Pr. Commissioner Of Incometax, Surat-2 v. Shri Gulam M Jarullah

C/TAXAP/658/2018 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD R/TAX APPEAL NO. 658 of 2018 With R/TAX APPEAL NO. 684 of 2018 FOR APPROVAL AND SIGNATURE: HONOURABLE MR.JUSTICE M.R. SHAH andHONOURABLE MR.JUSTICE A.Y. KOGJE ====================================== 1 Whether Reporters of Local Papers may be allowed to see the judgment ?allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ?copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the Constitution of India or any order made thereunder ?question of law as to the interpretation of the Constitution of India or any order made thereunder ? ======================================PR. COMMISSIONER OF INCOMETAX, SURAT-2 Versus SHRI GULAM M JARULLAH ======================================Appearance: MRS KALPANA K RAVAL(1046) for the PETITIONER(s) No. 1MR NIKUNT RAVAL for the RESPONDENT(s) No. 1 ====================================== CORAM: HONOURABLE MR.JUSTICE M.R. SHAHandHONOURABLE MR.JUSTICE A.Y. KOGJE Date : 20/06/2018 ORAL JUDGMENT (PER : HONOURABLE MR.JUSTICE M.R. SHAH) [1.0]As common question of law and facts arise in both these Tax Appeals and as such in ITA No.1262/Ahd/2013 against which Tax Appeal No.658/2018 is preferred the learned Tribunal has relied upon its own decision and in ITA No.1266/Ahd/2013 for the Assessment Year 2008-09 against which Tax Appeal No.684/2018 is preferred, both these Tax Appeals are heard, decided and disposed of together by this common order. [2.0]Feeling aggrieved and dissatisfied with the impugned judgment and order passed by the learned Income Tax Appellate Tribunal “D” Bench, Ahmedabad (hereinafter referred to as “the learned Tribunal”) dated 15/09/2017 in ITA No.1266/Ahd/2013 for the Assessment Year 2008-09, revenue has preferred Tax Appeal No.684/2018 with the following proposed questions of law; (A)Whether on the facts and in the circumstances of the case and in law, the Hon’ble Appellate Tribunal has erred in upholding the order of the learned CIT(A) deleting addition of Rs.1,14,58,700/- made by the Assessing Officer on account of income from unknown sources by treating the same to be an issue of capital gain? (B)Whether on the facts and in the circumstances of the case and in law, the Hon’ble Appellate Tribunal ought to have upheld the order of the Assessing Officer?” [2.1]Feeling aggrieved and dissatisfied with the impugned judgment and order passed by the learned Income Tax Appellate Tribunal “D” Bench, Ahmedabad dated 15/09/2017 in ITA No.1262/Ahd/2013 for the Assessment Year 2008-09, revenue has preferred Tax Appeal No.658/2018. [2.2]For the sake of convenience, the facts of Tax Appeal No.684/2018 arising out ITA No.1266/Ahd/2013 for the Assessment Year 2008-09 are narrated. [2.3]The respondent – assessee filed the return of income for the year 2008-09 declaring the total income of Rs.NIL. The return of income was filed in Form No. ITR-2 showing the income from capital gain. The assessee died on 22/07/2009. An information was received from the Investigation Wing, Surat that the assessee with other co-owners have sold an immovable property bearing City Survey No.1/113 situated at Worli, Lower Parel, Mumbai. It was found [2.2]For the sake of convenience, the facts of Tax Appeal No.684/2018 arising out ITA No.1266/Ahd/2013 for the Assessment Year 2008-09 are narrated. [2.3]The respondent – assessee filed the return of income for the year 2008-09 declaring the total income of Rs.NIL. The return of income was filed in Form No. ITR-2 showing the income from capital gain. The assessee died on 22/07/2009. An information was received from the Investigation Wing, Surat that the assessee with other co-owners have sold an immovable property bearing City Survey No.1/113 situated at Worli, Lower Parel, Mumbai. It was found that the share of the assessee of an amount of Rs.1,14,58,700/- was deposited in his Bank Account No.10/8083 with the Surat District Co-operative Bank Ltd on 24/03/2008. The assessee refused to accept the amount, and therefore, the same was transferred to sundry account by the Bank. After recording the reasons, notice under Section 148 of the Income Tax Act was issued and served upon the assessee. In reply to the same, the assessee submitted that the return filed on 30/03/2008 be treated as return filed under Section 148 of the Income Tax Act. Thereafter, notice under Section 142(1) of the Income Tax Act was issued on 29/09/2009 requesting