2019 (1) TMI 850 - AT - Income Tax

Undisclosed on-money payment for purchase of immovable property - request of the assessee of providing opportunity of cross examination with the sellers who have stated to have received on-money - Held that - Assessee is aggrieved with the addition for unaccounted investment of ₹ 7,00,000/- and ₹ 1,02,45,000/- for the alleged on-money payment for the purchase of land from Shri Abdul Wahid Khan and Shri Jhanak Singh for Assessment Year 2008-09 and 2011-12 respectively. The common facts are that the assessee purchased immoveable property from Shri Abdul Wahid Khan and Shri Jhanak Singh. Both these persons stated on oath before the A.O that they have received the on-money in cash at ₹ 7,00,000/- and ₹ 1,02,45,000/- over and above the consideration mentioned in the registered sale deed at ₹ 8,40,000/- and ₹ 44,55,000/- respectively. During the course of appearing it has been prayed by the assessee that no opportunity of cross examination was provided to the assessee with Shri Abdul Wahid Khan and Shri Jhanak Singh. Revenue has not raised any objection to this request. We in the interest of justice are of the view that assessee deserves to be given an opportunity to cross examine both the sellers with whom she transacted to purchase immovable property. Unexplained investment in jewellery - Held that - In view the CBDT Instruction No.1916 dated 11.5.1994 gave the benefit of 800 gram of gold jewellery treating it to be belong to the assessee, her husband and two sons comprising of 500 gram for lady assessee, 100 gram each for three males. Now the assessee is in appeal challenging the remaining amount of addition for 1227 grams of gold jewellery. The assessee pleaded casually submitted that the assessee belongs to a rich family and such acquisition of gold jewellery are quite reasonable in such families. We are not inclined to give any benefit to this contention of the assessee as it was not supported by any facts, evidences or any other details which could prove the source of the unexplained gold jewellery. We therefore in the given facts and circumstances of the case are of the considered view that the CIT(A) has rightly sustained the addition of unexplained gold jewellery of 1127 grams and the same needs to be confirmed. In the result Ground No.1 raised by the assessee stands dismissed. Addition for unexplained cash amount - Held that - This cash amount was found in the bank locker which was treated as unexplained by both the lower authorities. We are of the view that looking to the Indian customs and accumulation of Streedhan of the assessee for past many years which is normally saved by the Indian ladies, as well as looking to the smallness of the amount and the fact that the assessee is regularly filing income tax return, we find no justification in the addition of ₹ 64,815/- confirmed by both the lower authorities. We accordingly delete the addition of ₹ 64,815/- for the alleged unexplained investment and allow Ground No.2 raised by the assessee.

Summary

Issues:
1. Undisclosed on-money payment for purchase of immovable property.
2. Addition for undisclosed jewellery.
3. Unexplained cash found during search.

Issue 1: Undisclosed on-money payment for purchase of immovable property
The appeals were filed by the assessee against the orders of the Ld. Commissioner of Income Tax (Appeals) pertaining to Assessment Year 2008-09, 2011-12, and 2012-13. The appeals were directed against the orders under section 153A read with section 143(3) of the Income Tax Act, 1961. The assessee, an individual earning income from salary and business, faced allegations of paying on-money for the purchase of land without proper documentation. The Tribunal noted that the sellers had made statements about receiving on-money, but the assessee was not provided with an opportunity for cross-examination. In the interest of justice, the Tribunal decided to set aside the issues related to on-money payment and directed the Assessing Officer to summon the alleged sellers for cross-examination. The Tribunal emphasized the importance of providing a reasonable opportunity for the assessee to be heard. The appeals were allowed for statistical purposes.

Issue 2: Addition for undisclosed jewellery
During a search, gold jewellery was found and seized from the assessee's residence and bank locker. The assessee failed to explain the source of the gold jewellery, leading to an addition. The Ld. CIT(A) granted a benefit of 800 grams of gold jewellery based on CBDT instructions, attributing portions to the assessee, her husband, and sons. The remaining addition for 1227 grams of gold jewellery was challenged by the assessee. The Tribunal, after considering the facts and circumstances, upheld the addition of unexplained gold jewellery of 1127 grams. However, regarding the addition for unexplained cash, the Tribunal found no justification for the addition of ?64,815, considering the customs, savings habits, and regular income tax filing of the assessee. Therefore, the addition for unexplained cash was deleted, and the appeal was partly allowed.

Issue 3: Unexplained cash found during search
The Tribunal found no justification for the addition of ?64,815 in unexplained cash found in the bank locker. Considering the savings habits and regular income tax filing of the assessee, the Tribunal deleted the addition. Ground No.3, which was general in nature, was not adjudicated upon. As a result, ITA No.189 & 190/Ind/2017 were allowed for statistical purposes, and ITA No.503/Ind/2017 was partly allowed.