Income Tax Appellate Tribunal - Indore
Rajesh Kumar Singi, Rajgarh vs Assessee
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IN THE INCOME TAX APPELLATE TRIBUNAL
INDORE BENCH - SMC
BEFORE SHRI R.C. SHARMA, ACCOUNTANT MEMBER
ITA Nos. 288 to 292/Ind/2012
A.Ys. 2001-02 to 2005-06
Rajesh Kumar Singi
Rajgarh
PAN - BBJPS5489N :: Appellant
Vs
Income Tax Officer
Shajapur :: Respondent
Appellant by Shri G.B. Agrawal
Respondent by Shri R.A. Verma
Date of hearing 24.09.2012
Date of 26.09.2012
pronouncement
O R D E R
These are the appeals by the assessee against the order of the learned CIT(A) dated 13.2.2012 for the A.Ys. 2001-02 to 2005-06 in the matter of order passed u/s 147/143(3) of the Act.
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2. Rival contentions have been heard and record perused. The facts, in brief, are that the assessee derives income from colonizer and contractorship business. Survey u/s 133A was carried out in the business premises of the father of the assessee Shri Onkar Buksh Singi on 20-10-04. During the course of survey books of accounts and document, diary, etc., found, which were impounded. One pocket diary named "Goyal Deluxe Diary (written)" and account of Raju (handwritten) was found and impounded. There were thirteen pages in the diary in which transactions related to A.Y.2000-01, 2001-02, 2002-03, 2003-04 & 2004-05 were written date-wise till date 06-10-2004. Statement of father of the assessee Shri Onkar Buksh Singi was also recorded in survey proceedings. In response of the queries No.14,15 & 16 related to aforesaid diary, he stated that this diary relates to Shri Rajesh Kumar Singi, son of the assessee in which the transactions related to Hedgewar colony developed by the assessee, were recorded. The statement of the assessee, Shri Rajesh Kumar Singi was also recorded u/s 131 on 17 .11.2004 in which it was stated by him that the land of 3 Hedgewar Colony was purchased in his name jointly with his elder brother Shri Ram Krishna Gupta and sister-in-Iaws Smt. Krishna Bai Gupta & Smt. Usha Gupta by his father Shri Onkar Buksh Singi. Investment in the land was made by his father. The appellant has shown his income from the sale of the plots developed in Hedgewar Colony and also claimed the expenses for the same in his return. It was admitted by the assessee during the course of assessment proceedings that transactions related to sale of plots and expenses incurred thereon were recorded in the regular books of accounts and same were disclosed by him in the return. In "Goyal Deluxe Diary" all the transactions were recorded by the father of the assessee, whereas assessee has shown the receipts on account of sale of those plots which has been registered. The Assessing Officer observed that the advances received on account of sale of plots was not disclosed in the returns. It was observed by the A.O. that there was difference in receipts, expenses etc., in different 4 assessment years. During the A.Y. 2001-02, as per diary, sale receipts was Rs.2,41,320/- whereas the assessee has shown in the return Rs.1,71,000/- only. Thus there is a difference of Rs.70,320/-. Similarly, there was a difference in income and expenditure also i.e. Rs.66,627/- and expenditure is higher than the income. Therefore, the case was reopened u/s 148 by the AO after recording his satisfaction that income has escaped from assessment. The AO has made the addition on the basis of the entries which were written in the diary and not recorded in the regular books of account. The following additions were made by the AO in the A.Y. 2001-02 :-
a) Addition on account of development expenses of Rs.30,618/-
b) Addition on account of vehicle expenses and depreciation of Rs.4,755/-
c) Addition on account of sale proceeds of plot of Rs.70,320/-.
d) Addition of Rs.66,627/- on account of business of plots 5 Similar additions were made by the Assessing Officer for the A.Ys. 2002-03 to 2005-06. Against the following additions, the assessee is in appeal before us :-
A.Y. Plot Disallowa Excess Excess of Total Developm nces of Amount Total ent Dep. on over the debits expenses vehicle Registry over the for of plot credit of personal Goyal use* Delux Diary Rs. Rs. Rs. Rs. Rs.
