TaxTMI 
TaxTMI 
TaxTMI 
2023 (11) TMI 327
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....id & bad in law. 2. That on the facts and circumstances of the case the Learned Assessing Officer has erred in treating unexplained Investment of the Assessee to the extent of Rs. 1,10,82,319/- without verifying the fact of Registry the payment made in earlier year(Jaipur Flat) and Amount not paid during the year /payable on next year (Pune Flat) have estimated as unexplained Investment u/s 69 of Income Tax Act and levied Tax u/s 115BBE of Act is against Law & Facts of the Case. 3. That the Income of Deceased person is added in the income of Humble Appellant is against the Law. 4. That all the Purchase Agreements / Deeds & Payment made through Account Payee Cheques which are verified by Ld Assessing Officer, Thus no Question of Section 69 arises. 5. That Without prejudice to above the Learned Assessing Officer levied 60% Tax instead of 30% against the provision of Law. 6. That the CIT (A) grossly eared in not considering the withdrawal Application filed before DCIT (DRP-1), Delhi (Sec) & rejected the Appeal without considering the Facts. 7. That on the facts and circumstances of the case the ld. AO has erred in levying interest under section 234A/234B/234C of the Act. ....
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.... investment for purchase of the properties mentioned above. The ld. AO noted that the assessee has not produced any documentary evidence regarding the payment of Rs. 52,37,475/- (11881300-6643825). Also, the assessee has claimed that this payment of Rs. 52,37,475/- was made by his father, Mr. Nanak Gurbani. Also, assessee is the sole owner of this property and claiming that he has only made payment of Rs. 66,43,825/- and rest of the payment is made by his father Mr. Nanak Gurbani. The ld. AO noted that the assessee failed in furnishing documentary evidence regarding the capacity of payment of his father and relevant bank a/c statements have also not been furnished by the assessee. Hence, the source of investment of Rs. 52,37,475/- is considered as unexplained. The ld. AO contended that the possibility of the fact that whole of the invested amount is originally transferred by Mr. JaiKumar Gurbani into the bank a/c of Mr. Nanak Gurbani also cannot be denied considering that the account balance of Mr. Nanak Gurbani during the F.Y. 2016-17 is continuously very low. In the property, Flat no. 206, assessee is the joint owner and claiming that whole of the payment is made by assessee'....
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....pute in law that on receipt of a draft order u/s 144C proposing variations to the returned income, the assessee can either accept the variations or file an objection before the DRP. In the alternative, the assessee also has the option to prefer appeal before the Commissioner of Income Tax (Appeals). Undisputedly, the assessee cannot both file objections before the DRP and also file the appeal before CIT(A). In this case, as the appellant had already preferred filing objections before the DRP, he did not have any legal right to file an appeal before the CIT(A). Clearly, the appeal filed before the CIT(A) was not maintainable in law. Therefore, the appeal deserves to be dismissed being not-maintainable in law. 7. As mentioned earlier, the appellant has filed an application under Rule 46A of Income Tax Rules, 1962 for admission of certain additional evidences. As already discussed, the present appeal is found to be not maintainable, therefore, there is no question of any admission of additional evidences in this case. The said application is rejected." 6. Considering that aspect of the case, the ld. AR of the assessee submitted that the assessee has not received justice from the or....
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....-03-2022. That Humble Appellant in response to Notice 01-03-2022 submitted the Reply & statement of account of Builder M/s Nahar Homes and copy of Bank account of Late Sh. Nanak Gurbani on Dt 16-03-2022. The Learned Assessing Officer, Circle (Int. Tax) Jaipur have issued Notice on Dt 19-03-2022 for hearing Dt 04-04-2022 asking to provide evidence/ source for deposits of Rs. 99,81,115/- in Account Number 00541060001672 and issued notice of unexplained investment of Rs. 1,18,81,300/-as Income of the year but accepted Rs 2,10,45,648/-. The Humble Appellant submitted the information and also submitted copy of Bank Statement, Remittance Certificate alongwith Salary Certificate of Overseas Employer on Dt 04-04-2022. The Learned Assessing Officer, Circle (Intel. Tax) Jaipur have issued Draft Order u/s 144C of income tax act on dated 27-03-2022 for Addition of Rs. 1,10,82,319/- estimating Total Income of Rs. 1,13,32,750/- the draft order is anti dated considering Reply of Dt 04-04-2022. The Humble Appellant submitted objections against draft order along with copy of Death Certificate of Late Sh. Nanak Gurbani (Father of Appellant and also co-owner in one property) and copy of His ITR fo....
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....developer of above project Both the above documents prove that the agreed sale consideration for above property is Rs. , 1,18,81,300 + Service Tax, out of which during the previous year relevant to this concerned Assessment Year the Humble Appellant had made payment of Rs. 66,43,825 only which is verified by Learned Assessing Officer and rest of the payment has been made in subsequent year(s). The Humble Appellant has even proved the source of payment of above said sum which was made through three cheques for Rs. 5,00,000, Rs. 20,00,000 and Rs. 41,43,825 respectively and no objection was ever raised by Learned Assessing Officer there on during the assessment proceedings. The Humble Appellant has nowhere claimed about payment by Shri Nanak Gurbani for above said property. This property was purchased by the Humble Appellant as sole owner only and there was no body as co-buyer of the same. Therefore opinion of Learned Assessing Officer to consider a sum of Rs. 52,37,475/-as unexplained investment by the Humble Appellant is without any basis and is not borne out of records. Stamp Duty of Rs. 12,62,670/- No such evidence was ever sought from the Humble Appellant during the assessmen....
