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TMI Blog2023 (11) TMI 327X X X X Extracts X X X X X X X X Extracts X X X X ..... n the record that the same is considered as due by the builder. Thus, the due payment cannot be added as unexplained investment by the assessee. Therefore, we are of the considered view that the addition does not have leg to stands and the same is thus vacated. Addition of stamp duty - assessee has already placed record the evidence to prove that the assessee has paid a sum partly. Balance amount has been paid out of the loan taken by his father. The proof of payment in the form of bank account maintained by his father is available on record. Therefore, since the source of this payment of stamp duty duly discharged by the assessee, the same cannot be added in the hands of the assessee merely stating that the assessee might have given this money to his father but in fact his father has taken housing loan and from that ICICI bank housing loan, this payment has been made. Therefore, same cannot be added in the hands of the assessee as unexplained investments. Addition next assessee based on the deed of seller proved that the assessee has out of total deal paid a sum which is not disputed, and a stamp duty and other related payment is yet not paid by the assessee but the builde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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. 8. That on the facts and circumstances of the case the ld. AO has erred in initiating the penalty under section 270A of the Act. 9. That on the facts and circumstances of the case the ld. AO has erred in initiating the penalty under section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ovable properties. The same was furnished by the assessee vide submissions dated 07.02.2022, 09.03.2022 21.03.2022. Regarding the source of 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 cont ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sponse to the same, the appellant approached Dispute Resolution Panel and filed application before DRP-1, Delhi on 26.04.2022. 6. There is no dispute 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 applicati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt of Rs. 2,10,45,648/- and given hearing Dt 16- 03-2022 further The Learned AO Circle (Int. Tax) Jaipur issued show cause Notice on Dt 08-03-2022 for hearing date 11-03-2022. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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 sum of Rs. 52,37,475/-as unexplained investment by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... also an Income Tax Assessee having PAN : ABEPG0467C and he had filed his ITR for the AY 2017-18 on 11-11-2017. Shri Nanak Gurbani was partner in one M/.s Jay Pee Industries and he had received Partners Remuneration of Rs. 1,50,000 and interest on Partner's Capital at Rs. 2,96,282 from the above named firm. Shri Nanak Gurbani had unfortunately expired on Dt 09-03-2019. The ITRV 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... above all the payment is made in earlier year by the Appellant his father out of Home Loan granted by ICICI Bank. Note:- The Cheque of Rs. 1,71,744/- includes TDS of Rs. 91,644/- which has been deposited by seller on behalf of buyer. That during the year under consideration the buyers of the property had paid only Rs. 1,71,744/- which was paid from the bank account of Shri Nanak Gurbani and in support of the same 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 f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed the Final Order u/s 147 rws 144C(3) of Income Tax Act 1961. That as per Section 144C is as under:- Sub section 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. Sub section 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 period specified in sub-section (2). That as per Order Sheet Dt 26-04-2022 the learned AO have accepted that the Assessee have Filled Objections but in Order Sheet Dt 13-05-2022 no response received by the Assessee. That the Dispute Resolution Panel have not informed the Learned Assessing Officer DCIT, CIRCLE (INTL TAX), JAIPUR. That on receipt of Assessment Order the Humble Appellant have no other alternate remedy except to file the Appeal before CIT (A) within Limitation Period. That ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Assessing Officer, Thus no Question of Addition under Section 69 arises. 6. That Without prejudice to above the Learned Assessing Officer levied 60% Tax instead of 30% against the provision of Law not pressed . 7. 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, Remand Report objection submitted by Humble Appellant. 8. 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- Interlinked with Ground-1 to 7 . 9. That on the facts and circumstances of the case the ld. AO has erred in initiating the penalty under section 270A of the Act- Interlinked with Ground-1 to 7 . 10. That on the facts and circumstances of the case the ld. AO has erred in initiating the penalty under section 271AAC(1) of the Act- Interlinked with Ground-1 to 7 . 