2001-02 30,618 4,755 70,320 66,627 172,320 2002-03 97,013 4,247 189,000 71,048 361,308 2003-04 Nil 6,378 Nil 175,697 182,075 2004-05 Nil 2,233 16,368 328,563 347,164 2005-06 98,250 2,899 Nil 258,169 359,318 Total 225,881 20,512* 275,688 900,104 1,422,185
Here we are dealing with additions made in the A.Y. 2001-02. In respect of development expenses of Rs. 30,618/- for the A.Y. 2001-02 the Assessing Officer disallowed the same. The facts of the same are that the assessee has purchased of plot of land vide registered sale deed 6 no. 1v/376/5 dated 23-06-1989 jointly with his elder brother Shri Ram Krishna Gupta and Sister-In-laws Smt. Krishna Gupta and Smt. Usha Gupta for Rs. 74,000/-. On the aforesaid land the assessee had proposed a colony in the name and style of Dr. Hadgewar Nagar Colony, Nagar Panchayat, Rajgarh. He has started executing sale deed of plots from F.Y. 1992-93 (A.Y. 1993-94). As regard development expenses of the said colony the A.O. had found that out of total land the remaining part of the land as on 31-03-2000 was 89271.15 square ft., which was 250/0 of the total land. As such all the development work was completed by the assessee upto F.Y.1999-2000. The assessee has tried to justify the development expenses by producing bills and vouchers. He has further taken the plea that all the plots were not sold out during the relevant period and possession of the colony was not handed over to any society/authority and, therefore, the expenditure was incurred on repairs, maintenance and development of colony. The expenses incurred for the development of colony pertains to 7 purchase of murrarn, gitti, bricks and labour charges etc. The A.O. has examined the bills and vouchers during the course of assessment proceedings and disallowed the same. In the remand proceedings the AO has reported that he has seen the original bill and there appears some over-writing.
3. By the impugned order, the CIT(A) confirmed the addition against which the assessee is in further appeal before us.
4. We have considered the rival contentions, gone through the orders of the authorities below and also verified the bills and vouchers of expenditure incurred by the assessee which are placed in the paper book. From the remand report we find that in the remand proceedings the Assessing Officer has again verified the original bills and stated that "there appears some over-writing". Merely on the plea of some over-writing, the expenditure so incurred for development cannot be disallowed. The genuineness of expenditure was not doubted nor the incurring of the same nor recording of the same in the regular books of accounts. Even if part of the expenditure was capital 8 in nature, the same is required to be allowed in the year in which the plots were sold. Keeping in view the totality of facts and circumstances of the case, we direct the Assessing Officer to restrict the disallowance to the extent of 25% of the expenditure so incurred.
5. The Assessing Officer has also made the addition on account of excess sale proceeds found to be recorded in Goyal Deluxe Diary. The facts of the issue are that the AO made the addition on the ground that amount received from sale of plot as shown in receipts and payment account is much less as compared to the amount mentioned in the diary. As per receipts and payment account, amount received from sale of plot is Rs.l,71,000/-, while as per diary it is Rs.2,41,320/-. The assessee has given explanation to the A.O. that he has shown the income on the sale of the plots which were registered and difference is due to advance received for sale of the plot, Income Refund and other deposits. During the course of appellate proceedings before the CIT(A), the assessee has tried 9 to explain the difference with the plea that A.O. made the addition without considering the fact that the amount of expenditure included the cost of stamp duty, registration expenses, typing fee, advocate fee etc. All these expenses were incurred by the assessee which is supposed to be paid by the purchaser. The fact that stamp paper were purchased by the appellant is evident from the stamp papers used in the registry itself. On the back of the stamp paper it has been specifically mentioned by the stamp vendor that the stamps have been purchased by the appellant or his father Shri Onkarbux Singi.
6. During the course of appellate proceedings, the assessee furnished additional evidence comprising of copy of registry and certificate from the stamp vendor that the cost of stamp papers was incurred by the assessee. However, the learned CIT(A) did not accept the additional evidence and confirmed the addition against which the assessee is in appeal before us.
7. We have considered the rival contentions, careful gone through the orders of the authorities below and find from 10 record that the assessee was paying the cost of stamp papers, etc. The CIT(A) has also accepted the fact that as per the copy of registry and certificate from the stamp vendor, the cost of stamp papers was incurred by the assessee. Even though it is correct that in the normal business practice relating to purchase of immovable properties stamps for registration and its cost is incurred by the purchaser, but as per common practice in colony business in general and particularly at remote places amounts for stamp papers, registration, etc. Are paid by the purchaser of plots to the colonizer. Evidence to the effect that such amount was incurred by the assessee out of the amount received from the purchaser of plots was also placed on record, accordingly, the same cannot be added in the assessee's income. We, accordingly, direct the Assessing Officer to reduce the addition by the amount of expenditure incurred by the assessee on account of cost of stamp duty, registration expenses, typing fee, advocate fee, etc. after verifying the same. We direct accordingly.