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....and computation of income of Shri Nanak Gurbani for the AY2017-18 has been submitted before the Learned Assessing Officer to justify the source of payment of said sum of Rs. 6,41,920/-, the Additions made in Appellant case is against Facts & Law. Unexplained investment by calculating 50% of the total agreed sale consideration of Rs. 91,64,348 ie Rs. 45,82,174/- That the Learned Assessing Officer suomoto treated Rs. 45,82,174/-as unexplained investment by estimating 50% of the total agreed Purchase consideration of Rs. 91,64,348 for the property situated at Shiv Marg, Banipark, Jaipur. The Learned Assessing Officer has himself agreed in draft order that the Humble Appellant has claimed that whole amount for the purchase has been paid by Shri Nanak Gurbani and in absence of proving capacity of father of the Assessee Shri Nanak Gurbani 50% of the agreed sale consideration has been proposed to be considered as unexplained investment of the Humble Appellant. That the Humble Appellant had submitted copy of the registered Sale Deed of the Property bearing flat no.206, Okay Plus, Empress, Shiv Marg, Banipark, Jaipur owned by Shri Krishna Vatika Build Mart Private Limited, Jaipur wherefrom....
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.... about the nature and source of the investments or the explanation offered by him is not, in the opinion of the Assessing Officer, satisfactory, than the value of the investments may be deemed to be the income of the taxpayer of such year". Since the Humble Appellant has proved nature & source of Investments as appeared in both the Registry executed during the year of Flat, Thus the value of Investments cannot be treated as Income of the Taxpayer. The humble Appellant and his Father Late Shri Nanak Gurbani (co-owner in Jaipur Flat) have given Payment through Account Payee Cheques, submitted the Death Certificate of Late Shri Nanak Gurbani Ji, Purchase Agreement & Registries - the Learned Assessing Officer made the Additions u/s 69 of the Income Tax Act while passing the Order for AY 2017-18 of Humble Appellant. Saving Bank Interest of Rs. 488/- That the Humble Appellant received Interest from Bank 68808/-, the same is shown under ITR & Computation thus no Question arises of double Taxation. Further the Income Surrendered, thus eligible to tax Credit of Rs. 151/-. The Humble Appellant explained the facts / details of Investment but the Ld AO without verifying the facts of the ca....
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....eply and Paper Book on Dt 21-08-2022 before Learned CIT(A). That Learned CIT(A) issued Letter to Learned Assessing Officer DCIT, CIRCLE (INTL TAX), JAIPUR to furnish Report and the Learned Assessing Officer DCIT, CIRCLE (INTL TAX), JAIPUR have furnished Report on Dt 09-09-2022 and also sent us on 20-09-2022 to file the Objections on or before 28-09-2022. That in the meantime DCIT (DRP-1), Delhi (Sec) issued Notice Vide DIN & Letter No. ITBA/DRP/F17/2022-23/1045473154(1) Dated 14-09-2022 for Hearing Date 27-09-2022. That the Humble Appellant filled an Application on Dt 22-09- 2022 for withdrawal for the said Application filled before DRP, since as per Law the Humble Appellant can avail either option ie to file an Application to DRP or to file an Appeal before CIT (Appeals) (Refer 6 of Order). The Humble Appellant therefore have withdrawn the Application filled before DRP. Since the DRP have not inform/advice and learned AO passed the order disregarding the Documents /Paper Submitted. Grounds of Appeal 1. That Learned Assessing Authority grossly erred in Law issuing Notice u/s 148 of Income Tax Act without verifying the facts shown Investment of Rs. 3,29,26,948/- taken twice amou....
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....peal before or at the time of hearing. Written Submission:- I. That Learned Assessing Authority grossly erred in Law issuing Notice u/s 148 of Income Tax Act without verifying the facts shown Investment of Rs. 3,29,26,948/- taken twice amount of Registry & TDS Return and have not verified the amount of Registry before issue of Notice & have not applied his mind for opening the Case u/s 148 of Income Tax Act. Thus all the proceedings are void & bad in law. That the case of humble Appellant was reopened u/s 148 on the reasons:- a. Payment made in respect of Transfer of Immoveable Property (TDS Form 26QB, Section 194IA amounting to Rs. 1,18,81,300/- b. Purchase of Immovable Property amounting to Rs. 2,10,45,648/-. c. TDS Return -Payment to Non - Residents (Section 195) amounting to Rs. 488/- The Learned Assessing Officer, Circle (Intel. Tax) Jaipur have issued notice on Incorrect Information finding investment of Rs. 3,29,26,948/- in two properties factully the humble appellant have made registry of one flat at Jaipur Bani park from Shri Krishna Vatika Build Mart Pvt Ltd (Okay Plus Group) with joint owner Late Shri Nanak Gurbani Father of the Assessee the details of payme....
