ITO,Ward 2(1), Nashik V. Smt. Kamlabai Deokisan Sarda, Nashik

ITA 1180/PUN/2010

• Counselvise Citation: [2011] 140 COUNSELVISE.COM (IT) 56613 (ITAT-PUNE)
• Duration Of Justice: 1 year(s) 3 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-12-2011
• Appeal Filed By: Department
• Order Result: Partly Allowed
• Bench Allotted: B
• Assessment Year: 2005-2006
• Appeal Filed On: 30-08-2010
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: ANN KAPUSTHAMA
• Keywords: Opportunity of being heard
• Section: 143(3); 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH B, PUNE BEFORE SHRI I C SUDHIR, JUDICIAL MEMBER AND SHRI G.S. PANNU, ACCOUNTANT MEMBER ITA NO 1180/PN/10 (ASSTT. YEAR: 2005-06) INCOME-TAX OFFICER, .. APPELLANT WARD 2(1), NASHIK VS. SMT KAMALABAI DEOKISAN SARDA, .. RESPONDENT A-38, NICE, SATPUR, NASHIK PAN AWMPS5793A APPELLANT BY: SMT ANN KAPUSTHAMA RESPONDENT BY: NONE DATE OF HEARING : 07.12.2011 DATE OF PRONOUNCEMENT : 15.12.2011 ORDER PER G.S. PANNU, AM THIS APPEAL BY THE REVENUE ARISES OUT OF THE ORDER OF THE COMMISSIONER OF INCOME-TAX (APPEALS)-II, NASHIK DAT ED 14.6.2010 WHICH, IN TURN, HAS ARISEN FROM AN ORDER DATED 24.1 2.2007 PASSED BY THE ASSESSING OFFICER UNDER SECTION 143(3) OF THE I NCOME-TAX ACT, 1961 (IN SHORT THE ACT) PERTAINING TO THE ASSESSMENT Y EAR 2005-06. 2. THE FIRST GROUND RAISED IN THE REVENUES APPEAL IS THAT THE COMMISSIONER OF INCOME-TAX (APPEALS) ERRED IN DELET ING THE ADDITION MADE ON ACCOUNT OF INCOME FROM HOUSE PROPERTY WITHO UT APPRECIATING 2 THE FACTS OF THE CASE. THE RELEVANT FACTS, IN BRIE F, ARE THAT THE ASSESSEE SHOWED PROPERTY INCOME OF RS 3,30,000/- IN THE RETURN OF INCOME. DURING THE COURSE OF ASSESSMENT PROCEEDINGS , THE ASSESSING OFFICER NOTICED THAT ASSESSEE HAD CLAIMED TDS BY FI LING CERTIFICATE AS PER WHICH THE PROPERTY INCOME WAS SHOWN AT RS 13,74 ,000/-. THE ASSESSING OFFICER SHOW-CAUSED THE ASSESSEE TO EXPLA IN THE SAME, TO WHICH THE ASSESSEE REPLIED THAT ONLY 1/4 TH OF THE PROPERTY INCOME WAS ADMITTED AND BALANCE AMOUNT WAS OFFERED BY MISS NEE RAJ VIKRAM SARDA (MAJOR), MISS OJASHREE VIKRAM SARDA (MINOR) A ND MRS VANITA G SARDA (MINOR). IT WAS FURTHER EXPLAINED THAT THE IN COME IN RESPECT OF MISS NEERAJ WAS ADMITTED IN THE RETURN FILED BY HER WHEREAS IN RESPECT OF THE TWO MINORS THE INCOME WAS CLUBBED IN THE HAN DS OF MR VIKRAM DEOKISAN SARA BEING THE FATHER OF THE TWO MINORS. THE ASSESSING OFFICER WAS NOT SATISFIED WITH THE EXPLANATION OF T HE ASSESSEE AND MADE ADDITION OF THE ENTIRE AMOUNT SHOWN IN THE TDS CERTIFICATE. 