Smt Subhrashree Maiti, Purba Medinipur V. The ITO, Wd-1, Haldia, Purba Medinipur

ITA 1064/KOL/2015

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 4825 (ITAT-KOLKATA)
• Duration Of Justice: 9 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-05-2016
• Appeal Filed By: Assessee
• Bench Allotted: SMC
• Assessment Year: 2005-2006
• Appeal Filed On: 30-07-2015
• Court: TRIBUNAL
• Department Lawyers: MD GHAYAS UDDIN
• Assessee Lawyers: MIHIR BANDYOPADHYAY
• Keywords: Additional evidence
• Section: 143(3); 147; 148

Judgement Text

I.T.A. NOS. 1064 & 1065/KOL./2015 ASSESSMENT YEARS: 2005-2006 & 2006-2007 PAGE 1 OF 7 IN THE INCOME TAX APPELLATE TRIBUNAL, KOLKATA B(SMC) BENCH, KOLKATA BEFORE SHRI P.M. JAGTAP, ACCOUNTANT MEMBER I.T.A. NOS. 1064 & 1065 /KOL/ 2015 ASSESSMENT YEARS: 2005-2006 & 2006-2007 SMT. SUBHRASHREE MAITI,............................ ........................APPELLANT W/O. SHRI BIBEKANANDA MAITI, P.O. & P.S. CHAITYANAPUR (HALDIA), DISTRICT- PURBA MEDINIPUR-721 645, WEST BENGAL [PAN : AFRPM 2760 B] -VS.- INCOME TAX OFFICER,................................ ............................RESPONDENT WARD-1, HALDIA, DIST. PURBA MEDINIPUR-721 602, W.B. APPEARANCES BY: SHRI MIHIR BANDYOPADHYAY, A.R., FOR THE ASSESSEE MD. GHAYAS UDDIN, JCIT, D.R., FOR THE DEPARTMENT DATE OF CONCLUDING THE HEARING : MAY 26, 2016 DATE OF PRONOUNCING THE ORDER : MAY 27, 2016 O R D E R THESE TWO APPEALS FILED BY THE ASSESSEE ARE DIRECTE D AGAINST TWO SEPARATE ORDERS BOTH DATED 18.03.2015 PASSED BY THE LD. COMMISSIONER OF INCOME TAX (APPEALS)-7, KOLKATA FOR THE ASSESSMENT YEARS 2005-06 AND 2006-07. SINCE THE ISSUES INVOLVED IN THESE APPEALS ARE COMMON AND INTER-LINKED, THE SAME HAVE BEEN HEARD TOGETHER AND ARE BEING DISPOSED OF BY A SINGLE CONSOLIDATED ORDER. BOTH THE APPEALS ARE TIME BARRED BY 61 DAYS AND ON THE BASIS OF APPLICATION DATED 10.05.2016 FILED BY THE LD. COUNS EL FOR THE ASSESSEE, WE CONDONE THE DELAY ON MERIT AND THE APPEALS ARE ADMI TTED. 2. THE SOLITARY ISSUE INVOLVED IN THE APPEAL OF THE ASSESSEE FOR A.Y. 2005-06 RELATES TO THE ADDITION OF RS.42,000/- MADE BY THE ASSESSING OFFICER AND CONFIRMED BY THE LD. CIT(APPEALS) ON AC COUNT OF INCOME ALLEGEDLY EARNED BY THE ASSESSEE FROM THE BUSINESS OF PLYING OF TRUCK AS DETERMINED BY APPLYING THE PROVISIONS OF SECTION 44 AE OF THE ACT. I.T.A. NOS. 1064 & 1065/KOL./2015 