11. That on the facts and circumstances of the case the ld. AO has erred in initiating the penalty under section 272A(1)(d) of the Act. - Interlinked with Ground-1 to 7 . 12. That further submissions in support of appeal shall be made ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ued by Assessing Officer, assessee filed her return of income - Only declaration in return was of sale of immovable property through which, she had received sale consideration - During assessment, this was a focal point of Assessing Officer - Assessing Officer did not complete assessment and, time for completion of assessment lapsed - Much later, Assessing Officer issued fresh notice of reopening on ground that assessee had showed fair market value of plot of land at higher amount based on valuer's report whereas according to Assessing Officer, fair market value of land was lesser - Therefore, income had escaped assessment - It was noted that during assessment proceedings, assessee had brought on record assessment orders in case of co-owners of land where identical valuation and declarations were accepted - Assessing Officer had no iota of information to believe that cost of acquisition of property claimed by assessee at a particular rate was not quite accurate - Whether, on facts, notice for reopening of assessment was based on reasons which were product of non-application of mind; therefore, deserved to be quashed - Held, yes [Paras 9 and 11][In favour of assessee] ii) Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l gains - Assessment was, accordingly, processed under section 143(1) - Subsequently Assessing Officer sought to reopen assessment on assumptions that municipal tax paid by assessee was for conversion of property from factory to shops and marriage halls - Upon reopening, Assessing Officer found that these assumptions were not true, but he proceeded to complete assessment by treating said amount as business income - Commissioner (Appeals) quashed reassessment proceedings - Whether fact that assessment was not made on strength of recorded reasons, clearly supported case of assessee that reopening was made merely to harass it - Held, yes - Whether since Assessing Officer had re-opened assessment on arbitrary and flimsy grounds and no addition was made on strength of such reasons, Commissioner (Appeals) was justified in quashing reassessment proceedings - Held, yes [In favour of assessee] iv) That the Hon ble IN THE ITAT DELHI BENCH 'B' (THIRD MEMBER) in case of Assistant Commissioner of Income-tax, Circle 11(2) v. O.P. Chawla* [2008] 114 ITD 69 (Delhi) (TM) held that Section 147, read with section 148, of the Income-tax Act, 1961 - Income escaping assessment - General - A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... come Tax Act oblige. We therefore request you to kindly accept the Ground of Appeal. II. 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. a) Investment of Rs. 52,37,475/- That the Property situated at Pune being flat no. A1-1701,F Residencies, Village Balewadi, High Street, Balewadi, Baner Link Road, Pune- 411045 (Maharashtra). The quantum of this alleged unaccounted investment has been worked out by deducting Rs. 66,43,825 out of agreed sale consideration of Rs. 1,18,81,300. While raising this allegation the Learned Assessing Officer has framed opinion that whole of the agreed sale consideration of Rs. 1,18,81,300 was paid by the assessee during the concerned year itself. The allegation of making an unaccounted investment of Rs. 52,37,475/-seems to has been r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... act arrived at by authorities below were based on proper appreciation of facts, material available on record and surrounding circumstances, High Court committed error in disturbing concurrent findings of facts - Held, yes ii) The Hon ble HIGH COURT OF KARNATAKA in case of Commissioner of Income-tax V. Vijayanand Roadlines Ltd.* [2014] 42 taxmann.com 409 (Karnataka) held that Section 69 of the Income-tax Act, 1961 - Unexplained investments (Investment in immovable property) - Assessment year 2003-04 - Assessing Officer made certain addition on assessee-transporter's income, considering difference of cost of building and interest of previous year as 'unexplained investments' - Assessing Officer had not considered details of expenses incurred by assessee for previous year - Whether matter was required to be reconsidered by Assessing Officer afresh, after providing an opportunity to assessee to explain expenditure incurred by him for previous year - Held, yes [Para 4] [Matter remanded] iii) The Hon ble THE ITAT KOLKATA BENCH 'SMC' in case of Ashutosh Jha v. Income-tax Officer, Ward 2(5), Ranchi* [2021] 129 taxmann.com 204 (Kolkata - Trib.) IN held that Sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... quated with general value fixed for purpose of payment of stamp duty - Held, yes - Whether since in instant case there was no positive evidence that assessee had actually paid more them consideration than shown in sale deed for purchase of land, Assessing Officer was not justified in valuing land on a higher amount as per DVO's report in case of seller and value adopted by Sub-Registrar for purpose of stamp duty - Held, yes - Whether, therefore, impugned addition made to income of assessee was not justified and was liable to be deleted - Held, yes We therefore request you to kindly accept the Ground of Appeal. b) Stamp Duty of Rs. 12,62,670/- No such evidence was ever sought from the Humble Appellant during the assessment proceedings. Right from initiation of the assessment proceedings the Learned Assessing Officer had been raising queries about the investment of the quantum which was made the basis of initiation of reassessment proceedings and the Assessee had submitted all relevant documents in connection thereto. The Assessee had made following payments for registration of sale deeds/ Agreements:- A. For property at Pune ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng judicial Judgements:- i) The Hon ble ITAT DELHI BENCH 'SMC-1' in case of Ashish Bhardwaj v. Income-tax Officer, Ward-36(4), New Delhi* [2021] 130 taxmann.com 197 (Delhi - Trib.) held that I. Section 69A, read with section 148, of the Income-tax Act, 1961 - Unexplained investments (Immovable property) - Assessment year 2011-12 - An information was received that assessee had purchased an immovable property amounting to Rs. 49.97 lakhs during year - On basis of same, Assessing Officer issued a reopening notice against assessee - He further noted that an amount of Rs. 3.50 lakhs was spent towards stamp duty for purchase of such property - He completed reassessment wherein he only made addition of Rs. 3.50 lakhs being stamp duty incurred for purchase of immovable property as unexplained investment - It was noted that admittedly Assessing Officer had not made any addition on account of purchase of immovable property amounting to Rs. 49.97 lakhs meaning thereby he had accepted source of that huge amount - So far as amount towards stamp duty was concerned, it was found that property was owned by assessee jointly with his wife, namely, VB and said entire amount towards stamp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. The Additions made in Appellant case is against Facts Law as held in following judicial Judgements:- i) That the Hon ble ITAT JAIPUR BENCH in case of Smt. Renu Agarwal v. Assistant Commissioner of Income-tax, Central Circle-3, Jaipur* [2017] 88 taxmann.com 872 (Jaipur - Trib.) held that Section 69 of the Income-tax Act, 1961 - Unexplained investments (Immovable property) - Assessment year 2009-10 - Where seller had given a statement on oath that he had received Rs. 65 lakhs only from assessee on sale of land and that agreement to sell plot of land after carrying out construction for Rs. 1.41 crore was cancelled, in absence of any evidence of payment of any on-money on purchase of vacant plot, lower authorities had erred in confirm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at investment in purchase of impugned property was made out of money returned by two parties with whom he carried out financial transactions - Whether since fund was available with assessee at relevant time, additions made by Assessing Officer towards unexplained investment in property were not maintainable and Assessing Officer was to be directed to delete same - Held, yes [Paras 20.2 20.3] [In favour of assessee] IV. Section 69A of the Income-tax Act, 1961 - Unexplained moneys (Bank deposits) - Assessment year 2002-03 - Whether revenue having accepted purchase of property by assessee, a real estate broker for Rs. 19 lakhs, claim of sale of same for Rs. 21 lakhs and deposit of same in bank was to be accepted - Held, yes - Whether since Assessing Officer, in immediately succeeding year, has accepted submission of assessee that bank deposits represented advances received from various persons in respect of his real estate business, loans availed by him and commission received, same was to be accepted for current year also - Held, yes [Para 23] [In favour of assessee] V. Section 153A, read with section 69, of the Income-tax Act, 1961 - Search and seizure - Assessment in case of (Pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nding asset/expense vis- -vis alleged income, it would not be proper to presume that entire amount of deposits made into bank account represented current income of assessee - Held, yes - Whether Assessing Officer having accepted for previous year that deposits found in bank accounts relate to transactions carried by assessee in his real estate and vehicle brokerage business, same logic was to be extended for current year also - Held, yes - Whether thus Assessing Officer was to be directed to delete additions relating to bank deposits - Held, yes [Paras 32.4 32.7] [In favour of assessee] IX. Section 69 of the Income-tax Act, 1961 - Unexplained investments (Purchase of car) - Assessment year 2005-06 - Whether, where assessee had explained that payments made by him for purchase of cars were from several car loans taken from banks, Commissioner (Appeals) had rightly deleted addition - Held, yes [Para 36.4] [In favour of assessee] XIII. Section 153A of the Income-tax Act, 1961 - Search and seizure - Assessment in case of (Premium income) - During course of search, a receipt was found, which suggested that assessee