/- RESPECTIVELY THE TWO S ALES DEED BEING EXECUTED ON 5.5.2005. THE SAID SALE OF LAND WAS C LAIMED BY THE ASSESSEE TO BE EXEMPT FROM CAPITAL GAINS TAX AS THE SAID AGR ICULTURAL LAND DID NOT 5 FALL WITHIN ANY MUNICIPALITY TOWN OR NOTIFIED AREA COMMITTEE. THE ASSESSEE HAD DEPOSITED RS. 2 LACS EACH ON 24.8.2005 I.E. RS. 4 LACS. THE ASSESSEE CLAIMS THAT THE SAID AGRICULTURAL LAND WAS JOINTLY OWNED BY THE ASSESSEE ALONGWITH HIS BROTHERS. HOWEVER THE SAL E PROCEEDS IN RESPECT OF THE TWO SALE DEEDS EXECUTED ON 5.5.2005 WERE RETAI NED BY THE ASSESSEE IN ENTIRETY AS ALL THE OTHERS HAD GIVEN UP THEIR SHA RES IN SALE CONSIDERATION. THE COPY OF THE SALE DEEDS ARE PLACED AT PAGES 8 TO 12 AND 13 TO 17 OF THE PAPER BOOK. THE PERUSAL OF THE SAID SALE DEED REV EALS THE PROPERTY TO BE JOINED OWNED BY NINE CO-OWNERS AS UNDER:- A) SHIV DAYAL S/O SHRI MOHAN LAL B) BUDH RAM S/O SHRI MOHAN LAL ( THE ASSESSEE BEFORE US) C) DEV KUMAR S/O BHANJU RAM D) RUKMANI DEVI W/O SHRI BHANJU RAM E) VIJAY KUMAR D/O BHANJU RAM F) CHUNI LAL S/O SHRI BHANJU RAM G) DINESH KUMAR S/O WASAKHA RAM H) INDIRA RAM D/O WASAKHA RAM I) UTTMI DEVI W/O WASAKHA RAM 7. THE CONTENTION OF THE LEARNED AR FOR THE ASSESSE E WAS THAT THE PROPERTY WAS JOINTLY OWNED BY FOUR BROTHERS AND ON THE DEMISE OF TWO OF THE BROTHERS HIS LEGAL HEIRS HAD BECOME JOINT OWN ERS OF THE PROPERTY. THE LEARNED AR FOR THE ASSESSEE HAD ALSO FURNISHED ON RECORD THE COPY OF THE AFFIDAVITS FURNISHED BEFORE CIT(A) OF SHRI SHIV DAYAL NARANG SHRI DEV KUMAR S/O SHRI BHANJU RAM SHRI DINESH KUMAR S /O WASAKHA RAM AT PAGES 1 TO 3 OF THE PAPER BOOK. SIMILAR AFFIDAV ITS HAVE BEEN FILED BY THE PERSONS WHICH READS AS UNDER:- AFFIDAVIT I SHIV DAYAL NARANG (S.D. NARANG) SON OF LATE SHR I MOHAN LAL NARANG RESIDENT OF HOUSE NO. 955 SEC 7 PANCHKULA DO HERE SOLEMNLY AFFIRM AND DECLARE AS UNDER: 1 THAT I WAS ONE OF THE BENEFICIARY IN THE SALE DEE DS PERTAINING TO AGRICULTURAL LAND BEARING KHEWAT NO. 1238 KHATAU NO. 157 SITUATED AT VILLAGE TALWARA KHURD DISTT. SIRSA AND THE SALE DE EDS REGISTERED WITH THE 6 SUB REGISTRAR ELLANABAD VIDE REGISTRATION NO. 301 AND 302 BOOK NO. 1 VOLUME NO. 41 PAGE NO. 34 TO 36 AND 37 TO 39 BOTH DATED 5.5.2005 WITH CONSIDERATION OF RS. 2 54 000/- AND RS. 2 91 000/- RESPECTIVELY. 2 THAT THE ENTIRE AMOUNT OF MY SHARE WAS GIVEN TO M Y YOUNGER BROTHER SHRI BODH RAJ NARANG SON OF LATE SHRI MOHAN LAL NAR ANG RESIDENT OF HOUSE NO. 447 SEC 10 PANCHKULA. SD/- DEPONENT VERIFICATION:- VERIFIED THAT THE CONTENTS OF MY ABOVE AFFIDAVIT AR E TRUE AND CORRECT TO THE BEST OF MY KNOWLEDGE AND BELIEF AND THAT NOTHING HA S BEEN CONCEALED THEREIN. PLACE: CHANDIGARH SD/- DATE: 20.7. DEPONENT 8. DURING THE COURSE OF HEARING OF THE PRESENT APPE AL THE ASSESSEE FURNISHED AN AMENDED AFFIDAVIT OF SHRI DEV KUMAR S/ O SHRI BHANJU RAM AND DINESH KUMAR S/O WASAKHA RAM. THE CONTENTS OF THE SAID AFFIDAVITS ARE AS UNDER:- AFFIDAVIT I DEV KUMAR SON OF LATE SHRI BHANJU RAM RESIDENT OF 8 MARLA COLONY PATEL NAGAR HISAR DO HEREBY SOLEMNLY AFFIRM AND DE CLARE AS UNDER: 1 THAT I SUBMITTED AN EARLIER AFFIDAVIT DATED 15.7. 2009 STATING THERE IN THAT ENTIRE SHARE OF MY FATHER IN THE SALE OF AG RICULTURAL LAND SITUATED AT VILLAGE TALWARA KHURD DISTT. SIRSA (25%) VIDE S ALE DEED BOTH BEARING REGISTRATION NO. 301 & 302 BOOK NO. 1 VOL NO. 41 PAGE NO. 34 DATED 25.5.2005 WITH THE SUB REGISTRAR ELLANABA D DISTRICT SIRSA FOR RS. 2 54 000.00 & RS. 2 91 000.00 RESPECTIVELY WAS GIVEN TO MY UNCLE SHRI BODH RAJ NARANG SON OF SHRI MOHAN LAL NARANG RESIDENT OF HOUSE NO. 447 SEC 10 PANCHKULA. 