ASSESSMENT YEARS: 2005-2006 & 2006-2007 PAGE 2 OF 7 3. THE ASSESSEE IN THE PRESENT CASE IS AN INDIVIDUA L, WHO FILED HER RETURN OF INCOME FOR THE YEAR UNDER CONSIDERATION O N 25.01.2006 DECLARING TOTAL INCOME OF RS.1,12,995/-. THE SAID R ETURN WAS INITIALLY PROCESSED BY THE ASSESSING OFFICER UNDER SECTION 14 3(1) ON 30.01.2006. SUBSEQUENTLY HE NOTICED FROM THE BALANCE-SHEET OF T HE ASSESSEE THAT SHE WAS THE OWNER OF TRUCK DURING THE PREVIOUS YEAR REL EVANT TO THE ASSESSMENT YEAR 2004-05, BUT NO INCOME FROM THE SAI D TRUCK WAS OFFERED TO TAX IN THE RETURN OF INCOME. THE ASSESSMENT FOR THE YEAR UNDER CONSIDERATION WAS RE-OPENED BY THE ASSESSING OFFICE R AND A NOTICE UNDER SECTION 148 WAS ISSUED BY HIM TO THE ASSESSEE ON 17 .10.2008. IN REPLY, A LETTER DATED 24.08.2009 WAS FILED BY THE ASSESSEE R EQUESTING THAT THE RETURN AS ORIGINALLY FILED BY HER ON 25.01.2006 MAY BE TREATED AS RETURN FILED IN RESPONSE TO NOTICE UNDER SECTION 148. DURI NG THE COURSE OF ASSESSMENT PROCEEDINGS, THE ASSESSEE WAS CALLED UPO N BY THE ASSESSING OFFICER TO EXPLAIN AS TO WHY THE INCOME FROM PLYING OF TRUCK OWNED BY HER SHOULD NOT BE ADDED TO HER TOTAL INCOME AS PER THE PROVISIONS OF SECTION 44AE AT RS.3,500/- PER MONTH, I.E. RS.42,000/-. SIN CE NO EXPLANATION WHATSOEVER WAS OFFERED BY THE ASSESSEE IN THIS REGA RD DESPITE SUFFICIENT OPPORTUNITY AFFORDED BY HIM, THE ASSESSING OFFICER PROCEEDED TO COMPLETE THE ASSESSMENT UNDER SECTION 143(3) READ WITH SECTI ON 147 AND 144 OF THE ACT, WHEREIN HE MADE ADDITION OF RS.42,000/- TO THE TOTAL INCOME OF THE ASSESSEE ON ACCOUNT OF INCOME FROM PLYING OF TR UCK AS COMPUTED AS PER THE PROVISIONS OF SECTION 44AE. 4. AGAINST THE ORDER PASSED BY THE ASSESSING OFFICE R UNDER SECTION 143(3) READ WITH SECTION 147 AND 144, AN APPEAL WAS PREFERRED BY THE ASSESSEE BEFORE THE LD. CIT(APPEALS). DURING THE CO URSE OF APPELLATE PROCEEDINGS BEFORE THE LD. CIT(APPEALS), THE FOLLOW ING SUBMISSION WAS MADE BY THE ASSESSEE IN WRITING:- I.T.A. NOS. 1064 & 1065/KOL./2015 ASSESSMENT YEARS: 2005-2006 & 2006-2007 PAGE 3 OF 7 (1) THE ONLY DISPUTE IN THIS YEAR IS ESTIMATION OF INCOME FROM PLYING OF A TRUCK U/S 44AE AT RS.42,000/-. (2) HOWEVER, APPLICATION OF SECTION 44AE DEPENDS ON TWO MAJOR FACTORS, VIZ. THE ASSESSEE SHOULD BE OWNER OF THE GOODS CARRIAGE AND HE SHOULD BE ENGAGED IN THE PLYI NG, HIRING OR LEASING OF