Asha Gupta , Jaipur vs Assessee

Jh vkj-ih-rksykuh] U;kf;d lnL; ,oa Jh Vh-vkj-ehuk] ys[kk lnL; ds le{k BEFORE: SHRI R.P. TOLANI, JM & SHRI T.R. MEENA, AM

vk;dj vihy la-@ITA No. 515/JP/2012 fu/kZkj.k o"kZ@Assessment Year : 2008-09

Smt. Asha Gupta cuke The ITO 3-Na-44, Jawahar Nagar Vs. Ward- 6(1) Jaipur Jaipur LFkk;h ys[kk la-@thvkbZvkj la-@PAN/GIR No.: AFFPG 9326 M vihykFkhZ@Appellant izR;FkhZ@Respondent

fu/kZkfjrh dh vksj ls@ Assessee by : Shri Siddharth Ranka & :Shri Muzaffar Iqbal, Advocate jktLo dh vksj ls@ Revenue by :Smt. Neena Jeph, JCIT

lquokbZ dh rkjh[k@ Date of Hearing : 11/05/2015 ?kks"k.kk dh rkjh[k@ Date of Pronouncement : 12 /06/2015

vkns'k@ ORDER PER R.P. TOLANI, JM

This is an appeal filed by the assessee against the order of the ld.

CIT(A) -II, Jaipur dated 21-03-2012 for the assessment year 2008-09.

2.1 During the course of hearing, the ld. AR did not press Ground No.

1, hence, the same is dismissed being not pressed.

2.2 The sole ground of the assessee in her appeal is as under:-

''The ld. CIT(A) erred in confirming AO's order in adopting the value of the land at Rs. 40,23,250/- and ignoring the sale price duly recorded in the sale deed in 2 ITA No. 515/JP/2012 Smt. Asha Gupta vs. ITO, Ward- 6 (1), Jaipur

working out Long term capital gain and in computing the value adopting it at Rs. 40,23,250/- as against Rs. 35,00,000/--

3.1 Brief facts are:- the assessee derives income from conducting

tuition classes and earning of interest. During this year assessee sold her

share in agricultural land admeasuring 3 bighas and 17 biswas for a total

sale consideration of Rs. 30.00 lacs on 30-07-2007; however the sale

consideration was valued at Rs. 40,23,250/- by the Sub-Registrar for

stamp duty purposes. Out of these sale proceeds from sale of Long term

capital asset, assessee purchased a residential house at A-17, Adarsh

Basti, Barket Nagar, Jaipur for a total consideration of Rs. 35.00 lacs, as

per agreement dated 15-02-2008.The said amount of Rs. 35.00 lacs was

paid by the vendor as under:-

Date Amount Through Cheque No. 27-03-2008 Rs., 5,00,000 614196 28-03-2008 Rs., 7,00,000 614197 28-03-2008 Rs., 5,00,000 614198 27-03-2008 Rs., 8,00,000 614199

An amount of Rs. 10.00 lacs was further paid by cash/post dated cheque on different dates as under:-

Date Amount Through Cash / Post dated Chequs. May, 2008 Rs., 5,00,000 Cash 28-03-2008 Rs., 5,00,000 Post-date cheque 3 ITA No. 515/JP/2012

Smt. Asha Gupta vs. ITO, Ward- 6 (1), Jaipur

Ld. AO was of the view that the assessee's claim for deduction u/s 54F of

the Act on alleged acquisition of new house was denied based on

following adverse inferences:

(i) The assessee has entered into an Agreement for purchase of residential house property for Rs. 35.00 lacs but she has paid only Rs. 25.00 lacs against it;

(ii) Possession of the purchased property is not proved;

(iii) Shri Hanuman Prasad, alleged vendor and father in law of assessee has not offered any capital gains in this behalf.

(iv) It was a colourable family arrangement to avoid tax.

(v) Even after purchase of the property assessee lives at old house and files returns from same; whereas she should have lived and filed return quoting new address;

(vi) Assessee admitted having stayed only for one or two nights only in the new residential house;

(vii) No documentary evidence such as ration card, bank pass book, driving license, voter's identification card etc. in support of new address.

3.2 Aggrieved, the assessee preferred first appeal where ld. CIT(A)

remanded the matter for further enquiries to AO vide letter dated 29-12-

2011 where it was reported that :-

4 ITA No. 515/JP/2012

Smt. Asha Gupta vs. ITO, Ward- 6 (1), Jaipur

(i) Shri Hanuman Prasad, father-in-law of the assessee, vendor could not appear citing family dispute. The summons issued u/s 131 of the Act could not be complied with.

(ii) The assessee vide letter dated 8-06-2010 had claimed that

Rs. 10,000/- was outstanding whereas in subsequent agreement

dated 15-06-2010, it was claimed that Rs. 5.00 lacs had been paid

by cash and Rs. 5.00 lacs through Post date cheque.

(iii) The assessee could not explain the source of Rs. 5.00 lacs

given cash in May 2008.

(iv) The assessee claim to have received gift of Rs. 2.50 lacs from

her husband's uncle Shri Vallabh Das Gupta, was denied.

(v) The construction of a commercial complex has begun on the

piece of land without registered deed in favour of the assessee.

(vi) The property purchased by the assessee was still found in the

possession of vendor Shri Hanuman Prasad Gupta and his two

sons namely Shri Om Prakash and Shri Hari Shankar till the year

end of 2011 and they only were found to be residing in this house.

