Ritu Parwal, New Delhi vs Assessee

1. This is an appeal filed by the assessee for the AY 2008-09 against the order

of Commissioner of Income Tax (Appeals)-XXIV, New Delhi dated 23.10.2012 in

Appeal No. 384/10-11/358 raising the following grounds of appeal:

"(1) That the order dated 23-10-2012 passed u/s 250 of the Income Tax Act, 1961 by the Learned Commissioner of Income Tax (Appeals) XXIV, New Delhi is against law and facts on the file in as much as he was not justified to uphold the action of the Learned Deputy Commissioner of Income Tax, Circle 26(1), New Delhi in making an addition of Rs. 4,24,65,1501- on account of alleged undisclosed Short Term Capital Gain from sale of ITA No.204/Del /2013 2

shares of M/s Smriti Buildcom Pvt. Ltd. since the addition has been made:-

(i) on the basis of a document which was not executed or signed by the Appellant;

(ii) by relying upon the statement(s) .given by the employees of another person whose premises were searched without giving an opportunity to the appellant to rebut the same or to cross-examine the person whose statements were recorded thereby violating the principles of natural justice;

(iii) by ignoring the fact that there is no shred of evidence to prove that any cash payment was received by Mrs. Ritu Parwal;

(iv) on the basis of surmises which are illegal, arbitrary and wholly without any sub-stratum;

(v) by ignoring the fact that the property in question on which the impugned short term capital gain had allegedly been earned was not owned by the appellant and was owned by M/s Smriti Buildcom Pvt. Ltd. of which the appellant was only a shareholder:

(vi) by ignoring the fact that the appellant on her own and in her individual capacity was not competent to contract or deal with or sell or alienate the said property in any manner in as much as the company owning the property viz. M/s Smriti Buildcom Pvt. Ltd. had an independent and separate legal entity by virtue of being an incorporated body under the provisions of the Companies Act. 1956;

(vii) by lifting the corporate veil whereas no such legal or factual circumstances or arauments existed for same:

(viii) on the basis of an alleged Agreement to Sell dated 14.04.2008 entered into between Mr Sanjay Parwal, Mr Varinder Nehra and Mr Harminder Singh Saran to which the Appellant is not a party and accordingly no adverse inference can be drawn in her case on the basis of the same;

(ix) on the basis of a document which is void ab-initio in as much as the impugned Agreement to Sell has not been registered as required by the Transfer of Property Act, 1882 read together with Registration Act, 1908 as amended till date and in force in the relevant point of time;

(x) on the basis of the photo copies of an alleged document of which the original has not been discovered or unearthed at any point of time and accordingly does not have any legal or evidentially value;

ITA No.204/Del /2013 3 (xi) by ignoring the fact that the Appellant had entered into an agreement / transaction for the sale of a part of her shares (58,000 shares out of a total holding of 1,05,000 shares) and not any transaction for the sale of the property which in any case she was legally incompetent to do so;

(xii) by ignoring the fact that there could not be a major variation in the selling prices of the same shares entered into by the same seller with different parties where the transactions have taken place within close proximity and there has been no change in the underlying facts."

2. The brief facts of the case are that the assessee is an individual. She derives

income under heads of income from 'salary', 'capital gain' and 'income from other

sources. The appellant filed the return of income for the AY 2008-2009 on

29.09.2008, disclosing income of Rs.5,91,550/-. Against the said return of income,

the assessment was completed u/s 143(3) vide order dated 31.12.2010 at a total

income of Rs.4.30,56,700/-. The disparity between the returned and assessed is on

account of addition of Rs.4,24,65,150/- under head capital gains. The factual

matrix revolving around the addition is as follows.

2.1 During the course of assessment proceeding, the Ld. Assessing Officer

received information that the search and seizure operation were conducted in the

HBN group of companies consequent to this the survey operations u/s 133A of the

Act were conducted in the business premises of one Mr. Sanjay Parwal, who is

husband of the appellant.

