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िनधा"रती क" ओर से/Assessee by : Shri Rohit Goel, C.A राज"व क" ओर से/ Revenue by : Dr. Ranjeet Kaur, Sr. DR सुनवाई क" तारीख/Date of Hearing : 18/12/2024 उदघोषणा क" तारीख/Date of Pronouncement : 31/12/2024 आदेश/Order
PER VIKRAM SINGH YADAV, AM
This is an appeal filed by the Assessee against the order of the Ld. CIT(A)/NFAC, Delhi dt. 14/11/2023 pertaining to Assessment Year 2011-12.
In the present appeal Assessee has raised the following grounds:
1. That the learned CIT(A)(NFAC) has erred in law and on facts in confirming the actions of learned AO in reopening of assessment u/s 148.
2. That the learned CIT(A)(NFAC) has erred in law and on facts in confirming the actions of learned AO in making addition of cash deposit of Rs. 43,11,000/- and treating the same as unexplained..
3. That the learned CIT(A)(NFAC) has erred in law and on facts in completing the assessment without providing any Personal hearing through Video Conference despite specific request of Assessee and similarly AO has violated the principal of natural justice as not giving the chance of video conferencing to the assessee.
4. That the appellant craves leave to add, alter, amend or to substitute the above grounds of appeal either before or at the time of hearing of case.
3. Briefly the facts of the case are that the assessee originally filed his return of income on 05/09/2012 declaring total income of Rs. 1,60,200/-. Thereafter, the case of the assessee was reopened under section 147 for the reason that the source of cash deposit amounting to Rs. 46,00,000/- remains unexplained and therefore, the income amounting to Rs. 46,00,000/- has escaped assessment. Notice under section 148 was issued on 22/03/2018. In response, the assessee submitted that the return originally filed may be taken in due compliance to the said notice. Thereafter, after issuing notice under section 143(2) and 142(1) and calling for necessary information/documentation, the assessment was completed at an assessed income of Rs. 44,71,200/- wherein an amount of Rs. 43,11,000/- was brought to tax as unexplained cash deposits in the bank account maintained by the assessee. 3.1 During the course of assessment proceedings, the assessee was asked to furnish the source of cash deposit in his bank account maintained with SBI. In response, the assessee submitted that the cash deposit was made from amount received from his father and enclosed an affidavit of his father. On review of the affidavit of Shri Khushwinder Singh, the AO observed that gift of Rs. 46,00,000/- has been given by him to the assessee out of sale consideration of agricultural land. However, from perusal of sale deed executed on 19/01/2011, it was found by the AO that Shri Khushwinder Singh received sale consideration of Rs 17,34,000/- only and hence source of gift received remained unexplained. Therefore, the assessee was asked to show cause as to why the addition of Rs. 46,00,000/- may not be made in his hands. 3.2 In response, the assessee fled copy of the agreement dt. 29/06/2010 and sale deed dt. 19/01/2011 and submitted that Shri Khushwinder Singh sold his ancestral agricultural land to Shri Prem Prakash for Rs. 55,00,000/- and the amount of Rs. 5,00,000/- has been received as per Biana dt. 29/06/2010. As per 3 the AO, the genuineness of Biana amount is not proved for the reason that the assessee failed to produce the purchaser of the property to prove the source of payment / cash received by the assessee. Secondly, Biana is not authorized and lastly, the assessee failed to produce original copy of Biana. The AO further observed that from the perusal of the sale deed, it is found that the land measuring 9 Kanal 5 Marla was sold for Rs. 17,34,000/- on 19/01/2011 by six persons namely Shri Khushwinder Singh S/o Shri Sewa Singh, Smt. Kartar Kaur W/o Shir Sewa Sigh, Smt. Nirmal Kaur W/o Shir Jaspal Singh, Smt. Jagjeet Kaur W/o Shri Jasbir Singh, Smt. Paramjeet Kaur W/o Shri Jagjeet Singh and Smt. Palvinder Kaur W/o Shri Jagmohan Singh. Hence, the father of the assessee, Shri Khushwinder Singh is having 1/6th share in sale of land and share is calculated at Rs. 2,89,000/- and the source of cash of Rs. 2,89,000/- in the hands of the father of the assessee is explained. Therefore, the source of balance amount of Rs. 43,11,000/-(Rs. 46,00,000/- less Rs. 2,89,000/-) remained unexplained and an addition of Rs. 43,11,000/- was made on account of unexplained cash deposits and the same was added to the taxable income of the assessee.