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8. The last grievance of the assessee relates to the addition made on account of excess expenditure found to be recorded in the Goyal Deluxe Diary as compared to the receipts shown therein. From record we find that as per Goyal Deluxe Diary, the assessee has shown receipts of Rs. 2,41,320/- and expenditure of Rs. 3,07,947/- in the A.Y. 2001-02. Difference is of Rs.66,627/-. As per the Assessing Officer, the assessee has shown expenditure on higher side than receipts. The appellant has submitted explanation before the A.O. that as per "Goyal Delux Diary" amount of expenditure is Rs. 3,07,947/- in which Rs. 1,21,025/- is related to the business of the assessee i.e. development of colony which he has shown in his return. Remaining amount of Rs.1,86,922/- related to different expenses which includes family expenses also. These expenses incurred by his father of the appellant from the amount received from the family members. The A.O. has treated excess of expenditure over receipts as undisclosed income of the appellant. During the course of appellate proceedings the appellant has tried to justify the excess expenses incurred 12 during the year. The appellant has taken the plea that expenditure written in the diary also relates to total expenditure incurred by the family who are living jointly and it also includes the expenditure on development of colony and business expenses of other family members. The appellant has filed the affidavit of other family members in support of his contention that contribution was also made by other family members for household expenses. As per assessee, total household withdrawal by all family members were at Rs.1,62,945/- in the A.Y.2001-02 which includes contribution of the assessee at Rs. 40,000/-. Remand report was also called for by the CIT(A) from the Assessing Officer. In the remand report, the Assessing Officer has stated that datewise amounts are not verifiable from Goyal Deluxe Diary. However, affidavits were furnished by the assessee in respect of withdrawals made by different family members, Shri Kailash Narain Gupta, Shri Ramkrishna Gupta and Shri Ramgopal Gupta. Shri Kailash Narayan Gupta is having rental/interest income and Shri Ram 13 Krishna Gupta has shown income from salary receipts from the assessee.
9. We have considered the rival contentions and find from record that Goyal Delux Diary contains receipts on account of business as well as amounts contributed by the family members for household expenses. Following are the details of contribution by other family members for household expenses :-
NAME OF THE FAMILY MEMBER A.Y.01-02 A.Y.02-03 A.Y.03-04 A.Y.04-05 A.Y.05-06 Onkar Baksh Singhi * 20000 20000 30000 28000 35000 Kailash Naravan 24000 24000 24000 24000 24000 Ram Krishna 42000 42000 42000 42000 42000 Ramgopal Gupta 36945 35686 37081 37071 18000 Smt. Usha Gupta NIL 18000 NIL NIL NIL Smt.Kamla Bai W/o Onkar Baksh NIL NIL NIL 165485 NIL TOTAL RS. 1,22,945 1,39,686 1,33,081 2,96,556 1,19,000 A minute perusal of Goyal Deluxe Diary clearly indicates that it contains transactions relating to business as well as family affairs wherein family expenditure has also been incorporated in the diary. Page 2 of Goyal Deluxe Diary indicates family 14 expenses of Rs. 14,251/- on 1.5.2000 to 20.8.2000. Similarly page 3 of Goyal Deluxe Diary also mentions various family expenditure of Rs. 6635, Rs. 5506/-, Rs.2203/-, Rs.3508/-, Rs.3176/-, Rs.1678, etc. Similarly at pages 4 to 11 various expenses incurred for household purposes have also been incorporated. Since the household expenditure was contributed by the individual family member, the same cannot be treated as unexplained business expenditure. In the interest of justice and fair play, we restore this ground to the file of the Assessing Officer for deciding afresh after giving due opportunity to the assessee. We direct the Assessing Officer to delete the amount of household expenses which have been incorporated in Goyal Deluxe Diary and treated by the Assessing Officer as business expenditure.
10. Similar grounds have been taken by the assessee in all other years i.e. A.Ys. 2002-03 to 2005-
06. In view of our discussion made hereinabove, we 15 direct the Assessing Officer to decide the same in terms of our aforesaid decision for the A.Y. 2001-02.
11. In the result, the appeals of the assessee for all the years are allowed in part in the terms indicated hereinabove.
This order was pronounced in the open Court on 26th September, 2012.
Sd/-
(R.C.SHARMA) ACCOUNTANT MEMBER Dated: 26th September, 2012 Copy to: Appellant, Respondent, CIT, CIT(A), DR, Guard File Dn/-2626 16