Anita Singh, Lucknow V. Asstt. Commissioner of Income Tax, Lucknow

ITA 108/LKW/2014

• Counselvise Citation: 10823714 RSA 2014
• Duration Of Justice: 1 year(s) 6 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 24-09-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 31-08-2015
• Assessment Year: 2007-2008
• Appeal Filed On: 25-02-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: DR A K SINGH
• Assessee Lawyers: P K KAPOOR
• Keywords: Unexplained investment; Opportunity of being heard
• Section: 132

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH A, LUCKNOW BEFORE SHRI SUNIL KUMAR YADAV, JUDICIAL MEMBER AND SHRI A.K. GARODIA, ACCOUNTANT MEMBER ITA NOS.108 & 109/LKW/2014 ASSESSMENT YEAR:2007 - 08 & 2009 - 10 SMT. ANITA SINGH, SECTOR - E, HIG - 114, ALIGANJ, LUCKNOW. PAN:ARVPS1161J VS. A.C.I.T., CENTRAL CIRCLE - I, LUCKNOW. (APPELLANT) (RESPONDENT) APPELLANT BY SHRI P. K. KAPOOR, C.A. RESPONDENT BY DR. A. K. SINGH, CIT, D. R. DATE OF HEARING 31/08/2015 DATE OF PRONOUNCEMENT 2 4 /09/2015 O R D E R PER A. K. GARODIA, A.M. BOTH THESE APPEALS ARE FILED BY THE ASSESSEE DIRECTED AGAINST A COMBINED ORDER OF LEARNED CIT (A) - III, LUCKNOW DATED 27/12/2011 FOR ASSESSMENT YEAR 2007 - 08 AND 2009 - 10. BOTH THE APPEALS WERE HEARD TOGETHER AND ARE BEING DISPOSED OF BY THIS COMMON ORDER FOR THE SAKE OF CONVENIENCE. 2. FIRST WE TAKE UP THE APPEAL OF THE ASSESSEE FOR ASSESSMENT YEAR 2007 - 08 I.E. I.T.A. NO.108/LKW/2014. IN THIS APPEAL , THE ASSESSEE HAS RAISED A S MANY AS FIVE GROUNDS OF APPEAL BUT THE ONLY GRIEVANCE OF THE ASSESSEE IS REGARDING ADDITION OF RS.1,60,100/ - MADE BY THE ASSESSING OFFICER AND CONFIRMED BY LEARNED CIT(A) ON THE GROUND THAT SOURCE OF EXPENSES INCURRED FOR PURCHASE OF STAMP REMAINED UNEXP LAINED. IT WAS SUBMITTED BY LEARNED A.R. OF THE ASSESSEE THAT SHRI K. N. SINGH PATEL HAS 2 MADE A DISCLOSURE OF RS.10 CRORE U/S 13 2 ( 4 ) OF THE ACT BEFORE ADDL. DIRECTOR (INV.), LUCKNOW ON 25/02/2009 AND THE COPY OF SWORN AFFIDAVIT IS AVAILABLE ON PAGES 18 T O 30 OF THE PAPER BOOK ALONG WITH COPY OF STATEMENT AVAILABLE ON PAGES 31 TO 32 OF THE PAPER BOOK. HE ALSO SUBMITTED THAT COPY OF EXTRACT FROM ASSESSMENT ORDER OF SHRI MAHESH SINGH PATEL FOR ASSESSMENT YEAR 2007 - 08 IS AVAILABLE ON PAGE NO. 33 OF THE PAPER BOOK WHICH INCLUDES STAMP DUTY PAID IN CASH OF RS.1,60,100/ - ON ACCOUNT OF PRESENT ASSESSEE I.E. SMT. ANITA SINGH. HE SUBMITTED THAT SINCE SUCH PAYMENT ON ACCOUNT OF STAMP DUTY IN RESPECT OF THE