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....tax, Bhagalpur*[2019] 110 taxmann.com 58 (Patna) held that "Section 2(1A), read with section 148, of the Income-tax Act, 1961 - Agricultural income (Reassessment) - Assessment year 2011-12 - Assessee filed its return of income showing agricultural income of certain amount - Same was accepted and an assessment order was passed - Later on, Assessing Officer noted that an advisory was issued by department wherein Assessing Officer was directed to thoroughly verify claims in respect of agricultural income earned by several parties including assessee - On basis of same, Assessing Officer issued reopening notice against assessee so as to treat its agricultural income as income from undisclosed sources - It was noted that it was fairly informed by revenue that such exercise was initiated in view of an advisory issued by revenue - Such advisory contained in a letter which was issued in light of an order passed by this Court on a public interest litigation and required verification of agricultural income for certain period, which also included assessment year in question - Advisory directed Assessing Officer to verify whether there was any data entry error in returns filed; to provide feedb....
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....e said notice if Assessing Officer had no 'reason to believe' but had only 'reason to suspect' that income chargeable to tax had escaped assessment - Held, yes - Whether an attempt on part of Assessing Officer to probe into return further, without any fresh facts or change in law coming to his notice, would be a case of 'reason to suspect' and not 'reason to believe' - Held, yes - Assessing Officer processed under section 143(1)(a), return filed by assessee - Thereafter, he reopened assessment under section 147, read with section 148, on ground that balance sheet of assessee revealed that he had received certain amount by way of gift from an NRI for which no details had been filed - Not being satisfied with evidence adduced by assessee in support of gift received, Assessing Officer made addition of gift amount to his income as income from undisclosed sources - Whether since as per section 139(9), there was no legal obligation on assessee to file details in support of return, so-called omission itself could not be treated as a reason for reopening assessment - Held, yes - Whether, therefore, it could be said that reasons recorded by Assessing Officer ....
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....d filed following documents in connection to above said property purchase:- i) Agreement of the assessee with the developer to purchase said property. ii) Account statement of the Humble Appellant provided by M/s.Nahar Homes LLP, developer of above project Both the above documents prove that the agreed sale consideration for above property is Rs. , 1,18,81,300 + Service Tax, out of which during the previous year relevant to this concerned Assessment Year the Humble Appellant had made payment of Rs. 66,43,825 only which is verified by Learned Assessing Officer and rest of the payment has been made in subsequent year(s). The Humble Appellant has even proved the source of payment of above said sum which was made through three cheques for Rs. 5,00,000, Rs. 20,00,000 and Rs. 41,43,825 respectively and no objection was ever raised by Learned Assessing Officer there on during the assessment proceedings. The Humble Appellant has nowhere claimed about payment by Shri Nanak Gurbani for above said property. This property was purchased by the Humble Appellant as sole owner only and there was no body as co-buyer of the same. Therefore opinion of Learned Assessing Officer to consider a s....
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.... - Assessee entered into an agreement for purchase of a property and made part payment for purchase through cheque on very next day after date of execution of agreement - Registry was done after a year - Assessing Officer made addition on account of difference between amount of sale consideration shown in agreement and stamp value of property noting that as per section 56(2)(vii)(b) value of consideration mentioned in agreement to purchase could be relevant only if amount of consideration referred to in agreement or a part thereof, was paid by any mode other than cash on or before date of agreement for transfer of property, however, in instant case payment was made on next day - It was noted that part payment made by cheque on very next day of execution of agreement by assessee was very much towards fulfilment of terms of purchase contract itself - Therefore, Assessing Officer was not justified in taking a hyper technical view - Further, facts of case showed that there was no mala fide or false claim on part of assessee - Whether, on facts, impugned addition made by Assessing Officer taking difference between amount of sale consideration shown in agreement and stamp value to income....
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....fficer Rs. 5,49,770/-) Regarding payment of Rs. 7,44,060 in respect of stamp duty of property situated at Pune is concerned a sum of Rs. 7,42,900 was paid by the developer and the same has been debited by the developer on Dt 11-02-2017 in the Account Statement of the Humble Appellant. Even in the Registered Agreement also in para 59 the fact of payment of stamp duty is duly mentioned and such sum of Rs. 7,42,900 has been adjusted out of payment of Rs. 66,43,825 made by the Humble Appellant to the developer during the concerned year. The brother of Humble Appellant had paid a petty sum of Rs. 1,160 in cash out of balance available with him. Regarding payment of Rs. 6,41,920 in respect of stamp duty for property situated at Jaipur (Bani Park) is concerned the same was arranged and paid by Late Shri Nanak Gurbani, father of the Humble Appellant who was also co owner of the property. It is also relevant to mention that payment of the stamp duty was made on 06-09-2016 and the registration of the sale deed was also made on that day itself and on this date the assessee was not in India as his relative Power of Attorney Holder Shri Girish Gurbani had signed this Deed as Power of....
