Smt. Mandeep Kaur, Faridkot V. The Income-tax Officer, Faridkot

ITA 109/ASR/2014

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 85898 (ITAT-AMRITSAR)
• Duration Of Justice: 11 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-02-2015
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: DB
• Next Hearing Date: 10-02-2015
• Assessment Year: 2010-2011
• Appeal Filed On: 21-02-2014
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Assessee Lawyers: PARSHOTAM K SIN GLA S RESPOND; SSH P N ARORA
• Keywords: Opportunity of being heard; Additional evidence
• Section: 143(3); 56(2)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH; AMRITSAR. BEFORE SH. A.D.JAIN, JUDICIAL MEMBER AND SH. B.P.JAIN, ACCOUNTANT MEMBER I.T.A. NO.109(ASR)/2014 ASSESSMENT YEAR:2010-11 PAN :ABYPK5019Q SMT. MANDEEP KAUR, VS. INCOME TAX OFFICER, C/O BHUPINDRA MATERNITY HOME, WARD III(4), CIRCULAR ROAD, FARIDKOT. FARIDKOT. (APPELLANT) (RESPONDENT) APPELLANT BY:S/SH.P.N.ARORA, & SH.PARSHOTAM K. SIN GLA, ADVOCATES RESPONDENT BY:SH.TARSEM LAL, DR DATE OF HEARING:10/02/2015 DATE OF PRONOUNCEMENT:13/02/2015 ORDER PER B.P.JAIN,AM: THIS APPEAL OF THE ASSESSEE ARISES FROM THE ORDER O F THE CIT(A), BATHINDA DATED 29.11.2013 FOR THE ASSESSMENT YEAR 2 010-11. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL: 1. ON THE FACTS & IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A) HAS ERRED IN UPHOLDING THE ADDITION OF R S.4,90,000/- U/S 56(2) OF THE I.T.ACT WHEREAS THE AMOUNT WAS TAK EN AS LOAN BY HER HUSBAND FROM HIS RELATIVES/FRIENDS WHICH WAS PAID BACK. AS SUCH, PROVISIONS OF SECTION 56(2) OF THE I.T. AC T, ARE NOT APPLICABLE. ITA NO.109(ASR)/2014 2 2. ON THE FACTS & IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A) HAS ERRED IN UPHOLDING THE ADDITION OF R S.4,90,000/- ON THE GROUND THAT ASSESSEE APPELLANT FAILED TO P RODUCE ANY EVIDENCE IN SUPPORT OF SOURCE AND GENUINENESS OF TH E LOAN WITHOUT APPRECIATING THAT THE LOAN WAS TAKEN BY SH. BHUPINDER PAL SINGH AND DEPOSITED IN THE JOINT BANK ACCOUNT. THE FIRST NAME IN THE DRAFT AS WELL AS IN THE BANK ACCOUNT IS OF SH. BHUPINDER PAL SINGH. AS SUCH, THE ADDITION MADE IN THE HANDS OF ASSESSEE APPELLANT IS UNJUSTIFIED. THE ACCOUNT N UMBER IN WHICH THE ABOVE SAID DRAFT WAS DEPOSITED WAS BEING MAINLY OPERATED BY SH. BHUPINNDER PAL SINGH (ESTRANGED HU SBAND) WITH WHOM DIVORCED CASE IS PENDING SINCE 2010. HENC E, THIS DRAFT SHOULD HAVE BEEN COUNTED IN THE INCOME OF 201 0-11 OF SH.BHUPINDER PAL SINGH AND THE DRAFT IN QUESTION OF RS.4,90,000/- WAS ISSUED BY THE RELATIVE OF BHUPIND ER PAL SINGH. 