ITO WARD-2(1), JAMSHEDPUR vs. M/S OM PRAKASH BAJAJ, JAMSHEDPUR

IN THE INCOME TAX APPELLATE TRIBUNAL, RANCHI BENCH, RANCHI

BEFORE S/SHRI N.S SAINI, ACCOUNTANT MEMBER AND PAVAN KUMAR GADALE, JUDICIAL MEMBER

ITA No.162/Ran/2017 Assessment Year : 2009-2010

Income Tax Officer, Ward Vs. Shri Om Praash Bajaj, 11, 2(1), Jamshedpur Golmuri Market, Golmuri, Jamshedpur PAN/GIR No.ABOPB 7556 M (Appellant) .. ( Respondent)

Assessee by : Shri M.K.Choudhury/Manav Poddar, Adv Revenue by : Shri A.K.Mohanty, JCIT

Date of Hearing : 26/11/ 2018 Date of Pronouncement : 29/11/ 2018

O R D E R Per N.S.Saini, AM This is an appeal filed by the assessee against the order of

the CIT(A), Jamshedpur, dated 27.4.2017 for the assessment year

2009-2010.

‘1. Under the facts and in the circumstances of the case, whether the L CIT(A) is justified in not considering the Agreement for sale dated 5.8.2008 vide Reg. No. 4069(D) dated 9.11.2008 between (1) Mrs. Parul Dutta, W/o Late HM. Dutta (2) Shri B.N. Dutta, S/o, Late N.N. Dutta and Shri O Prakash Bajaj, S/o, Late Devi Sahay Bajaj where the sale consideration the property was Rs. 100,00,000/- ( however transaction

P a g e 1 | 12 amount disclosed by the assessee was Rs. 17,51,000/- ). 2. Under the facts and circumstances of the case, whether the Ld. CIT(A) is justified in not considering the evidence obtained by the ITO, Ward-1( Jamshedpur, during the completion of assessment proceedings of Shri B.N. Dutta for Assessment year 2009-10, which was provided to the assesse Shri Om Prakash Bajaj as evidence of transaction amount as Rs. 100,00,000/- instead of Rs. 17,51,000/- as shown by assessee.

observed that Shri B.N.Dutta was the owner of premises No. 34,

Golmuri Market, Golmuri, Jamshedpur, a shop-cum residential

house. He transferred the ownership by agreement of sale dated

09/08/2008 for the consideration of Rs. 1,00,00,000/-. Shri Om

Prakash Bajaj, paid the consideration by four cheques of IDBI

Bank. They were of Rs. 1,00,000/- dated 05/08/2008, Rs.

1,00,000/- dated 02/09/2008, Rs.8,00,000/- dated 23/10/2008

and Rs.7,51,000/- dated 23/10/2010 aggregating to Rs.

17,51,000/- of Late Smt. Sushila Devi Bajaj. The balance of

payments of Rs.47,49,000/- was paid by cash and Rs.35,00,000/-

through initial payment of flat booked at 71, New Baradwari,

P a g e 2 | 12 Sakchi, Jamshedpur. The Assessing Officer observed that the

assessee himself has accepted the payment of cheque of Rs.