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....ts, impugned addition made in hands of assessee was to be deleted - Held, yes [Para 13] [In favour of assessee]" ii) That Hon'ble ITAT JODHPUR BENCH in case of Om Prakash Joshi v. Income-tax Officer* [2009] 34 SOT 33 (Jodhpur) (URO) held that "Section 69 of the Income-tax Act, 1961 - Unexplained investments - Assessment year 2004- 05 - Assessee had madepayment of Rs. 1.32 lakhs as stamp duty - He explained that said payment was made out of advance of Rs. 2 lakhs which was reflected in balance sheets and for which only accounting adjustment remained to be made - Assessing Officer treated said amount as unexplained investment under section 69 which was confirmed by Commissioner (Appeals) - Whether since assessee had explained that stamp duty was paid by him out of advance amount as reflected in balance sheet and only accounting adjustment remained to be made, in such situation without bringing any adverse material on record, Assessing Officer was not justified in making addition - Held, yes" We therefore request you to kindly accept the Ground of Appeal. c) Unexplained investment by calculating 50% of the total agreed sale consideration of Rs. 91,64,348 ie Rs. 45,82,174/- That....
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.... copy of the bank statement of Shri Nanak Gurbani was also submitted to the learned Assessing officer and rest of the payments had been made in years earlier to relevant previous year. Thus the assumption to treat Rs. 45,82,174/-as unexplained investment of the Humble Appellant is incorrect & against the facts of the case. Further the Humble Appellant had not claimed that whole Purchase consideration was paid by Shri Nanak Gurbani. It was only regarding the payment of Rs. 1,71,744/- made during the relevant previous year. The Learned Assessing Officer have not Verified / Examined copy of Registry & Facts stated. That as per Section 69 "Where in a year the taxpayer has made investments which are not recorded in the books of account, if any, maintained by him for any source of income, and he offers no explanation about the nature and source of the investments or the explanation offered by him is not, in the opinion of the Assessing Officer, satisfactory, than the value of the investments may be deemed to be the income of the taxpayer of such year". Since the Humble Appellant has proved nature & source of Investments as appeared in both the Registry executed during the year of Flat,....
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....m 310 (Cochin - Trib.) held that "I. Section 69, read with sections 132 and 153A, of the Income-tax Act, 1961 - Unexplained investments (Property) - Assessment year 2001-02 - Whether amount of total income and agricultural income declared by assessee aggregating to Rs. 2.50 lakhs was sufficient enough to explain sources for Rs. 50,000, hence, there was no justification in confirming addition of said amount - Held, yes [Para 9] [In favour of assessee] II. Section 69, read with sections 132 and 153A, of the Income-tax Act, 1961 - Unexplained investments (Purchase of car) - Assessment year 2002-03 - Consequent to search, Assessing Officer made an addition on account of investment made by assessee in purchase of car stating that assessee could not explain sources for purchasing car - Whether since department did not unearth any material to show that assessee had purchased vehicle during relevant assessment year, Commissioner (Appeals) was justified in deleting addition - Held, yes [Para 19.2] [In favour of assessee] III. Section 69, read with section 132 of the Income-tax Act, 1961 - Unexplained investments (Purchase of property) - Assessment year 2002-03 - Assessee proved that investm....
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....als) - Held, yes [Para 30.6] [In favour of assessee] VII. Section 69 of the Income-tax Act, 1961 - Unexplained investments (Purchase of car) - Assessment year 2004-05 - Assessee had purchased a car during relevant year - As, assessee could not substantiate his claim of having received loan for purchasing car, Assessing Officer treated above said investment in purchase of car as income of assessee and made additions - Whether since assessee had declared additional income of Rs. 15 lakhs during year under consideration and same should be available with him for making investments; cost of car being Rs. 5.70 lakhs, could have been funded through this additional income - Held, yes - Whether, thus, Commissioner (Appeals) was justified in giving telescoping benefit - Held, yes [Para 31.1] [In favour of assessee] VIII. Section 69A of the Income-tax Act, 1961 - Unexplained moneys (Peak credit in banks) - Assessment year 2004-05 - Assessing Officer noticed huge transactions in various bank accounts maintained by assessee - In absence of details, Assessing Officer computed peak credit balance at Rs. 98.65 lakhs and assessed same as income of assessee - Whether in absence of corresponding asse....
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....ent to show that remitted amount belonged to assessee by bringing proper evidence - Held, yes" v) That the Hon'ble THE ITAT MUMBAI BENCH 'F' in case of Mukesh R. Maroliav. Addl. Commissioner of Income-tax, Rg-15(2) [2006] 6 SOT 247 (Mumbai)[15-12-2005] held that "Section 68 of the Income-tax Act, 1961 - Cash credits - Assessment year 2001-02 - Assessing Officer treated certain amount, deposited in bank account of assessee's minor daughter, as unexplained cash credit under section 68 and added same to income of assessee - Assessing Officer rejected explanation of assessee that said amount was gifted to his daughter by his brother, who was a non-resident, and payment was routed through NRE account - Whether since remittance of money was supported by banking documents, there was no reason to disbelieve version of assessee and make an addition thereof - Held, yes - Whether, therefore, said addition was liable to be deleted - Held, yes" vi) THE Hon'ble ITAT COCHIN BENCH (THIRD MEMBER) in case of K. Moidu v. Assistant Commissioner of Income-tax[2002] 81 ITD 242 (COCHIN) (TM) held that "Section 158B of the Income-tax Act, 1961 - Block assessment in search cases - Undisclosed income - ....