3. ON THE FACTS & IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A) HAS ERRED IN UPHOLDING THE ADDITION OF R S.4,90,000/- ON THE GROUND THAT NO APPLICATION UNDER RULE 46A OF THE I.T.RULES HAS BEEN FILED FOR ADMITTING THE ADDITIO NAL EVIDENCE WITHOUT APPRECIATING THAT THE ASSESSEE HAS NOT BROU GHT ANY NEW EVIDENCE DURING THE APPELLATE PROCEEDINGS BUT RELIE D ON THE EVIDENCE ALREADY BEFORE THE AO. AS SUCH, THE FINDIN GS OF THE CIT(A) ARE IRRELEVANT ESPECIALLY WHEN ASSESSEE MADE REQUEST THAT THE DEPOSIT IN THE JOINT BANK ACCOUNT OF RS.4, 90,000/- DOES NOT BELONG TO HER BUT BELONGS TO SH. BHUPINDER PAL SINGH. 4. ON THE FACTS & IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A) HAS ERRED IN UPHOLDING THE ADDITION OF R S.10,010/- ON ACCOUNT OF BANK INTEREST WHEREAS THERE WAS LOSS UNDER THE HEAD INTEREST AFTER CONSIDERING THE INTEREST PAID T O HDFC BANK ON HOME LOAN. THEREFORE, ADDITION MADE IS UNCALLED FOR AN LIABLE TO BE DELETED. 5. THAT THE APPELLANT CRAVES TO ADD OR AMEND THE GR OUNDS OF APPEAL. 2. AS REGARDS GROUNDS NO. 1, 2 & 3, THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE HAD MAINTAINED SAVING BANK ACCOUNT WITH HD FC BANK JOINTLY WITH ITA NO.109(ASR)/2014 3 HER HUSBAND. THE ASSESSEE COULD NOT EXPLAIN THE DE POSIT OF RS.4,90,000/- ON 19.03.2010 AND THE SAME WAS ADDED TO THE INCOME OF THE ASSESSEE U/S 56(2) OF THE INCOME TAX ACT, 1961 ( IN SHORT, THE ACT). 3. THE LD. CIT(A) CONFIRMED THE ACTION OF THE ASSES SING OFFICER. 4. THE LD. COUNSEL FOR THE ASSESSEE, MR. P.N.ARORA, ADVOCATE ARGUED THAT THE ASSESSEES HUSBAND SH.BHUPINDER SINGH TOO K UNSECURED LOAN OF RS.4,90,000/- FROM HIS RELATIVE, SH. ARPAN PREET SI NGH R/O SRI GANGA NAGAR, RAJASTHAN FROM HDFC BANK THROUGH DEMAND DRAFT DATED 16.03.2010 AND A COPY OF THE SAME IS AVAILABLE AT PAGE 3 OF THE PAPE R BOOK. THE ASSESSEES HUSBAND DEPOSITED THE SAME IN HDFC BANK ACCOUNT ON 19.03.2010 WHICH WAS A JOINT ACCOUNT IN THE NAME OF ASSESSEES HUSB AND SH.BHUPINDER SINGH AND ASSESSEE. THE AO CAME TO THE ERRONEOUS CONCLUS ION THAT A SUM OF RS.4,90,000/- IS LIABLE TO BE ADDED IN THE TOTAL IN COME BY INVOKING THE PROVISIONS OF SECTION 56(2) OF THE ACT. THIS VIEW W AS UPHELD BY THE LD. CIT(A) AGAINST WHICH THE ASSESSEE PREFERRED AN APPE AL BEFORE THE TRIBUNAL. THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THI S FACT WAS EXPLAINED IN THE WRITTEN SUBMISSIONS BEFORE THE LD. CIT(A), WHICH IS AVAILABLE AT PAGES 1 & 2 OF THE PAPER BOOK AND THE RELEVANT PORTION IS REPR ODUCED AS UNDER: REG: DEPOSITS IN HDFC BANK A/C NO.27222 THAT AS STATED ABOVE THE ASSESSEE IS A EMPLOYEE AN D