3. During the course of search operation at the head office of HBN Group,

certain documents were found and seized as per Annexure A-I, which revealed that ITA No.204/Del /2013 4

commercial property No. B-53, B-1, Community Centre, Janakpuri, New Delhi

was purchased by the HBN Group from Sh. Sanjay Parwal and Smt. Ritu Parwal

through transfer of shares of M/s. Smriti Buildcon Pvt. Ltd. for a total

consideration of Rs.12.95 crores in the month of March, 2008. The documents also

revealed that out of the total consideration of Rs.12.95 crores, an amount of

Rs.8.70 in cash and the balance Rs.4.25 crores was paid by cheque by the HBN

Group and the cash of Rs.8.70 crores was received by Sh. Sanjay Parwal and Smt.

Ritu Parwal, who were controlling the affairs of M/s. Smriti Buildcon Pvt. Ltd.

3.1 The HBN Group, who were searched by the Department u/s. 132 of the Act,

disclosed and surrendered the cash amount of Rs.8.70 crores, paid to Sh. Sanjay

Parwal and Smt. Ritu Parwal, for taxation.

4. The Assessing Officer has noted in the assessment order that the shares of

M/s. Smriti Buildcon Pvt. Ltd. have already been transferred to the HBN Group

and the management of the said company has been taken over by the HBN Group,

although, before transferring the shares to the individuals and companies of HBN

Group, Sh. Sanjay Parwal and Smt. Ritu Parwal had transferred part of their hare

holding to M/s. Elecom Export Pvt. Ltd. and M/s. SJ Securities Pvt. Ltd. However,

later on, the complete share holding of M/s. Smriti Buildcon Pvt. Ltd. was

transferred to HBN Group.

4.1 The Investigating Wing, New Delhi recorded the statement of Sh. Virender

Nehra, son of Sh. Pratap Singh Nehra, R/o. A-l/84, Chanakya Place, Janakpuri, ITA No.204/Del /2013 5

New Delhi on 22.12.2010, wherein he admitted that he was the mediator for sale of

property at B-53, B-1, Community Centre, Janakpuri, New Delhi from Sh. Sanjay

Parwal and Smt. Ritu Parwal to the HBN Group through transfer of shares of M/s.

Smriti Buildcon Pvt. Ltd. for Rs.12.95 crores and that he had personally received

cash of Rs.25 lacs from Mr. Anil Mahajan and Mr. G.S. Chauhan on behalf of

HBN Group and had delivered it personally to Sh. Sanjay Parwal.

4.2 The AO also recorded in the assessment order that the Investigation Team of

the Department had seized a document serialed page number 52 of Annexure A-1

from the office of HBN Group, wherein, the details of payments made for the

property B-53, B-1, Janakpuri, New Delhi had been shown in the name of Smt.

Ritu Parwal for a sum of Rs.1.20 crores on 16.01.2008 through six cheques of

Rs.20 lacs each. This page also depicted payment of Rs.1.20 crores to Sh. Sanjay

Parwal, and Rs.15 lacs to M/s. Smriti Buildcon Pvt. Ltd. This page also disclosed

cash payment of Rs.1.95 crores upto 31.01.2008. Thus, the AO has noted that the

Annexure disclosed identification of total transaction of Rs.12.95 crores, out of

which Rs.4.50 crores had already been paid.