SUCH GOODS CARRIAGE. (3) THE APPELLANT IS OWNER OF THE VEHICLE BUT SHE H AS NOT PLAYED THE SAME. THE VEHICLE (MINI TRUCK 407 OF TAT A) WAS GIVEN TO ONE SHRI SHYMAPADA DAS, A DRIVER RESIDING IN THE SAME VILLAGE OF CHAITANYAPUR. (4) A COPY OF SHRI DASS DRIVING LICENSE NO. DL-117 /91(T) AND THE ENGLISH VERSION OF A STATEMENT GIVEN BY SHR I DAS IN BENGALI ARE ENCLOSED HEREWITH. A COPY OF THE FIN ANCE CERTIFICATE ISSUED BY M/S. LEXUS MOTOR LIMITED (TAT A GROUP) INDICATING THE MONTHLY INSTALMENT RS.11,900/ - (RUPEES ELEVEN THOUSAND AND NINE HUNDRED) IS ALSO ENCLOSED FOR THE KIND PERUSAL OF YOUR HONOUR. (5) UNDER THE CIRCUMSTANCES, SECTION 44AE IS NOT APPLICABLE IN THIS CASE AS THE APPELLANT HAS NOT DE RIVED ANY INCOME FROM THE VEHICLE AT ALL. 5. THE ABOVE SUBMISSION OF THE ASSESSEE ALONG WITH THE ADDITIONAL EVIDENCE FILED WAS FORWARDED BY THE LD. CIT(APPEALS ) TO THE ASSESSING OFFICER FOR THE LATERS COMMENTS. IN THE REMAND REP ORT SUBMITTED TO THE LD. CIT(APPEALS), THE ASSESSING OFFICER OFFERED HIS COMMENTS AS UNDER:- DURING THE ASSESSMENT PROCEEDINGS FOR THE A. Y. 20 05-06, IT WAS FOUND THAT THE ASSESSEE WAS PLYING AN OIL TANKER, THE INC OME OF WHICH WAS NOT REFLECTED IN HER TOTAL INCOME. ACCORDINGLY, THE INC OME OF THE TRUCK WAS ESTIMATED AS PER PROVISION U/S 44AE @RS.3,500/- PER MONTH WHICH CAME TO RS. 42,000/- AND ADDED BACK TO THE TOTAL IN COME OF THE ASSESSEE. IT HAS BEEN CONTENDED BY THE ASSESSEE IN. APPELLATE PROCEEDINGS THAT SHE WAS THE OWNER OF THE VEHICLE BUR SHE HAD NOT PL AYED THE SAME, RATHER IT WAS GIVEN TO SHRI SHYAMAPADA DAS A DRIVER RESIDING IN THE SAME VILLAGE OF CHAITANYAPUR. IN THE SAID STATEMENT IT WAS CLAIMED BY THE DRIVER THAT SHRI SUBHARASHREE MAITI HAD NEVER T AKEN ANY MONEY FROM HER, BUT HE WAS SUPPOSED TO PAY THE INSTALMENT S DUE TO THE FINANCE COMPANY. IT WAS ALSO CLAIMED BY THE DRIVER THAT HE HAD FAILED TO PAY UP THE DUES OF THE FINANCE COMPANY IN TIME A ND THAT IS WHY THE MINI TRUCK WAS SEIZED BY THE TATA FINANCE COMPANY W .E.F. 17.10.2004. I.T.A. NOS. 1064 & 1065/KOL./2015 ASSESSMENT YEARS: 2005-2006 & 2006-2007 PAGE 4 OF 7 THE ASSESSEE HAS SUBMITTED THE COPIES OF STATEMENT AN DRIVING LICENSE. SINCE THE ABOVE EXPLANATION WAS NOT PRODUCED AT THE TIME OF ASSESSMENT, THE SAME WAS TO BE TREATED AS ADDITIONA L EVIDENCES IN TERMS OF RULE 46A(3) OF THE I.T. RULES WHICH NEEDED VERIFICATION