17,51,000/- but denied regarding any other mode of payment for

any amount. He observed that on the contrary, the seller of

Property at 34, Golmuri Market, Shri B.N. Dutta confirmed

having received cash of Rs.47,49,000/- from Shri Om Prakash

Bajaj in lieu of part payment for the transfer of property in the

name of Late Smt. Sushila Bajaj. Further, Shri B. N. Dutta also

accepted that having receipt of one flat at 71, New Baradwari,

Sakchi, Jamshedpur in addition to cheque payment. The payment

of cost of said flat was made by Shri Om Prakash Bajaj of

Rs.35,00,000/-. The information was gathered from the Assessing

Officer of Shri B.N.Dutta. The acceptance of Rs.1,00,00,000/- has

been confirmed by Shri Badri Narayan Dutta through a letter in

shape of money receipt given by Sjhri B.N. Dutta to Shri Om

Prakash Bajaj. Further, Shri Anup Chaterjee, Prop. & builder of

M/s. Avishkar, who has constructed the flat at New Baradwari,

Sakchi, Jamshedpur vide his letter addressed to the CIT(A),

Jamshedpur dated 24.7.2013 confirmed that all the payments

towards the cost of flat which is transferred to Shri B.N.Dutta at

the behest of Shri Om Prakash Bajaj, was actually mate by Shri

Om Prakash Bajaj and as per his record no payments were made

P a g e 3 | 12 by Shri B.N.Dutta. He confirmed that Shri Om Prakash Bajaj has

requested in writing for execution of sale deed in the name of Shri

Badri Narayan Dutta. He has fulfilled his direction and inspite of

payments made by Shri Om Prakash Bajaj, the property was

transferred to Shri Badri Narayan Dutta. Therefore, the Assessing

Officer observed that it was quite clear that three different

arrangement was made by Shri Om Prakash Bajaj to meet the

cost of property he was buying at 34, Golmuri Market, Golmuri,

Jamshedpur. The assesse was asked to explain his stand with

details and documents but he confirmed the payments made

through cheques only. Further, the assesse requested for cross

examination of Shri Badri Narayan Dutta and, accordingly, Shri

Badri Narayan Duttaa and Shri Om Prakash Bajaj were

summoned on 14.12.2016 for attending before him on 19.12.2016

with an intention to provide opportunity of cross examination

requested by Shri Om Prakash Bajaj. On the said date, Shri Om

Prakash Bajaj appeared and denied any transaction in cash and

property related to flat at M/s. Avishkar, New baradwari, Sakchi,

Jamshedpur with Shri B.N.Dutta. It was also stated that the

contents of the letter written by Shri B.N.Dutta are totally false

and unsubstantiated. The Assessing Officer also observed that the

summon was served by Smt. Rakhi Dutta, wife of Shri B.N.Dutta,

P a g e 4 | 12 as Sri B.N.Dutta was out of station and expected to come last

week of January, 2017. Thereafter, the Assessing Officer

observed that Shri B.N.Dutta has already stated of having receipt

of Rs.17,51,000/- through cheques and flat of Rs.35,00,000/-

consideration paid by Shri Om Prakash Bajaj and cash of

Rs.47,90,000/- . He has stated that money receipt dated

27.10.2009 and the sale deed agreement as claimed by him, the

sale agreement deed entered by them. Hence, he made addition

of Rs.82,49,000/- to the income of the assesse under section 69

of the Act.

under:

‘5.3. I have gone through the order of the learned AO as well as the written submission made by the appellant. The AO has relied on the third party acceptance of his receipt of cash from the assessee which he denying. The AO has also relied on an argument which has purportedly been made by the appellant with the third party Shri Badri Narayan Duta from alleged sale agreement it is found that the agreement has been with Om Prakash Bajaj for purchasing immovable property at Golmuri which has not been purchased by him. The AO has concluded it that Shri Om Prakash Bajaj entered into sale agreement for purchase of immovable property at Golmuri in the name of her wife. When her wife is separate entity and assess to tax separately. Why an agreement has not been made with her for sale of property. The AO in his order has observed that the appellant has admitted that he has made payment of Rs. 17,51,000/- through cheque does not appear to be correct as the payment has been made through cheque by her wile against sale consideration "of property.

P a g e 5 | 12 The AO has further observed in his order that the seller has confirmed that he has received Rs. 47,49,000/- in cash from Shri Om Prakash Bajaj in lieu of part payment for the transfer of property in the name of Late Sushila Bajaj. Further Shri B.N. Dutta also accepted that he has received one flat at 71, New Baradwari, Sakchi Jamshedpur (Aaviskar) in addition to cheque payment whose consideration was at Rs. 35,00,000/-. The AO has made letter of Anup Chaterjee the builder part of his order. The builder at sl no. 4 of his order dated 14.07.2013 addressed to CIT (A) has mentioned that Shri Om Prakash Bajaj requested in writing that the sale deed in respect of said flat should be executed in favour of Shri Badri Narayan Dutta. No copy of such letter was furnished it seems Shri Badri Narayan Dutta was manipulating the whole affairs very cleverly. He allegedly wrote a letter sent to AO, Ward 1(3) seeking suggestion as to how he can file his IT Return as he has FD and cash in hand and investment Rs. 25,00,000/- (B.N. Dutta folder page no. 113 which is as under)

