admin April 25, 2020 0 Comments

ITAT- Amritsar on 18 February, 2020-hold that In the light of ratio laid down by the Hon`ble Supreme Court citation 418 ITR 662 (S.C.) it is the duty of the assessee to keep upto date the address in data base of the IT Department by submitting timely prescribed application.

 

9. In the light of ratio laid down by the Hon`ble Supreme Court in above case, we are of the considered opinion that the assessee was required to obtain PAN and give her address which has not been done in this case. Therefore, the AO was absolutely justified in sending notice under section 148of the Act on the last addresses available as per registered sale deed. Since, the assessee was not residing on the given addresses, therefore, question of refusal to accept the notice does not arise. Therefore, the ld.CIT (A) has rightly observed that the contention of the appellant that the service of notice is not as per section 282is not tenable in law and was not accepted. In the light of above facts and circumstances, We find that that there was a proper service of notice under section 148 of the Act by affixture and the assessee was well aware of the assessment proceedings going on in her case as evident from letter dated 26.09.2016 filed by the intended to be A.R. of the assessee in connection with penalty show-cause notice under section 271(1)(b) of the Act dated 24.08.2016. Therefore, after careful consideration of facts, we do not find any infirmity in the order of CIT (A), accordingly, same is upheld. In view of this matter, the Ground No. 1 to 3 of appeal are therefore, dismissed.

 

 

 

IN THE INCOME TAX APPELLATE TRIBUNAL

AMNRITSAR BENCH, AMRITSAR

BEFORE SHRI N.K. CHOUDHRY, JUDICIAL MEMBER

AND SHRI O.P.MEENA, ACCOUNTANT MEMBER

 

I.T.A  No.44/ASR/2018                                    A.Y.:2009-10

Smt. Tirath Kaur                Vs. Income Tax Officer,

W/o Shri Dilbagh Singh,             Ward- Dasuya

VPO-Pandher, Tehsil- Dasuya,

District -Hoshiarpur

PAN: BXXPG 2111 H

Appellant                                                  Respondent

 

Assessee by Shri J.S. Bhasin, Advocate

Revenue by Shri Alok Kumar, CIT (D.R.)

Date of hearing: 17.12.2019   Pronouncement on: 18.02.2020

 

ORDER PER O. P. MEENA, ACCOUTANT MEMBER:

 