PRESENT ASSESSEE HAS ALREADY BEEN EXPLAINED IN THE HANDS OF SHRI MAHESH SINGH PATEL, HUSBAND OF THE ASSESSEE, BUT EVEN AFTER THAT , IT WAS HELD BY CIT(A) THAT THE WITHDRAWAL OF RS.1,60,100/ - FROM THE BANK ACCOUNT OF SHRI MAHESH SINGH PATEL HAS NOT BEEN CO - RELATED WITH THE EXPENDITURE INCURRED. WE FIND THAT THE CLA IM OF THE ASSESSEE WAS REJECTED BY THE AUTHORITIES BELOW WITHOUT GIVING ANY COGENT REASON FOR THE SAME AND WITHOUT SHOWING THAT THIS MONEY WITHDRAWN FROM THE BANK ACCOUNT OF THE ASSESSEES HUSBAND SHRI MAHESH SINGH PATEL WAS USED SOMEWHERE ELSE AND THEREFO RE, NOT AVAILABLE WITH THE ASSESSEE TO EXPLAIN THIS PAYMENT OF STAMP DUTY. UNDER THESE FACTS, WE FEEL IT PROPER THAT THE MATTER SHOULD GO TO THE FILE OF THE ASSESSING OFFICER FOR FRESH DECISION AFTER EXAMINING THIS CLAIM OF THE ASSESSEE AND DECIDING THE I SSUE BY WAY OF PASSING A SPEAKING AND REASONED ORDER. ACCORDINGLY, WE SET ASIDE THE ORDER OF LEARNED CIT(A) AND RESTORE THE MATTER BACK TO THE FILE OF THE ASSESSING OFFICER FOR FRESH DECISION IN THE LIGHT OF ABOVE DISCUSSION AFTER PROVIDING DUE AND REASON ABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 3. IN THE RESULT, TH IS APPEAL OF THE ASSESSEE STANDS ALLOWED FOR STATISTICAL PURPOSES. 4. NOW WE TAKE UP THE APPEAL OF THE ASSESSEE FOR ASSESSMENT YEAR 2009 - 10 I.E. I.T.A. NO.109/LKW/2014. IN THIS APPEAL , THE ASSESSEE HAS 3 RAISED FIVE GROUNDS BUT THE GRIEVANCES OF THE ASSESSEE ARE ONLY TWO. THE FIRST GRIEVANCE OF THE ASSESSEE IS REGARDING ADDITION OF RS.1,46,400/ - ON ACCOUNT OF ALLEGED UNEXPLAINED CASH FOUND AT THE TIME OF SEARCH AND THE SECOND GRIEVANCE IS REGARDING ADDITION OF RS.2,50,000/ - ON ACCOUNT OF UNEXPLAINED INVESTMENT IN THE MOVABLE ARTICLES BEING 1/4 TH OF THE VALUE ESTIMATED AT RS.10 LAC. 5. LEARNED A.R. OF THE ASSESSEE REITERATED THE SAME CONTENTIONS WHICH WERE RAISED BEFORE CIT(A) AS NOTED BY HIM IN PARA 3.2 OF HIS ORDER WHEREAS LEARNED D. R. OF THE REVENUE SUPPORTED THE ORDERS OF THE AUTHORITIES BELOW. 6. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. WE FIND THAT REGARDING THE FIRST GRIEVANCE I.E. ADDITION OF RS.1,46,400/ - , IT WAS SUBMITTED B Y THE ASSESSEE BEFORE LEARNED CIT(A) THAT SURRENDER OF RS.25 LAC WAS MADE BY SHRI K. N. SINGH PATEL ON ACCOUNT OF CASH FOUND AND SEIZED AND IT IS NOT THE CASE OF THE DEPARTMENT THAT THE CASH FOUND IN SEARCH IN TOTAL GROUP WAS MORE THAN RS.25 LAC AND THEREF ORE, THE ADDITION MADE BY ASSESSING OFFICER AND CONFIRMED BY CIT(A) ON ACCOUNT