AS PER INCOME TAX ACT, 1961, HE IS NOT LIABLE TO MAINTAIN THE BOOKS OF ACCOUNT, BUT SHE HAS MAINTAINED THE BANK ACCOUNTS A ND THE COMPLETE DETAIL OF BANK DEPOSITS AND WITHDRAWALS ALONGWITH D OCUMENTARY ITA NO.109(ASR)/2014 4 EVIDENCE/DETAILS IS ALREADY PROVIDED DURING THE COU RSE OF ASSESSMENT PROCEEDINGS AND THE SAME IS PLACED ON THE FILE EXCE PT ONE CHEQUE (RS.4,90,000/- DATED 19/03/2010). IN THIS REGARD AS SESSEE HAS CLARIFIED TO THE ITO THAT SHE HAS SOME DISPUTES WITH HER HUSB AND SH. BHUPINDER PAL SINGH AND A DIVORCE CASE IS ALREADY FILED BETW EEN THEM. THAT THE S.B. A/C NO.0107100027222 WITH THE HDFC BANK IS A JOINT BANK ACCOUNT AND IS OPERATED BY SH. BHUPINDER PAL SINGH . THAT DURING THE A.Y. 2009-10 SH. BHUPINDER PAL SINGH HAS TAKEN A U NSECURED LOAN OF RS.4,90,000/- FROM HIS RELATIVE SH. ARPANPREET SING H R/O SRI GANGA NAGAR, RAJASTHAN AND NOT BY THE ASSESSEE. THAT NOW I HAVE NOT GOT THE COPY OF DD NO.004999 ISSUED ON 16.03.2010 (COPY OF THE SAME IS ENCLOSED FOR VERIFICATION) FROM S.B. A/C NO.050510 00161067 OF SH. ARPANPREET SINGH(THE RELATIVE OF SH. BHUPINDER PAL SINGH FROM WHOM HE HAS TAKEN UNSECURED LOAN) R/O SRI GANGA NAGAR, R AJASTHAN IN FAVOUR OF SH. BHUPINDER PAL SINGH & MANDEEP KAUR JOINTLY. SO, THE ADDITION OF RS.4,90,000/- U/S 56(2) IN THE HANDS O F THE ASSESSEE IS NOT JUSTIFIED AND LIABLE TO BE SET ASIDE. 4.1. IT WAS FURTHER ARGUED THAT DEMAND DRAFT WAS IS SUED BY THE HDFC BANK, SRI GANGA NAGAR, RAJASTHAN, A COPY OF THE BAN K ACCOUNT IS AVAILABLE AT PAGE NO.4 OF THE PAPER BOOK. IT WAS POINTED OUT THA T THIS ACCOUNT WAS JOINTLY MAINTAINED IN THE NAME OF SH. BHUPINDER PAL SINGH, HUSBAND OF THE ASSESSEE AND THE ASSSSEE AND THIS ACCOUNT WAS OPERATED BY A SSESSEES HUSBAND SH. BHUPINDER PAL SINGH. 4.2. THE LD. COUNSEL FURTHER POINTED OUT THAT THE D EPARTMENT HAS NOT TAKEN ANY ACTION IN THE HANDS OF ASSESSEES HUSBAND SH. B HUPINDER PAL SINGH, WHO IS AN EXISTING ASSESSEE AND IS BEING ASSESSED TO IN COME TAX BY THE SAME INCOME TAX OFFICER. A COPY OF THE ASSESSMENT ORDER U/S 143(3) OF THE ACT, IN THE CASE OF SH. BHUPINDER PAL SINGH FOR THE A.Y. 2010-11, DATED 22.03.2013 IS PLACED ON RECORD. WHEREAS THE ASSES SMENT IN THE CASE OF THE ITA NO.109(ASR)/2014 5 ASSESSEE WAS COMPLETED ON 26.03.2013 I.E. AFTER 3 D AYS FROM THE DATE OF COMPLETION OF ASSESSMENT IN THE CASE OF SH. BHUPIND ER PAL SINGH AND NO ACTION HAS BEEN TAKEN IN THE HANDS OF SH. BHUPINDER PAL SINGH. THUS, GRAVE INJUSTICE HAS BEEN DONE TO THE ASSESSEE & STEP MOTH ERLY TREATMENT HAS BEEN GIVEN TO THE ASSESSEE BY THE DEPARTMENT. FURTHERMO RE, THE LD. CIT(A) WAS NOT JUSTIFIED IN ADMITTING THE RELEVANT MATERIAL WH ICH WAS NECESSARY FOR DECIDING THE APPEAL. IN VIEW OF THESE CIRCUMSTANCES , IT IS VERY RESPECTFULLY PRAYED THAT THE ADDITION MADE MAY KINDLY BE DELETED . ALTERNATIVELY, THE ADDITION, IF ANY, SHOULD HAVE BEEN MADE IN THE HAND S OF ASSESSEES HUSBAND SH. BHUPINDER PAL SINGH. 