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....Unexplained investment (Investment in property) - Assessment year 1992-93 - Assessee purchased a bunglow in a housing scheme from a builder firm during search, partners of said firm admitted having received certain amount as 'on money' from buyers of bunglows in said scheme - On basis of that material Assessing Officer made certain addition under section 69 to income of assessee on account of 'on money' paid to builders - On appeal, Tribunal deleted addition holding that revenue failed to prove that assessee had made undisclosed investment in aforesaid bunglow - Whether as findings recorded by Tribunal were based on appreciation of facts, no interference was called for - Held, yes [Paras 9 and 10] [In favour of assessee]" viii) The Hon'ble HIGH COURT OF JHARKHAND in case of Prayag Tendu Leaves Processing Co. v. Commissioner of Income-tax.* [2017] 88 taxmann.com 23 (Jharkhand) held that "Section 68 of the Income-tax Act, 1961 - Cash credits (Gifts) - Assessment year 2001- 02 - Whether under section 68, Assessing Officer, while assessing a partnership firm, can go behind source of income of partnership firm, but he cannot go to 'source of source' - Held, yes....
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....herein Accepted 2,10,45,648/- & proposed the Additions of Rs. 1,18,81,300/- on Account of Point No. 1 of reasons of Reopening of the case. That the Learned Assessing Officer issued the Draft Assessment Order on Dt 27-03-2022 wherein proposed Additions of Rs. 1,10,82,807/- (Point 5.1 Rs. 1,10,82,319/- + Point 5.2 Rs. 488/-Refer page No. 26 of Supplementary Paper Book) as per below:- 5.1 The claim of the assessee is not acceptable for the following reasons: 1. The assessee has not produced any documentary evidence regarding the payment of Rs. 52,37,475/- (11881300- 6643825). Also, the assessee has claimed that this payment of Rs. 52,37,475/- was made by his father, Mr. Nanak Gurbani. Also, assessee is the sole owner of this property and claiming that he has only made payment of Rs. 66,43,825/- and rest of the payment is made by his father Mr. Nanak Gurbani. The assessee has failed in furnishing documentary evidence regarding the capacity of payment of his father and relevant bank a/c statements have also not been furnished by the assessee. Hence, the source of investment of Rs. 52,37,475/- is remained unexplained. 2. The assessee has also failed in furnishing evidence rega....
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.... sale deeds/ Agreements:- C. For property at Pune Rs. 7,44,060/- (Taken by Learned Assessing Officer Rs. 7,12,900/-) D. For property at Bani Park, Jaipur Rs. 6,41,920/- (Taken by Learned Assessing Officer Rs. 5,49,770/-) Regarding payment of Rs. 7,44,060 in respect of stamp duty of property situated at Pune is concerned a sum of Rs. 7,42,900 was paid by the developer and the same has been debited by the developer on Dt 11-02-2017 in the Account Statement of the Humble Appellant. Even in the Registered Agreement also in para 59 the fact of payment of stamp duty is duly mentioned and such sum of Rs. 7,42,900 has been adjusted out of payment of Rs. 66,43,825 made by the Humble Appellant to the developer during the concerned year. The brother of Humble Appellant had paid a petty sum of Rs. 1,160 in cash out of balance available with him. Regarding payment of Rs. 6,41,920 in respect of stamp duty for property situated at Jaipur (Bani Park) is concerned the same was arranged and paid by Late Shri Nanak Gurbani, father of the Humble Appellant who was also co owner of the property. It is also relevant to mention that payment of the stamp duty was m....
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....y Shri Nanak Gurbani and in absence of proving capacity of father of the Assessee Shri Nanak Gurbani 50% of the agreed sale consideration has been proposed to be considered as unexplained investment of the Humble Appellant. That the Humble Appellant had submitted copy of the registered Sale Deed of the Property bearing flat no.206, Okay Plus, Empress, Shiv Marg, Banipark, Jaipur owned by Shri Krishna Vatika Build Mart Private Limited, Jaipur wherefrom following facts are appearing:- i. The flat was agreed to purchased by the Appellant jointly with his father Shri Nanak Gurbani. ii. The Agreed consideration of the property was Rs. 91,64,348/-+ Service Tax iii. The payment of Purchase consideration was made on the following dates as per Registry of Flat:- S.No Cheque/DD No. Dated Amount Name of Bank 1 238231 14-06-2011 5,00,000 Jai Kumar Gurbani Bank of Baroda Vidhyadhar Nagar 2 238232 24-06-2011 8,00,000 Jai Kumar Gurbani Bank of Baroda Vidhyadhar Nagar 3 Cash 10-08-2011 9,50,000 - 4 238236 10-12-2012 15,00,000 Jai Kumar Gurbani Bank of Baroda Vidhyadhar Nagar 5 319110 31-12-2012 22,50,000 ICICI Bank LTD. (Home Loan Account of Nanak Gurbani) 6 3....