BY THE ASSESSING OFFICER. AS PER YOUR DIRECTION R.W. RULE 46A A LETTER WAS IS SUED TO THE ASSESSEE VIDE THIS OFFICE LETTER DTD. 05.01.2015 REQUESTING HIM TO SUBSTANTIATE HIS CONTENTION RAISED BEFORE YOUR HONOUR. BUT, NO O NE APPEARED ON SUCH DATE. AGAIN, A LETTER WAS ISSUED TO THE ASSESSEE VI DE THIS OFFICE LETTER DATED 20.02.2015 TO APPEAR BEFORE THE UNDERSIGNED O N 27.02.2015. AGAIN, THE ASSESSEE FAILED TO APPEAR. HOWEVER, SRI BIBEKANANDA MAITI, HUSBAND OF SMT. SUBHRASHREE MAITI APPEARED ON 02.03 .2015 ON BEHALF OF HIS WIFE AND ASKED FOR FURTHER ADJOURNMENT. FROM THE REPETITIVE NON- APPEARANCE IN THE HEARING AND FURTHER SEEKING ADJOU RNMENT, IT MAY BE IMPLIED THAT THE ASSESSEE HAS NO GENUINE PROOF OF E VIDENCE IN SUPPORT OF HIS CONTENTION. THUS, THE PURPORTED DOCUMENTS PRODUCED BY THE ASSES SEE SEEM TO BE SELF SERVING DOCUMENTS WHICH HAVE LITTLE EVIDENTIAR Y VALUE. IT CAN BE EASILY ESTABLISHED FROM THE FACT THAT THE ASSESSEE WAS NOT ABLE TO PROVE THE CLAIM MADE BY HIM DURING THE APPELLATE STAGE. H ENCE, THE ESSENCE OF REASONABLENESS IS VERY MUCH LACKING IN THIS CASE . ACCORDINGLY, IT IS MY CONSIDERED OPINION THAT THE THEN AO WAS JUSTIFIE D IN MAKING ADDITION AND COME TO THE CONCLUSION AS DEPICTED IN THE PRESENT ASSESSMENT ORDER. THE REMAND REPORT SUBMITTED BY THE ASSESSING OFFIC ER WAS CONFRONTED BY THE LD. CIT(APPEALS) TO THE ASSESSEE AND SINCE NO S ATISFACTORY EXPLANATION COULD BE OFFERED BY THE ASSESSEE THEREON, THE LD. C IT(APPEALS) CONFIRMED THE ADDITION OF RS.42,000/- MADE BY THE ASSESSING O FFICER ON ACCOUNT OF INCOME FROM THE BUSINESS OF PLYING OF TRUCK. AGGRIE VED BY THE ORDER OF THE LD. CIT(APPEALS), THE ASSESSEE HAS PREFERRED THIS A PPEAL BEFORE THE TRIBUNAL. 6. I HAVE HEARD THE ARGUMENTS OF BOTH THE SIDES AND ALSO PERUSED THE RELEVANT MATERIAL AVAILABLE ON RECORD. IT IS OBSERV ED THAT THE CLAIM OF HAVING GIVEN THE TRUCK OWNED BY HER TO ONE DRIVER F OR PLYING WAS MADE BY THE ASSESSEE FOR THE FIRST TIME BEFORE THE LD. CIT( APPEALS) AND WHEN THE I.T.A. NOS. 1064 & 1065/KOL./2015 ASSESSMENT YEARS: 2005-2006 & 2006-2007 PAGE 5 OF 7 MATTER WAS REMANDED BY THE LD. CIT(APPEALS) TO THE ASSESSING OFFICER FOR VERIFYING THE SAID CLAIM IN THE LIGHT OF THE ADDITI ONAL EVIDENCE FILED BY THE ASSESSEE, THE ASSESSEE FAILED TO SUBSTANTIATE HER C LAIM BY AVAILING THE OPPORTUNITY GIVEN BY THE ASSESSING OFFICER IN