SMT. KISMAT KANWAR, Jaipur V. INCOME TAX OFFICER, WARD-3-3, Jaipur

ITA 1125/JPR/2018

• Counselvise Citation: [2020] 110 COUNSELVISE.COM (IT) 7079 (ITAT-JAIPUR)
• Duration Of Justice: 1 year(s) 11 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-09-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2006-2007
• Appeal Filed On: 28-09-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: CHANCHAL MEENA ACIT
• Keywords: Gift; Set aside

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENC HES, JAIPUR JH FOT; IKY JKO] U;KF;D LNL; ,OA JH FOE FLAG ;KNO] YS[KK LNL; DS LE{K BEFORE: SHRI VIJAY PAL RAO, JM & SHRI VIKRA M SINGH YADAV, AM VK;DJ VIHY LA- @ ITA NO. 1125/JP/2018 FU/KZKJ.K O'K Z @ ASSESSMENT YEAR :2006-07 SMT. KISMAT KANWAR B-2, BAWADI HOUSE, LINK ROAD S.C. ROAD, JAIPUR CUKE VS. INCOME TAX OFFICER WARD 3(3) NEW CENTRAL REVENUE BUILDING, STATUTE CIRCLE, JAIPUR LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO.: ASCPK0360P VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ L S@ ASSESSEE BY : NONE JKTLO DH VKSJ LS @ REVENUE BY : MS. CHANCHAL MEENA (ACIT) LQUOKBZ DH RKJH[ K@ DATE OF HEARING : 03/09/2020 MN?KKS'K.KK DH RKJH[ K@ DATE OF PRONOUNCEMENT: 08/09/2020 VKNS'K@ ORDER PER: VIKRAM SINGH YADAV, A.M. THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER OF LD. CIT(A)-1, JAIPUR DATED 03.07.2018 WHEREIN THE SOLE GROUND OF APPEAL RELATES TO CONFIRMATION OF ADDITION OF RS. 41,30,200 TOWARDS U NEXPLAINED INVESTMENT IN PURCHASE OF AGRICULTURAL LAND. 2. THE HEARING OF THE MATTER WAS SCHEDULED THROUGH VIDEO CONFERENCING IN VIEW OF THE ONGOING COVID-19 PANDEMIC SITUATION IN THE COUNTRY. NONE HAS APPEARED ON BEHALF OF THE ASSESSEE, HOWEVER, AN ADJ OURNMENT APPLICATION DATED 2.09.2020 WAS RECEIVED BY THE REGISTRY WHEREI N THE LD A/R HAS STATED THAT DUE TO SOME UNAVOIDABLE CIRCUMSTANCES, IT IS N OT POSSIBLE TO ATTEND TO HEARING. HOWEVER, WHAT ARE THE UNAVOIDABLE CIRCUMST ANCES HAVE NOT BEEN SPECIFIED. GIVEN THAT THE APPEAL WAS FILED WAY BAC K IN SEPTEMBER 2018 AND THE ITA NO. 1125/JP/2018 SMT. KISMAT KANWAR, JAIPUR VS. ITO, JAIPUR 2 HEARING IN THE MATTER HAS BEEN ADJOURNED FROM TIME TO TIME, IT WAS DECIDED THAT NO USEFUL PURPOSE WOULD BE SERVED IN ADJOURNIN G THE MATTER ANY FURTHER. IT WAS THUS DECIDED TO HEAR THE LD D/R AND CONSIDER THE WRITTEN SUBMISSIONS FILED BY THE LD A/R AND OTHER MATERIAL AVAILABLE ON RECORD. 3. AT THE OUTSET, WE NOTE THAT THIS IS THE 2 ND GROUND OF APPELLATE PROCEEDINGS. IN THE FIRST ROUND OF APPEAL, THE CO- ORDINATE BENCH VIDE ITS ORDER DATED 04.11.2011 HAS SET ASIDE THE MATTER TO THE FI LE OF LD. CIT(A) AND THE RELEVANT FINDINGS OF THE COORDINATE BENCH READ AS U NDER:- 10. AFTER CONSIDERATION THE SUBMISSIONS AND PERUSI NG THE MATERIAL ON RECORD, IT IS NOTED THAT IN THE BRIEF FACTS NOTICE CONTAINING WRITTEN SUBMISSIONS IT HAS BEEN STATED THAT NO