4.3. THE LD. COUNSEL FURTHER STATED THAT THE LD. CI T(A) HAS GROSSLY ERRED IN UPHOLDING THE ADDITION OF RS.4,90,000/- ON THE GROU ND THAT APPLICATION UNDER RULE 46A OF THE INCOME TAX RULES, HAS BEEN FILED FO R ADMITTING THE ADDITIONAL EVIDENCE WITHOUT APPRECIATING THAT THE A SSESSEE HAS NOT BROUGHT ANY NEW EVIDENCE DURING THE ASSESSMENT PROCEEDINGS BUT THE LD. CIT(A) RELIED ON THE EVIDENCE ALREADY FILED BEFORE THE AO. AS SUCH THE CONTENTIONS OF THE LD. CIT(A) ARE IRRELEVANT ESPECIALLY WHEN T HE ASSESSEE HAS MADE A REQUEST THAT THE AMOUNT DEPOSITED IN THE JOINT BANK ACCOUNT FOR RS.4,90,000/- DOES NOT BELONG TO ASSESSEE BUT THE SAME BELONGS TO SH. BHUPINDER PAL SINGH. THE AO HAS NOT TAKEN ANY AMOUNT IN THE HANDS OF SH. BHUPINDER PAL SINGH AND HAS CHOSEN TO TAX THE ASSESSEE FOR NO REA SON. IN VIEW OF THESE ITA NO.109(ASR)/2014 6 CIRCUMSTANCES, THE LD. CIT(A) WAS NOT JUSTIFIED I N UPHOLDING THE ADDITION AND PRAYED THAT THE ADDITION MADE MAY BE DELETED, AS THE AUTHORITIES BELOW HAVE NOT APPRECIATED THE POINT RAISED BEFORE THEM. 5. THE LD. DR, ON THE OTHER HAND, RELIED UPON THE O RDERS OF BOTH THE AUTHORITIES BELOW. 6. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE FACTS OF THE CASE. THE UNDISPUTED FACTS OF THE CASE ARE THAT THE ASSES SEE DID NOT EXPLAIN THE SOURCE OF DEPOSIT OF RS.4,90,000/- EXCEPT STATING T HAT HER HUSBAND SH. BHUPINDER PAL SINGH HAS TAKEN SOME UNSECURED LOAN FROM SOME NEAR AND DEAR AND THE NAME OF THE PERSON FROM WHOM LOAN HAS BEEN TAKEN HAS SLIPPED OUT FROM ASSESSEES MIND. HOWEVER, BEFORE THE LD. C IT(A), IT WAS SUBMITTED THAT THE ASSESSEE HAS MAINTAINED A JOINT ACCOUNT WI TH HER HUSBAND SH. BHUPINDER PAL SINGH. THE ASSESSEE IS HAVING DISPUTE WITH HER HUSBAND AND DIVORCE CASE IS ALREADY FILED BETWEEN THEM. A COPY OF THE DEMAND DRAFT WAS PRODUCED BEFORE THE LD. CIT(A) RECEIVED FROM ONE AR PANPREET SINGH R/O SRI GANGA NAGAR, RAJASTHAN, A RELATIVE OF ASSESSEES HU SBAND. THE NAME OF THE HUSBAND OF THE ASSESSEE SH. BHUPINDER PAL SINGH IS THE FIRST NAME IN THE DEMAND DRAFT, AS PLACED ON RECORD AT PAGE 3 OF THE PAPER BOOK. IT WAS SUBMITTED BEFORE THE LD. CIT(A) THAT A LOAN OF RS. 4,90,000/- HAS BEEN TAKEN BY THE HUSBAND OF THE ASSESSEE AND NOT BY THE ASSES SEE. THE LD. CIT(A), HOWEVER, REJECTED THE CLAIM OF THE ASSESSEE BY OBS ERVING THAT A COPY OF BANK ITA NO.109(ASR)/2014 7 ACCOUNT OF SH. ARPANPREET SINGH OR ANY OTHER EVIDEN CE REGARDING SOURCE AND GENUINENESS OF LOAN HAS NOT BEEN FILED BY THE ASSES SEE AND THERE IS NO APPLICATION UNDER RULE 46-A OF THE I.T. RULES, FOR ADMITTING THE ADDITIONAL EVIDENCE. 