1. This appeal by the Assessee is directed against the order of learned Commissioner of Income tax (Appeals)-1, Jalandhar (in short “the CIT (A)”) dated 24.11.2017pertaining to Assessment Year 2009-10, which in turn has arisen from the assessment order passed under section 143(3)/147/144 dated 13.10.2016 of Income Tax Act,1961 (in short ‘the Act’) by the Income Tax Officer, Dasuya (in short “the AO”).
2. Grounds of appeals raised by the assessee are as under:
3. That when the statutory notice under section 148 was not served and received by assessee, the ld. CIT (A) erred in upholding that the service of notice by affixture was valid. So,farwant of service of notice u/s.148, the impugned order was liable to be held as ab-initio void.
4. That the assessee being non-resident, the ITO Dasuya was not vested with valid jurisdiction to assess this case. As such, the impugned order is invalid being without jurisdiction.
5. That in the facts and circumstances of the case, the ld. CIT (A) was not justified in summarily upholding the initiation of proceedings u/s.147 /148 when prerequisites for such action were not satisfied.
6. That when no actual investment was made by the assessee in the land she got from real aunt, the ld. CIT (A) was not justified in confirming the addition of Rs.54,79,710/- as made by the ITO, simply swayed by the mere recital made in the sale deed by the deed writer.
7. That on the face of credible evidence filed before the ld. CIT (A) to prove that the assessee being adopted daughter had not paid any money to her Aunt, she was not right in rejecting the said evidence, by simply relying upon the recital made in sale deed by drawing support from the provisions of Indian Evidence Act.
8. That there being no cogent evidence brought on record by the revenue establishing actual payment of money by the assessee to her real Aunt, a mere mention in the sale deed was not enough to take a view against the assessee, without appreciating the attendant facts and circumstances in totality.
9. Ground No.1 to 3: relates to non-service of notice under section 148of the Act and assumption of jurisdiction under section 148of the Act, when the pre-requisitefor such action were not satisfied. Hence, these are being considered together.
10. Succinct facts of the case are that the assessee is individual. There was an AIR information in the possession of Department that the assessee (Non PAN case) had purchased an immovable property for an amount of Rs.54,79,710/-situated at village Chandidass, Tehsil Dasuya for an amount of Rs.54,79,710 during the year under consideration. However, the records revealedthat no return of income, for the assessment year under consideration was filed by the assessee. Hence, the source ofinvestment in the impugned property could not be verified. Therefore, after recording reasons duly for reopening of assessment to the effect that income to the above extent has escaped assessment for the assessment year 2009-10, proceedings u/s.147 of the Act were initiated by issue of notice under section 148of the Act dated 21.03.2016. Since service of said notice was not possible by an ordinary manner, the same was served through affixture at the last known address of the assessee as given in registered sale deed of impugned land, in the presence of two local witnesses. Accordingly, the assessee was required to furnish herreturn of income for A.Y. 2009-10 within 30 days of service of notice issued under section 148of the Act. The assessee, however, did not comply with the notice issued under section 148 of the Act. The assessee also did not comply with subsequent statutory notices issued under section 142(1) of the Act with questionnaire to the assessee as discussed in para 2 to 4 of assessment order. The assessee was not having PAN, and no return of income having been filed by the assessee for the assessment year 2009-10 and no information and details furnished to explanation of the source of investment in immovable property amounting to Rs.54,79,710 in spite of sufficient opportunities afforded to the assessee, assessment was completed under section under section 143 (3)/147 read with section 144 of the Act on the basis of material available on record assessing the total income at Rs. 54,79,710 income from undisclosed sources.
11. Being aggrieved, the assessee filed an appeal before the Ld. CIT (A). Wherein the Ld. AR of the assessee had filed written submissions and submitted that the assessee Smt. Tirath Kaur is married to Shri Dilbagh Singh who is Canadian resident for more than 24 years. She is also residing with him for the last 24 years. The address on which notice under section 148was served by affixture and treated to be served was non-living house and inhabitant place of the assessee and/or her family members and permanently locked out as no one stays there for a considerable time.Thus, it was contended that notice under section 148was not issued and served upon proper address of the appellant. The AO has not made any effort to locate the present address of the appellant, therefore, the service of notice by affixture was not asper provisions of section 282 of the Act and the said notice was not served on the appellant in accordance with law. Hence, the assessment made in consequent thereto is not a valid assessment. Reliance was also made in the case of ITO v. Om Prakash Kukreja [2016] 70 taxmann.com 147 (Chandigarh-Trib), N Narayan Chetty v. ITO [1959] 35 ITR 388 (SC) and CIT V. Hotline International (P) Ltd. [2008] 296 ITR 333 (Delhi).However, Ld. CIT (A) observed that the case laws relied by the assessee are distinguishable on facts as each case has to be considered on its own facts. In the present case, an AIR information regarding non- PAN database was received. The said information was statutorily required to be reported by the Registering Authorities as per Rule 114C/11D of Income-Tax Rules, 1962 to the assessing authorities for taking