THE R EMAND PROCEEDINGS. A PERUSAL OF THE REMAND REPORT SUBMITTED BY THE ASSES SING OFFICER TO THE LD. CIT(APPEALS) CLEARLY SHOWS THAT SUFFICIENT AND SPEC IFIC OPPORTUNITY WAS GIVEN BY THE ASSESSING OFFICER TO THE ASSESSEE IN T HIS REGARD BUT THE ASSESSEE FAILED TO AVAIL THE SAME. AT THE TIME OF H EARING BEFORE ME, THE LD. COUNSEL FOR THE ASSESSEE HAS SOUGHT ONE MORE OPPORT UNITY BY SENDING THE MATTER ONCE AGAIN TO THE ASSESSING OFFICER FOR VERI FICATION. HOWEVER, KEEPING IN VIEW ALL THE FACTS OF THE CASE, I FIND M ERIT IN THE CONTENTION RAISED BY THE LD. D.R. THAT THE ASSESSEE HAS ALREAD Y BEEN GIVEN SUFFICIENT OPPORTUNITY TO SUBSTANTIATE HER CLAIM AND HAVING FA ILED TO AVAIL THE SAME, THERE IS NO CASE OF GIVING ONE MORE OPPORTUNITY. I, THEREFORE, UPHOLD THE IMPUGNED ORDER OF THE LD. CIT(APPEALS) CONFIRMING T HE ADDITION OF RS.42,000/- MADE BY THE ASSESSING OFFICER TO THE TO TAL INCOME OF THE ASSESSEE ON ACCOUNT OF THE INCOME FROM BUSINESS OF PLYING OF TRUCK AND DISMISS THE APPEAL OF THE ASSESSEE FOR A.Y. 2005-06 . 7. AS REGARDS THE APPEAL OF THE ASSESSEE FOR A.Y. 2 006-07, IT IS OBSERVED THAT THERE ARE TWO ISSUES INVOLVED IN THIS APPEAL, ONE RELATING TO THE ADDITION OF RS.37,800/- (RS.3,150/- PER MONTH X 12 MONTHS) MADE ON ACCOUNT OF INCOME OF THE ASSESSEE FROM THE BUSINESS OF PLYING OF TRUCK AS PER THE PROVISIONS OF SECTION 44AE AND THE OTHER RE LATING TO ADDITION OF RS.60,527/- ON ACCOUNT OF PROFIT ON SALE OF TRUCK. 8. AS REGARDS THE ADDITION MADE ON ACCOUNT OF PROFI T ON SALE OF TRUCK, IT IS OBSERVED THAT THE PROFIT ON SALE OF TRUCK AMO UNTING TO RS.60,527/- WAS SHOWN BY THE ASSESSEE HERSELF IN THE RETURN OF INCOME, BUT THE SAME WAS NOT INCLUDED IN THE TOTAL INCOME. IN THIS REGAR D, NO EXPLANATION WHATSOEVER WAS OFFERED BY THE ASSESSEE BEFORE THE A SSESSING OFFICER AND, I.T.A. NOS. 1064 & 1065/KOL./2015 ASSESSMENT YEARS: 2005-2006 & 2006-2007 PAGE 6 OF 7 THEREFORE, THE ADDITION OF RS.60,527/- WAS MADE BY HIM TO THE TOTAL INCOME OF THE ASSESSEE, WHICH THE LD. CIT(APPEALS) CONFIRMED. AT THE TIME OF HEARING, THE LD. COUNSEL FOR THE ASSESSEE HAS SU BMITTED THAT THE AMOUNT OF RS.60,527/- ACTUALLY REPRESENTED THE SALVAGE VAL UE OF THE TRUCK, WHICH WAS WRONGLY SHOWN BY THE ASSESSEE AS PROFIT ON SALE OF TRUCK. THE RESPECTIVE ORDERS OF THE ASSESSING OFFICER AND THE LD. CIT(APPEALS) ALSO DO NOT CONTAIN ANY DETAILS