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Income Tax Appellate Tribunal, AMRITSAR BENCH, AMRITSAR (SMC
Before: SH. SANJAY ARORA
IN THE INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH, AMRITSAR (SMC) BEFORE SH. SANJAY ARORA, ACCOUNTANT MEMBER I.T.A. No. 229/Asr/2016 Assessment Year: 2005-06
Gurmit Singh Vs. Income Tax Officer, Prop Malkeet Medical Store Ward-4(2), Amritsar Jandiala Guru, Amritsar [PAN: AUZPS 3317B] (Appellant) (Respondent)
Appellant by : Sh. P. N. Arora (Adv.) Respondent by: Sh. Charan Dass (D.R.) Date of Hearing: 17.05.2019 Date of Pronouncement: 31.05.2019
ORDER Per Sanjay Arora, AM:. This is an Appeal by the Assessee directed against the order by the Ld. Commissioner of Income Tax (Appeal)-2, Amritsar (‘CIT(A)’ for short) dated 04/02/2016, dismissing the assessee’s appeal contesting his assessment under section 143(3) of the Income Tax Act, 1961 ('the Act' hereinafter) dated 26/12/2007 for the Assessment Year (AY) 2005-06. The appeal raises two issues, each of which shall be taken up in seriatim.
The first issue, raised per Ground 5, is in respect of gift of Rs. 3,70,000/- by one, Shri Kashmir Singh, Uncle (brother of father) of the assessee. The same came to the surface in explanation of the source of investment at Rs. 3,72,000/- in agricultural land (at Jandiala Guru, Amritsar) by the assesee during the year (on
2 ITA No. 229/Asr/2016 (AY 2005-06) Gurmit Singh v. ITO 18/8/2004). The amount deemed as income is in fact Rs. 3.72 lacs, as unexplained investment under section 69 of the Act.
The brief facts of the case are that the assessee initially denied having received any gift during the relevant year, i.e., vide reply dated 18/6/2007 to notice u/s. 142(1) dated 25/5/2007 (page 2 of the assessment order). The said notice was issued in view of the information with the Revenue, on the basis of search and seizure operation carried out by the Police (under Narcotic Drugs and Psychotropic Substances Act, 1985) on the assessee, running a chemist shop as a proprietary business (at Jandiala Guru, Amritsar), on 06/9/2006, in respect of various investments of the assessee, which, along with the material found and seized thereat, was conveyed by the police to it. Subsequently, on 28/11/2007, the explanation advanced was of a cash gift from uncle, Shri Kashmir Singh, on 23/5/2004, furnishing an affidavit dated 11/10/2007 from the donor, averring to the that effect (paper-book page 32). Copy of the donors’ saving bank account (# 49181, with OBC, Nurpur Bet, Ludhiana branch)) was also furnished. The donor, S. Kashmir Singh, was also produced. In his statement recorded on 10/12/2007, he confirmed having gifted Rs. 3,70,000/- (for purchase of agricultural land) to his nephew, the assessee s/o S. Ralla Singh, by withdrawing the said amount from his saving bank account with OBC, as well as the contents of affidavit dated 11/10/2007 as true (PB pgs. 8-12). A close examination of the pass-book and the account, which had hardly any balance during the year, by the AO, arose his suspicion. On confirming with bank, it was found that there was no cash withdrawal on 23/5/2004, falsifying the statement and the affidavit furnished in substantiation of the assessee’s explanation of the source of the investment as by way of gift. There was in fact a withdrawal on 23/5/2001, which had been tried to, albeit unsatisfactorily, be projected as the gift during the current year. The capacity
3 ITA No. 229/Asr/2016 (AY 2005-06) Gurmit Singh v. ITO of the said donor and the genuineness of the transaction were found missing. In appeal, the assesee furnished an affidavit (dated 11/8/2011) from the donor (PB pg. 78), stating the withdrawal to be on 23/5/2001. The same was, however, not admitted by the ld. CIT(A), regarding it as an afterthought. The date ‘23/5/2004’ was admitted by the assessee to be a mistake. The fact that withdrawal was three years back did not, however, it was explained, make any difference in-as-much as the amount was never spent by the donor but kept with him. J Forms in support of the donor’s income, stated to be at Rs. 7 lacs per annum, were also furnished (PB pgs. 27-31). This, however, did not find favour with the ld. CIT(A), who found the assesses’ case as wholly unsubstantiated and false. Aggrieved, the assessee is in second appeal.