action under section 139A(5) and 139A(6) of the Act. In this case, the appellant has purchased immovable property situated at Village Chandidas, Tehsil- Dasuya for Rs.54,79,710 being half share along with other half share with Smt. Joginder Kaur. The total transaction was for Rs.1,04,28,000 on which stamp duty of Rs. 5,31,400 was paid on the same at the time of registration dated 22.12.2008. The appellant failed to quote her PAN in the registered sale deed though she was statutorily mandated to quote it. As per office record, no return of income for the assessment year 2009-10, was found to have been filed by the Appellant for which source of investment could be verified. In view of the above, the CIT (A) observed that the AO has rightly recorded reasons/ satisfaction that income to the extent of Rs. 54,79,710 has escaped assessment as per clause (a) of Explanation-2 to section 147. Regarding service of notice under section 148 of the Act, the CIT (A) observed that enquiries made from the AO and reference to assessment record, it was noticed that the AO has issued enquiry letters on several occasions for verification of the buyers and their source of income and ITR`s filed, if any. As per the enquiries made by the AO, the appellant was not found traceable at the address given in the registered sale deed, which was Smt. Tirath Kaur w/o of Shri Dilbagh Singh village Pandher. Therefore, notice under section 148 of the Act was sent by registered post vide dispatch No. 4623 dated 21.03.2016. In the circumstances of the case, the Ld.AO rightly observed that notice could not be served in ordinary manner and, therefore, served it through affixture at the last known address of the appellant. The notice under section 148-dated 21.03.2016 was rightly addressed to the address of the appellant mentioned in the registered sale deed. The notice was duly served by affixture in the presence of two witnesses, i.e. Smt. Gurvinder Kaur and Shri Bhag Singh. The service of notice under section 148 was held to be valid as per provisions of section 282 of the Act, which provides various modes of service and service can be made by any one of these modes. With regard to claim of the assessee that notice under section 148 of the Act was not received by it. However, the CIT (A) observed that consequent to completion of assessment on 13.10.2016, the assessment order and demand notice were also sent to the same address. The present appeal was filed on 13.12.2016 i.e. within two months from the completion of assessment. It shows that the address of the appellant mentioned in in the notice under section 148 of the Act as well as in the assessment order was correct and that the service was being duly getting conveyed to/reaching to the appellant. During appeal, it has been admitted by the ld. A.R. that the appellant is Non-resident Indian residing in Canada for the last 24 years and is having Canadian Citizenship. She visited India, acquired property for Rs.54, 79,710, and got it registered without obtaining and quoting PAN, which is mandatory as per the provisions of Income Tax Act, 1961. Under these circumstances, it was not possible for the AO to trace her address in Canada and serve notice under section 148 of the Act on the appellant. Accordingly, the ld.CIT (A) held thatsaid notice was rightly served by affixture at the last known address of the appellant as per the address mentioned in the registered sale deed. No address of Canada is mentioned in registered sale-deed. Therefore, the ld.CIT (A) held that the contention of the appellant that the service of notice is not as per section 282 is not tenable and is not accepted. Further, the notice in assessment order can also to be held to be saved under section 292B of the Act.
12. Being, aggrieved the assessee filed this appeal before the Tribunal. The learned counsel for the assessee submitted that the notice under section 148of the Act was not served upon the assessee as she had been living in Canada for the last 24 years and her husband is being a Canadian citizen. The service of notice by affixture is not proper, as notice served on the house which was non-living house. The assessee has not visited in India during the course of assessment proceedings. The AO had not made proper enquiry to locate the proper address from local peoples or persons of village who could know the present address of the assessee. No report of notice server was mentioned. The notice claimed to have served by affixture is not proper service. The affixture can be done when the assessee or his agent refuses to sign the acknowledgement. As per section 282, the notice can be served by post or by summon or by the method prescribed under Order V Rule 17 of Code of Civil Procedure by affixation only when the assessee has refuses or his agent refuses to sign the acknowledgement.Therefore, it was contended that the condition of section 282were not satisfied hence, there is no proper service of notice issued under section 148 , hence, impugned order is void-ab-initio.
13. Per contra, the ld. D.R. submitted that the AO has served the notice under section 148of the Act on the last known address mentioned in the registered sale deed. Since, the assessee was not found residing therein; therefore, notice was served by affixture. Before service of notice by affixture, the AO has made necessary enquiries as mentioned by the Ld. CIT (A) in his appellate order. Thus, notice under section 148of the Act was issued as per provision of section 149(2) of the Act by the AO who had jurisdiction over the assessee. The learned D.R. contended that the assessee has not informed to the AO about her correct address. If there is change in address the same should be corrected in PAN database of the assessee or should be informed to the Department. In this case, the assessee was not having PAN nor filed return of income, hence, her address as last known address could be obtained from registered sale deed executed by her and shown in the said registered sale deed. The learned D.R. further, placed reliance on the recent judgement of Hon`ble Supreme Court in the case of Pr.CIT v. M/s. I-Ven Interactive Limited [2019] 110 taxmann.com 332 (SC) / [2019] 418 ITR 662 (SC) wherein it was held that when scrutiny notice issued to assessee under section 143(2) at address available as per PAN database was justified as change in address had not been intimated to Assessing Officer.In such a circumstances, the only option available with the AO was to serve notice by affixture, which has been done in the presence of two respectable witnesses of the locality.