3. IN APPEAL, THE COMMISSIONER OF INCOME-TAX (APPEA LS) DELETED THE ADDITION HOLDING AS FOLLOWS: DURING THE COURSE OF THE APPEAL, THE APPELLANT SER IOUSLY OBJECTED TO THE ABOVE ADDITION ON THE GROUND THAT THE INCOME ADMITT ED BY THE OTHER CO- OWNERS WAS NOT CONSIDERED BY THE AO AND THE PROPERT Y INCOME WAS ADOPTED AS PER THE TDS CERTIFICATE. THE APPELLANT WAS ABLE TO FILE SUFFICIENT EVIDENCE BEFORE THE AO AT THE TIME OF ASSESSMENT PROCEEDINGS BY THE AO CONSIDERED THE SAME AS NOT APPLICABLE. IT IS SEEN THAT THE OTH ER CO-OWNERS ADMITTED THEIR SHARE OF INCOME OF THE PROPERTY IN THE RESPEC TIVE RETURNS OF INCOME AND THE COPIES OF THE SAME WERE FILED BEFORE THE AO AND THE AO SHOULD HAVE CONSIDERED THE SAME AND GIVEN CREDIT. THERE IS NO V ALID BAIS FOR BRING THE ENTIRE PROPERTY INCOME IN THE HANDS OF THE APPELLAN T PARTICULARLY WHEN OTHER CO-OWNERS SHOWED THE INCOME TO THE DEPARTMENT. THE EVIDENCE FILED BY THE APPELLANT BEFORE THE AO IS ACCEPTABLE AND THE ADDIT ION MADE BY THE AO IS DELETED. AGGRIEVED, REVENUE IS IN APPEAL BEFORE US. 4. AT THE TIME OF HEARING BEFORE US, NONE APPEARED ON BEHALF OF THE RESPONDENT-ASSESSEE. THE APPEAL IS, THEREFORE, DECI DED ON MERITS, AFTER HEARING THE LEARNED DEPARTMENTAL REPRESENTATI VE. 3 5. THE LEARNED DEPARTMENTAL REPRESENTATIVE ASSAILED THE ORDER OF THE COMMISSIONER OF INCOME-TAX (APPEALS) AND SUBMIT TED THAT THE COMMISSIONER OF INCOME-TAX (APPEALS) WAS WRONG IN D ELETING THE IMPUGNED ADDITION. HE SUBMITTED THAT THE ASSESSING OFFICER WAS JUSTIFIED IN MAKING THE ADDITION AS THERE WAS NO EV IDENCE PRODUCED BY THE ASSESSEE IN SUPPORT OF HER CLAIM OF DISTRIBUTIO N OF THE PROPERTY. THE LEARNED DEPARTMENTAL REPRESENTATIVE ACCORDINGLY DEF ENDED THE ORDER OF THE ASSESSING OFFICER. 6. WE HAVE CONSIDERED THE SUBMISSIONS OF THE LEARNE D DEPARTMENTAL REPRESENTATIVE AND HAVE ALSO GONE THRO UGH THE ORDERS OF THE AUTHORITIES BELOW. AS RIGHTLY POINTED OUT BY TH E LEARNED DEPARTMENTAL REPRESENTATIVE, THE ASSESSEE HAS NOT F URNISHED ANY DOCUMENTARY EVIDENCE OF TRANSFERRING THE PROPERTY A MONGST OTHER PURPORTED CO-OWNERS. FURTHER, IN ORDER TO GET THE B ENEFIT OF DISTRIBUTION OF RENTAL INCOME, THE ASSESSEE SHOULD HAVE PRODUCED EVIDENCE IN RESPECT OF TRANSFER OF PROPERTY IN THE NAMES OF OTH ER CO-OWNERS. WE ALSO FIND THAT FOR THE PRECEDING ASSESSMENT YEAR 20 03-04, THE ASSESSEE HERSELF HAD OFFERED THE ENTIRE INCOME FOR TAXATION UNDER THE HEAD INCOME FROM HOUSE PROPERTY AND WITHOUT ANY D OCUMENTARY EVIDENCE HAS MADE A CLAIM THAT SHE HAS DIVIDED HER INCOME INTO THREE OTHER CO-OWNERS. THE COMMISSIONER OF INCOME-TAX (AP PEALS) HAS MERELY GONE BY THE SUBMISSION OF THE ASSESSEE MADE BEFORE HIM WITHOUT EXAMINING ANY EVIDENCE OR CALLING FOR ANY M ATERIAL FROM THE