CONSIDERATIO N IN CASH WAS TRANSFERRED AS AGRICULTURAL LAND WAS TRANSFERRED IN HER NAME JUST TO AVOID LITIGATION BETWEEN TWO BROTHERS. THE FATHER-IN-LAW OF THE ASSESSEE REGISTERED THE AGRICULTURAL LAND IN HER NAME. THIS ASPECT NEEDS TO BE EXAMINED AFRESH AND, THEREFORE, TO MEET THE ENDS OF JUSTICE, WE SET ASIDE THE ORDER OF LD. CIT(A) AND RESTORE THE MATTER BACK TO HIS FILE FOR PASSING A FRESH ORDER AFTER AFFORDING REASONABLE OPPORTUNIT Y OF BEING HEARD TO THE ASSESSEE. WE ORDER ACCORDINGLY. 4. DURING THE SET ASIDE THE PROCEEDINGS, LD. CIT(A) ISSUED NOTICES ON VARIOUS OCCASIONS. HOWEVER, THERE HAS BEEN NO COMPL IANCE AND HE HAS DECIDED THE APPEAL EX-PARTE QUA THE ASSESSEE WHEREIN THE LD. CIT(A) HAS REFERRED T O THE FINDINGS OF THE ASSESSING OFFICER IN THE ORIGIN AL PROCEEDINGS AND THE ADDITION SO MADE BY THE ASSESSING OFFICER HAS BEEN SUSTAINED. 5. IN ITS WRITTEN SUBMISSION, THE LD. A/R HAS SUBMI TTED AS UNDER:- THE ASSESSEE SMT. KISMAT KANWAR IS A WIDOW OF SHRI INDRAJEET SINGH AND USED TO LIVE WITH HER FATHER-IN-LAW WITH HER CH ILDREN. HIS FATHER-IN -LAW HAD TWO SONS; ONE OF WHOM WAS ASSESSEE'S HUSBA ND. BOTH THE ITA NO. 1125/JP/2018 SMT. KISMAT KANWAR, JAIPUR VS. ITO, JAIPUR 3 SONS OF HIS FATHER-IN-LAW HAD EXPIRED AND ALL THE R ESPONSIBILITY OF BOTH THE FAMILIES OF HIS SONS LIED UPON HIM. HE HAD 200 BIGHA OF AGRICULTURAL LAND. AS THE ASSESSEE LIVED WITH HER; AND SERVED HER MANY YEARS; HE TRANSFERRED A PIECE OF LAND IN HER N AME BEFORE HIS DEATH IN ORDER TO AVOID LITIGATION IN FUTURE BETWEE N THE LEGAL HEIRS OF HIS OTHER SONS. THOUGH, THERE WAS NO CONSIDERATION PAID BY HER FOR TRANSFER OF THE SAID LAND BUT THE SALE AGREEMENT WA S PREPARED LIKE AS IF THE LAND WAS PURCHASED BY HER PAYING THE REQUISI TE AMOUNT IN CASH BECAUSE IT WAS SUGGESTED BY SOME LEGAL COUNSEL TO H ER FATHER-IN-LAW THAT IF THE LAND IS GIFTED TO HER AND REGISTERED AS GIFT-DEED; IT CAN BE CHALLENGED AND WILL FALL INTO THE LITIGATION. THE LD. AO DIDN'T FIND THE FACT TENABLE AND ADDED T HE AMOUNT OF RS.41,30,200/-TO HER TOTAL INCOME. THE SAME WAS ALS O CONFIRMED BY THE LD.CIT (A). BUT THE HON'BLE ITAT ON THE BASIS O F SUBMISSION MADE BY THE A/R FOUND THAT THE LAND WAS TRANSFERRED WITHOUT CONSIDERATION; SET ASIDE THE ORDER TO BE EXAMINED A FRESH. ON RESTORATION OF THE ORDER, THE LD. CIT(A) ISSUED THE NOTICE FOR FIXING THE HEARING ON VARIOUS DATES BUT ALL WERE RETURNED UNSE RVED AS THE ASSESSEE CHANGED HER ADDRESS AND COULD'NT INFORM THE DEPARTM ENT. THE ASSESSEE SHIFTED TO NIRMAN NAGAR, MANSAROVAR IN THE YEAR 2011 TO A RENTED HOUSE. SHE AGAIN SHIFTED TO ANOTHER HOUSE SITUATED 259, MAHAVEER NAGAR-II, MAHARANI FARM, DURGAPURA, JAIPUR IN THE YEAR 2015,AND THEN AGAIN IN THE YEAR 2018 TO 158A, PRATA P MARG C-BLOCK, JASWANT NAGAR, KHATIPURA, JAIPUR WITH HER SON MR. A NIRUDH SINGH. SHE HAS TO SHIFT FROM ONE HOME TO ANOTHER AS