OF CASH FOUND IN SEARCH IS NOT PROPER. REGARDING SECOND GRIEVANCE, THIS WAS THE EXPLANATION THAT AN ADDITIONAL INCOME OF RS.20 LAC WAS SURRENDERED BY SHRI K. N. SINGH PATEL AND THERE IS NO EVIDENCE THAT HOUSE HOLD ARTICLES TOTALING RS.10 LAC OUT OF WHICH 1/4 TH ADDITION IS MADE IN THE HANDS OF THE PRESENT ASSESSEE IS NOT COVERED THEREIN . IN THIS REGARD, WE GO THROUGH THE AFFIDAVIT OF SHRI K. N. SINGH PATEL AVAILABLE ON PAGES 18 TO 30 OF THE PAPER BOOK AND IN THE SAME, WE FIND THAT THE TOTAL DISCLOSURE MADE BY HIM OF RS.10 CRORES INCLUDES AN AMOUNT OF RS.5.50 CRORES FOR FINANCIAL YEAR 2008 - 09 I.E. ASSESSMENT YEAR 2009 - 10. THIS DISCLOSURE OF RS.5.50 CRORE IN ASSESSMENT YEAR 2009 - 1 0 INCLUDES CASH SEIZED AT VARIOUS PLACED AT RS.25 LAC AND OTHER UNEXPLAINED INVESTMENT/ EXPENDITURE OF RS.20 LAC. THIS IS ADMITTED POSITION OF FACT THAT THIS DISCLOSURE OF SHRI K. N. SINGH PATEL IS FOR THE ENTIRE GROUP INCLUDING THE 4 PRESENT ASSESSEE SMT. ANITA SINGH. THIS IS ALSO NOT THE CASE OF THE DEPARTMENT THAT THE TOTAL CASH FOUND AT THE TIME OF SEARCH FOR THE WHOLE GROUP WAS MORE THAN RS.25 LAC, WHICH WAS INCLUDED BY SHRI K. N. SINGH PATEL IN HIS DISCLOSURE OF RS.10 CRORE. SIMILARLY, THIS IS ALSO N OT THE CASE OF THE DEPARTMENT THAT TOTAL UNEXPLAINED INVESTMENT/EXPENDITURE INCLUDING THIS AMOUNT OF RS.10 LAC ESTIMATED ON ACCOUNT OF HOUSE HOLD GOODS AT THE RESIDENCE BELONGING TO ALL THE PERSONS WAS MORE THAN RS.20 LAC BEING THE AMOUNT DISCLOSED BY SHRI K. N. SINGH PATEL ON ACCOUNT OF OTHER INVESTMENT/ EXPENDITURE. IN THIS FACTUAL POSITION, IN OUR CONSIDERED OPINION, BOTH THE ADDITIONS MADE BY THE ASSESSING OFFICER IN THE PRESENT CASE AND CONFIRMED BY CIT(A) ARE NOT SUSTAINABLE BECAUSE THE SAME IS COVER ED BY THE DISCLOSURE OF RS.5.50 CRORE IN THE PRESENT YEAR INCLUDED IN TOTAL DISCLOSURE OF RS.10 CRORE MADE BY SHRI K. N. SINGH PATEL. WE, THEREFORE, DELETE BOTH THE ADDITIONS. 7. IN THE RESULT, THE APPEAL OF THE ASSESSEE STANDS ALLOWED. 8. IN THE COMBIN ED RESULT, APPEAL OF THE ASSESSEE FOR ASSESSMENT YEAR 2007 - 08 IS ALLOWED FOR STATISTICAL PURPOSES WHEREAS APPEAL FOR ASSESSMENT YEAR 2009 - 10 IS ALLOWED. (ORDER WAS PRONOUNCED IN THE OPEN COURT ON THE DATE MENTIONED ON THE CAPTION PAGE) SD/. SD/. (SUNIL KUMAR YADAV) ( A. K. GARODIA ) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 2 4 /09/2015 *SINGH COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT. 3. CONCERNED CIT 4. THE CIT(A) 5. D.R., I.T.A.T., LUCKNOW ASSTT. REGISTRAR