I have heard the parties, and perused the material on record. I am not in agreement with the ld. CIT(A), and even as this issue has not been raised by the assessee, that the revised affidavit dated 11/8/2011 ought not to be admitted as additional evidence. This is as, even as pointed out by the ld. counsel for the assessee, Shri Arora, the finding of the cash withdrawal being in fact on 23/5/2001 (and not on 23/05/2004) was never confronted by the AO to the assessee for him to revisit his earlier claim and, as he does, retract. I am, however, upon giving a careful consideration to the matter, in complete agreement with first appellate authority of neither the genuineness of the transaction nor the creditworthiness of the donor as having been established (refer pgs. 17-19 of the impugned order). Neither the nature nor the source of the money with the assessee for investment in agricultural land is explained, much less satisfactorily. The assessee on being questioned about the several investments, aggregating to Rs. 31.06 lacs to begin with, denied receiving any gift during the relevant year. It is not very often, indeed only rarely, that one receives a gift,
4 ITA No. 229/Asr/2016 (AY 2005-06) Gurmit Singh v. ITO particularly in such high sum. The donor had admittedly not made any other gift to anybody else, including his own daughters. The assessee too had admittedly either not received or given any gift from/to anybody else. His capacity, as the investments by him show, may for all we know, may be much more than the donor. The purpose of the gift is stated to be purchase of agricultural land by the assessee. How could in May, 2001, the donor know that the assessee would purchase agricultural land, and for that amount, in August, 2004? Why, he would not know of this even three months (not to speak of over three years) in advance unless of course a bargain had been struck. Further, even so, he would rather gift the amount in May, 2001 itself rather than keep the amount with himself or, alternatively, keep it in a fixed deposit, earning time deposit interest up to August, 2004. He would stand to earn interest without using money, or effectively gift a lower sum. The plea of having kept the amount with himself, and not utilized it for any other purpose, is without any evidence in support, the onus of which could not be shifted to the assesee, being the assessee’s explanation, which only he could or is to, substantiate, particularly considering that it is against pre-ponderance of probabilities. The withdrawal of money could not be without any purpose which is unexplained. The assessee or the donor cannot be presumed of prescience to know, 39 months in advance, of purchase a land for that amount. What, further, one wonders, is the basis to state in October, 2007 that a gift was made on 23/05/2004. That is, how did the donor remember the precise date on which the gift was made, being otherwise wholly unevidenced. The same has been stated only to take advantage of the cash withdrawal dt. 23/05/2001 (PB pg. 33- 34). The above explanation, considering it for a different angle, is, again, untenable. Even as observed by the Bench during hearing, why would anyone, earning, as claimed, Rs. 7 lacs per annum, need to set aside that sum, which is even
5 ITA No. 229/Asr/2016 (AY 2005-06) Gurmit Singh v. ITO otherwise opposed to normal human behavior, as he would be having sufficient cash from regular income, being at Rs. 21 to Rs. 24 lacs from May, 2001 to August, 2004, to make a cash gift (of Rs. 3-4 lacs). Besides genuineness, capacity is against wholly unproved. The creditors’ only bank account shown (OBC) has a balance in account at Rs. 1068/- and Rs. 1106/- as on 31/03/2004 and 31/03/2005 respectively, the accretion being on account of bank interest of Rs. 38. No credits in bank, or accumulated savings therein, are found. The land holding, stated at 10 acres, is unevidenced. Even so, the same would yield an income in the range of Rs. 2,00,000/- to Rs. 2,50,000/- per annum. The J Forms submitted by the assessee are for Rs.11.44 lacs, spread over two years, entailing an income of Rs.2.5 lacs p.a.; either way, far below Rs.7 lacs p.a. No evidence or even a basis for the saving is stated, which, given the rising cost of living and the creditors’ family responsibilities, is out of the creditors’ bounds. The explanation, whichever way one may look at it, besides being a bald statement, preposterous. The entire case is a cover-up exercise to explain the investment by the assessee, a drug peddler, stated to be still serving sentence. The same deserves to be dismissed on all counts. I decide accordingly. The reference to his illegal activity and prosecution is made, it may be clarified, only to underscore the existence of other than disclosed sources of income.