SHE WAS LI VING IN THE RENTED HOUSE WITH HER SON AND DUE TO SOME OTHER FAMILY REA SONS. ALL THE RENT AGREEMENTS ARE ENCLOSED HEREWITH FOR YOUR KIND CONS IDERATION. HENCE, ALL THE NOTICES ISSUED BETWEEN THE PERIOD 2015 TO 2 018; ALL RETURNED UNSERVED. ITA NO. 1125/JP/2018 SMT. KISMAT KANWAR, JAIPUR VS. ITO, JAIPUR 4 THEN ON 13.04.2018, A NOTICE WAS ISSUED AND WAS HAN DED OVER TO THE A/R OF THE ASSESSEE MR. HANIF KHAN WHO REPRESENTED THE CASE OF THE ASSESSEE BEFORE THE LD .AO & CIT(A) FIXING THE DATE OF HEARING ON 03.05.2018. AS THE A/R ALSO COULDN'T FIND THE NEW A DDRESS OF THE ASSESSEE, HE SOUGHT AN ADJOURNMENT. MEANWHILE, A/R STARTED TO TRACE THE ASSESSEE BUT THE LD. CIT(A) DECIDED THE CASE EX -PARTE ON THE MATERIAL AVAILABLE ON RECORD IN A SHORT PERIOD OF TWO MONTHS RANGED FROM 03.05.2018 TO 25.06.2018. THE A/R ON FINDING THE ASSESSEE APPROACHED HER AND INFORMED HER ABOUT THE STATUS OF THE CASE. SHE HAS THEREFORE ONCE AGAI N PREFERRED AN APPEAL BEFORE YOUR KINDSELF TO RESTORE THE MATTER BACK TO THE LD. AO FOR EXAMINING THE FACTS OF THE CASE AND SEEK JUSTICE. 6. PER CONTRA, THE LD. DR SUBMITTED THAT THIS IS TH E SECOND ROUND OF APPELLATE PROCEEDINGS AND WHERE THE ASSESSEE CLAIMS THAT SHE HAS CHANGED HER ADDRESS, IT IS INCUMBENT ON PART OF THE ASSESSEE TO INFORM THE DEPARTMENT AND THE LATTER CANNOT BE EXPECTED TO INVESTIGATE THE NE W ADDRESS OF THE ASSESSEE. IT WAS ACCORDINGLY SUBMITTED THAT NUMBER OF NOTICES HAVE BEEN ISSUED BY THE OFFICE OF THE LD CIT(A) AND THERE HAS BEEN NO COMPL IANCE ON PART OF THE ASSESSEE, THEREFORE, THE LD CIT(A) HAS DECIDED THE MATTER BASED ON MATERIAL AVAILABLE ON RECORD AND NO FAULT LIES IN THE ORDER PASSED BY THE LD CIT(A). IT WAS FINALLY SUBMITTED THAT MORE THAN ADEQUATE OPPOR TUNITY HAS BEEN PROVIDED BY THE LD. CIT(A) AND NO USEFUL PURPOSE WOULD BE SE RVED IN PROVIDING FURTHER OPPORTUNITY TO THE ASSESSEE. 7. WE HAVE HEARD THE LD. D/R AND PURUSED THE MATER IAL AVAILABLE ON RECORD. WE FIND THAT THIS IS THE 2 ND ROUND OF APPELLATE PROCEEDINGS BEFORE THE TRIBUNAL. IN THE 1 ST ROUND OF APPELLATE PROCEEDINGS, THE ASSESSEE HAS SUBMITTED THAT NO CONSIDERATION IN CASH WAS TRANSFE RRED AS THE AGRICULTURAL LAND WAS TRANSFERRED IN HER NAME BY HER FATHER-IN-LAW TO AVOID LITIGATION BETWEEN ITA NO. 1125/JP/2018 SMT. KISMAT KANWAR, JAIPUR VS. ITO, JAIPUR 5 TWO BROTHERS. TO EXAMINE THE SAID FACTUAL ASSERTIO N SO MADE BY THE ASSESSEE THAT NO CONSIDERATION HAS PASSED FROM THE ASSESSEE TO HER FATHER-IN-LAW AND THUS, NO INVESTMENT WAS MADE BY THE ASSESSEE TOWARD S THE PURCHASE OF THE AGRICULTURE LAND, THE COORDINATE BENCH HAS SET-ASID E THE MATTER TO THE FILE OF THE LD CIT(A) WITH A SPECIFIC DIRECTION TO EXAMINE THE SAME. HOWEVER, WE FIND THAT IN ABSENCE OF COMPLIANCE TO THE VARIOUS NOTICE S ISSUED BY THE LD. CIT(A), THE LATTER HAS SUSTAINED THE FINDINGS OF THE ASSESS ING OFFICER