Smt. Manju Rohilla, Nalagarh V. Addl. CIT, Solan

ITA 1098/CHANDI/2009

• Counselvise Citation: [2015] 121 COUNSELVISE.COM (IT) 1564 (ITAT-CHANDIGARH)
• Duration Of Justice: 5 year(s) 8 month(s) 14 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-08-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 23-07-2015
• Assessment Year: 2005-2006
• Appeal Filed On: 19-11-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: DR AMA RVEER SINGH
• Keywords: Gift; Opportunity of being heard; Additional evidence

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DIVISION BENCH, CHANDIGARH BEFORE SHRI BHAVNESH SAINI, JUDICIAL MEMBER AND SHRI T.R.SOOD, ACCOUNTANT MEMBER ITA NO. 1098/CHD/2009 (ASSESSMENT YEAR : 2005-06) SMT.MANJU ROHILLA, VS. THE ADDL.C.I.T., NEW NALAGARH. SOLAN RANGE, SOLAN. PAN: ADXPR-5607-G (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI SURINDER BABBAR RESPONDENT BY : DR.AMAR VEER SINGH, DR DATE OF HEARING : 23.07.2015 DATE OF PRONOUNCEMENT : 03.08.2015 O R D E R PER BHAVNESH SAINI, J.M. : THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF LEARNED COMMISSIONER OF INCOME TAX (APPEALS), SHIMLA DATED 22.9.2009 FOR ASSESSMENT YE AR 2005-06, CHALLENGING THE LEVY OF PENALTY UNDER SECT ION 271D OF THE INCOME TAX ACT, 1961 (IN SHORT THE ACT ). 2. THIS APPEAL WAS REFIXED WHILE ALLOWING THE MISCELLANEOUS APPLICATION NO.120/2014 FILED BY THE ASSESSEE VIDE ORDER DATED 21.11.2014 AND OFFICE WAS DIRECTED TO FIX THE APPEAL FOR HEARING ON MERITS AGAINST THE IMPUGNED O RDER. 2 3. THE FACTS OF THE CASE ARE THAT THE ASSESSING OF FICER NOTICED THAT THE ASSESSEE IN HER BALANCE SHEET HAD SHOWN LIABILITY OF RS.18,70,000/- UNDER THE HEAD IMPREST ACCOUNT ON THE LIABILITY SIDE OF THE BALANCE SHEET, WHICH C LEARLY INDICATED THAT THIS AMOUNT WAS UNSECURED LOAN SHOWN AS IMPREST ACCOUNT. THE ASSESSEE WAS ASKED TO PROV E THE GENUINENESS OF THIS LIABILITY. THE REPLY OF THE A SSESSEE WAS NOT FOUND TO BE SATISFACTORY AND THE ASSESSING OFFI CER IMPOSED PENALTY OF RS.14 LACS UNDER SECTION 271D OF THE ACT . THE ASSESSEE SUBMITTED BEFORE THE LEARNED CIT (APPEALS) THAT THE ORDER PASSED BY THE ASSESSING OFFICER IS BARRED BY LIMITATION AND THAT THE PENALTY HAS BEEN WRONGLY IMPOSED. IT WAS SUBMITTED THAT THE ASSESSEE WAS ENGAGED IN THE BUSI NESS OF EMBROIDERY AND TAILORING AND IN THE BALANCE SHEET, THE ASSESSEE HAS SHOWN TWO ITEMS OF UNSECURED LOAN OF R S.2 LACS AND IMPREST ACCOUNT OF SHRI V.S.ROHILLA AT RS.18,70 ,000/-. IT WAS