SRI BINOY KUMAR SINGH, ,DALTONGANJ vs. ACIT, CIRCLE-3, RANCHI

Grounds of appeal raised by the assessee are as follows: 1. For that Id. CIT(A) was not justified in confirming the penalty order U/s 271 (1)(b) for the alleged non compliance. Ld. AO imposed penalty for non compliance to notice dated 07/12/2017 compliance of which was fixed on 15/12/2017. However Ld. CIT(A) while confirming the penalty was of the view that penalty has been imposed for non compliance to notice dated 27/10/2017. This is an Page1 incorrect fact.

Ground nos. 1 to 4 relates to confirmation of penalty of Rs. 10,000/- imposed u/s. 271(1)(b) of the Act.

Brief facts qua the issue are that the above assessee has e-filed its return of income for the A. Y 2015-16 declaring total income of Rs.19,77,160/- on 31.03.2017. The assessee is an individual engaged in the business of civil contract, having rent income & interest income. He is one of the partners of M/s Abhoy Enterprises. This case was selected for limited scrutiny through CASS. Accordingly, Notice u/s 143(2) of the Income Tax Act was issued on 19.09.2017 which was duly served upon the assessee through speed post. Further notice u/s 142(1) along with questionnaire was issued to the assessee on 27.10.2017 calling for details on relevant points. In response to the statutory notices, Shri Ashutosh Kumar Agarwal, Advocate, the authorized representative of the assessee appeared and furnished the ITR- V, computation of income and Form 26AS and request for a fortnight's time to file remaining documents. Page2 2 ITA No.224/Ran/18 A.Y 2015-16 Sri Binoy Kumar Singh C/o Abhay Enterprises

We have heard both the parties and perused the material available on records. We note that facts narrated in the assessment order, (which is mentioned in para 4 of our order), it is abundantly clear that assessee has made substantial compliance of notices, therefore, the penalty should not be levied. Accordingly, we delete the penalty.

In the result, the appeal filed by the assesse is allowed.

At the time of hearing none appeared on behalf of assessee in spite of issuance of notice for hearing more than one occasions. The learned Departmental Representative ( ld.DR) was present for the appellant revenue. In the absence of any appearance of the assessee, the appeal is being dispose of ex parte qua the assessee after hearing the ld. DR for the revenue on merits in terms of Rule 24 of ITAT Rules, 1963. 3. The grievances raised by the revenue are as follows:- 1) Whether the ld. CIT(A) is right in allowing the assessee relief in respect of addition made on account of out of books investment in Land of Rs. 22,66,800/- and building fund of Rs. 78,41,370/- 2) The ld. CIT(A), Jamshedpur is not justified in deleting the addition of Rs. 17,64,867/- which the assessing officer disallowed on the ground of deposit made in undisclosed bank a/c. 3) The appellant craves leave to amend, alter or modify an or all grounds of appeal.

Ground no. 1 relates to allowance of relief of Rs. 22,66,800/- investment in land out of books and building fund of Rs. 78,41,370/- by the ld. CIT(A).

The brief facts qua the issue are that the assessee, Jyoti Punj Educational & Welfare Society is registered with IG, Registration Jharkhand, Ranchi vide Registration No. 220 of 2005-2006 dated 30.01.2006. The society’s old registration number was 740/95-96 registered by IG Registration, Bihar, Patna. The society is also registered u/s. 12AA of the I.T Act, 1961 vide order No. CIT/JSR/Tech/VIII- 44/02-03/6070-73 dated 31.03.2003 of the CIT, Jamshedpur.

The AR of the assesse was asked during the proceedings, vide, show cause letter dated 19.03.2013 as per para-2 to 2.3, but the AR of the assessee did not produce any specific reply in connection with investment in land at Aditya of Rs.22,66,800/- as well as investment made under the head School Building of Central Public School at Rs. 53,84,870/- before Sept 2004 but on the basis of impounded documents ID Marks CIT-37 Page No.40 containing balance sheet of Central Public School for the period 01.04.2008 to 31.03.2009, it reflected that the assessee had made investment in building material in building fund as labour charges for construction of building for Rs.35,0000/- and purchase of building materials of Rs. 17,99,047/- aggregating to Rs. 18,34,047/- out of fixed assets of Rs. Page6 32,66,726/- for this school and further, as per impounded documents ID Marks CT- 6 ITA No.224/Ran/18 A.Y 2015-16 Sri Binoy Kumar Singh C/o Abhay Enterprises