(vii) The purchased property was never possessed and used by as

her regular residence which was corroborated by question no. 22 of 5 ITA No. 515/JP/2012 Smt. Asha Gupta vs. ITO, Ward- 6 (1), Jaipur

her statement recorded by AO where she replied vaguely having

stayed in the house for one or two nights in the alleged house.

3.3 The ld. CIT(A) confirmed the order of the AO and held that :-

(i) The assessee's explanation was a façade, statement and the letter filed by the assessee were self-contradictory;

theory about family dispute was never proved and the vendor/father-in-law never appeared. Assessee claimed his whereabouts were not known, whereas the enquiries by the AO revealed that Shri Hanuman Prasad and two sons were residing in the same house till 2011 claimed to be purchased and possessed by her. The alleged transaction was pure family arrangements serving mutual interest of the relations to evade tax.

(ii) The relationships though claimed as strained the purchase is without registered conveyance deed, these facts do not answer the parameters of normal human conduct and probabilities. It is highly doubtful that the assessee will built a shopping complex on a property whose proper title was not acquired.

(iii) There is no adequate evidence that the assessee lived in the alleged property that she stayed in the house for one or two nights and thereafter rented out on a meager rent is make believe story.

(iv) The return showing meager rental income was summarily accepted u/s 143(1) Of the Act.

6 ITA No. 515/JP/2012

Smt. Asha Gupta vs. ITO, Ward- 6 (1), Jaipur

(v) The order of the AO was confirmed relying following case laws.

(1) Director of Income Tax vs. Bharat Diamond Bourse ,259 ITR 280 (SC).

(2) Sunita Oberoi vs. ITO, 126 TTJ 745

3.4 Ld. Counsel for the assessee Shri Siddharth Ranka at the time of

hearing applied for admission of additional evidence claiming them to be

I T record pertaining to subsequent proceedings u/s 147 were initiated

against Shri Hanuman Prasad Gupta (Vendor/ father-in-law) who

disclosed the LTCG in this behalf by return filed on 9-04-2013 with

payment of due taxes with interest and the assessment order u/s 147 read

with Section 143(3) has been passed on 31-10-2014. The assessee could

obtain these documents from Shri Hanuman Prasad Gupta, after the

impugned order was passed by the ld. CIT(A). The additional evidence

being income-tax record only is intrinsically connected with the issues in

question. In view of above facts, it is clear that assessee was prevented by

sufficient cause in filing this evidence before the authorities below.

Therefore, the prayer is made to admit the additional evidence.

3.5 The ld. DR opposed the additional evidence.

3.6 We have heard the rival contentions and perused the materials

available on record. On the issue of additional evidence, we find in the 7 ITA No. 515/JP/2012 Smt. Asha Gupta vs. ITO, Ward- 6 (1), Jaipur

contentions of Mr. Ranka that proceedings u/s 147 of the Act in the case

of vendor were subsequently initiated and re-assessment order has been

passed on 31-10-2014 as against the order of the ld. CIT(A) dated 21-03-

2012. The additional evidence in question is part of the income tax

records only besides it effects the issue in material terms. Thus looking at

the facts, we are of the view that assessee was prevented by a reasonable

cause in producing them before lower authorities as they were either non

existent or not unknown. In view thereof, we are inclined to admit the

additional evidence in question.

4.1 Adverting to the facts, the assessee has claimed the purchase of

residential house and the vendor has been assessed on the same thereof.

The discovery of these documents goes to the root of the matter. We were

not informed about any appeal filed by asssesse's father-in-law,

consequently final outcome of taxability is unascertainable at this stage.

Thus in the present facts and circumstances of the case, it will be

desirable to set aside the matter back to the file of the AO to examine the

relevant issues afresh in view of the reassessment order in the case of Shri

Hanuman Prasad Gupta, assessee's father-in-law/vendor of the impugned

asset.

8 ITA No. 515/JP/2012

Smt. Asha Gupta vs. ITO, Ward- 6 (1), Jaipur

5.1 Ground No. 3 of the assessee is pertaining to charging of interest

u/s 234B and 234D which is consequential in nature and will be decided

while denovo assessment.

6.0 In the result, the appeal of the assessee is allowed for statistical

purposes

Order pronounced in the open court on 12 /06/2015.

Sd/- Sd/- ¼Vh-vkj-ehuk½ ¼vkj-ih-rksykuh½ (T.R. Meena) (R.P.Tolani) ys[kk lnL;@ Accountant Member U;kf;d lnL;@Judicial Member

Tk;iqj@Jaipur fnukad@Dated:- 12 /06/2015

*Mishra

vkns'k dh izfrfyfi vxzfs 'kr@Copy of the order forwarded to:

1. vihykFkhZ@The Appellant- Smt. Asha Gupta, Jaipur

2. izR;FkhZ@ The Respondent- The ITO, Ward- 6 (1), Jaipur

3. vk;dj vk;qDr¼vihy½@ CIT(A).

4. vk;dj vk;qDr@ CIT,

5. foHkkxh; izfrfuf/k] vk;dj vihyh; vf/kdj.k] t;iqj@DR, ITAT, Jaipur

6. xkMZ QkbZy@ Guard File (ITA No.515/JP/2012)

vkns'kkuqlkj@ By order,

lgk;d iathdkj@ Assistant. Registrar