EXPLAINED THAT A SUM OF RS.14 LACS WAS RECEI VED FROM SHRI V.S.ROHILLA AND HIS BANK STATEMENT WAS PLACED ON RECORD. THE ASSESSEE ENVISAGED TO START A NEW BUSINESS OF L ICENSED LIQUOR SHOP AND FOR THIS PURPOSE, SHE WAS TO DEPOSI T EARNEST MONEY IN THE RANGE OF RS.20 LACS TO 25 LACS FOR PAR TICIPATING IN THE AUCTION. AFTER AUCTION ON 16.3.2005, SHE D EPOSITED A SUM OF RS.25,99,000/- IN CASH IN THE SAVING BANK AN D GOT ISSUED DD IN FAVOUR OF THE EXCISE & TAXATION DEPART MENT, SOLAN. BEING UNSUCCESSFUL IN THE AUCTION, SHE GOT BACK THE MONEY AND DEPOSITED THE SAME IN HER SAVING BANK ACC OUNT. THUS, THE AMOUNT OF RS.14 LACS GIVEN BY HER HUSBAND TO THE ASSESSEE WAS NEITHER A LOAN NOR DEPOSIT. THE ASSES SEE TOOK 3 THE MONEY IN EXCEPTIONAL CIRCUMSTANCES TO ACCOMMODA TE THE EMERGENCY NEED FOR THE TIME BEING. SECTION 269SS O F THE ACT HAS NO APPLICATION IN CASES OF GENUINE TRANSACTIONS FOR THE SIMPLE REASON THAT THERE IS NO TAX EVASION. THE A SSESSEE RELIED UPON CERTAIN DECISIONS IN SUPPORT OF HER CON TENTION. 4. THE LEARNED CIT (APPEALS) FOUND THAT THE PENALT Y ORDER IS WITHIN TIME. IT WAS UNDISPUTED FACT THAT THE ASSESSEE HAS SHOWN IN HER BALANCE SHEET A LIABILITY OF RS.18,70,000/- UNDER THE HEAD IMPREST ACCOUNT WIT H SHRI V.S.ROHILLA. THE FACT THAT THE ACCOUNT WAS ON THE LIABILITY SIDE OF THE BALANCE SHEET, SHOWS THAT THIS WAS UNSE CURED LOAN. OUT OF THIS, AN AMOUNT OF RS.14 LACS WAS RE CEIVED BY THE ASSESSEE IN CASH FROM HER HUSBAND AND SHOWN AS LIABILITY IN THE BALANCE SHEET. THE LEARNED CIT (APPEALS), T HEREFORE, FOUND THAT THE AMOUNT OF RS.14 LACS RECEIVED IN CAS H AND SHOWN IN THE BALANCE SHEET CLEARLY ATTRACT THE PROV ISIONS OF SECTION 269SS OF THE ACT FOR LEVY OF PENALTY. IT WAS ALSO FOUND THAT THERE IS CONTRADICTION IN THE STAND OF T HE ASSESSEE BEFORE THE AUTHORITIES BELOW THAT THE ASSESSEE CLAI MED TO BE A GIFT FROM HUSBAND BEFORE THE ASSESSING OFFICER BUT IN APPEAL, IT WAS CLAIMED THAT THE AMOUNT IS TAKEN IN EXCEPTIO NAL CIRCUMSTANCES TO START A NEW VENTURE. THE PLEA OF THE ASSESSEE WAS NOT ACCEPTED AND THE APPEAL OF THE ASS ESSEE WAS DISMISSED. 5. THE LEARNED COUNSEL FOR THE ASSESSEE REITERATED THE SUBMISSIONS MADE BEFORE THE AUTHORITIES BELOW AND S UBMITTED THAT THE BANK ACCOUNT OF HUSBAND OF THE ASSESSEE FR OMWHERE 4 THE CASH AMOUNT OF RS.14 LACS WAS WITHDRAWN ON 1.3. 