This is to inform you that I have already send you. two letters on dt-16ch/Jun/2009, 24th/July/2009 regarding my 34,Golmuri Market Building. After sale of my shop and residential building assets are change as below and as on 31st /March/2009.

Please suggest me how can I file my IT return F.Y.2008- 2009, A.Y.2009-2010 and I am waiting for your suggestion.

P a g e 6 | 12 I have an occasion to go through the appeal of Shri B.N. Dutta also where he has admitted receipt of Rs. 1 crore. The revenue has no burden to proof when the assesse himself admit his receipt/income. As one can see that Shri B.N. Dutta has received Rs. 47,49,000/- from shri Om Prakash Bajaj. Why he has sought suggestion for Rs. 25,00,000/- only. This circumstances evidence shows that Shri Dutta is hiding something which he did not want to disclose even in his letter he is silent regarding sale consideration at Rs. 1 crore on the other hand Shri Bajaj has denied any payment to Shri B.N. Dutta (Seller) in regard to purchase of property at Golmuri. As he has not made any payment, question of investment which is not recorded in the books of account and consequential addition u/s 69 is not justified the assessee further stated that he demanded certified true copy of evidence submitted by Shri B.N. Duta. The AO vide his notice dated 15.12.2016 provided only three photo copy documents on which a details submission was made. The assessee's further submission that (copy of agreement of sale) was not provided by the AO on which he relied as evidence but denied copy of the same. The assessee in his submission alleged that copy submitted by Shri B.N. Dutta is morphed and fabricated. The AO without establishing its genuiness treated as evidence. The assessee has further quoted the evidence act as under.

This is contrary to the provision of the evidence act since photo copy of the documents can only be treated as evidence when they have been compared with the original and genuineness is establish. The document relied upon by the AO cannot be treated either as primary or secondary evidence as per section 62/63 of the evidence act, therefore reliance pressed on such document is misplaced/ illegal and contrary to the provision of the evidence act. The assessee further submits that he wished to place reliance of the following juridical pronouncements.

AIR (2007) HC 1721 Smt J. Yasoda vs. K. Shobha Rani wherein it has been held secondary evidence only when the copy made from or compared with the original are certified copy or such other documents as enumerated in section 63 of the evidence act.

P a g e 7 | 12 Secondary evidence of the contents of the document cannot be admitted without none production of original being first accounted for in such a manner as to bring it within one or other condition as provided for in this section.

AIR (1999) Delhi 280 Ms Arti Bhargawa vs. Shri Kavi Kumar wherein it was held that genuineness of the photo copy cannot be guaranteed and unless there is evidence that someone had compare the photo copies with the original had obtained the photo copy from the original, photo copies are inadmissible in evidence in absence of the original.

2007 SCC (CRT) 122 Subhash lodha vs. State of Maharastra wherein it has been held that if the relevant document are not produce or the document produced are not proved, the contents thereof would be wholly inadmissible in evidence.

2001 SCC (CRT) 1501 United India Insurance Ltd. Vs. Ambani & others it was held that production of the photo copy of document was not sufficient to prove the genuineness of that document where it was challenge and hence its genuineness was not admitted.

