Ita/119/2011 Of Commissioner Of Income Tax Bathinda v. Darshana Devi

IN THE HIGH COURT OF PUNJAB AND HARYANA ATCHANDIGARH ITA No.119 of 2011 (O&M)Date of decision: 05.03.2014 The Commissioner of Income Tax, Bathinda. .....- Appe Vs, Smt.Darshana Devi, Prop.M/s Bombhiya Resorts, Gidderbaha ....mesponden CORAM: HON’ BLE MR. JUSTICK AJAY KUMAR MITTALHON BLE MS. JUSTICE ANITA CHAUDHRY Present:Mr. G.S.Hooda, Advocate for the revenue. Mr. S.K.Mukhi, Advocate for the assessee. Ajay Kumar Mittal,J, 1]This order shall dispose of ITA Nos.118 and 119 of 2011 asaccording to the learned counsel, the issue involved therein is identical.However, the facts are being extracted from ITA No.119 of 2011. ).ITA No.119 of 2011 has been preferred by the revenue underSection 260A of the Income Tax Act, 1961 (in short, “the Act”) against theorder dated 30.9.2010, Annexure A.3 passed by the Income Tax AppellateTribunal, Amritsar Bench, Amritsar (in short, “the Tribunal’) in ITA No.41(ASR)/2010.It was admitted on 13.2.2012 to consider the followingsubstantial questions of law:- 1)Whether on the facts and in the circumstances of thecase, the ITAT 1s right in deleting the addition of424,56,150/- made by the Assessing Officer invoking theprovisions of section 69 of the I.T.Act, 1961’case, the ITAT 1s right in deleting the addition of424,56,150/- made by the Assessing Officer invoking theprovisions of section 69 of the I.T.Act, 1961’ 11)Whether on the facts and in the circumstances of thecase, the Hon’ble ITAT 1s right in ignoring fact that therewas no clear cut and specific mention of the constructedarea in the Registered Deed and no segment rates werenotified by the State authorities on account ofconstruction and hence the ITAT has failed to appreciatethe facts of the case in right perspective, rendering thefindings of the TAT to be perverse?case, the Hon’ble ITAT 1s right in ignoring fact that therewas no clear cut and specific mention of the constructedarea in the Registered Deed and no segment rates werenotified by the State authorities on account ofconstruction and hence the ITAT has failed to appreciatethe facts of the case in right perspective, rendering thefindings of the TAT to be perverse? 3. A few facts relevant for the decision of the controversy involved as narrated in the appeal may be noticed. The assessment wascompleted under section 143(3) of the Act on 30.12.2008 at an income for429,08,150/- plus agricultural income of44762/-. The Assessing Officermade addition of|=a24,56,150/- under Section 69 of the Act on account ofunexplained investment by the assessee in the purchase of property knownas Bombhiya Resorts, Gidderbaha on the basis of valuation report of theDepartmental Valuation Officer (DVO). On appeal by the assessee, theCommissioner of Income Tax (Appeals) |CIT(A)] confirmed the addition,vide order dated 30.10.2009, Annexure A.2. Aggrieved by the order, theassessee filed appeal before the Tribunal. The Tribunal vide order dated30.9.2010, Annexure A.3, impugned herein, partly allowed the appealdeleting the addition made by the CIT(A). Hence the present appeals by theTEVENUC. 4 Learned counsel for the revenue submitted that 1n the facts andcircumstances of the case, 1t was necessary for the Assessing Officer to refer ITA No.119 of 2011 (O&M) the matter to the DVO for ascertaining the fair market value of the property.It was urged that the addition of“a24,56,150/- made by the AssessingOfficer under Section 69 of the Act on account of unexplained investmentby the assessee in the purchase of property known as Bombhiya Resorts,Gidderbaha was justified and the Tribunal had erred in deleting the same. 4 On the other hand, learned counsel for the respondent assesseesupported the order passed by the Tribunal and submitted that reference tothe DVO in the present case was unjustified. Additionally, it was submittedthat in the case of co-sharers Sat Pal and Om Parkash, the valuation asshown 1n the sale deed had been accepted, 6.After hearing learned counsel for the parties, we do not findany merit in the appeal. ITA No.119 of 2011 (O&M) the matter to the DVO for ascertaining the fair market value of the property.It was urged that the addition of“a24,56,150/- made by the AssessingOfficer under Section 69 of the Act on account of unexplained investmentby the assessee in the purchase of property known as Bombhiya Resorts,Gidderbaha was justified and the Tribunal had erred in deleting the same. 4 On the other hand, learned counsel for the respondent assesseesupported the order passed by the Tribunal and submitted that reference tothe DVO in the present case was unjustified. Additionally, it was submittedthat in the case of co-sharers Sat Pal and Om Parkash, the valuation asshown 1n the sale deed had been accepted, 6.After hearing learned counsel for the parties, we do not findany merit in the appeal. ToThe Tribunal while deciding the issue in favour of the assesseevide order dated 30.9.2010, Annexure A.3 had recorded as under:- “9. We have heard both the parties at length and given ourthoughtful consideration to the rival submissions withreference to facts, evidence and material placed on record.We have also referred to the relevant pages of the paperbook to which our attention has been drawn