would be entitled to receive Rs. 3.95 crore as premium - However, durin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ome - Block assessment years 1987-88 to 1997-98 - Assessees were non-resident Indians carrying on business outside India - They had made considerable remittances to their NRE accounts in India - During relevant period, they had purchased immovable properties and constructed various buildings in India - Department carried out a search operation under section 132 at residential premises of assessees in India on suspicion of undervaluation and on money payments in respect of such purchases - Subsequently, Assessing Officer initiated assessment proceedings under section 158BC and found that actual consideration paid by assessees for acquiring immovable properties was more than ostensible consideration mentioned in registration documents - Difference in above two considerations was treated by him as undisclosed income in hands of assessees - Similarly, Assessing Officer made further additions under Chapter XIV-B by estimating cost of construction of buildings at a rate higher than that conceded by assessees and treating difference as undisclosed income - He further made addition on account of additional estimate made by him against personal expenses of assessee s family residing in In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eld, yes - Whether where assessee has given supporting material evidencing gift or amount received from particular person with necessary documents, such as, copies of demand drafts and cheques etc., no addition could have been made by Commissioner in respect of amount received by assessee - Held, yes [Paras 6 7] [In favour of assessee] ix) That the Hon ble HIGH COURT OF GUJARAT in case of Principal Commissioner of Income-tax-2 v. D H Enterprises* [2016] 72 taxmann.com 91 (Gujarat) held that Section 68, read with section 131, of the Income-tax Act, 1961 - Cash credit (Advance) - Assessment years 2006-07 and 2007-08 - In scrutiny, it was revealed that assessee had shown advances from 84 persons towards investment in land - Assessee submitted that these were received as advance booking amounts through cheques in ordinary course of business - Assessee had filed confirmations of all persons, copies of their bank statements, income tax returns, etc. - Assessing Officers was not satisfied and made additions of certain amounts for both assessment years - Whether since Assessing Officer could have easily verified these sums from details available, merely because summons could not b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in furnishing evidence regarding the source of payments made against stamp duty of Rs. 12,62,670/- for both the properties mentioned above. 3. The possibility of the fact that whole of the invested amount is originally transferred by Mr. Jai Kumar Gurbani into the bank a/c of Mr. Nanak Gurbani also can not be denied considering that the account balance of Mr. Nanak Gurbani during the F.Y. 2016-17 is continuously very low. 4. In the property, Flat no. 206, assessee is the joint owner and claiming that whole of the payment is made by assessee s father. 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. 45,82,174/- (91,64,348/2) is remained unexplained. Hence, on basis of the discussion made above, the amount of investment of Rs. 1,10,82,319/- (5237475+1262670+45,82,174) is remained unexplained and comes under the purview of unexplained investment u/s 69 of the I.T. Act, 1961 and the same is hereby added back to the total income of the assessee for A.Y. 2017-18. Also, as the assessee did not file origina ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 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 Attorney Holder of the Humble Appellant. Hence there cannot be any presumption about payment made by the Humble Appellant. The capacity of payment of stamp duty by Shri Nanak Gurbani stands proved with the fact that he was also an Income Tax Assessee having PAN : ABEPG0467C and he had filed his ITR for the AY 2017-18 on 11-11-2017. Shri Nanak Gurbani was partner in one M/.s Jay Pee Industries and he had received Partners Remuneration of Rs. 1,50,000 and interest on Partner's Capital at Rs. 2,96,282 from the above named firm. Shri Nanak Gurbani had unfortunately expired on Dt 09-03-2019. The ITRV and computation of income of Shri Nanak Gurbani for the AY2017-18 has been submitted before the Learned Assessing Officer to just ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 319300 16-01-2013 22,50,000 ICICI Bank LTD(Home Loan Account of Nanak Gurbani) 7 000033 02-07-2015 5,52,902 HDFC Bank Ltd. C-Scheme Account of Jai Kumar Gurbani 8 000032 02-07-2015 4,65,750 HDFC Bank Ltd. C-Scheme, Account of Jai Kumar Gurbani ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lant 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] 163 Taxman 537 (Patna) held that Section 64, read with section 147, of the Income-tax Act, 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Surrendered, thus eligible to tax Credit of Rs. 151/- which has been disallowed while famin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nrealized 