SHARAD MISHRA,JAIPUR vs. DCIT, JAIPUR

आयकर अपीलीय अधिकरण] जयपुर न्यायपीठ] जयपुर IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES , JAIPUR Jh HkkxpUn] ys[kk lnL; ,o Jh dqy Hkkjr] U;kf;d lnL; ds le{k BEFORE: SHRI BHAGCHAND, AM & SHRI KUL BHARAT, JM vk;dj vihy la-@ITA No. 959/JP/2013 fu/kZkj.k o"kZ@Assessment Year : 2010-11 cuke Shri Sharad Mishra The DCIT Vs. D-120, Kabir Marg, Bani Park, Central Circle- 3, Jaipur Jaipur LFkk;h ys[kk la-@thvkbZvkj la-@PAN/GIR No.: AFWPM 4586 N vihykFkhZ@Appellant izR;FkhZ@Respondent fu/kZkfjrh dh vksj ls@Assessee by: Shri Rohan Sogani, CA and Shri Rajeev Sogani, CA jktLo dh vksj ls@ Revenue by:Shri R.A. Verma, Addl. CIT-. DR lquokbZ dh rkjh[k@ Date of Hearing : 10/02/2017 ?kks"k.kk dh rkjh[k@ Date of Pronouncement : 14/02/2017 vkns'k@ ORDER PER BHAGCHAND, AM The assessee has filed an appeal against the order of the ld. CIT(A), Central, Jaipur dated 07-10-2013 for the assessment year 2007- 08 wherein the assessee is aggrieved that the ld. CIT(A) has erred in confirming the penalty of Rs. 10,46,766/- u/s 271(1)(c) of the Act. 2.1 At the outset of the hearing, the ld. AR of the assessee prayed that the quantum addition in favour of the assessee has been decided by the Coordinate Bench vide its order dated 25-11-2016 in ITA No.

2 ITA No. 959/JP/2013 Shri Sharad Mishra vs. DCIT Central Circle-,3, Jaipur . 467/JP/2011 –assessee and ITA No. 519/JP/2011 –Revenue for the

assessment year 2007-08.

2.2 The ld. DR relied on the orders of the lower authorities.

2.3 We have heard the rival contentions and perused the materials

available on record. It is observed that the issue of quantum was decided

in favour of the assessee by Coordinate Bench vide its order dated

25-11-2016 in ITA No. 467/JP/2011 –assessee and ITA No. 519/JP/2011

–Revenue for the assessment year 2007-08 by observing as under:-.

‘’5.2. We have heard rival contentions, perused the material available on record and gone through the orders of the authorities below. The AO made the addition on the basis of the statement of the seller of the land, who in his statement before the DDIT (Inv.) has stated that the sale consideration was at Rs. 2,10,000/- per bigha and he had received total sale consideration of Rs. 35,00,000/-. The ld. Counsel has not refuted the statement. However, he submitted that the statement was not bonafide but Shri Hanuman Yadav was black mailing the assessee. He submitted that interestingly the Revenue has accepted the sale consideration of the nearby vicinity. The ld. CIT (A) affirmed the view of the AO in this respect. Now the issue which requires our consideration is whether the addition can be sustained solely on the basis of the statement of Shri Hanuman Yadav, when there is no material placed on record that Shri Hanuman Yadav has made any claim against the assessee in any court of law seeking cancellation of sale deed or filing a recovery suit. The Coordinate Bench of the Tribunal after following the ratio laid down by Hon’ble Supreme Court under the similar circumstances has held in the case of Shri Ghanshyam Das Agarwal (supra) that in the absence of any conclusive evidence the document could not have been disbelieved. The ld. D/R could not point out any binding precedent wherein it has been held that the oral statement would over ride the documentary evidence. Therefore, respectfully following the decision of the Coordinate Bench in the case of Shri Ghanshyam Das Agarwal (supra), we are of the view that the AO was not justified to make addition solely on the basis of the statement of Shri Hanuman Yadav when there was a registered sale deed and more particularly when the maker of statement has not challenged the sale deed before any court of law. It is also not placed on record whether the sale deed was executed under coercion. Therefore, considering the totality of facts of the present case, we hereby direct the AO to delete the addition. This ground of the assessee’s appeal is allowed.’’

3 ITA No. 959/JP/2013 Shri Sharad Mishra vs. DCIT Central Circle-,3, Jaipur .

Taking into consideration the above facts, circumstances of the case and also the order of Coordinate Bench in ITA No. 467/JP/2011 (assessee )for the assessment year 2007-08 as to deletion of addition of Rs. 30,92,000/- in the quantum appeal of the assessee, we direct to delete the penalty of Rs. 10,40,766/- confirmed by the ld. CIT(A) u/s 271(1)© of the Act. Thus the appeal of the assessee is allowed. 3.0 In the result, the appeal of the assessee is allowed. Order pronounced in the open Court on 14 /02/2017

Sd/- Sd/- ¼dqy Hkkjr½ ¼HkkxpUn½ (KUL BHARAT) (Bhagchand) U;kf;d lnL; /Judicial Member ys[kk lnL;@Accountant Member Tk;iqj@Jaipur fnukad@Dated:- 14 /02/ 2017 *Mishra आदेश की प्रतिलिपि अग्रेषित@ब्वचल वf जीम वतकमत वितूंतकमक जवरू vihykFkhZ@The Appellant- Shri Sharad Mishra, Jaipur 1. 2. izR;FkhZ@ The Respondent- The DCIT, Central Circle- 3, Jaipur vk;dj vk;qDr¼vihy½@ CIT(A). 3. 4. vk;dj vk;qDr@ CIT, विभागीय प्रतिनिधि] आयकर अपीलीय अधिकरण] जयपुर@क्त्ए प्ज्Aज्ए Jंपचनत 5. 6. xkMZ QkbZy@ Guard File (ITA No.959/JP/2013) vkns'kkuqlkj@ By order,

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