2 THAT THE ENTIRE SHARE OF MY FATHER WAS GIVEN TO M Y UNCLE WHO IS MY FATHERS YOUNGEST BROTHER WITH THE CONSENT OF ALL THE LEGAL HEIRS OF MY FATHER. 3 THAT MY EARLIER AFFIDAVIT WAS ALSO GIVEN BY ME ON BEHALF OF ALL THE LEGAL HEIRS OF MY LATE FATHER WITH THEIR CONSENT. SD/- DEPONENT 7 VERIFICATION:- VERIFIED THAT THE CONTENTS OF MY ABOVE AFFIDAVIT AR E TRUE AND CORRECT TO THE BEST OF MY KNOWLEDGE AND BELIEF & NOTHING HAS BEEN CONCEALED THEREIN. PLACE: CHANDIGARH SD/- DATE: DEPONENT 9. IN VIEW OF THE ABOVE SAID EVIDENCE FILED BY THE LEARNED AR FOR THE ASSESSEE WHEREIN THE PARTIES HAVE SPECIFICALLY AFFI RMED THAT THE ENTIRE RECEIPTS OF THE SALE OF AGRICULTURAL LAND TOTALING TO RS. 2 54 000/- AND RS. 2 91 000/- HAVE BEEN HANDED OVER TO THE ASSESSEE B EFORE US BY THE INDIVIDUAL CO-OWNERS WE ARE OF THE VIEW THAT THE E XPLANATION OF THE ASSESSEE TO THE EXTENT OF RS. 5 45 000/- (RS. 2 54 000 + RS. 2 91 000/- ) MERITS TO BE ACCEPTED. THE TOTAL PEAK DEPOSITS I N THE SAVING ACCOUNTS WERE RS. 13 04 610./- AND AFTER ALLOWING THE CREDIT FOR RS. 5 45 000/- THE ASSESSEE HAD TO FURNISH THE EVIDENCE IN RESPECT OF THE BALANCE DEPOSIT OF RS. 7 59 610/-. THE EXPLANATION OF THE ASSESSEE B EFORE CIT(A) IN THIS REGARD WAS THAT ASSESSEE ALONG HIS BROTHERS HAD SOL D ANOTHER PIECE OF AGRICULTURAL LAND FOR WHICH POWER OF ATTORNEY WAS EXECUTED AND COPY OF WHICH WAS FILED. THE ASSESSEE FAILED TO PRODUCE ANY EVIDENCE OF SALE TRANSACTION EXCEPT THE COPY OF POWER OF ATTORNEY EX ECUTED EITHER BEFORE CIT(A) OR BEFORE US. IN VIEW THEREOF THE SAID PLE A WAS REJECTED BY CIT(A). WE UPHOLD THE SAME IN THE ABSENCE OF ANY DOCUMENT EVIDENCING THE ALLEGED SALE OF ANOTHER AGRICULTURAL LAND. ALT ERNATIVELY THE SOURCE OF THE BALANCE DEPOSITS WAS EXPLAINED BY THE LEARNED A R BEFORE US TO BE OUT OF SAVINGS OF THE ASSESSEE AND THE SAVINGS OF HIS W IFE. THE ASSESSEE HAS FURNISHED ON RECORD THE RETURN OF INCOME FILED BY H IS WIFE RELATING TO ASSESSMENT YEAR 2005-06 IN WHICH SHE HAD SHOWN INC OME FROM PENSION 8 AT RS. 69 035/- RENTAL INCOME OF RS. 30 000/- AND DEPOSIT IN FDS ACCOUNT WITH CHANDIGARH LIC EMPLOYEES SOCIETY OF RS. 2 96 000/-. THE TOTAL TAXABLE INCOME FOR THE YEAR WAS DECLARED AT 73 447/ -. THE ASSESSEE DURING THE UNDER CONSIDERATION HAD FILED RETURN OF INCOME SHOWING TOTAL INCOME OF RS. 1 43 913/-. IN THE FACTS AND CIRCUMS TANCES OF THE CASE WE ARE OF THE VIEW THAT THE ASSESSEE HAS FAILED TO JUS TIFIABLY EXPLAIN WITH EVIDENCE HIS CLAIM ABOUT THE AVAILABILITY OF CASH OF RS. 7 59 610/- I.E. THE BALANCE OF PEAK CREDITS WORKED BY THE ASSESSING OFFICER. HOWEVER WE ARE OF THE VIEW THAT CREDIT FOR PAST SAVINGS TO THE EXTENT OF RS. 1 00 000/- MAY BE ALLOWED TO THE ASSESSEE. IN THE ABSENCE OF ANY EVIDENCE FILED BY THE ASSESSEE JUSTIFYING THE AVAIL ABILITY OF CASH OF RS. 6 59 610/- WE UPHOLD THE ADDITION OF RS. 6 59 610 /- UNDER THE PROVISIONS OF SECTION 68 OF THE INCOME TAX ACT. THE GROUNDS OF APPEAL RAISED BY THE ASSESSEE ARE THUS PARTLY ALLOWED. 10. IN THE RESULT APPEAL OF THE ASSESSEE IS PARTLY ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 30 TH DAY OF AUGUST 2010. SD/- SD/- (G.S.PANNU) (SUSHMA CHOWLA) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 30 TH AUGUST 2010 RKK COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT 4. THE CIT(A) 5. THE LD. D.R.