5.1 The second and the only other issue in appeal, raised per Ground nos. 1 to 4, is qua investment in land, deemed as income on account of being unexplained (to the extent of Rs. 13.65 lacs). The backgrounds facts are that a search operation yielded an agreement to sell dated 13/04/2004 (ATS) for purchase of 12 kanals of land at village Kadgill, Taran Taran, at Rs. 13.10 lacs per acre, i.e., for Rs. 19.65 lacs. An advance of Rs. 5,00,000/- was paid, and the balance of Rs. 14.61 lacs was to be paid at the time of registration of sale deed, to be by 10/09/2014. The specific
6 ITA No. 229/Asr/2016 (AY 2005-06) Gurmit Singh v. ITO sale deed (on 08/09/2004) was, however, only for Rs.6 lacs, withdrawn by the assessee from his saving bank account (# 30136) with PNB (from 19/04/2004 to 27/04/2004). Allowing credit for this withdrawal of Rs. 6 lacs, the balance Rs. 13.65 lacs was regarded as unexplained, which gets included, at this amount, in the total addition on account of unexplained assets at Rs. 16,70,380/- per the impugned assessment, after being show caused vide letter dated 03/12/2007.
5.2 The assessee’s explanation, which did not find favour with the Revenue, is that the sale deed (SD) is in respect of a different land, which is claimed on the basis of different khasra numbers. That is, even though the assessee agreed to purchase one piece of land (for Rs.19.65 lacs), paying advance (in cash) for Rs.5 lacs, he purchased another piece of land, again measuring 12 kanals, for Rs.6 lacs, i.e., as per the SD, duly withdrawn from the bank. The land agreed to be purchased was costlier than that finally purchased, and no inference of purchase of land agreed to be bought could be drawn. The Revenue does not find the same acceptable as while the khasra numbers in the ATS are based on Jamabandi for the year 1997-98, that mentioned in the SD are as per the latest Jamabandi, i.e., for year 2002-03. The min numbers in the two documents are the same, which pertain to the same land. The assessee’s case before Tribunal was for remission, the facts being indeterminate, which were objected to by the Revenue, stating that the assessee explanation has been rebutted with facts, if not disproved.
I have heard the parties, and perused the material on record. The first thing that strikes one, as also observed both by the AO and the ld. CIT(A), is that the source of the cash payment by the assessee on 13.4.2004 is not explained at any stage. Why did the assessee, it was posed by the Bench during hearing – the ATS being admitted, in that case, i.e., the purchase of a different piece of land costing only Rs.6 lacs, withdraw Rs. 6 lacs from his bank account in
7 ITA No. 229/Asr/2016 (AY 2005-06) Gurmit Singh v. ITO April, 2004 in-as-much as he required only Rs. 1 lac. To no answer. Why, again, did he withdraw in April itself if the SD was to be executed and registered in September, 2004 and, in fact, immediately after the ATS and, further, in installments. Further, even if so withdrawn, why was the SD postponed till September, i.e., as originally envisaged per the ATS, and not executed in April, 2004 itself? Further still, why was there no reference to the ATS in the SD, which would, rather, be a prerequisite if the advance of Rs.5 lacs was to be adjusted against the sale consideration. That is, its non-mention in SD, the final document, would imply that the advance was not supposed to be a part of the declared consideration. This would obtain even if the SD was in respect of a different land. All these questions remain unanswered. Rather, why is, one may ask, the consideration to be discharged in cash, particularly if it is sourced from bank balance? Clearly, the ATS was not to be disclosed nor the payment (Rs.5 lacs) thereunder. This also explains the cash withdrawal in full in April, 2004, as well as the non-reference to the ATS in the SD. In fact, the withdrawal of April, 2004 was not toward the payment of disclosed consideration per the SD, which was to be and, in fact, executed, as scheduled, i.e., up to 10.9.2004, but for some other purpose. That, though, would not have any material impact as the AO has, and only righty so, deducted the cash available with