the assessee to furnish details /information. It was noticed by the learned Assessing Officer and it was the case on behalf of the Department that the assessee was the joint owner of the aforesaid immovable property. The assessee jointly with his brother Shri Gulam Mohyuddin S M Jaharullah and sister Ms. Samsunnissa S M Jaharullah were 50% owner of the said property. The assessee alongwith his brother and sister sold their 50% ownership to M/s Om Apollo Medicare Pvt. Ltd. The sale deed was registered on 08/04/2008 at Sub Registrar, Mumbai City. The assessee stated in the return of income filed that the transfer was on 07/03/2008. The learned Assessing Officer noticed that though the assessee with his brother and sister sold their share of 50% of the property, the same property was already sold 100% (by all the 10 co-owners) on 19/03/2008. It was noticed that there were 10 owners of the property. The assessee alongwith his brother and sister were owner of 50% of the property. There were 7 other persons who were co-owners of the 50% property. The learned Assessing Officer noticed, as per the sale deed obtained, that one M/s Sumer Corporation has purchased the property from all those co-owners for Rs.5,50,00,000/-. The learned Assessing Officer also noticed that on behalf of the assessee and his brother and sister one Mohammed Altaf M. Azam Jaharullah had signed the sale deed as power of attorney holder and Rs.1,14,58,700/-, assessee’s share was deposited to the Bank Account of the assessee with Surat District Co-operative Bank Ltd., Surat on 24/03/2008. The amount received from M/s Summer Corporation was not shown in the return of income filed, and therefore, show-cause notice was issued and sent to the assessee calling upon the assessee to show cause why the aforesaid amount of RS.1,14,58,700/- should not be added to the total income as income from undisclosed source. The assessee furnished his reply dated 11/12/2009 through the Chartered Accountant as under; “1.First of all let me clear the fact that my client has not sold his share in immovable property at Mumbai to M/s. Sumer Corporation. 2.My client is not a party to the sale deed of sale of property in Mumbai to M/s. Sumer Corporation. My client has neither signed the so called sale deed nor given any power of attorney to any one to sign the aforesaid sale deed on his behalf. 3.Since there was no sale of share in immovable property at Mumbai to M/s Sumer Corporation, the question of receipt of sale proceed from the M/s Sumer Corporation does not arise at all. “1.First of all let me clear the fact that my client has not sold his share in immovable property at Mumbai to M/s. Sumer Corporation. 2.My client is not a party to the sale deed of sale of property in Mumbai to M/s. Sumer Corporation. My client has neither signed the so called sale deed nor given any power of attorney to any one to sign the aforesaid sale deed on his behalf. 3.Since there was no sale of share in immovable property at Mumbai to M/s Sumer Corporation, the question of receipt of sale proceed from the M/s Sumer Corporation does not arise at all. 4.You have further pointed out that the proceed were deposited in the bank account of my client with the Surat District Co-operative Bank Ltd., Main Branch, Surat. In this connection, I have to state that no such sale proceed ever been deposited in the bank account of my client with the Surat District Co-operative Bank Ltd, Main Branch, Surat. Copy of bank pass book of Saving Account No.CHI 08083 of my client with the aforesaid bank showing all transactions of deposits and withdrawals from 01/09/1998 to 01/07/2009 enclosed. Annexure A. 5.You have never shown any proof of such money having ever been deposited in the aforesaid bank account of my client. 6.My client has sold out his share in immovable property jointly with other co-owners in Mumbai to “Om Appollo Medicare Private Limited” formerly known as “Dhanvantry Centers Private Limited”. The above facts I have already cleared in my letter Dt: . However, I am again giving the facts as under; i)So far as deposit in bank account with Surat District Co-op. Bank Ltd., Surat is concerned I have to state that during the year under review my client has not made any deposit of such a huge amount in his above referred bank account. ii)You have further pointed out that my client has also sold another Bombay Property during the F.Y. 2007-08. In this connection I have to state that he owned only one property