2005 WAS FILED BEFORE THE ASSESSING OFFICER AND LOAN IN CASH WAS TAKEN ON 1.3.2005, WHICH IS SHOWN ON THE LIABILITY SIDE O F THE ASSESSEE. HE HAS SUBMITTED THAT THE AMOUNT IN QUE STION WAS TAKEN IN EXCEPTIONAL CIRCUMSTANCES FOR PARTICIPATIN G IN THE AUCTION OF NEW BUSINESS OF LICENSED LIQUOR SHOP. THE LEARNED COUNSEL FOR THE ASSESSEE FILED AN APPLICATION UNDER RULE 29 OF THE APPELLATE TRIBUNAL RULES AND SUBMITTED THAT FOL LOWING ADDITIONAL EVIDENCE MAY BE ADMITTED FOR HEARING, I. E.: I) CERTIFICATE DATED 17.10.2011 OBTAINED FROM STATE BANK OF PATIALA, NALAGARH REGARDING ISSUE OF DD OF RS.25 LACS ON 16.3.2005 IN FAVOUR OF EXCISE & TAXATION COMMISSIONER FOR PARTICIPATING IN THE AUCTION FOR LIQUOR LICENCES FOR THE YEAR 2005-06 AN D ITS CANCELLATION ON 19.3.2005. II) FORM A (VALUE OF ASSETS OF AN INTENDING BIDDE R) III) AFFIDAVIT-DECLARATION REGARDING ACCEPTANCE OF TERMS AND CONDITIONS CONTAINED IN THE TENDER DOCUMENT AND IN EXCISE ANNOUNCEMENTS FOR THE YEAR 2005-06. IV) GENERAL POWER OF ATTORNEY IN FAVOUR OF HER HUSB AND. 6. THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT THESE DOCUMENTS WERE NOT AVAILABLE WITH THE ASSESSE E DURING THE APPELLATE PROCEEDINGS. HE SUBMITTED THAT THESE DOCUMENTS ARE VITAL AND NECESSARY FOR DISPOSAL OF T HE APPEAL. THEREFORE, THE SAME MAY BE ADMITTED AS ADDITIONAL E VIDENCE AT THIS STATE. 5 7. ON THE OTHER HAND, THE LEARNED D.R FOR THE REVE NUE RELIED UPON ORDERS OF THE AUTHORITIES BELOW AND SUB MITTED THAT THE ADDITIONAL EVIDENCE MAY NOT BE ADMITTED FOR HEA RING. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND MATERIAL AVAILABLE ON RECORD. THE ASSESSEE EXPLAINED THAT THE SUM OF RS.14 LACS WAS RECEIVED BY HER FROM HER HUSBAND IN CASH ON 1.3 .2005, WHICH WAS WITHDRAWN FROM BANK ACCOUNT OF HER HUSBAN D ON 1.3.2005. THE AMOUNT OF RS.14 LACS WAS RECEIVED F ROM HER HUSBAND FOR PARTICIPATING IN THE AUCTION OF GETTING OF LICENSED LIQUOR SHOP. THE ABOVE SUBMISSIONS WOULD SHOW THA T THE AMOUNT IN QUESTION WOULD HAVE BEEN RECEIVED BY THE ASSESSEE FOR PARTICIPATING IN AUCTION OF LIQUOR SHOP. THE ABOVE ADDITIONAL EVIDENCES PRIMA-FACIE SUPPORT THE EXPLAN ATION OF THE ASSESSEE WITH REGARD TO PARTICIPATING IN THE AU CTION OF LICENSED LIQUOR SHOP. THE ASSESSEE ALSO EXPLAINED THAT AT THE TIME OF PROCEEDINGS BEFORE THE AUTHORITIES BELOW TH ESE DOCUMENTS WERE NOT AVAILABLE WITH THE ASSESSEE WHIC H ARE OBTAINED AT THIS STAGE. THESE DOCUMENTS, THEREFOR E, APPEAR TO BE VITAL AND NECESSARY FOR JUST DECISION IN THE MATTER. THE HON'BLE PUNJAB & HARYANA HIGH COURT IN THE CASE OF CIT VS. MUKTA METAL WORKS, 336 ITR 555 HELD THAT THE REPORT OF THE FORENSIC