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....ome Tax Act while passing the Order for AY 2017-18 of Humble Appellant. The Additions made in Appellant case is against Facts & Law. Further the Humble Appellant had not claimed that whole Purchase consideration was paid by Shri Nanak Gurbani. It was only regarding the payment of Rs. 1,71,744/- made during the relevant previous year. The Learned Assessing Officer have not Verified / Examined copy of Registry & Facts stated. That as per Section 69 "Where in a year the taxpayer has made investments which are not recorded in the books of account, if any, maintained by him for any source of income, and he offers no explanation about the nature and source of the investments or the explanation offered by him is not, in the opinion of the Assessing Officer, satisfactory, than the value of the investments may be deemed to be the income of the taxpayer of such year". Since the Humble Appellant has proved nature & source of Investments as appeared in both the Registry of Flat Purchased, Thus the value of Investments cannot be Income of the Taxpayer as held in Judicial Judgements as per below:- i) The Hon'ble HIGH COURT OF PATNA in case of M.K. Jha v. Income-tax Appellate Tribunal* [2007]....
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.... wife had no other income except share of profit from firm - Assessing Officer, after issue of notice under section 148, reassessed assessee's total income by clubbing share income of his wife and minor daughters in his hands under section 64(1)(i) - Whether section 64(1)(i) empowers Assessing Officer to include income of minors in hands of parents - Held, no - Whether under Explanation 1, such income is to be clubbed in hands of spouse whose income is more - Held, yes - Whether in instant case since admittedly both husband and wife were having equal income, Explanation 1 could not be applied and, therefore, issuance of notice under section 148 and consequential addition in hands of assessee could not be sustained - Held, yes" We therefore request you to kindly accept the Ground of Appeal. IV. That the Interest Income on Saving Bank of Rs. 488/- is added in the Total Income of Humble Appellant & disallowance of TDS of Rs. 151/- is against the Law. That the Humble Appellant received Interest from Bank 68,808/-which includes Interest of Rs. 488/- received from HDFC Bank, the same is shown under ITR & Computation thus no Question arises of double Taxation. Further the Income Sur....
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.... income under head of 'income from house property' after deducting amount of unrealized rent under rule 4 and claimed TDS credited on both, realized as well as unrealised rent - He thus restricted allowance of TDS credited to extent of actual amount of rent received by passing a rectification order under section 154 - Commissioner (Appeals) confirmed said rectification order - It was noted from records that unrealized rent was duly offered to tax by assessee at first instance, and then same was claimed as deduction from rental income under section 23(1) read with rule 4 - Moreover, amount of TDS corresponding to claim of unrealised rent was duly offered to tax under section 198 - Whether on facts, assessee's action was in accordance with provisions of section 199 and, thus assessee was eligible for seeking credit of TDS on entire amount - Held, yes - Whether, consequently, impugned order passed by authorities below was to be set aside - Held, yes [Paras 7 and 8] [In favour of assessee]" Since the Humble Appellant have received Interest from Bank of Rs. 68,808/-, the same is shown under ITR & Computation thus no Question arises of double Taxation. Further the Income Su....
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....ek Aggarwal* [2015] 56 taxmann.com 7 (Delhi) held that "Section 69, read with section 158BB of the Income-tax Act, 1961 - Unexplained investments (Purchase of property) - Block assessment years 2001-02 to 2007-08 - Assessee purchased a property for a consideration of Rs. 3.70 lakh - During course of block assessment proceedings, Assessing Officer rejected transaction value and referred matter to AVO who in his report valued property at Rs. 10.65 lakh - Accordingly, addition of Rs. 6.95 lakh was made to assessee's income - Tribunal, however, set aside said addition - Whether in absence of any incriminating evidence with respect to payment over and above reported amount, it could not be concluded that transaction relating to property in question was undervalued, and, therefore, impugned order deleting addition was to be confirmed - Held, yes [Para 17] [In favour of assessee]" iii) The Hon'ble IN THE ITAT COCHIN BENCH M.M. Sulaiman v. Assistant Commissioner of Income-tax* [2014] 51 taxmann.com 310 (Cochin - Trib.) held that "I. Section 69, read with sections 132 and 153A, of the Income-tax Act, 1961 - Unexplained investments (Property) - Assessment year 2001-02 - Whether amount ....