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 Surrendered, thus eligible to tax Credit of Rs. 151/-. We therefore request you to k ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ith 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 of total income and agricultural income declared by assessee aggregating ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 purchased a car during relevant year - As, assessee could not substantiate his cl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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. Commissioner of Income-tax, Rg-15(2) [2006] 6 SOT 247 (Mumbai)[15-12-2005] held that Se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oney 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 having received certain amount as 'on money' from buyers of bunglow ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... idering 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, forward 3 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 period specified in sub-section (2). (4) The Assessing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 153 7 [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 rules 8 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.] 11 [(14B) The Cent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... objects] to the making of adjustments, or any order of assessment under sub-section (3) of section 143 93 [[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 147 97 [[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 153A 2 [[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] un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... imposing a penalty under section 272A; (p) an order made by a Deputy Commissioner 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 ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... jection 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. 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3-5 4. Demand Notice, Order, Computation Sheet of Order Dt 13-05-2022 6-16 5. Copy of Reply against the Draft Order 17-21 6. Copy of Draft Assessment Order Dt 27-03-2022 22-29 7. Copy of Show Cause Notice Dt 19-03-2022 30-31 8. Copy of Show Cause Notice Dt 08-03-2022 32 9. Copy of Notice u/s 142(1) Dt 02-02-2022 33-34 10. Copy of Notice u/s 143(2) reasons for reopening of the case u/s 148 35-45 11. Copy of Notice u/s 142(1) Dt 28-12-2021 46-47 12. Copy of AS-26 48-52 13. Section 246A of Income Tax Act 53-55 14. Section 144C of Income Tax Act 56-58 8. The ld. AR of the assessee has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at Rs. 5,49,770/- added by the ld. AO is not correct. But the total amount for this property amounts to Rs. 6,41,920/-[ page 87 of paper book]out of that the assessee has paid at Rs. 1,71,744/- as it is evident from an agreement submitted by the assessee at page 90 of his paper book which is not under dispute. The balance amount is paid by his father as the property is in joint name with his father. Therefore, the addition made to the extent of Rs. 5,49,770/- is incorrect and is not paid by the assessee. As regards the 2nd part of the stamp duty of Rs. 7,12,900/- for the purchase of property the ld. AR of the assessee submitted that out of that amount of Rs. 7,42,900/- has been debited to the account of the assessee by the builder but the assessee has not paid it an amount has been debited to the account on 11.02.2017 (assessee s paper book page No. 70). As the assessee has only made part payment of the property and the amount debited to the assessee account on stamp duty registration was not paid to the builders/seller of the property also. Thus, the same cannot be added as unexplained investments by the assessee as the has been paid by the builder and debited to the account of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the assessee has not made any payment the same cannot be added as unexplained investment.The revenue did not bring on record contraryfact that the assessee has paid this amount. But in fact it is based on the record that the same is considered as due by the builder. Thus, the due payment cannot be added as unexplained investment by the assessee. Therefore, we are of the considered view that the addition of Rs. 52,37,475/- does not have leg to stands and the same is thus vacated. 16. As regards the addition of stamp duty for an amount of Rs. 5,49,770/-, the assessee has already placed record the evidence to prove that the assessee has paid a sum of Rs. 1,71,744/-. Balance amount has been paid out of the loan taken by his father. The proof of payment in the form of bank account maintained by his father (assessee s paper book page 67) is available on record. Therefore, since the source of this payment of stamp duty duly discharged by the assessee, the same cannot be added in the hands of the assessee merely stating that the assessee might have given this money to his father but in fact his father has taken housing loan and from that ICICI bank housing loan, this payment has been ma ..... X X X X Extracts X X X X X X X X Extracts X X X X
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