Therefore, from the impounded books as mentioned above, it was clear that in both the years no investment of Rs. 22,66,800/- in land and investment in building fund for Rs.78,41,370/- (Rs.78,52,770/- - Rs. 11,400 for furniture 85 fixtures) are reflected. Thus, the contention of the AR that the investment of land is incorporated in building account is also not substantiated from the verification of the impounded books. The AR of the assesse furnished submission that though the possession certificate was handed over to the asssessee on 21.12.2004 by the JSHB, the informal possession was taken on 20.08.2004, the day when first payment was made to the JSHB. The contention of the AR of the assessee is not legally valid as well as no evidence furnished before the department that when the plan of the Central Public School was finalized. So, the contention of the assesse is completely baseless and is rejected.

Further, AO noted that it was also understood from the impounded documents vide page No. 36 and 40, that the assessee prepared balance sheet as per its choice. It is reflected from the balance sheet for the period 01.04.2008 to Page7 31.03.2009 that the assessee maintains two balance sheets for the same financial year 7 ITA No.224/Ran/18 A.Y 2015-16 Sri Binoy Kumar Singh C/o Abhay Enterprises

Aggrieved by such action of the AO, the assessee carried the matter in appeal before the ld. CIT(A), who deleted the addition made by the AO, observing the followings: “ 4.3 I have gone through the order of the learned AO as well as the remand report and the written submission made by the appellant. The moot question that is to be decided relates to justification of AO’s observation for addition of Rs.22,66,000/- and Rs.78,41,370/-. So far addition in building of Rs.78,41,370/- is concerned, this has been duly reflected under the schedule of fixed asset as well as in the balance sheet of the assesse turst. However the purchase of land has been made through bank account which has not been included in the balance sheet. The only issue is whether the expenditure incurred in purchase of land will constitute application of income. In the case of CIT vs. Kannika Parmeshwari Dewasthanam & charity (1982) 133 ITR 779 (Madras) it has been held that application of amount can be for revenue or capital purpose. So long as the expenditure is incurred out of inome earned by the trust, even if such expenditure is for capital purpose, on objects of the trust, the income would be exempt. Based on above, the expenditure incurred for purchasing land which is capital asset, the expenditure incurred will be termed as application of income and will be eligible for deduction. The Delhi High Court in the case of Escorts Cardiac Disease Hospital Society vs. DIT (2012) 50 SOT 48 (Del) has held single view also. Based on above the addition made for investment in property to the tune of Rs. 22,66,000/- is hereby deleted. Page8 8 ITA No.224/Ran/18 A.Y 2015-16 Sri Binoy Kumar Singh C/o Abhay Enterprises

Aggrieved by the order of the ld. CIT(Appeals), the revenue is in appeal before us. 11. Shri P.K. Mondal, JCIT, ld.Sr.DR has primarily reiterated his stand as taken by the AO. He relied on the order of the AO. He also submitted before us that the ld. CIT(A) has erred in allowing/deleting the impugned addition. 12. We have heard the ld. DR and perused the material available on record. We note that so far addition in building of Rs.78,41,370/- is concerned, this has been duly reflected under the schedule of fixed asset as well as in the balance sheet of the assesse trust. However the purchase of land has been made through bank account which has not been included in the balance sheet. The only issue is whether the expenditure incurred in purchase of land will constitute application of income. We note that application of amount can be for revenue or capital purpose. For that, we rely on the judgment in the case of CIT vs. Kannika Parmeshwari Dewasthanam & charity (1982) 133 ITR 779 (Madras), wherein it was held that application of amount can be for revenue or capital purpose. So long as the expenditure is incurred out of income earned by the trust, even if such expenditure is for capital purpose, on objects of the trust, the income would be exempt. Based on above, the expenditure incurred for purchasing land which is capital asset, the expenditure incurred will be termed as application of income and will be eligible for deduction. Therefore, we do not find any infirmity in the impugned order of the ld. CIT(A). His order on this issue is hereby upheld. Ground no. 1 in respect of Rs. 22,66,000/- raised by the revenue is dismissed.

