Income Tax Appellate Tribunal - Jaipur
Shri Ashok Kumar Lakhyani, Alwar vs Deputy Commissioner Of Income Tax, ... on 24 July, 2018
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IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES, JAIPUR
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BEFORE: SHRI VIJAY PAL RAO, JM & SHRI BHAGCHAND, AM
vk;dj vihy la-@ITA No. 30/JP/2018
fu/kZkj.k o"kZ@Assessment Years : 2013-14.
Shri Ashok Kumar Lakhyani, cuke The DCIT,
Prop. M/s. Lakhyani Khad Beej Vs. Circle-1,
Bhandar, Village Mothuka, Alwar.
Kishangarh Bas, Alwar.
LFkk;h ys[kk la-@thvkbZvkj la-@PAN No. AAMPL 2171 P
vihykFkhZ@Appellant izR;FkhZ@Respondent
fu/kZkfjrh dh vksj ls@Assessee by : Shri P.C. Parwal (CA)
jktLo dh vksj ls@ Revenue by : Shri P.P. Meena (JCIT)
lquokbZ dh rkjh[k@ Date of Hearing : 19.07.2018.
?kks"k.kk dh rkjh[k@ Date of Pronouncement : 24/07/2018.
vkns'k@ ORDER
PER VIJAY PAL RAO, J.M.
This appeal by the assessee is directed against the order dated 22ND December, 2017 of ld. CIT (A), Alwar for the assessment year 2013-14. The assessee has raised the following ground as under :-
" 1. The ld. CIT (A) has erred on facts and in law in confirming the addition of Rs. 5,75,000/- on account of unexplained investment in immovable property.
2. The assessee craves to amend, alter and modify any of the grounds of appeal.
3. The appropriate cost be awarded to the assessee."
2. We have heard the ld. A/R as well as the ld. D/R and considered the relevant material on record. The assessee is engaged in the business of trading of Fertilizers 2 ITA No. 30/JP/2018 Shri Ashok Kumar Lakhyani, Alwar.
and pesticides. A survey under section 133A of the I.T. Act was carried out at the business premises of the assessee on 19th December, 2012. During the course of survey action, an agreement to sale dated 1st March, 2012 executed between Shri Harish Kumar, the son of the assessee and one Shri Daya Kishan was found from the premises of the assessee. As per the said agreement Shri Harish Kumar agreed to purchase the plot of land from Shri Daya Kishan for a consideration of Rs. 6,75,000/- and a sum of Rs. 1,00,000/- was paid as an advance on the date of agreement and balance of Rs. 5,75,000/- was to be paid by 10th May, 2012. Accordingly, the assessee who is the father of Shri Harish Kumar in his statement recorded under section 133A surrendered the undisclosed income including the income of Rs. 5,75,000/- on account of investment in plot. After the survey, the assessee vide letter dated 16.01.2013 informed the AO that the agreement found during the survey was cancelled by his son though the assessee was not aware about this fact and, therefore, the surrender of Rs. 5,75,000/- on account of investment in the plot was mistakenly made during the survey. The assessee filed his return of income declaring undisclosed income of Rs. 24,50,000/- inclusive of Rs. 1,00,000/- on account of the advance given for purchase of land. The AO made an addition of Rs. 5,75,000/- which was not offered by the assessee to tax in the return of income but was surrendered during the course of survey proceedings. The assessee challenged the action of the AO before the ld. CIT (A) but could not succeed.
3. Having considered the rival submissions and the relevant material on record, we note that the assessee produced a sale deed dated 18.05.2012 whereby the owner of the land Shri Daya Kishan sold the said plot of land to third party Mrs. Nirmala Devi and, therefore, once the said plot of land was sold by the owner to 3 ITA No. 30/JP/2018 Shri Ashok Kumar Lakhyani, Alwar.
third party and not to the assessee or his son, then the question of investment of Rs. 5,75,000/- which was to be paid at the time of sale deed does not arise. The AO has made the addition only on the basis of surrender made by the assessee during the course of survey though there was an agreement found during the survey action. As per the said agreement only Rs. 1,00,000/- was found to be paid by the son of the assessee as an advance for purchase of the plot of land and, therefore, to that extent the addition can be made if assessee has not surrendered the amount. Since the assessee has already surrendered the amount of Rs. 1,00,000/-, therefore no further addition can be made on account of investment in the land when the said agreement found during the course of survey was not given effect by the parties and the plot of land was sold by the owner to some third party vide sale deed dated 18th May, 2012. Hence, when the facts were brought on record by the assessee regarding the sale of plot of land to the third party, then the statement recorded under section 133A which is contrary to the actual facts, cannot be a basis of addition. Accordingly, in the facts and circumstances of the case, the addition made by the AO is not sustainable in law and the same is deleted.
4. In the result, appeal of the assessee is allowed.
Order pronounced in the open court on 24/07/2018.
Sd/- Sd/-
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(BHAGCHAND) ( VIJAY PAL RAO )
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Tk;iqj@Jaipur
fnukad@Dated:- 24/07/2018.
das/
4
ITA No. 30/JP/2018
Shri Ashok Kumar Lakhyani, Alwar.
vkns'k dh izfrfyfi vxzfs 'kr@Copy of the order forwarded to:
1. vihykFkhZ@The Appellant-Shri Ashok Kumar Lakhyani, Alwar.
2. izR;FkhZ@ The Respondent-The DCIT, Circle-1, Alwar.
3. vk;dj vk;qDr@ CIT
4. vk;dj vk;qDr@ CIT(A)
5. foHkkxh; izfrfuf/k] vk;dj vihyh; vf/kdj.k] t;iqj@DR, ITAT, Jaipur
6. xkMZ QkbZy@ Guard File {ITA No. 30/JP/2018} vkns'kkuqlkj@ By order, lgk;d iathdkj@Asst. Registrar