jointly with other co-owner in Bombay, which he had sold out his share to “Om Appollo Medicare Private Limited” iii)My client have entered jointly with other co-owners into an Agreement for sale of the said property on 28/09/1995 with “Dhanvantry Centers Private Limited” and received Rs.20,00,000/- as advance money by all co-owners. Annexure B iv)Subsequently the buyer had not paid rest payment and therefore the deal could not be completed. v)The matter went in to Court and prolonged for 12 years. vi)My client himself, his brother and his sister, they all are having 50% share jointly in the said property settled the matter with the original buyer i.e. Om Appollo Medicare Private Limited for Rs.3 Crore for their share in the property. Annexure C.vii)Subsequently my client received a call from the Surat District Co-operative Bank Ltd, Lalgate, Surat that they had deposited two DD of Rs.59,40,000/- and Rs.55,18,150/- respectively. They got surprised by knowing that and informed the bank that they have not deposited such drafts in their saving accounts with the bank. viii)After making enquiry my client came to know that another co-owner of the property having 50%in the aforesaid property by making false power of attorney and signature of my client. ix)By knowing that my client sent a letter dt 25/03/2008 and dated 15/04/2008 to the bank through their advocate and cleared the matter. Copy of the letter is enclosed for your kind perusal. My client further sent a letter dt. 05/05/2008 to other co-owners to cancel the deal of their part stating that they have already sold out our share to the “Om Appollo Medicare Pvt. Ltd.”. In fact they have sold out their share in the property during the F.Y. 2007-08 for Rs.3 Crore. They have neither sold the same property second time nor sold another property during the F.Y.2007-08. viii)After making enquiry my client came to know that another co-owner of the property having 50%in the aforesaid property by making false power of attorney and signature of my client. ix)By knowing that my client sent a letter dt 25/03/2008 and dated 15/04/2008 to the bank through their advocate and cleared the matter. Copy of the letter is enclosed for your kind perusal. My client further sent a letter dt. 05/05/2008 to other co-owners to cancel the deal of their part stating that they have already sold out our share to the “Om Appollo Medicare Pvt. Ltd.”. In fact they have sold out their share in the property during the F.Y. 2007-08 for Rs.3 Crore. They have neither sold the same property second time nor sold another property during the F.Y.2007-08. 7.It is clear from the above that no sale proceed was deposited in the bank account of my client with the Surat District Co-operative Bank Ltd., Main Branch, Surat. A letter of the advocate of the bank to this effect dated 01/04/2008 stating that no amount was deposited in the Bank account of my client, A copy of the letter of the Advocate of the bank is enclosed for your ready reference. 8.My client has filed his return of income for the 2008-2009 assessment year in due course i.e. on 30/03/2009 vide acknowledgment No.0910818642 in Ward 9(1), Surat and declared the Capital Gain incurred on sale of his share in the immovable property in Mumbai, before your notice u/s.142(1) of the Act dated:29/09/2009 to file his return of income for the assessment year 2008-2009. 9.Instead of making addition in case of my client for sale of same property twice, it is requested to find out the fact and tax the right person. 10.You are further requested to issue summons u/s.131 of the Act to Mr. Mohammed Altaf Mohammedazam Jarullah, who have signed the sale deed on behalf of my client by making forge Power of attorney of my client. His detailed address is given in Annexure E above. 11.My client has filed Criminal case against Mr. Mohammed Altaf Mohammedazam Jarullah and witness to the forged Power of Attorney. Order of the Addl. Chief Metropolitan Magistrate, 38[th] Court, Ballard Pier, Mumbai enclosed. 