Being aggrieved, the assessee carried the matter in appeal before the Ld. CIT(A). It was submitted that Khushwinder Singh along with his mother Kartar Kaur has entered into an agreement to sell dated 29-6-2010 of their rural agricultural land measuring 6 Kanal situated at Teshil Naraingarh, Distt Ambala to Sh. Prem Parkash s/o Sh. Gopi Ram for a total sales consideration of Rs. 55,00,000/-. On execution of this agreement, a sum of Rs. 5,00,000/- was received as advance on 29.06.2010 and an amount of Rs. 8,50,000/- was received on 20.09.2010 and the balance amount of Rs. 41,50,000/- was received at the time of registration of sale deed on 19.01.2011. It was submitted that the sum of Rs. 41,50,000/- was withdrawn by Maninder Singh from Bank Account of Purchaser Prem Parkash on 19-1-2011 and this fact was evident from his bank statement. Thus after withdrawing Rs. 41,50,000/ on 19-1-2011, assessee had deposited Rs. 40,00,000/- in his Saving Bank account on 20-1-2011. 4 4.1 It was submitted that the registration of land measuring 6 kanal against agreement to sell dated 29-6-2010 was registered on 19-01-2011 in favour of Purchaser Prem Parkash. Khushwinder Singh and his mother Kartar Kaur has sold their share of 6 kanal (3030 sq yards) and other relatives have sold their land measuring 3 Kanal 5 Marlas to same purchaser. In total, 9 Kanal 5 Marle (5595 sq yards) was jointly sold and registered sale deed value was Rs. 17,34,000/-. 4.2 It was submitted that the share of Khushwinder Singh and his mother Kartar Kaur for 6 kanal in the registered sale deed determined proportionately comes to Rs. 9,39,056/- (17,34,000 x 3030/5595) against agreement to sell value of 6 Kanal land for Rs. 55,00,000/-. In brief, land of 6 kanal belonging to father and grandmother of assessee was actually sold for Rs. 55,00,000/- (agreement and actual sale proceeds) but sale deed was executed for Rs. 9,39,056/- (share in sale deed value). 4.3 It was submitted that the AO ignoring the facts on record held that Khushwinder Singh has sold his 6 kanal share out of total sale of 9 kanal 5 marle share assumed that assessee is owner of 1/6 of registered sale value as the property is owned by 6 co-owners and assuming that all are equal owners which is totally wrong. The AO therefore, out of Rs. 17,34,000/- allowed the benefit of Rs. 2,89,000/- being 1/6th of Rs. 17,34,000/- and added the balance as unexplained cash deposit to the Income. In fact, Khushwinder Singh and his mother Kartar Kaur (whose share is handled by Khushwinder Singh) clarified that funds of his mother who died on 24-8-2012 was handled by him and gifted to his son, Maninder Singh.