IN THE ORIGINAL PROCEEDINGS. HOWEVER, ONCE THE MATTER HAS REACHED T HE TRIBUNAL AND THE TRIBUNAL HAS GIVEN A SPECIFIC DIRECTION, THE SAID D IRECTIONS NEED TO BE COMPLIED WITH AND A SPECIFIC FINDING NEEDS TO BE RECORDED IN TERMS OF EXAMINING THE SAID FACTUAL ASSERTION MADE BY THE ASSESSEE AND TAKING T HE SAME INTO CONSIDERATION, THE MATTER SHOULD HAVE BEEN DECIDED. IN THE INSTAN T CASE, THERE HAS BEEN ADMITTEDLY NO COMPLIANCE ON PART OF THE ASSESSEE, H OWEVER, THE LD CIT(A) COULD HAVE ASKED FOR A REPORT OF THE ASSESSING OFFICER WH ICH HAS NOT BEEN DONE EITHER AND THEN DECIDE THE MATTER. BASIS NON- COMPLIANCE ON PART OF THE ASSESSEE, THE LD CIT(A) HAS HOWEVER DECIDED THE MATTER WITHOU T RECORDING A SPECIFIC FINDING IN COMPLIANCE TO THE DIRECTIONS SO ISSUED, WHICH THUS REMAIN UNCOMPLIED WITH. 8. HAVING SAID THAT, WE BELIEVE THAT THE ASSESSEE C ANNOT SIT BACK AND RELAX MERELY BY FILING HER APPEAL AND NEEDS TO BE VIGILAN T AND RESPONSIVE TO ATTEND TO THE NOTICES ISSUED BY THE APPELLATE AUTHORITIES AND NON-ATTENDING TO THE PROCEEDINGS AND NOT RESPONDING TO THE NOTICES AND N OT INFORMING ABOUT THE CHANGE OF ADDRESS CANNOT BE ENCOURAGED AS THE SAME BURDENS AND CLOGS THE JUDICIAL SYSTEM AND WE STRONGLY DISAPPROVE THE SAME . HOWEVER, CONSIDERING THE OLD AGE AND STATUS OF THE ASSESSEE AND HER EXPLANAT ION THAT DUE TO SHIFT OF HER RESIDENTIAL ADDRESS (RENTED PREMISES) FROM TIME TO TIME, SHE COULDNT ATTEND TO THE APPELLATE PROCEEDINGS AND THE FACT THAT THE DIR ECTIONS OF THE CO-ORDINATE BENCH ARE NOT COMPLIED WITH, WE BELIEVE THAT IN THE INTEREST OF JUSTICE AND FAIR PLAY, THE ASSESSEE DESERVES ONE LAST OPPORTUNITY TO REPRESENT HER CASE AND TO PUT FORTH HER ARGUMENTS AND CONTENTIONS AS SO ADVIS ED BEFORE THE LD CIT(A) ITA NO. 1125/JP/2018 SMT. KISMAT KANWAR, JAIPUR VS. ITO, JAIPUR 6 AND WE SINCERELY HOPE THAT THE LD A/R SHALL ATTEND TO THE APPELLATE PROCEEDINGS ON BEHALF OF THE ASSESSEE AND ENSURE IN TIMELY COMP LETION OF THE SAME. THE MATTER IS ACCORDINGLY SET-ASIDE TO THE FILE OF THE LD CIT(A) WHO SHALL DECIDE THE SAME AFRESH AFTER PROVIDING REASONABLE OPPORTUNITY TO THE ASSESSEE. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FO R STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 08/09/2020. SD/- SD/- FOT; IKY JKO FOE FLAG ;KNO (VIJAY PAL RAO) (VIKRAM SINGH YADAV) U;KF;D LNL;@ JUDICIAL MEMBER YS[KK LNL;@ ACCOUNTANT MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 08/09/2020 * GANESH KR. VKNS'K DH IZFRFYFI VXZSFKR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT- SMT. KISMAT KANWAR, JAIPUR 2. IZR;FKHZ@ THE RESPONDENT- ITO, WARD 3(3), JAIPUR 3. VK;DJ VK;QDR@ CIT 4. VK;DJ VK;QDR@ CIT(A) 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ@ DR, ITAT, JAIPUR. 6. XKMZ QKBZY@ GUARD FILE {ITA NO. 1125/JP/2018} VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASST. REGISTRAR