In the instant case the AO relied on secondary evidence as per section 63 of Indian Evidence Act 1852 he did not called for primary evidence from the witness and therefore the same is not an admissible evidence as it has been challenged by the appellant, Not only that the appellant requested the AO to permit him to cross examine the witness but the witness did not appear meaning thereby there must be some issues which would not support the claim of witness. It has held in the case of Mohan Lai vs. ITO (2006) 99 TTJ (Jodhpur Tribunal) that assessee has claim having paid salary to one of its employee which was credited to his account. The said employee was examine and he stated that he was paid salary Rs. 3,000/- per month and he withdrew Rs. 1500/- per month and the balance amount remained credited to his account with the assessee. On the other hand the assessee explained that out of Rs. 36,000/- the assessee has withdrawn Rs. 5,000/- and the balance amount remained as credit in his account which was not covered u/s 68. Admittedly the identity of the payee and the payment of salary at a certain rate was not in dispute. The

P a g e 8 | 12 dispute was as to withdrawal of amount by the payee which could have been resolved by AO by allowing the assessee to cross examine the employee. As nothing of that sought was done by AO, therefore claim of the assessee has rightly been allowed by the Commissioner (Appeals).

Here in appellant case despite request from assessee to allow him to cross examine from the witness, though the appellant appeared on the date fixed for cross examination, the witness did not appear. Hence relying on the Hon'ble Tribunal decision in above case cited supra, I hereby allow the appeal of the assessee and addition made for Rs. 82,49,000/- is hereby deleted.’

Assessing Officer.

the order of the CIT(A) on the ground that the Assessing Officer

has not allowed opportunity of cross examination of Shri Badri

Narayan Dutta to the assesse and hence, the addition made by

the Assessing Officer is not sustainable in view of the decision of

Hon’ble Supreme Court in the case of Anadman Timber Industries

vs Commissioner of Central Excise, Kolkata-II, (2015) 62

taxmann.com 3 (SC).

lower authorities and materials available on record. In the instant

case, the Assessing Officer has made addition of Rs.82,49,000/-

by invoking the provisions of section 69 of the Act. On the other

hand, ld CIT(A) has deleted the said addition on the ground that

P a g e 9 | 12 there was no reliable and admissible material to show that the

assesse has actually made investment of Rs.82,49,000/- during

the year under consideration. We find that the Assessing Officer

has relied upon a copy of the agreement dated 5.8.2008

purportedly agreement of sale of property situated at 34, Golmuri

Market, Golmuri, Jamshedpur entered on 5.8.2008 between the

assesse on one hand and Smt Parul Dutta and Shri B.N.Dutta on

the other hand.

value because firstly, the assesse has denied execution of the

agreement, secondly, original of the agreement was not available

and thereby Shri B.N.Dutta who allegedly claimed that this

agreement is genuine and correct could not be made available for

cross examination by the assesse in spite of specific request by

the assesse for cross examination.

Shri Anup Chaterjee for an amount of Rs.35,00,000/- which was

not accepted by the CIT(A) as the assesse has denied the

truthfulness of the said letter and no material was brought on

record by the Assessing Officer to treat the said letter as

sacrosanct. We find ld Departmental Representative could not

point out any specific error in the order of the CIT(A). Further,

P a g e 10 | 12 the agreement of sale deed dated 5.2.2008 even if presumed as

genuine and correct, the same at best is a material for investment

of Rs.1.21,000/-. There is no details mentioned in that agreement

of the actual date of payment of balance amount of

Rs.98,79,000/-. From this document alone, no person can

decipher that remaining amount of Rs.98,79,000/- was invested

by the assesse during the year under consideration.

and correct, we find that there is no details of the dates of alleged

investment of Rs.35,00,000/- and thus, it cannot be concluded

that Rs.35,00,000/- was invested during the year under

consideration. Therefore, even otherwise, the pre-condition for

invoking the provisions of section 69 of the Act was not satisfied in

this case. Therefore, we do not find any good reason to interfere

with the order of the CIT(A), which is hereby confirmed and

grounds of appeal of the revenue are dismissed.

Order pronounced on 29/11/2018.

Sd/- sd/- (Pavan Kumar Gadale) (N.S Saini) JUDICIALMEMBER ACCOUNTANT MEMBER Ranchi; Dated 29 /11/2018

P a g e 11 | 12 B.K.Parida, SPS Copy of the Order forwarded to : 1. The appellant: Income Tax Officer, Ward 2(1), Jamshedpur

P a g e 12 | 12