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....computing gains, deducted cost pertaining to 83.22 acres - Assessee's case was that 18.28 acres of land was used for creating internal roads for converting land into plots, hence entire cost of Rs. 101.50 acres was to be deducted - Since, assessee's claim of compensation of 18.28 acres of land for creating internal roads was not substantiated, Commissioner (Appeals) deducted an additional amount of Rs. 5 lakhs towards roads - Whether, there was no infirmity in order of Commissioner (Appeals) - Held, yes [Paras 29.1 & 29.2] [Partly in favour of assessee] VI. Section 69, read with section 153A, of the Income-tax Act, 1961 - Unexplained investments (Purchase of property) - Assessment year 2004-05 - Whether assessee had reconciled payments made for purchase of rubber estate and assessee's explanations were supported by statements given by person from whom he had taken money, as well as by letter given by bank which issued demand draft, additions were rightly deleted by Commissioner (Appeals) - Held, yes [Para 30.6] [In favour of assessee] VII. Section 69 of the Income-tax Act, 1961 - Unexplained investments (Purchase of car) - Assessment year 2004-05 - Assessee had purchase....
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.... - Receipt mentioned about 'payment due' and not actual payment, where as revocation agreement mentioned about actual payment made - Whether, premium amount had to be taken as Rs. 3.42 crore only, as mentioned in revocation agreement - Held, yes [Para 52] [In favour of assessee]" iv) The Hon'ble SUPREME COURT OF INDIA in case of KishinchandChellaramv. Commissioner of Income-tax* [1980] 4 Taxman 29 (SC) held that "Section 23(3) of the Indian Income-tax Act, 1922 [Corresponding to section 143(3) of the Income-tax Act, 1961] - Assessment - Income from undisclosed sources - Employee of one office of assessee made, through a bank, telegraphic transfer of certain amount to employee of another office - ITO, on the basis of letters from bank manager, not shown to assessee, treated amount so remitted as income from undisclosed sources - Tribunal, relying on letters of bank manager, upheld ITO's action - Whether tribunal justified - Held, on facts, no - Whether burden of proof lay on department to show that remitted amount belonged to assessee by bringing proper evidence - Held, yes" v) That the Hon'ble THE ITAT MUMBAI BENCH 'F' in case of Mukesh R. Maroliav. Addl. Commission....
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....come in respect of understatement of purchase consideration since entire 'onmoney' payments made against all purchases were covered by NRE remittances sent by assessees - Held, yes - Whether there is any scope for general estimation in block assessment in absence of specific and speaking materials - Held, no - Whether generally in a block assessment estimated additions cannot be justified - Held, yes - Whether there being no incriminating materials to prove that assessees had expended money in excess of amount admitted by them to have been spent for constructing various buildings and also no evidence in support of estimates made by Assessing Officer in respect of personal expenses and agricultural income, additions were unjustified and unsustainable and, consequently, there was no case of undisclosed income - Held, yes" vii) The Hon'ble HIGH COURT OF GUJARAT in case of Income-tax Officer v. Bharat A. Mehta* [2015] 60 taxmann.com 31 (Gujarat) held that "Section 69 of the Income-tax Act, 1961 - Unexplained investment (Investment in property) - Assessment year 1992-93 - Assessee purchased a bunglow in a housing scheme from a builder firm during search, partners of said firm admitted....
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.... the Ground of Appeal. VII. That the CIT (A) grossly eared in not considering the withdrawal Application filed before DCIT (DRP-1), Delhi (Sec) & rejected the Appeal without considering the Facts. That as per Section 144C is as under:- (1) The Assessing Officer shall, notwithstanding anything to the contrary contained in this Act, in the first instance, forward3 a draft of the proposed order of assessment (hereafter in this section referred to as the draft order) to the eligible assessee if he proposes to make, on or after the 1st day of October, 2009, any variation 4[***] which is prejudicial to the interest of such assessee. (2) On receipt of the draft order, the eligible assessee shall, within thirty days of the receipt by him of the draft order,- (a) file his acceptance of the variations to the Assessing Officer; or (b) file his objections, if any, to such variation with,- (i) the Dispute Resolution Panel; and (ii) the Assessing Officer. (3) The Assessing Officer shall complete the assessment on the basis of the draft order, if- (a) the assessee intimates to the Assessing Officer the acceptance of the variation; or (b) no objections are received within the....
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....heard is given to the assessee and the Assessing Officer on such directions which are prejudicial to the interest of the assessee or the interest of the revenue, respectively. (12) No direction under sub-section (5) shall be issued after nine months from the end of the month in which the draft order is forwarded to the eligible assessee. (13) Upon receipt of the directions issued under sub-section (5), the Assessing Officer shall, in conformity with the directions, complete, notwithstanding anything to the contrary contained in section 1537[or section 153B], the assessment without providing any further opportunity of being heard to the assessee, within one month from the end of the month in which such direction is received. (14) The Board may make rules8 for the purposes of the efficient functioning of the Dispute Resolution Panel and expeditious disposal of the objections filed under sub-section (2) by the eligible assessee. 9[(14A) The provisions of this section shall not apply to any assessment or reassessment order passed by the Assessing Officer with the prior approval of the 10[Principal Commissioner or] Commissioner as provided in sub-section (12) of section 144BA.] ....