6.1. THOUGH, THE ASSESSEE HAS NOT MOVED ANY PROPER APPLICATION UNDER RULE 46-A OF THE I.T. RULES, 1962, FOR ADMITTING TH E ADDITIONAL EVIDENCE BEFORE THE LD. CIT(A) BUT AT THE SAME TIME, A COPY OF THE DEMAND DRAFT OF RS.4,90,000/- WAS PRODUCED BEFORE THE LD. CIT(A) AN D WITH THIS INFORMATION, IT IS EVIDENT THAT THE SAID AMOUNT HAS BEEN TAKEN AS A LOAN FROM SH. ARPANPREET SINGH R/O SRI GANGA NAGAR, RAJASTHAN , WHO HAS ISSUED DEMAND DRAFT FROM HDFC BANK. THE ASSESSEE HAS ALSO SUBMITTED THAT THE SAID LOAN HAS BEEN TAKEN, IN FACT, BY THE HUSBAND O F THE ASSESSEE AND THE SAME HAS BEEN USED BY THE HUSBAND OF THE ASSESSEE A S PER COPY OF BANK ACCOUNT PLACED AT PAGE 4 OF THE PAPER BOOK. A COPY OF THE SAID BANK ACCOUNT WAS AVAILABLE WITH BOTH THE AUTHORITIES BELOW. THE LD. CIT(A) COULD HAVE OBTAINED COPY OF BANK ACCOUNT OF SH.ARPANPREET SING H FROM HDFC BANK AND COULD HAVE EXAMINED THE GENUINENESS OF LOAN FR OM SH. ARPANPREET SINGH. IT WAS TOO EARLY FOR THE LD. CIT(A) TO COME TO THE CONCLUSION THAT THE LOAN OF RS.4,90,000/- IS THE INCOME OF THE ASSESSEE . THUS, IN THE INTEREST OF JUSTICE, THE MATTER IS REMITTED BACK TO THE FILE OF THE LD. CIT(A), WHO WILL EXAMINE THE GENUINENESS OF LOAN, AS SUBMITTED BY TH E ASSESSEE FROM MR. ITA NO.109(ASR)/2014 8 ARPANPREET SINGH AND DECIDE THE ISSUE DENOVO, IN V IEW OF THE SUBMISSIONS MADE BY THE ASSESSEE BEFORE HIM BUT BY AFFORDING A DEQUATE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. THE ASSESSEE IS ALSO DIRECTED TO CO-OPERATE IN THE PROCEEDINGS BEFORE THE LD. CIT(A). THUS , GROUN DS NO. 1, 2 & 3 OF THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES. 7. GROUND NO.4 HAS NOT BEEN PRESSED BY THE LD. COUN SEL FOR THE ASSESSEE, THEREFORE, THE SAME IS DISMISSED AS NOT P RESSED. 8. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS PAR TLY ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 13TH FEBRUARY, 2015. SD/- SD/- (A.D.JAIN) (B.P. JAIN) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 13TH FEBRUARY, 2015 /SKR/ COPY OF THE ORDER FORWARDED TO: 1. THE ASSESSEE:SMT. MANDEEP KAUR, FARIDKOT 2. THE ITO WARD III(4), FARIDKOT. 3. THE CIT(A) 4. THE CIT 5. THE SR DR, ITAT, AMRITSAR. TRUE COPY BY ORDER (ASSISTANT REGISTRAR) INCOME TAX APPELLATE TRIBUNAL, AMRITSAR BENCH: AMRITSAR.