ITA NO. 3235/Del/2013
IN THE INCOME TAX APPELLATE TRIBUNAL
DELHI BENCH "C", NEW DELHI
BEFORE SHRI R.S. SYAL, ACCOUNTANT MEMBER
AND
SHRI H.S. SIDHU, JUDICIAL MEMBER
I.T.A. No. 3235/DEL/2013
A.Y. : 2008-09
Income Tax Officer, VS. Smt. Himali Bansal,
Ward-45(1), C/o RRA TaxIndia,
Room NO. 204, `D' D-28, South
Block, Civic Centre, Extension,
New Delhi- 110 002 Part-I, New Delhi-49
(PAN: AJHPB6768G)
(APPELLANT) (RESPONDENT)
Department by : Sh. Satpal Singh, Sr. DR
Assessee by : Sh. Ashwani Taneja, Adv.
ORDER
PER H.S. SIDHU : JM
This appeal by the Revenue is directed against the order of the
Ld. Commissioner of Income Tax (Appeals-XXX), New Delhi dated
28.3.2013 pertaining to assessment year 2008-09.
2. The grounds raised read as under:-
1) On the facts and in the circumstances of the case, the Ld.
CIT(A) has erred in:
i) deleting an addition of Rs. 13,58,550/- made u/s.
69B of the I.T. Act made on account of account of
1
ITA NO. 3235/Del/2013
undisclosed investment in purchase of (1/2 share)
property.
ii) deleting an addition of Rs. 5,00,000/- made on
account of investment from undisclosed sources in
purchase of (1/2 share) property by admitting additional
evidence in contravention of Rule 46A of the IT Rules and
without providing an opportunity to the AO as required
under the Rule 46A(3) of the IT Rules.
(2) The appellant craves leave to add, alter, amend any
ground(s) of appeal raised above at the time of hearing.
3. The brief facts of the case are that the assessee filed her
return of income for the above assessment year on 21.7.2008
declaring total income of Rs. 1,20,080/-. During the course of
assessment proceedings, the AO observed that assessee jointly
(with her mother Smt. Sudha Garg) purchased a plot measuring
1217 meter at Pargana Loni, Ghaziabad, for a total consideration of
Rs. 10,00,000/-, value of which was taken by the Registrar of
Properties for stamp valuation purposes at Rs. 34,09,000/-, and
stamp duty was paid of Rs. 3,08,100/-. Thus, according to the AO
total amount paid for the said plot was Rs. 37,17,100/- (Rs.
34,09,000 + Rs. 3,08,100), as against claimed by the assessee and
her mother Rs. 10,00,000/- i.e. the amount mentioned in the sale
2
ITA NO. 3235/Del/2013
deed, and admitted by the seller of the property. The AO considered
that the assessee has made investment of the tune of
Rs. 13,58,550/- (1/2 share) in the said plot (Rs. 37,17,100
10,00,000 = 27,10,100/- /2), and therefore, the AO invoked the
provisions of section 69B of the Act in the hands of the assessee.
3.1 The AO further observed that the amount paid of Rs. 5,00,000/-
being ½ share of the assessee for purchase of the said property is
also an investment which is made in cash from out of books for
which assessee had no explanation, and made the impugned
addition in the hands of the assessee.
4. Against the above order of the AO, assessee appealed before
the Ld. CIT(A), and Ld. CIT(A) after elaborately considered the
submissions deleted the additions made by the AO.
5. Against the above order the Revenue is in appeal before us.
6. We have heard both the counsel and perused the records. We
find that Sh. Ashwani Taneja, Advocate for the assessee relied
upon the order passed by the First Appellate Authority and stated
that the assessee has filed the copy of agreement dated 10.3.2008
relating to sell on of share in property no. 571L, Shastri Nagar,
Meerut by Smt. Sudha Garg to Sh. Ram Prasad S/o Sh. Harpal of
Village Habibpur Distt. Gautam Budh Nagar. regarding he sale of
share in the property alongwith the letter dated 4.5.2010 which the
3
ITA NO. 3235/Del/2013
assessee has filed at Page No. 3 of the Paper Book and agreement
at pages 13-15 of the Paper Book containing Pages 1 to 57A. The
Ld. Counsel of the assessee has attached various documentary
evidence supporting the claim of the assessee as well as the various
judgments supporting the claim of the assessee. He has stated
that the Ld. First Appellate Authority has rightly deleted the
additions in dispute and requested that appeal filed by the Revenue
may be dismissed.