4.4 Regarding AO’s observation that the assessee failed to produce the purchaser, it was submitted that the complete details of agreement to sell and complete address of the purchaser was filed before AO and the AO didn’t issue any notice u/s 133(6) or summons u/s 131 were issued by AO to the Purchasers. At no point of time, no instructions were issued to the assessee to make 5 appearance of Purchaser before AO. Therefore, it is not justified to remark that purchaser has not been produced. It is a case that all good evidences are converted into bad without any enquiry by AO. 4.5 Regarding the AO’s observation that Biana was not authorized, it was submitted that the finding of AO is totally incorrect as Biana was executed on a stamp paper by both Buyer and Seller, witnessed by Darshan Singh Nambardar and Ajay Singh. Certified copy of the same was filed before AO as such Biana was properly authorized and executed. The complete details of buyer and witnesses were available with AO but no examination was done by AO from witnesses. In support of source of funds by the buyer, the copy of his bank statement was filed before the AO where it was clearly mentioned, that Rs, 41,50,000/- was withdrawn on the date of sale deed by Maninder Singh which supports the agreement and further the affidavits of both the witnesses Darshan Singh and Ajay Singh were submitted to support the contention of assessee. 4.6 Regarding the AO’s observation that the assessee failed to produce original copy of Biana, it was submitted that a copy of Biana was filed with the AO and assessee has never been called to produce the original copy of the same and the fact can be verified on records. In the absence of any query, it is not open to allege against assessee. Moreover, original copy of biana is available with assessee even today and is ready to be produced before any authority. Assessee cannot be accused to have not produced the original biana without any direction to produce the same. 4.7 It was submitted that the above agreement to sell was witnessed by independent witnesses, Sh. Darshan Singh (Nambardar) of Naraingarh Distt Ambala and a copy of his affidavit is placed at page 11-12 in support of the transaction. It was submitted that the 2nd witness of the agreement to sell was Ajay Singh s/o Sh. kaptan Singh r/o Naringarh and a copy of his affidavit is placed at page 13 who had also confirmed the agreement to sell by way of affidavit. It was submitted that a copy of affidavit from Khushwinder Singh on his 6 behalf and on behalf of his mother late Mrs. Kartar Kaur is attached at page 10. It was further submitted that the bank statement of Purchaser clearly proves the contention of assessee that land in question was sold for Rs. 55,00,000/- and Rs. 41,50,000/- was withdrawn on 19-1-2011 from Bank of Purchaser by Maninder Singh. Further, Rs. 46,00,000/- was gifted by Khushwinder Singh and his mother Kartar kaur to Maninder Singh. Therefore, there was enough tangible as well as circumstantial evidence on record that supported the assessee's contentions that the actual sales consideration was Rs. 55,00,000/- and assessee received such amount as gift from his father and that such consideration was the source of cash deposits in bank. 4.8 It was submitted that the AO has also failed to make any independent inquiry or called for any information u/s 133(6). That without bringing in any adverse material on record, all the evidences like withdrawals of Rs. 41,50,000/- from the bank account of Purchaser by Maninder Singh, the AO has disregarded the sale agreement and calculated the sale consideration without any basis on the basis of his personal understanding ignoring the facts on records.
The submissions and documentation so filed by the assessee were considered but not found acceptable to the ld CIT(A). The ld. CIT(A) stated that from the findings recorded by the AO, it is apparent that the assessee could not discharge his responsibility to prove the genuineness of the cash deposit and therefore the AO while making the impugned addition treating the cash deposit as unexplained cash has committed no irregularity and addition amounting to Rs. 43,11,000/- was confirmed. It was further held by the Ld. CIT(A) that in this case, the assessee has failed to prove the transaction was genuine. He failed to explain the source of the deposit and having failed to discharge his onus and explain the source of income, the addition has been aptly made under section 68 of the Act as unexplained income in the hands of the assessee.
7 6. Being aggrieved with the aforesaid findings of the ld CIT(A), the assessee is in appeal before us.