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....e making of adjustments, or any order of assessment under sub-section (3) of section 14393[[except an order passed in pursuance of directions of the Dispute Resolution Panel 94[***] 95[or an order referred to in subsection (12) of section 144BA]]] or section 144, to the income assessed, or to the amount of tax determined, or to the amount of loss computed, or to the status under which he is assessed; 96[(aa) an order of assessment under sub-section (3) of section 115WE or section 115WF, where the assessee, being an employer objects to the value of fringe benefits assessed; (ab) an order of assessment or reassessment under section 115WG;] (b) an order of assessment, reassessment or recomputation under section 14797[[except an order passed in pursuance of directions of the Dispute Resolution Panel 98[***] 99[or an order referred to in sub-section (12) of section 144BA]]] or section 150; 1[(ba) an order of assessment or reassessment under section 153A2[[except an order passed in pursuance of directions of the Dispute Resolution Panel]] 3[***] 4[or an order referred to in subsection (12) of section 144BA];] 5[(bb) an order 6[made] under sub-section (3) of section 92CD;] (c)....
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....ssioner imposing a penalty under section 272AA; (q) an order imposing a penalty under Chapter XXI; (r) an order made by an Assessing Officer other than a Deputy Commissioner under the provisions of this Act in the case of such person or class of persons, as the Board may, having regard to the nature of the cases, the complexities involved and other relevant considerations, direct. Explanation.- For the purposes of this sub-section, where on or after the 1st day of October, 1998, the post of Deputy Commissioner has been redesignated as Joint Commissioner and the post of Deputy Director has been redesignated as Joint Director, the references in this sub-section for "Deputy Commissioner" and "Deputy Director" shall be substituted by "Joint Commissioner" and "Joint Director" respectively. 15[(1A) Every appeal filed by an assessee in default against an order under section 201 on or after the 1st day of October, 1998 but before the 1st day of June, 2000 shall be deemed to have been filed under this section.] 16[(1B) Every appeal filed by an assessee in default against an order under sub-section (6A) of section 206C on or after the 1st day of April, 2007 but before the 1st day o....
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....preferred filing objections before the DRP, he did not have any legal right to file an appeal before the CIT(A). Clearly, the appeal filed before the CIT(A) was not maintainable in law. Therefore, the appeal deserves to be dismissed being not-maintainable in law." That in the present case the Learned Assessing Officer completed the Assessment without the directions of DRP-1 & the Appeal filled before CIT (A) under section 246A (1) (a) except an order passed in pursuance of directions of the Dispute Resolution Panel, thus the Appeal was correctly filed before CIT (A) & the learned CIT(A) eared in deciding the Appeal on Merits. I therefore requesnt you to kindly accept the ground & oblige. In view of the above, I request you to kindly accept the Appeal & delete the Additions made vide order Dt 13-05-2022 & oblige." 7. In addition to the above written submissions, the ld. AR of the assessee relied upon the following evidences:- S No Particulars Page No. 1. Reply to Rejoinder before CIT (A) 1-5 2. Copy of Notice issued in pursuance to Application U/R 46A by Learned AO 6-7 3. Copy of Reply in pursuance to Application U/R 46A to Learned AO 8-33 4. Copy of Remand Repo....
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.... bench the ld. AR of the assessee in support of contentions raised also filed an affidavit and the content of the affidavit reads as under: 9. The ld. AR of the assessee in respect of Ground No. 1 challenging reopening has relied upon the decision in the case of Raj Kumar Rawla vs. Asstt. Commissioner of Income-tax [1992] 42 ITD 509 (Calcutta)[29-05- 1992]. 10. The ld. AR of the assessee in addition to the above evidence and written submission submitted before us that the addition of Rs. 52,37,475/- is made on the presumption and assumption and in support he relied upon the agreement and the content of the affidavit filed. Based on this evidence he vehemently argued that the assessee has neither made the payment in the year under consideration nor claimed any benefit for this amount which is added by the ld. AO. It is only the commitment to make the future payment for purchase of property for an amount of Rs. 1,18,81,300/- out of that Rs. 66,43,825/- is paid for which there is no dispute before us. As it is evident from the record that the assessee has not paid an amount of Rs. 52,37,475/- for the year under consideration the same cannot be added as unexplained investment. To sup....
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....ssee (assessee's paper book page 53 and 61) based on this evidence even the addition of Rs. 45,82,174/- is also not correct. Thus, based on this observation the addition of Rs. 45,82,174/- is vacated. 13. As regards the addition of Rs. 488/-, the ld. AR of the assessee fairly admitted that the addition is correctly made and being the small amount, it left attention while filing ITR. 14. On the other hand, ld. DR representing the revenue submitted that the assessee being non-resident has not placed on record the correct details. Therefore, the finding of ld. AO be sustained and even the alternatively since before both lower authorities i.e. DRP and ld. CIT(A), the averments of the assessee has not been tested, the matter should be decided based on the finding of the ld. AO. 15. We have heard the rival contentions and perused the material placed on record. The bench noted that the addition of Rs. 52,37,475/- consist of unpaid purchase consideration and the future commitment made to the builder bythe assessee. Merely at the time of registration and TDS process the total amount of investment considered but the same cannot be taken as a basis for which the actual payment neither due ....