14. We have heard the rival submissions and perused the relevant material on record.We find that there was an AIR information regarding Non-PAN case, was received by the AO. The said information was collected and statutorily reported by the Registering Authorities as per Rule 114C/11D of Income-Tax Rules, 1962, which is populated to the assessing authorities for proceedings under section 139A(5)and 139A(6)of the Act. The assessee has purchased an immovable property situated at Village Chandidas, Tehsil- Dasuya for Rs.54,79,710 with half share along with other half share with Smt. Joginder Kaur. The total transaction was for Rs.1,04,28,000 on which stamp duty of Rs. 5,31,400 was paid on the same at the time of registration dated 22.12.2008. We find that the assessee has not quoted any PAN in the registered sale deed even though; she was statutorily required to quote PAN on such transaction. The AO noted that no return of income for the assessment year 2009-10, was filed by the assessee for the assessment year under consideration by which the source of investment in impugned land could be verified. Therefore, the AO issued notice under section 148 of the Act after recording reasons and his satisfaction that income to the extent of Rs. 54,79,710 has escaped assessment as per clause (a) of Explanation-2 to section 147. Therefore, notice under section 148 was issued on 21.03.2016. Since the service of notice under section 148 of the Act was not possible in ordinary manner, the same was served through affixture at the last known address as reflected in the registered sale deed asthis being none PAN case. The perusal of appellate order shows that the CIT (A) observed that enquiries made from the AO and reference to assessment record, it was noticed that the AO has issued enquiry letters on several occasions for verification of the buyers and their source of income and ITR`s filed, if any. As per the enquiries made by the AO, the appellant was not found traceable at the address given in the registered sale deed, of Smt. Tirath Kaur w/o of Shri Dilbagh Singh village Pandher. Therefore, notice under section 148 of the Act was sent by registered post vide dispatch No. 4623 dated 21.03.2016. We find that the CIT (A) observed that considering the circumstances of the case, the notice under section 148 of the Act of the Act could not be served in ordinary manner and, therefore, it was served through affixture at the last known address of the appellant. The notice under section 148-dated 21.03.2016 was rightly addressed to the address of the assessee as mentioned in the registered sale deed. The notice was duly served by affixture in the presence of two respectable witnesses, i.e. Smt. Gurvinder Kaur and Shri Bhag Singh. The service is notice is therefore, a valid service as per provisions of section 282 of the Act, which provides various modes of service and services, whichcan be made by any one of these modes. With regard to claim of the assessee that notice under section 148 of the Act was not received by it. However, the CIT (A) observed that consequent to completion of assessment on 13.10.2016, the assessment order and demand notice were also sent to the same address. The present appeal was filed on 13.12.2016 i.e. within two months from the completion of assessment. It shows that the address of the appellant mentioned in in the notice under section 148 of the Act as well as in the assessment order was correct and that the service was getting duly getting conveyed to/reaching to the appellant. We further find that the proposed A.R. of the assessee has made a request for adjournment vide letter dated 26.09.2016 before the AO against the penalty show-cause notice issued under section 271(1)(b) dated 24.08.2016 i.e. before completion of assessment under section 143 (3) read with section 147 /144 dated 13.10.2016 (Paper Book Page No. 1). This fact shows that the assessee was well aware of service of notice under section 148 of the Act made by affixture and assessment proceedings were going on in her case and thus, but she deliberately not complied with the notice under section 148 of the Act, hence, the service of notice under section 148 could also to be held to be saved under section 292B of the Act.However, she deliberately avoided to made compliance to the enquiries during the course of assessment proceedings. It is seen that during appellate proceedings the ld. A.R. that the appellant is Non- resident Indian residing in Canada for the last 24 years and is having Canadian Citizenship. She visited India, acquired property for Rs.54, 79,710, and got it registered without obtaining and quoting PAN, which is mandatory as per the provisions of Income Tax Act, 1961. Under these circumstances, it was not possible for the AO to trace her address in Canada and serve notice under section 148 of the Act and the assessment order there. Accordingly, said notice was rightly served by affixture at the last known address of the appellant as per the address mentioned in the registered sale deed. No address of Canada is mentioned in registered sale-deed. Recently, the Hon`ble Supreme Court in the case of Pr.CIT v. M/s. I-Ven Interactive Limited [2019] 110 taxmann.com 332 (SC) / [2019] 418 ITR 662 (SC)wherein the Hon`ble Supreme Court held as under:

“6.1 At the outset, it is required to be noted that notice under Section 143(2) of the 1961 Act was sent by the Assessing Officer to the assessee at the address as mentioned in the PAN database on 05.10.2007 and the same was within the time limit prescribed in proviso to Section 143(2) of the 1961 Act. However, it was the case on behalf of the assessee that the said notice was not served upon the assessee as the assessee changed its name and address and shifted to new address prior thereto and therefore the said notice was not served upon the assessee and by the time when subsequently the notices were served upon the assessee, notice under Section 143(2) of the 1961 Act was barred by the period prescribed in proviso to Section 143(2) of the 1961 Act and therefore the assessment order is bad in law. It was the case on behalf of the assessee that vide communication dated 06.12.2005 the assessee intimated to the Assessing Officer about the new address and despite the same the Assessing Officer sent the notice at the old address. However, it is required to be noted that the alleged communication dated 06.12.2005 is not forthcoming. Neither the same was produced before the Assessing Officer nor even the same has been produced before this Court. In the affidavit also, filed in compliance with order dated 21.08.2019, the assessee has stated that the alleged communication dated 06.12.2005 is not available. Thus, the assessee has failed to prove the alleged communication dated 06.12.2005. The only document available is Form No.18 filed with the ROC. Filing of Form-18 with the ROC cannot be said to be an intimation to the Assessing Officer with respect to intimation of change in address. It appears that no application was made by the assessee to change the address in the PAN data base and in the PAN database the old address continued. Therefore, in absence of any intimation to the Assessing Officer with respect to change in address, the Assessing Officer was justified in issuing the notice at the address available as per the PAN database. Therefore, the Assessing Officer cannot be said to have committed any error and in fact the Assessing Officer was justified in sending the notice at the address as per the PAN database. If that is so, the notice dated 05.10.2007 can be said to be within the period prescribed in proviso to Section 143(2) of the 1961 Act. Once the notice is issued within the period prescribed as per the proviso to Section 143(2) of the Act, the same can be said to be sufficient compliance of Section 143(2) of the 1961 Act. Once the notice is sent within the period prescribed in the proviso to Section 143(2) of the 1961 Act, in that case, actual service of the notice upon the assessee thereafter would be immaterial. In a given case, it may happen that though the notice is sent within the period prescribed, the assessee may avoid actual service of the notice till the period prescribed expired. Even in the relied upon case by the learned Senior Advocate for the assessee in the case of Hotel Blue Moon (supra), it is observed that the Assessing Officer must necessarily issue notice under Section 143(2) of the 1961 Act within the time prescribed in the proviso to Section 143(2) of the 1961 Act. Therefore, in the facts and circumstances of the case, the High Court is not justified in dismissing the appeal and confirming the orders passed by the learned C.I.T (Appeals) and the I.T.A.T. setting aside the assessment order solely on the ground that the assessment order is bad in law on the ground that subsequent service of notice upon the assessee under Section 143(2) of the 1961 Act was beyond the time prescribed in the proviso to Section 143(2) of the 1961 Act.