During the course of hearing, the submissions made before the lower authorities were reiterated. It was submitted that during the year in question, assessee has deposited Rs. 46,00,000/- in his Saving Bank Account with State Bank of India comprising Rs. 6,00,000/- on 11/12/2010 and Rs. 40,00,000/- on 20/1/2011. It was submitted that the source of deposit of cash is gift received from his father, Shri Khushvinder Singh who in turn had gifted the amount on receipt of sale consideration of rural, ancestral agriculture land measuring 6 Kanal situated at Teshil Naraingarh, to Shri Prem Parkash, son of Gopi Ram for Rs. 55,00,000/- along with his mother Kartar Kaur under an agreement to sell dated 29-6-2010 and had received the payments as per the following details: S.N0. DATE AMOUNT EXPLANATION 1 29-6-2010 5,00,000 Received as advance against 6 kanal land 2 20-09-2010 8,50,000 IInd Installment of advance payment 3 19-1-2011 41,50,000 Amount received on the date of sale deed dt. 19-1-2011, withdrawn by Maninder Singh (Assessee) through bearer cheque drawn on Bank A/c No. 093110501115 of Purchaser a/c attached at page-13 where name of Maninder Singh is appearing against withdrawal of cash of Rs. 41,50,000/-, the payment under agreement, sale deed date & bank a/c statement are the clinching evidence to the submissions & facts. 55,00,000 7.1 It was submitted that Khushwinder Singh (Father) and Kartar Kaur (grand mother) owned 6 kanal rural agriculture land and agreed to sell the land to Prem Parkash, buyer who had also purchased land measuring 3 kanal 5 marlas owned by other relatives of Assessee namely Nirmal Kaur, Jagjeet Kaur, Paramjit Kaur, Palwinder Kaur and got the sale deed for 9 kanal 5 marlas for Rs. 17,34,000/- on 19-1-0211 and copy of Sale Deed attached at page 16-18 and legible copy at page 19-21. The learned AO ignoring 6 Kanal share of Khushwinder Singh property, out of sale of 9 Kanal 5 marlas allowed benefit of 8 1/6th share and allowed benefit of gift at Rs. 2,89,000/- (being 1/6th of Rs. 17,34,000/-sale deed value of 9 kanal 5 marla land). 1 Total Area of Land under sale 9 Kanal 5 Marla(185 Marla) (Page 19 of PB) whreas deed agreement by Father and Grand Mother of Assessee is for 6 Kanal (120 Marlas) page 14 of PB. 2 Calculation of share of Refer PB20 copy of sale deed where out of 7 Kanal Khusvinder Singh out of total 10 Marla (150 marlas) is divided into 1015 share. This land sold under sale deed comprise 454 share of Khushwinder Singh, 356 shares Kartar Kaur and 205 of Others. Thus 454+356= 810 shares out of 1015 is owned by Assessee family which comes to 150 x 810/1015= 119.70 marlas or 6 kamal of Khushwinder Singh and his mother Kartar agreed under agreement dated 29-6-2010 lying at PB page 14-15. 7.2 It was submitted that the AO had accepted that Assessee had received gift from his father/grandmother from sale of land but allowed the benefit to the extent of Rs. 2,89,000/- only in place of Rs. 46,00,000/- on the presumption that property in question was owned by 6 co-owners and ignoring the specific share of each co-owner which is evident from sale deed. In fact, out of 185 marlas of total land sold under sale deed, Khushwinder Singh and his mother is the owner of 120 marlas, thus 64.86% is owned by Khushwinder Singh in place of 1/6th considered by AO. 7.3 It was further submitted that the AO has erred in ignoring the clinching and circumstantial evidence of bank entry of withdrawal on the date of sale deed i.e 19-1-2011 from Bank A/c of Purchaser Prem Parkash by Maninder Singh (Assessee). It was submitted that the AO neither conducted any enquiry from Purchaser, witnesses to agreement or other co-owners to sale deed & simply rejected the submissions at her whims and fancies. It was submitted that the AO has observed that genuineness of Biana is not proved for the reasons that the Assessee falled to produce the Purchaser and in this regard, it was submitted that the AO has neither asked assessee to produce the buyer and also never conducted any enquiry from Purchaser when complete details and his bank statements are available. Secondly, the AO has stated that the Biana was not 9 authorized, in this regard, it was submitted that the same is again a wrong finding since Biana was executed on a stamp paper signed by both Buyer and Seller, witnessed by Darshan Singh Nambardar and Ajay Singh and thirdly, the AO observed that the assessee failed to produce original copy of Biana, in this regard, it was submitted that the AO has never asked assessee to produce the same as it is still in possession of Assessee and there cannot be a presumption of illegality and no-one can be condemned unheard. 7.4 Further, the Ld. AR has relied on the decision of Coordinate Benches in case of Baljit Kaur w/o Gurdev Singh Vs. ITO (in dt. 09/04/2021) and in case of the Hon’ble Punjab and Haryana High Court in case of CIT Vs. Jawahar Lal Oswal (2016) 382 ITR 453 (P&H) and in case of CIT, Patiala II Vs. Sham Lal 127 ITR 816 (P&H).