the assessee from various investments and/or application of cash during the year, requiring explanation for the balance, which only is deemed as income on account of being unexplained. Coming to the assessee’s case of the land purchased being a different piece, costing only Rs.6 lacs, the same is both flawed as well as, unproved. By own admission (by the ld. counsel for the assessee, Sh. Arora during hearing), the min numbers do not change, and which are the same, even as confirmed by the AO at page 7 of his order. The different in khasra numbers are stated to be due to difference in Jamabandi, which is not contravened by the assessee in any manner,
8 ITA No. 229/Asr/2016 (AY 2005-06) Gurmit Singh v. ITO right from the AO up to the Tribunal. Why, all it needed to prove his case was for the assessee to specify the duly certified khasra numbers, i.e., as per the year 2002- 03, of the land agreed to be purchased as per the ATS. Again, he could show the current ownership of the land as per ATS and as per the SD, which would in that case be different. In fact, even if the assessee did so, an addition to the extent of Rs.5 lacs (out of Rs.13.65 lacs, for which addition has been made) shall still obtain as the source of payment of cash on 13.4.2004, i.e., as per the ATS, remains unexplained. Further, the flip side of the assessee’s explanation, i.e., of the two lands being different, even as observed during hearing by the Bench, is that the assessee purchased both the pieces of land, i.e., that agreed to be purchased on 13.4.2004 (for Rs.19.65 lacs) and that actually purchased on 08.9.2004 (for Rs.6 lacs), making a total investment of Rs.25.65 lacs. The assessee has, I agree with the Revenue, cleverly tried to create a doubt, as he did by using the cash withdrawal dated 23.5.2001 (by S. Kashmir Singh, qua Gd. 5), by using the difference in the khasra numbers, and take advantage there-from. In fact, as explained, even assuming the two lands are different, that does not prove the assessee’s case in any manner in the absence of any authentic document; rather, could lead to an inference of purchase of two lands by the assessee during the year in-as-much as both the documents – the ATS and the SD, are admitted. Rather, if, as contended, the land purchased was a common land with 1/6th share of the sellers, how could they sell their undivided share in the said land. The sellers in ATS and the SD are the same, two in number, with one-half share each. The maps (PB pgs. 76-77), again, are neither authentic nor indeed show any portion marked in red, as contended, being in fact in black and white. The assessee’s case is wholly unproved, if not misleading. The question of remission does not arise, the assesasee brining nothing on record to exhibit the Revenue’s claims as untenable. The assessee has in fact by not producing the relevant document/s, complicated a
9 ITA No. 229/Asr/2016 (AY 2005-06) Gurmit Singh v. ITO simple matter of fact, introducing elements, without in any manner proving the same. The assessee’s case is wholly without merit. I decide accordingly, confirming, for the reasons afore-stated, the impugned addition.
No reliance on any specific case law, as for the addition of Rs.3.72 lacs (the subject matter of Gd. 5), stands made during arguments, even as there is reference to two decisions in the written submissions (not adverted to during hearing). The same though are of no consequence as the matter is primarily factual, decided on the basis of the material on record, issuing definite findings of fact. There is further nothing in the said decisions, it may be emphasized, inconsistent with this order. I decide accordingly, and the assessee fails on its Grounds 1 to 4.
Ground 6 is general in nature, warranting no adjudication.
In the result, the assessee’s appeal is dismissed.
Order pronounced in the open court on May 31, 2019 Sd/- (Sanjay Arora) Accountant Member Date: 31.05.2019 /GP/Sr. Ps. Copy of the order forwarded to: (1) The Appellant: Gurmit Singh Prop Malkeet Medical Store Jandiala Guru, Amritsar (2) The Respondent: Income Tax Officer, Ward-4(2), Amritsar (3) The CIT(Appeals)-2, Amritsar (4) The CIT concerned (5) The Sr. DR, I.T.A.T