The second issue of ground no.1 relates to deletion of addition of Rs.78,41,370/-, which relates to addition in building for the reason of construction Page9 starting prior to handing over of the land to the assesse trust. 9 ITA No.224/Ran/18 A.Y 2015-16 Sri Binoy Kumar Singh C/o Abhay Enterprises

The Findings of ld. CIT(A) is given below:- “The AO in his remand report has stated that the possession of the said land is w.e.f 21.12.2014 is not correct. Perhaps the AO when written 21.12.2014 in place of 21.12.2004 which is the actual date on which possession was handed over to the assesse trust. But it is also a fact that the assessee has made payment to JSHB on 20.08.2004. Section 2(47) defines transfer in relation to capital asset includes sale, exchange, relinquishment of the asset or the extinguishment of any right therein or compulsory acquisition thereof under any law. The Hon’ble Supreme Court in the case of Sunil Sidharth Bhai vs. CIT (1985) 156 ITR 509 (SC) has held that transfer u/s. 2(47) is merely inclusive and not exhaustive other kinds of transfer. Section 2(47) (v) states that transfer includes giving possession of immovable property under part performance of a contract. Therefore, any transaction involving the allowing of the possession of any immovable property to be taken or retained in part performance of a contract of the nature referred to in section 53A of transfer of property Act 1882 amounts to transfer from the A.Y 1988-89 onwards. Possession need not necessarily be sole and exclusive possession. So long as the transferee is, by virtue of the possession given enabled to exercise general control over the property and to make use of it for the intended purpose, the mere fact that the owner has also the right to enter the property to overseas the development work or to ensure performance of the term does not introduce any incompatibility-Jasvir Singh Sarkariya (2007) 164 Taxmann 108 (AAAR-New Delhi). Based on above decision and facts of the case, the construction made on or after 20.08.2004 is concerned as genuinely made by the asessee over the land. Hence, disallowance of Rs.78,41,370/- is hereby deleted “. 15. Aggrieved by the order of the ld. CIT(A), the revenue is in appeal before us. 16. Shri P.K. Mondal, JCIT, ld.Sr.DR has primarily reiterated his stand as taken by the AO. He relied on the order of the AO. He also submitted before us that the ld. CIT(A) has erred in deleting the impugned addition.

Ground no. 2 relates to deletion of addition of Rs.17,64,867/- on account of deposit made in undisclosed bank account.

Brief facts qua the issue are that AO note that account number 302 maintained at Jamshedpur Urban Cooperative Bank Ltd, Sakchi, Jamshedpur was not shown in the balance sheet of assessee . The fact was come into light after issue of a letter u/s. 133(6) of the 1. T. Act, 1961 dated 07.12.2012, which was issued to Jamshedpur Urban Cooperative Bank Ltd. from which the statement of this account has been received. But on perusal of the assessee's books of accounts, the assessee has shown only two accounts as per its balance sheet i.e. A/c No. 208 and A/c No. 447 which are also maintained in Jamshedpur Urban Cooperative Bank Ltd., Sakchi, Jamshedpur. When asked about the left out account No. 302 from the books of Page11 accounts, the AR submitted in its show cause reply dated 01.03.2013 before the AO 11 ITA No.224/Ran/18 A.Y 2015-16 Sri Binoy Kumar Singh C/o Abhay Enterprises

Aggrieved by the order of the ld. CIT(A), the revenue is in appeal before us. Page12 12 ITA No.224/Ran/18 A.Y 2015-16 Sri Binoy Kumar Singh C/o Abhay Enterprises

Shri P.K. Mondal, JCIT, ld.Sr.DR has primarily reiterated his stand as taken by the AO. He relied on the order of the AO. He also submitted before us that the ld. CIT(A) has erred in deleting the impugned addition.

We have heard the ld. DR and perused the material available on record. We do not find any infirmity in the order passed by the ld. CIT(A). His order on this issue is hereby upheld and grounds of appeal raised by Revenue is dismissed

In the result, the appeal filed by the revenue is dismissed. Order Pronounced in the Open Court on -02-2019

But, on date neither the assessee appeared before the undersigned nor any written submission was filed. However, a show cause was issued on 07/12/2017 based on the information gathered from the record and served upon the assessee fixing date of compliance on 15/12/2017 again no compliance was made.

Continuous non-compliance to the notices, questionnaire and show cause letter issued as above proves that the assesse is deliberately not complying to the departmental notices issued as above. I, therefore, impose an amount of Rs.10,000/- as penalty u/s. 271(1)9b) of the I.T Act, 1961 for non-compliance to the notice u/s. 142(1) dated 07/12/2017 issued.