4.3 The AO noted in the assessment order that statement of Sh. Anil Mahajan,

Chief Manager, Real Estate of HBN Group, was recorded on 21.11.2009 by the

Search Team, where, in response to Question No. 14, Sh. Mahajan confirmed the

following payments: - -

ITA No.204/Del /2013 6

Payments Payable (in crores) Paid (in crores) Balance (in crores) Total payments 12.95 9.5 3.45 Cash 8.70 6.95 1.75 By Cheque 4.25 2.55 1.70

5. The AO noted in the assessment order that an agreement dated 14.01.2008

was entered into between Sh. Virender Nehra and Sh. Harminder Singh Saran,

Chairman of HBN Group, in which it was mentioned that the property No. B-53,

B-1, Community Centre, Janakpuri, New Delhi admeasuring 145.67 sq. mtrs. with

building constructed thereon was-agreed to be sold for Rs.12.95 crores, against

which token money of Rs.25 lacs was agreed to be paid in cash on 14.01.2008 and

the balance of Rs.12.70 crores before 31.03.2008. The receipt dated 14.01.2008

duly acknowledged the payment received by Sh. Virender Nehra was seized as per

Annexure A-5/page 58 by the Search Team.

6. The Investigating Wing, New Delhi also granted opportunity to the appellant

to cross examine those witnesses and the statements recorded from the witnesses as

well as from Sh. Virendra Nehra was confonted to the appellant. During which

time, the appellant had merely stated that she had no knowledge of her financial

affiars and the deal of sale of shares in the M/s Smirti Buildcon Pvt. Ltd. The entire

control over her fiancial affiars was with her husband only.

7. Based on this information, the Assessing Officer proceeded to re-compute

the capital gains returned on the sale of shares in M/s Smriti Buildcon Pvt. Ltd. ITA No.204/Del /2013 7

held by the appellant. The Assessing Officer had adopted 12.95 crores as total

consideration for sale of entire share holding in M/s Smirti Buildcon Pvt. Ltd. The

total number of shares of M/s. Smriti Buildcon Pvt. Ltd. were 2,94,700, out of

which, the appellant Smt. Ritu Parwal held 1,05,000 shares as on 31.01.2008.

Based on the above evidences seized during the course of search, the AO valued

Rs.4,61,40,150/- and after deducting the cost of these shares with premium at

Rs.35,50,000/-, the AO added Rs.4,24,65,150/- as undisclosed Short Term Capital

Gain in the hands of the appellant.

8. Aggrieved by this assessment order, the assessee preferred an appeal before

the CIT(A)-XXIV, New Delhi who vide order dated 29.10.2012 confirmed the

order of the Assessing Officer, vide para 17 of his order, which reads as under:

"After careful consideration and appreciation of all the facts and circumstances of the case, I am of the considered opinion that the addition made by the AO to the income of the appellant by enhancing the value of the shares of M/s Smriti Buildcon Pvt. Ltd. sold by her to HBN Group and the consequent Short Term Capital Gain thereon, is fully justified. The AO is directed to pass on this information to the Assessing Officers of the other shareholdersx of M/s Smriti Buildcon Pvt. Ltd., so that similar action can be taken in their cases for AY 2008-09. The AO may also consider passing on the information regarding this trasnaction to appropriate authorities in the DDA as well as in the office of Registrar of Properties, since, this has become a very common method of avoiding payment of stamp duty to the Government Ex-chequer. Information can also be passed on the Registrar of Companies, so that such malpractices, whereby properties are bought and sold through purchase and sale of shares of companies, can be checked, especially in cases of such shell companies, who do not carry out any other activity, except holding property as an asset. In the light of the above, the addition of Rs.4,24,65,150/- is sustained."

ITA No.204/Del /2013 8 9. Aggrieved by the above order of the CIT(A), the appellant had come up the

present appeal.