Per contra, the ld DR has taken us through the findings of the lower authorities and has vehemently argued the matter.
I have heard the rival contentions and purused the material available on record. A similar matter came up for consideration recently before the Chandigarh Benches, where the undersigned was one of the party, in case of Rashmi vs ITO (ITA NO. 406/Chd/2024) and it would be relevant to the discussions and findings therein which read as under: “10. We have heard the rival contentions and purused the material available on record. In the instant case, the reasons were recorded on the basis of information that Rs 30 lacs in cash has been found deposited in the bank account of the assessee and income has escaped assessment in the hands of the assessee. Thereafter, during the assessment proceedings, basis bank statement obtained from the bank, it was found that there was another cash deposit of Rs 9 lacs and thus, total cash found deposited in the bank account of the assessee was to the tune of Rs 39 lacs and the assessee explained that she had received the said amount by way of gift from her husband. The AO accepted the explanation of the assessee that the amount has been received by her by way of gift from her husband, however, the quantum of gift so received was restricted to Rs. 10,73,125/- and after allowing credit for such amount, the AO brought to tax remaining sum of Rs. 28,26,875/- as unexplained income under Section 69 of the Act in the hands of the assessee.
10 11. If we look at the provisions of Section 69, it talks about the assessee having made investments which are not recorded in the books of account, if any maintained by her for any source of income and the assessee offers no explanation about the nature and source of such investment. In the instant case, what has been found were cash deposits in the bank account of the assessee and as such, no investment has been found by the AO, therefore, the question of invocation of provisions of section 69 doesn’t arise in the instant case.
Even if we were to ignore the fact that the AO has wrongly invoked section 69 and section 69A should have been invoked, section 69A interalia provides that where in any financial year, the assessee is found to be the owner of any money and such money is not recorded in the books of account, if any, maintained by her for any source of income and the assessee offers no explanation about the nature and source of such money, in that case only, the money so found may be deemed to be income of the assessee for such financial year. Therefore, there has to be a finding by the AO that the assessee is the owner of cash so found deposited in her bank account and there has to be necessary examination/verification which is required to be carried out. No doubt, the money has been found deposited in her bank account and the initial onus is on the assessee to explain the nature and source of such deposit. But once she has explained that the amount has been received by her by way of gift from her husband from sale proceeds of agricultural land and the amount has been deposited by her husband on the same date when the sale deed was executed and the said explanation is corroborated by way of gift deed executed by her husband, the personal appearance of her husband before the AO, evidence in support of sale of agriculture land by her husband and source of such gifts by way of agreement to sell and registered sale deed, we find that the initial onus cast on the assessee has been duly discharged and the real owner of the money is clearly not the assessee but the husband of the assessee and on this count as well, the addition cannot be made in the hands of the assessee.
Notwithstanding the invocation of specific deeming provisions, the factum of gift of money from the donor (assessee husband) to the donee (assessee) has not been disputed by the AO which is duly supported by both written and oral evidence in form of gift deed and confirmation by the donor who physically appeared before the AO and confirmed the making of gift of money to donee. The gift of money has flown in the bank account of the assessee by way of deposit by husband of the assessee in two tranches – Rs 30 lacs on 03/05/2011 and Rs 9 lacs on 09/05/2011 and in such circumstances, we are unable to sustain the findings of the AO in effectively breaking up these two tranches of flow of money and restricting to Rs. 10,73,125/- more so where the creditworthiness and source of funds in the hands of the donor has been duly demonstrated, being the sale proceeds of agriculture land, a factum which has been separately verified and accepted in the assessment proceedings undertaken in hands of the donor.