7. Now so far as the observations made by the High Court while concurring with the view of the learned Tribunal that merely by filing of return of income with the new address, it shall be enough for the assessee to discharge its legal responsibility for observing proper procedural steps as per the Companies Actand the Income Tax Actis concerned, we are of the opinion that mere mentioning of the new address in the return of income without specifically intimating the Assessing Officer with respect to change of address and without getting the PAN database changed, is not enough and sufficient. In absence of any specific intimation to the Assessing Officer with respect to change in address and/or change in the name of the assessee, the Assessing Officer would be justified in sending the notice at the available address mentioned in the PAN database of the assessee, more particularly when the return has been filed under E-Module scheme. It is required to be noted that notices under Section 143(2) of the 1961 Act are issued on selection of case generated under automated system of the Department which picks up the address of the assessee from the database of the PAN. Therefore, the change of address in the database of PAN is must, in case of change in the name of the company and/or any change in the registered office or the corporate office and the same has to be intimated to the Registrar of Companies in the prescribed format (Form 18) and after completing with the said requirement, the assessee is required to approach the Department with the copy of the said document and the assessee is also required to make an application for change of address in the departmental database of PAN, which in the present case the assessee has failed to do so.
8. Now so far as the submission on behalf of the assessee that with respect to the Assessment Years 2004-05 and 2005-06, communications and the assessment orders were sent at the new address and therefore the Assessing Officer was in the knowledge of the new address is concerned, the same has been sufficiently explained by the Revenue.
9. In view of our findings, recorded hereinabove, the impugned judgment and order passed by the High Court as well as the orders passed by the learned C.I.T (Appeals) and the I.T.A.T holding the assessment order bad in law on the aforesaid ground cannot be sustained and the same deserve to be quashed and set aside. As the learned C.I.T (Appeals) has not considered the other grounds on merits and has not considered the appeal on merits, the matter is required to be remanded to the learned C.I.T (Appeals) to consider the appeal on merits, in accordance with law.
10. Accordingly, the present Appeal is Allowed. The Impugned Judgment and Order passed by the High Court as well as the orders passed by the C.I.T (Appeals) and the I.T.A.T are hereby quashed and set aside. The matter is remanded to the learned C.I.T (Appeals) to consider the Appeal on merits on other grounds, in accordance with law. No costs.”
11. In the light of ratio laid down by the Hon`ble Supreme Court in above case, we are of the considered opinion that the assessee was required to obtain PAN and give her address which has not been done in this case. Therefore, the AO was absolutely justified in sending notice under section 148of the Act on the last addresses available as per registered sale deed. Since, the assessee was not residing on the given addresses, therefore, question of refusal to accept the notice does not arise.Therefore, the ld.CIT (A) has rightly observed that the contention of the appellant that the service of notice is not as per section 282is not tenable in law and was not accepted. In the light of above facts and circumstances, We find that that there was a proper service of notice under section 148 of the Act by affixture and the assessee was well aware of the assessment proceedings going on in her case as evident from letter dated 26.09.2016 filed by the intended to be A.R. of the assessee in connection with penalty show-cause notice under section 271(1)(b) of the Act dated 24.08.2016. Therefore, after careful consideration of facts, we do not find any infirmity in the order of CIT (A), accordingly, same is upheld. In view of this matter, the Ground No. 1 to 3 of appeal are therefore, dismissed.
12. Ground No. 4 to 6 are against the confirmation of addition of Rs.54,79,710 being investment in purchase of immovable property.