and gonethrough the orders of the authorities below. The decisionsrelied upon by the learned counsel for the assessee havebeen duly considered by us. In the present case constructedproperty was purchased by the assessee so was the situationin the case of Amritsar Bench, relied upon by the assessee.The learned counsel for the assessee placed reliance on thedecisions of the ITAT, Amritsar Bench, in the case of MsJugra} Singh Ghansham Dass, Bathinda vy. Income TaOfficer, Ward I(1), Bathinda,passed in ITA No.61(Asr)/2010 for the A.Y.2006-07, dated 9[th]April 2010, wherein after discussion it has been held as under: ‘In the absence of the same, the addition in dispute 1snot possible in the present case because no other evidencehas been produced by the revenue authorities against theassessee eStablishing that the assessee has made anypayment over and above the payment mentioned in the saledeed of the property in dispute.' 9.1. We have also considered the decision of the ITAT,Chandigarh Bench, relied upon by the assessee, 1n the caseof|Income flax Officer, Ward IV, Moga vs. M/s NeP.Grand Resorts, Jagraon,passed in ITA No.526(ASR)/2010 for the A.Y.2006-07, dated 26[th]November 2009wherein it has been held as under:- '10. In the totality of facts and circumstances of thepresent case where the assessee had explained the sources ofinvestment in the purchase of property during the financialyear and in the absence of any evidence found to be contrary,vis a vis purchase price paid by the assessee, there is nobasis for making the addition under Section 69B of the Acton the difference between the value determined by DVO andthe purchase price shown by the assessee. We uphold thefinding of CIT(A) 1n this regard that in the absence of anyevidence to prove that any amount over and above theamount mentioned in the registered documents was receivedby the seller, no addition could be made in the hands of theassessee, especially in the circumstances, where the evidencebeing the statement of the sellers accepting the sale price,was against the finding of assessing officer. We uphold thedeletion of addition of <a1.87 crores by the CIT(A) anddismiss the ground of appeal raised by the revenue.’ 9.2. In view of the above discussions and having regard tofactual matrix of the case, we are of the considered opinionthat similar issue came up for consideration before the ITAT,Amritsar Bench, in the case of M/s Jugraj Singh Ghansham 9.2. In view of the above discussions and having regard tofactual matrix of the case, we are of the considered opinionthat similar issue came up for consideration before the ITAT,Amritsar Bench, in the case of M/s Jugraj Singh Ghansham Dass, Bathinda vs. Income Tax Officer, Ward 1(1), Bathindapassed in ITA No.61(Asr)/2000 for the A.Y. 2006-07 dated"[th]April 2010. In the case of |Income lax Officer, Ward IV,Moga vs. M/s New P-Grand Resorts, Jagraonpassed in ITANo.526(Asr)/2010 for the A.Y.2006-07, dated 26[th]November, 2009, the Hon'ble I'TAT, Chandigrh Bench, hadecided that in the absence of any evidence found to becontrary, vis a vis purchase price paid by the assessee, thereis no basis tor making the addition on the differencebetween the value determined by the DVO and the purchaseprice shown by the assessee and thus, the Hon'ble Bench,upheld the findings of the CIT(A), in the matter that in theabsence of any evidence to prove that any amount over andabove the amount mentioned in registered documents wasreceived by the seller, no addition can be made in the handsof the assessee. Similar rule is applicable to the case ofpurchaser also as unless corroborative evidence proved thatthe purchase consideration exceeded the considerationmentioned in the documents, no addition can be made. Thisview has been upheld by the Hon'ble Supreme Court, 1n thecase ofK.P.Verghese v. ITO, (1981) 131 TTR 597 (SC),Thus, respectfully following the above decisions, we allowthis ground of appeal of the assessee.” |From the above, it emerges that the Tribunal had concluded that the assessee had explained the source of investment in purchasing of theproperty during the financial year and there was no evidence to prove thatany amount over and above the one mentioned in registered documents wasreceived by the seller, therefore, there was no basis for making the additionon the difference between the value determined by the DVO and thepurchasepriceshown'*theasscsscg . Further the Tribunal had relied upon its decision in |ITO, Ward IV, Moga vs. M/s New P. Grand Resorts, Jagraonin ITA No.526(Asr)/2010 for the assessment year 2006-007 dated#+[th]November 2009 against which the revenue had filed ITA No.877 of2010 (CIT TH, Ludhiana vs. M/s New P.Grand Resorts, G.T. Road,Jagraon) in this Court and the order of the Tribunal has been upheld.Furthermore, learned counsel for the revenue did not dispute that the valueof the property in the case of other co-sharers Satpal and Om Parkash hasbeen accepted by the revenue.Q In view of the above, the Tribunal was justified in deleting theaddition made by the Assessing Officer and upheld by the CITI(A),Consequently, the substantial questions of law are answered against therevenue and the appeals stand dismissed. (Ajay Kumar Mittal)Judge March 05, 2014>=$8 (Anita Chaudhry)Judge