OR WORKING SHOWING THE B ASIS OF PROFIT ON SALE OF TRUCK AS ARRIVED AT RS.60,527/-. NEITHER THE REL EVANT DETAILS SUCH AS THE SALE CONSIDERATION AS WELL AS WRITTEN DOWN VALUE OF TRUCK NOR THE DATE OF SALE ARE AVAILABLE ON RECORD. I, THEREFORE, CONSIDE R IT FAIR AND PROPER AND IN THE INTEREST OF JUSTICE TO RESTORE THIS ISSUE TO THE FILE OF THE ASSESSING OFFICER WITH A DIRECTION TO DECIDE THE SAME AFRESH AFTER VERIFYING THE RELEVANT DETAILS. THE ASSESSEE IS DIRECTED TO FURNI SH THE SAID DETAILS ALONG WITH THE RELEVANT DOCUMENTARY EVIDENCE FOR THE VERI FICATION OF THE ASSESSING OFFICER. 9. AS REGARDS THE ISSUE OF ADDITION MADE ON ACCOUNT OF THE INCOME FROM THE BUSINESS OF PLYING OF TRUCK BY APPLYING T HE PROVISIONS OF SECTION 44AE, I HAVE ALREADY DECIDED THE SIMILAR ISSUE WHIL E DISPOSING OF THE APPEAL OF THE ASSESSEE FOR A.Y. 2005-06 AND FOLLOWI NG THE CONCLUSION DRAWN IN A.Y. 2005-06, I UPHOLD THE APPLICABILITY O F SECTION 44AE FOR COMPUTING THE INCOME OF THE ASSESSEE FROM THE BUSIN ESS OF PLYING OF TRUCK. AS ALREADY NOTED, THE DATE OF SALE OF TRUCK, HOWEVER, IS NOT AVAILABLE ON RECORD. THE ASSESSING OFFICER, THEREFO RE, IS DIRECTED TO ASCERTAIN THE EXACT DATE OF SALE OF TRUCK AND RE-CO MPUTE THE INCOME OF THE ASSESSEE FROM THE BUSINESS OF PLYING OF TRUCK BY AP PLYING THE PROVISIONS OF SECTION 44AE ONLY FOR THE PERIOD FOR WHICH THE T RUCK WAS OWNED BY THE ASSESSEE DURING THE PREVIOUS YEAR RELEVANT TO A.Y. 2006-07. THE APPEAL OF THE ASSESSEE FOR A.Y. 2006-07 IS THUS TREATED AS PA RTLY ALLOWED. I.T.A. NOS. 1064 & 1065/KOL./2015 ASSESSMENT YEARS: 2005-2006 & 2006-2007 PAGE 7 OF 7 10. IN THE RESULT, THE APPEAL OF THE ASSESSEE FOR A .Y. 2005-06 IS DISMISSED, WHILE THE APPEAL OF THE ASSESSEE FOR A.Y . 2006-07 IS PARTLY ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON MAY 27, 2016. SD/- (P.M. JAGTAP) ACCOUNTANT MEMBER KOLKATA, THE 27 TH DAY OF MAY, 2016 COPIES TO : (1) SMT. SUBHRASHREE MAITI, W/O. SHRI BIBEKANANDA MAITI, P.O. & P.S. CHAITYANAPUR (HALDIA), DISTRICT- PURBA MEDINIPUR-721 645, WEST BENGAL (2) INCOME TAX OFFICER, WARD-1, HALDIA, DIST. PURBA MEDINIPUR-721 602, W.B. (3) COMMISSIONER OF INCOME TAX (APPEALS)-7, KOLKAT A, (4) COMMISSIONER OF INCOME TAX- , (5) THE DEPARTMENTAL REPRESENTATIVE (6) GUARD FILE BY ORDER ASSISTANT REGISTRAR, INCOME TAX APPELLATE TRIBUNAL, KOLKATA BENCHES, KOLKATA LAHA/SR. P.S.