13. Short facts are that there was an AIR information which showed that the assessee being a Non PAN case had purchased an immovable property for an amount of Rs. 54,79,710/- situated at village Chandidass, Tehsil Dasuya for an amount of Rs.54,79,710, during the assessment year under consideration. This transaction was covered under Rule 114D of Income-Tax Rules, 1962 read with section 139A(5)of the Act hence, the information was mandatorily required to be sent to the assessing authorities. This transaction involved of immovable property, wherein quoting PAN is mandatory. No PAN was quoted by the assessee in the above transaction. The records revealed that no return of income for the assessment year under consideration was filed by the assessee. Hence, the source of investment in the impugned investment in could not be verified.Therefore, after recording reasons, a notice under section 148of the Act was duly issued and served by affixture on the last known address as mentioned in the registered sale deed executed by the assessee. In spite of sufficient opportunity of being heard allowed, no details were filed to explain the source of investment in immovable property amounting to Rs. 54,79,710. Therefore, said investment of Rs. 54,79,710 was treated as unexplained investment and added to total income and the assessment was made under section 143 (3) /147 read with section 144 of the Act.
14. Being, aggrieved, the assessee filed an appeal before the Ld. CIT (A). Before her, the assessee has filed additional evidence under Rule 46A stating that the assessee was adopted daughter of Smt. Naseeb Kaur ( seller of property) and was brought up by the seller up to her marriage for which economically weaker sections (copy of ID card filed). It was submitted that sale deed was executed on 22.12.2008 and Smt. Naseeb Kaur was expired on 16.01.2009. To prove that the assessee was adopted daughter, an affidavit was filed from villagers, which is a credible evidence to establish the facts that the assessee was an adopted daughter. Hence, no consideration was passed and mentioning consideration in sale deed is standard practice. It was also stated that during proceeding from 21.03.2016 to 13.10.2016, no genuine attempt made to serve notice under section 148on the assessee. It was further submitted that an application was submitted to the AO on 26.09.2016 informing the Non-Resident Indian status of the assessee and requesting him to adjourn the case until Power of Attorney is received for abroad. However, the AO made ex-parte assessment. However, the CIT (A) observed that a valid registered sale deed dated 22.12.2008 has come on record which is sought to be disapproved through oral evidence. Such a recourse is not permitted in law as per provisions contained in chapter VI of Indian Evidence Act, 1872, which prohibits admission of oral evidence to contradict contents of a contract reduced in writing and registered as per law subject to certain exceptions like fraud, misrepresentation etc. It is not the case of the appellant that the contents of the sale deed were ambiguous or of such a nature which required elaboration or clarification through oral evidence. Nor she has alleged any fraud, misrepresentation, intimidation, or want of due execution or want of capacity in any executing party, or failure of consideration, or mistake in fact of law. The contention of the AO that sale deed was prepared by the writer in a routine way cannot be accepted. The CIT (A) also observed that letter on plain paper signed by village Sarpanch/ villagers is only self- serving document and does not hold ground against clear recitation in the registered sale deed, and the seller Smt. Naseeb Kaur was transferring ownership of land along with all attendant rights to the appellant Smt. Tirath Kaur and another person Smt. Joginder Kaur, in lieu of consideration of Rs. 1,04,28,000, half of which is Rs. 52,14,000. There are two witnesses to the registered sale deed. However, as mentioned in the registered sale deed, consideration was not paid at the time of registration in the presence of witnesses or Sub Registrar. The sale consideration is clearly mentioned in the registered sale deed to have been paid / received by the two parties at home prior to the registration. Hence, the only evidence relied upon is the registered sale deed. The contention of the appellant is that she is adopted daughter of the seller and sale deed was made without any consideration is at best in the domain of oral evidence and is therefore, not acceptable. Admittedly, there is no adoption deed, as she was not legally adopted under the Hindu Adoption and Maintenance Act, 1956.Further, vide sale deed; Smt. Naseeb Kaur has sold her land to two persons and not only to the appellant, who claimed to be the adopted daughter of Smt. Naseeb Kaur. In view of these facts, the findings of the AO were upheld.
15. Being, aggrieved the assessee filed this appeal before the Tribunal. The learned counsel for the assessee submitted that the assessee is adopted daughter of Smt. Naseeb Kaur (seller of property) for which a certificate from Sarpanch and villagers of Chandi Dass, was filed before CIT (A) placed at Paper Book Page No. 7. The assessee was brought up by Smt. Naseeb Kaur up to her marriage and enrolled asher daughter in the economically weaker Section for which Identity Card was filed before CIT (A) (PB-8-10). Therefore, the impugned land was given as gift, but instead of gift deed, it was registered as sale deed with Sub Registrar. However, no consideration was paid. It was further submitted that the sale deed was registered on 22.12.2008 and Smt. Naseeb Kaur, who was ill died on 16.01.2009, within a month of execution of sale deed, therefore, there was no necessity for her have received cash or consideration from transfer as the assessee being a adopted daughter. The AO had no brought any proof of exchange of sale consideration. Therefore, the addition was sustained by the CIT (A) was without any basis and needs to be deleted.