10. It was argued on behalf of the appellant that the back portion of the copy of

agreement to sell is not available. i.e. the name and address and date on which the

Non Judicial Papers were purchased. As per agreement to sell, it is clear that the

agreement was never signed by appellant-Mrs. Ritu Parwal. The second party has

entered into an agreement in his individual capacity and not as a director of HBN

Group as is evident from the first page of Agreement to sell. He had drawn our

attention to the last para of the agreement, wherein it is mentioned that the second

party agreed to sell the same above said property on one side second party has been

shown as a purchaser as well as seller also. The agreement to sell is not registered

with the sub registrar as required under the Registration Act if the agreement to sell

is not registered, the same tantamount to null & void. The cheque issued

amounting to Rs. 1.20 crore has been credited to the account of appellant. A

Cheque of Rs.l crore was returned back, which was debited in the A/c of Mrs. Ritu

Parwal, hence, out of the said amount only Rs.20 lacs has been received by

appellant. It was further submitted that the only basis for making addition is the

photocopy agreement to sell which is tripartite agreement among Mr. Sanjay

Parwal and three parties, original of which is not found anywhere. The appellant is

never party to the agreement to sell are tripartite agreement. The appellant had

disowned the knowledge of factum of sale of property held in the name of M/s ITA No.204/Del /2013 9

Smirti Buildcom Pvt. Ltd. and she further argued that the appellant was not given

an opportunity of cross examining those witnesses who allegedly have stated to the

department that total consideration of Rs.12.95 crores was paid to Mr. Sanjay

Parwal, who is husband of the appellant. Therefore, it is submitted that there is no

basis for making any addition. On the other hand, Ld. DR have placed reliance on

the orders of lower authorities.

11. We have heard the rival submissions and perused the material available on

record. The only question that comes up for our consideration is whether in the

facts and circumstances of the case, the CIT(A) was justified in confirming the

addition made by the AO on account of alleged understatement of sale

consideration of shares held in M/s Smriti Buildcon Pvt. Ltd.. For the detail reason

given in the ITA No. 892/Del/2015, we confirmed the basis of addition. However,

there was no evidence on record to show that the appellant was paid her share of

on money by her husband. Moreover, the appellant in her statement before the

Investigating Wing had categorically stated that the entire control over her

financial affair vested with her husband i.e. Mr. Sanjay Parwal. In view of the

above statement, we confirmed the addition attributable to the appellant's share in

the hands of her husband Mr. Sanjay parwal. The relevant portion of the order

reads as under:-

..............

ITA No.204/Del /2013 10 22. However, in our considered opinion, the on money of Rs. 8.7 crores was paid in connection with the transfer of entire shareholding in the M/s Smriti Buildcon Pvt. Ltd. Therefore, the on money should be apportioned in the ratio of the shareholding held. Indisputably, the total shareholding in the said company was 2,94,700 shares. The on money paid per share comes to Rs. 295 per share.

The number of shares held by the appellant were only 60,000 share therefore the on money paid to the appellant comes to Rs. 1,77,00,000/-. Apart from this the share of the on money paid on account of the shareholding held by the spouse of the appellant i.e. Mrs. Ritu Parwal is to be added in the hands of the appellant since she made categorical statement before the Investigation Wing that it was only her husband Mr. Sanjay Parwal who looked after all her financial affairs and the full control vested with him and the appellant had chosen not to rebut the same. Hence, the on money attributable to shareholding of Mrs. Ritu Parwal is taxable in the hands of the appellant. Mrs. Ritu Parwal was holding 58,000/- shares. The share of on money comes to Rs. 1,71,10,000/-. Therefore, the total addition in the hands of the appellant comes to Rs. 3,48,10,000/-. Hence, we confirm the addition in the hands of the appellant only to the extent of Rs. 3,48,10,000/-. However, the Assessing Officer shall have the liberty to proceed against the other co-shareholders to assess the on money by duly following the process known to the law."

12. Hence, there is no warrant for a separate addition in hands of appellant.

13. In the result, appeal of the appellant is partly allowed.

The Order pronounced in the open Court on 15th May, 2015.

Sd/- Sd/- (G.C. GUPTA) (INTURI RAMA RAO) Vice President Accountant Member

Dated: 15th May, 2015. Aks/- DCOM ITA No.204/Del /2013 11

Copy forwarded to 1. Appellant 2. Respondent 3. CIT 4. CIT(A) 5. DR Asst. Registrar, ITAT, New Delhi