5.1 On the other hand, Ld. DR relied upon the order of the AO.
5.2 We find that Ld. CIT(A) have examined the impugned
assessment order and the averments made by the AO therein. He
considered the written submissions, precise summary of facts, and
the evidences placed by the assessee in the paper book. After
considering all these he was also of the considered opinion that
provisions of section 69B cannot be invoked in the case of the
assessee, as no books are maintained by the assessee. We find that
moreover, it is not the case, where the AO has brought on record
any contrary material to substantiate that assessee or her mother
Smt. Sudha Garg has paid any other amount as has been mentioned
in the sale deed executed before the Registrar of properties. It is
also not the case of the AO that there is any other contrary or
supportive evidence which corroborates the stand taken by the AO
4
ITA NO. 3235/Del/2013
except the value adopted by the Registrar of properties for purposes
of stamp valuation. We find that Ld. CIT(A) has stated in his order
that no inquiry was conducted by the AO before invoking the
provisions of section 69B of the Act and no evidence is brought on
record by the AO that some extra consideration was paid by the
assessee for acquiring the property over and above the amount of
sales consideration as shown in the sale deed. It is not understood
as to why the value taken by the Registrar of properties for purpose
of stamp duty payable can be considered as the sole consideration,
and not any amount higher or lower than that. Payment of stamp
duty cannot be sole criteria to presume that assessee must have
paid that much amount for purchase of the property. We find that
Ld. CIT(A) has rightly observed that in case, there was any doubt to
the AO, he should have referred the matter to the Valuation Officer
for valuation of the property before invoking the provisions of
section 69B of the Act. We find that Ld. CIT(A) also in agreement
with the Ld. AR that even the provisions of section 50C cannot be
invoked in the case of the assessee, as assessee is one of the
purchaser of the property, and provisions of section 50C applies to
the Seller of property. We find that Ld. CIT(A) has rightly observed
that Ld. AO has also not brought on record to show that any contrary
view was taken by the Assessing officer of the Seller for the said
property. We find that Ld. CIT(A) has also considered the various
5
ITA NO. 3235/Del/2013
judgments relied upon by the assessee, and after considering those
judgments, Ld. CIT(A) did not find any reason to sustain the addition
made by the AO in the hands of the assessee, in the absence of any
contrary or corroborative evidences brought on record. We find that
Ld. CIT(A) has rightly get support from the judgment of the Hon'ble
SC in the case of KP Varghese Vs ITO 131 ITR 597 (SC), and
therefore, the addition made by the AO for an amount of Rs.
13,58,550/- was rightly deleted by the Ld. CIT(A). In the
background of the aforesaid discussions and precedent relied upon,
we uphold the order the order of the Ld. CIT(A) on this issue and
decide the issue against the Revenue.
6. With regard to issue regarding addition of Rs. of Rs. 5,00,000/-
on account of investment made in purchase of property out of
advance taken by the mother (Smt. Sudha Garg) of the assessee
against sale of her property is investment of the assessee from
undisclosed sources. We find that on this issue, Ld. CIT(A) also
considered the submissions made by the assessee and precise
summary of facts submitted during the course of appellate
proceedings. He find that the assessee submitted a copy of the
Agreement to Sell dated 10.3.2008 which is duly notarized, entered
between Smt. Sudha Garg, (mother of the appellant), and Shri Ram
Prasad, for sale of House No.. L-581, 3, Shashtri Nagar, Meerut, for a
total consideration of Rs. 20,00,000/- against which Smt. Sudha Garg
6
ITA NO. 3235/Del/2013
had received a sum of Rs. 11,00,000/- in cash i.e. Rs. 6,00,000/- on
20.2.2008 and RS.5,OO,000/- on 10.3.2008. This sale deed is
entered into by Smt. Sudha Garg mother of the assessee. Property
mentioned therein for sale is not disputed that it does not belong to
Smt. Sudha Garg. We find that neither it is a case of the AO that
Smt. Sudha Garg is not the mother of the assessee, nor it is disputed
that the amount of Rs. 11,00,000/- was not received by Smt. Sudha
Garg on the dates mentioned above. We find that it is also seen
from the impugned order, that there is no discussion by the AO that
Smt. Sudha Garg or the purchaser of the property Shri Ram Prasad
was ever called by him before taking any contrary view or to
disbelieve the agreement to sellJn the present case, assessee never
said that she had made any payment for purchase of the plot which
has been purchased by her mother in joint name of the assessee,
against a sale consideration of Rs. 10,00,000/-. Since no payment is
claimed to have made by the appellant to make investment in the
plot purchased by her mother in her joint name, and no contrary
evidences are brought on record by the AO before concluding that
assessee made any investment out of undisclosed sources, and
what those sources are, Ld. CIT(A) did not find any reason to
sustain the addition made by the AO for an amount of Rs. 5,00,000/-
which is not supportive by any corroborative evidence. Therefore,
Ld. CIT(A) has rightly deleted the addition of Rs. 5,00,000/-. In the
7
ITA NO. 3235/Del/2013
background of the aforesaid discussions, we uphold the order of the
Ld. CIT(A) on this issue and decide the issue against the revenue.
7. In the result, the Appeal filed by the Revenue stands
dismissed.
Order pronounced in the Open Court on 13/8/2014.
Sd/- Sd/-
SYAL]
[R.S. SYAL] SIDHU]
[H.S. SIDHU]
ACCOUNTANT MEMBER JUDICIAL MEMBER
Date 13/8/2014
"SRBHATNAGAR"
Copy forwarded to: -
1. Appellant
2. Respondent
3. CIT
4. CIT (A)
5. DR, ITAT
TRUE COPY
By Order,
Assistant Registrar,
ITAT, Delhi Benches
8
ITA NO. 3235/Del/2013
9
|