12.My client has also filed Civil case against Mr. Mohammed Altaf Mohammedazam Jarullah and witness to the forged Power of Attorney. A copy of the suit filed is enclosed.” [2.4]However, the learned Assessing Officer did not accept the aforesaid explanation and treated Rs.1,14,58,700/- as income of the assessee from unknown source and added the same to the total income of the assessee solely on the ground that the demand draft of Rs.1,14,58,700/- favouring the assessee was deposited in his account and later on transferred to sundry account and almost 22 months have expired since deposit of the money in the bank and no other claimant has come forward for the said amount. Feeling aggrieved and dissatisfied with the order passed by the learned Assessing Officer treating Rs.1,14,58,700/- as income of the assessee from unknown source and adding the same to the total income of the assessee, the assessee preferred Appeal before the learned CIT(A). The CIT(A) allowed the said Appeal and quashed and set aside the order passed by the learned Assessing Officer and deleted the addition made by the learned Assessing Officer of Rs.1,14,58,700/- as income from undisclosed source. Feeling aggrieved and dissatisfied with the order passed by the learned CIT(A), revenue has preferred the present Tax Appeal and by the impugned judgment and order, the learned Tribunal has dismissed the said Appeal. Hence, revenue has preferred the present Tax Appeal with the aforesaid proposed question of law. Feeling aggrieved and dissatisfied with the order passed by the learned CIT(A), revenue has preferred the present Tax Appeal and by the impugned judgment and order, the learned Tribunal has dismissed the said Appeal. Hence, revenue has preferred the present Tax Appeal with the aforesaid proposed question of law. [3.0]Now so far as the assessee in Tax Appeal No.658/2018 is concerned, he is one of the co-owner of the property alongwith the original assessee of Tax Appeal No.684/2018, and therefore, the facts are identical and similar additions were made by the learned Assessing Officer, which came to be deleted by the learned CIT(A), which has been confirmed by the learned Tribunal. [4.0]Having heard Shri Nikunt Raval, learned advocate appearing on behalf of the Department and considering the orders passed by the learned Assessing Officer, learned CIT(A) and the learned Tribunal and considering the case on behalf of the assessee, we are also of the opinion that the learned Assessing Officer erred in making the addition of Rs.1,14,58,700/- into the income of the assessee treating it as income from unknown source. It is required to be noted that right from the very beginning the assessee denied having executed the sale deed in favour of M/s. Summer Corporation and receiving any amount by way of sale consideration from M/s Summer Corporation. It is required to be noted that Civil Suits are pending in which the sale deed in favour of M/s Summer Corporation alleged to have been executed by the assessee in the present case is under challenge. It is also required to be noted that right from the very beginning it was the case on behalf of the respective assessee that they never gave any power of attorney to one Mohammed Altaf Mohammedazam Jaharullah, who alleged to have executed the sale deed in favour of M/s Summer Corporation for and on behalf of the co-owners. It is required to be noted that from the very beginning it was the case on behalf of the assessee that in fact they already sold their share (50% share) in favour of one M/s Om Apollo Medicare Pvt. Ltd and whatever amount was received by way of sale consideration in fact the same was shown in their return. It was also the case on behalf of the assessee from the very beginning that the amount of Rs.1,14,58,700/- came to be deposited in their respective Bank Accounts without their knowledge and consent) and in fact they never withdrew the said amount. It is required to be noted that subsequently the amount so deposited in the Bank Accounts of the respective assessee were transferred to sundry account. Considering the aforesaid facts and circumstances of the case, the assessee denied having executed any sale deed in favour of M/s Summer Corporation and having received any sale consideration to the extent of their share, and therefore, it was not shown in their return and the said income, which was deposited in their Bank Account without their knowledge and consent, was not shown as income in their return. The learned CIT(A) as well as the learned Tribunal have rightly deleted the addition made by the learned Assessing Officer treating the aforesaid amount i.e. Rs.1,14,58,700/- (in case of both the assessee) as income from other unknown source. We are in complete agreement with the view taken by the learned Tribunal. No question of law arises. Under the circumstances, both the Appeals deserve to be dismissed and are accordingly dismissed. (M.R. SHAH, J.) (A.Y. KOGJE, J.) siji