SCIENCE LABORATORIES WAS A RELEVANT MATERI AL AND SO WAS THE AFFIDAVIT OF SUCH PERSON. THE ADDITIONAL EVIDENCE WAS NECESSARY FOR JUST DECISION OF THE MATTER. THE TRIBUNAL WAS NOT JUSTIFIED IN DECLINING TO CONSIDER THE ADDI TIONAL EVIDENCES. THE HON'BLE SUPREME COURT IN THE CASE O F TEK 6 RAM VS. CIT, 262 CTR (SC) 118 HELD THAT WHEN THE AS SESSEE FILED CERTAIN DOCUMENTS BEFORE THE HON'BLE SUPREME COURT FOR THE FIRST TIME, WHICH WERE OF SOME RELEVANCE AND AR E REQUIRED TO BE LOOKED INTO BY THE HIGH COURT FOR DECIDING TH E APPEAL, THE IMPUGNED ORDER PASSED BY THE HIGH COURT WAS SET ASIDE AND THE MATTER WAS REMANDED TO THE HIGH COURT FOR F RESH DISPOSAL OF THE APPEAL AFTER ACCEPTING THE DOCUMENT S FILED BY THE ASSESSEE. CONSIDERING THE ABOVE FACTS IN THE L IGHT OF THE MATERIAL ON RECORD, WE ARE OF THE VIEW THAT THE ADD ITIONAL EVIDENCES ARE RELEVANT, VITAL AND NECESSARY FOR JUS T DISPOSAL OF THE APPEAL AND COULD THROW SOME LIGHT TO THE EXCEPT IONAL CIRCUMSTANCES EXPLAINED BY THE ASSESSEE FOR CLAIMI NG THAT THE PENALTY MAY NOT BE LEVIED IN THE MATTER. WE, THER EFORE, ADMIT THE ABOVE ADDITIONAL EVIDENCES FOR HEARING OF THE A PPEAL ON MERITS. SINCE THESE ADDITIONAL EVIDENCES ARE FILE D FOR THE FIRST TIME BEFORE THE TRIBUNAL AND HAVE NOT BEEN GO NE THROUGH BY THE ASSESSING OFFICER, THEREFORE, IN OUR VIEW, T HE MATTER REQUIRES RECONSIDERATION AT THE LEVEL OF THE ASSESS ING OFFICER TO GIVE REVENUE AUTHORITIES AN OPPORTUNITY TO EXAMI NE THE ADDITIONAL EVIDENCES AFRESH AND GIVE FINDING THEREO N IN ACCORDANCE WITH LAW. IN VIEW OF THE ABOVE DISCUSS ION, WE SET ASIDE THE ORDERS OF THE AUTHORITIES BELOW AND RESTO RE THE MATTER IN ISSUE TO THE FILE OF THE ASSESSING OFFICE R WITH DIRECTION TO REDECIDE THE PENALTY MATTER UNDER SECT ION 271D OF THE ACT IN THE LIGHT OF THE ADDITIONAL EVIDENCES SO ADMITTED ABOVE. THE ASSESSING OFFICER SHALL GIVE REASONABLE SUFFICIENT OPPORTUNITY OF BEING HEARD TO THE ASSESSEE BEFORE P ASSING THE ORDER. THE ASSESSEE IS DIRECTED TO FILE COPIES OF THE ABOVE 7 ADDITIONAL EVIDENCES BEFORE THE ASSESSING OFFICER F OR HIS CONSIDERATION IN ACCORDANCE WITH LAW. 8. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS AL LOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 3 RD DAY OF AUGUST, 2015. SD/- SD/- (T.R.SOOD) (BHAVNESH SAINI) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 3 RD AUGUST, 2015 *RATI* COPY TO: THE APPELLANT/THE RESPONDENT/THE CIT(A)/THE CIT/THE DR. ASSISTANT REGISTRAR, ITAT, CHANDIGARH