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Income Tax Officer, Ward-45(1), Room NO. 204, D Block, Civic Centre, New Delhi- 110 002 VS. Smt. Himali Bansal, C/o RRA TaxIndia, D-28, South Extension, Part-I, New Delhi-49
August, 22nd 2014
                                                          ITA NO. 3235/Del/2013

                      DELHI BENCH "C", NEW DELHI
                  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.


     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

                                                    ITA NO. 3235/Del/2013

           undisclosed investment in purchase of         (1/2 share)


           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

                                                        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

                                                   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

                                                   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

                                                     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

                                                     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

                                                     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

      Order pronounced in the Open Court on 13/8/2014.

      Sd/-                                              Sd/-

[R.S. SYAL]                                            SIDHU]
                                                 [H.S. SIDHU]
ACCOUNTANT MEMBER                             JUDICIAL MEMBER

Date 13/8/2014
Copy forwarded to: -
1.    Appellant
2.    Respondent
3.    CIT
4.    CIT (A)
5.    DR, ITAT

                           TRUE COPY
                                                 By Order,

                                                 Assistant Registrar,
                                                 ITAT, Delhi Benches

    ITA NO. 3235/Del/2013

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