16. Au contraire, the ld. D.R. submitted that the assessee has purchased the immovable property for Rs. 54.79 Lakh by registered sale deed dated 22.12.2008 and this transaction is covered by Rule 114C/114D read with section 139A(5)and section 139A(6)of the Act, by which the registering authorities were mandatorily required to inform the assessing authorities about the non PAN Transaction. The assessee was mandatorily required to quote PAN. However, the assessee did not do this. Further, the registered sale deed clearly mentioned the sale consideration along with co-purchaser of property. The evidence in form of plain paper does not hold good, when sale consideration has been clearly recited in documentary evidence registered with Sub Registrar. Therefore, Ld. CIT (A) was justified in sustaining the impugned addition.
17. We have heard the rival submissions and perused the relevant material on record. It is discernible from the registered sale deed dated 22.12.2008 (PB-2 to 6) that the seller Smt. Naseeb Kaur was transferring her ownership of land along with all attendant rights to the appellant Smt. Tirath Kaur and another person Smt. Joginder Kaur, in lieu of consideration of Rs. 1,04,28,000, half of which is Rs.52,14,000 pertaining to the assessee. There are two witnesses to the registered sale deed. However, as mentioned in the registered sale deed that the consideration was not paid at the time of registration in the presence of two witnesses or Sub Registrar, but it was clearly mentioned in the sale deed that the sale consideration have been paid/received by the two parties at home prior to the registration. Hence, the only evidence which could be relied upon is the registered sale deed. The contention of the assessee that she is adopted daughter of the seller and sale deed was made without any consideration is not tenable in law in absence of any adoption deed under the Hindu Adoption and Maintenance Act, 1956 was furnished. Further, vide registered sale deed, Smt. Naseeb Kaur has sold her land to two persons and not only to the assessee but also to Smt. Joginder Kaur, if property was intended to be gifted then there was no necessity to transfer half part of same to another person by common sale deed. Further, such consideration was also received at home by the seller for another purchaser of property. We find that there is a valid registered sale deed dated 22.12.2008 which has come on record and same is sought to be disapproved through oral evidence being plain paper signed by some villagers to say that the assessee was adopted daughter. We observe that Ld. CIT (A) has rightly held that such a recourse is not permitted in law as per provisions contained in chapter VI of Indian Evidence Act, 1872, which prohibits admission of oral evidence to contradict contents of a contract reduced in writing and registered as per law subject to certain exceptions like fraud, misrepresentation etc. It is not the case of the assessee that the contents of the sale deed were ambiguous or of such a nature which required elaboration or clarification through oral evidence. Nor she has alleged any fraud, misrepresentation, intimidation, or want of due execution or want of capacity in any executing party, or failure of consideration, or mistake in fact of law. The contention of the AO that sale deed was prepared by the writer in a routine way cannot be accepted, where consideration was clearly discernible and recorded on registered sale deed itself and claimed to be having paid at home by the both parties of the deal. The CIT (A) also observed that letter on plain paper signed by village Sarpanch/ villagers is only self-serving document and does not hold ground against clear recitation in the registered sale deed dated 22.12.2008, and the seller Smt. Naseeb Kaur was transferring her ownership in the property along with all attendant rights to the appellant Smt. Tirath Kaur and another person Smt. Joginder Kaur, in lieu of consideration of Rs.1,04,28,000, half of which is Rs. 52,14,000. In the light of above facts and circumstances, we do not find any infirmity in the order of CIT (A), accordingly, same is upheld. Ex- consequenti, Ground No. 4 of appeal of the assesseeare dismissed.
18. In the result, the appeal of the assessee is dismissed.
19. The order is pronounced by listing the case on the Notice Board under Rule 34(4) of Income Tax Appellate Tribunal Rules 1963.