2021 (8) TMI 277 - AT - Income Tax

Addition u/s. 69 - Real owner of asset - explanation to source of investment or not - Benami transaction - transactions to avoid the Capital Gain Tax on the property sold and also to avoid enquiry in respect of this property by the department - HELD THAT - As sale document were executed by Sh. Sulakhan Ram in favour of the assessee with a view to avoid long term capital gain of the property, therefore which is clear from the affidavit filled by him before the Executive magistrate and subsequent transfer of entire sale consideration into his account immediately after the sale of land by the assessee. This is a case and where innocent citizen seems to have been duped by Sulakhan Ram and therefore in dept inquiries were required to be made by the AO. However despite the above said facts were brought to the notice of the Assessing Officer/CIT(A). Nothing has been done and in a cryptic and stereotype manner, the additions are made by the Assessing Officer and confirmed by the Ld. CIT(A). In the light of the above, the case of the assessee is remanded back to the file of the assessing officer to consider the documents filed by the assessee during the assessment proceeding alleging that the transaction were benami and the legal owner of the property was Sh. Sulakhan Ram.AO is directed to conduct the inquiry against Sh. Sulakhan Ram and find out the real nature of the transaction/s and to initiate the proceedings u/s. 148 or any other proceedings as he may deem appropriate for bringing out the correct nature of the transactions and levying the due tax, if any arose on account of transfer of property in the name of assessee at the first instance and thereafter transferring the property by the assessee in the name of Sh. Gurmeet Chahal, as alleged Benamidar of the Sulakhan Ram - Appeal of the assessee is allowed for statistical purposes.

Issues Involved:

1. Justification of the reassessment proceedings initiated under Sections 147/148 of the Income Tax Act, 1961.
2. Jurisdiction of ITO Ludhiana in issuing verification letters under Section 133(6).
3. Legitimacy of the addition of ?15,960,000 under Section 69.
4. Overall legality and factual correctness of the orders passed by CIT(A) and ITO.

Issue-wise Detailed Analysis:

1. Justification of the Reassessment Proceedings:

The assessee contended that the CIT(A) was not justified in upholding the action of the AO in initiating reassessment proceedings under Sections 147/148 of the Income Tax Act, 1961. The AO had recorded reasons for initiating these proceedings on 21.03.2017 based on AIR information indicating a financial transaction of ?15,960,000. The assessee objected to these reasons, but the AO ignored these objections and made an addition of ?15,960,000. The Tribunal found that the chain of events indicated that the sale deed executed by Sulkhan Ram in favor of the assessee for ?14,750,000 was a Benami transaction intended to avoid long-term capital gains tax. Therefore, the reassessment proceedings were not justified without proper inquiry into the nature of the transactions.

2. Jurisdiction of ITO Ludhiana:

The assessee argued that the verification letters under Section 133(6) were issued by the ITO Ludhiana, who had no jurisdiction over the case. The Tribunal did not explicitly address this jurisdictional issue in its order but focused on the substantive nature of the transactions and the need for a thorough investigation.

3. Legitimacy of the Addition under Section 69:

The CIT(A) upheld the addition of ?15,960,000 made by the ITO under Section 69. The assessee argued that no payment was made to Sulkhan Ram, who had executed a sworn affidavit stating that no money transaction occurred and that the property was transferred for "taking care" (Rakh Rakhav). The Tribunal noted that the entire sale consideration was transferred to Sulkhan Ram's account immediately after the sale of the property by the assessee, indicating that the transactions were Benami. The Tribunal directed the AO to conduct a detailed inquiry into the nature of these transactions and the source of investment.

4. Overall Legality and Factual Correctness:

The Tribunal found that the lower authorities had not conducted a proper inquiry into the nature of the transactions and had made additions in a "cryptic and stereotype manner." The Tribunal remanded the case back to the AO with specific directions to:

- Consider the documents filed by the assessee alleging Benami transactions.
- Conduct an inquiry against Sulkhan Ram to determine the real nature of the transactions.
- Initiate appropriate proceedings under Section 148 or any other relevant provisions.
- Examine whether any action can be taken against Sulkhan Ram under the Benami Property Act.
- Issue notices to both the assessee and Sulkhan Ram and allow them to present their case.

The Tribunal clarified that its observations were prima facie and that the AO must determine the complete and true facts after hearing both sides. The appeal was allowed for statistical purposes, with directions for the AO to decide the issue within six months from the receipt of the order.

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