ASSESSEE. IN VIEW OF THIS, WE DEEM IT FIT AND PROPE R TO SET ASIDE THE ORDER OF THE COMMISSIONER OF INCOME-TAX (APPEALS) O N THIS ASPECT AND RESTORE THE ISSUE TO HIS FILE FOR FRESH ADJUDICATIO N. NEEDLESS TO MENTION, THE COMMISSIONER OF INCOME-TAX (APPEALS) SHALL AFFO RD A REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE IN THE M ATTER, AND THEN 4 ADJUDICATE AFRESH. AS A RESULT, THIS GROUND OF APPE AL OF THE REVENUE IS ALLOWED AS ABOVE. 7. THE NEXT GROUND OF APPEAL IS WITH REGARD TO ADDI TION OF RS 2,25,000/- MADE UNDER SECTION 68 OF THE ACT. THE AS SESSING OFFICER NOTICED THAT THE ASSESSEE HAD DEPOSITED CASH IN JAN ALAXMI BANK ACCOUNT NO. 102100 TOTALLING TO RS 2,25,000/- IN TH E MONTH OF MARCH. AS THE DATES OF THE SAID DEPOSITS WERE NOT LEGIBLE AND THE ASSESSEE FAILED TO EXPLAIN THE SOURCES OF THE SAID DEPOSITS, THE ASSESSING OFFICER PROCEEDED TO MAKE ADDITION OF RS 2,25,000/- UNDER S ECTION 68 OF THE ACT AS UNEXPLAINED DEPOSITS. 8. BEFORE THE COMMISSIONER OF INCOME-TAX (APPEALS), IT WAS SUBMITTED BY THE ASSESSEE THAT THE AMOUNT WAS WITHD RAWN FROM THE BOOKS IN THE MONTH OF JUNE, 2004 WHICH WAS DEPOSITE D IN THE BANK IN THE MONTH OF MARCH, 2005 AND, THEREFORE, THE SAID A MOUNT WAS OUT OF BOOKS ONLY AND THUS, THE ASSESSING OFFICER WAS NOT JUSTIFIED IN MAKING THE ADDITION OF RS 2,25,000/- UNDER SECTION 68 OF T HE ACT. THE COMMISSIONER OF INCOME-TAX (APPEALS) DELETED THE AD DITION ON THE GROUND THAT THE ASSESSEE WAS ABLE TO RECONCILE THE CASH WITHDRAWALS AND CASH DEPOSITS AS PER THE CASH BOOK AND BANK ACC OUNT AND, THEREFORE, THE ADDITION UNDER SECTION 68 OF THE ACT WAS NOT JUSTIFIABLE. THE REVENUE IS IN APPEAL AGAINST THE SAID DECISION OF THE COMMISSIONER OF INCOME-TAX (APPEALS). 9. AFTER HEARING THE LEARNED DEPARTMENTAL REPRESENT ATIVE AND HAVING PERUSED THE ORDERS OF THE AUTHORITIES BELOW, WE FIND NO ERROR OR INFIRMITY IN THE ORDER OF THE COMMISSIONER OF INCOM E-TAX (APPEALS) ON THIS ISSUE. WE FIND THAT THE ASSESSEE WAS ABLE TO RECONCILE THE CASH WITHDRAWALS AND CASH DEPOSITS AS PER THE CASH BOOK AND BANK ACCOUNT AND ACCORDINGLY, THE CONCLUSION OF THE COMMISSIONER OF INCOME-TAX 5 (APPEALS) DOES NOT WARRANT ANY INTERFERENCE AT OUR END. WE AFFIRM HIS FINDING ON THIS ISSUE. RESULTANTLY, REVENUE FAILS O N THIS GROUND. 10. IN THE RESULT, REVENUES APPEAL IS PARTLY ALLOW ED. DECISION PRONOUNCED IN THE OPEN COURT ON THE 15 TH DAY OF DECEMBER, 2011. SD/- SD/- (I C SUDHIR) (G.S. PAN NU) JUDICIAL MEMBER ACCOUNTANT MEM BER PUNE, DATED: 15 TH DECEMBER, 2011 B COPY TO:- 1) APPELLANT 2) RESPONDENT 3) THE CIT (A)-II, NASHIK 4) CIT-I, NASHIK 5) DR, B BENCH, ITAT, PUNE. 6) GUARD FILE TRUE COPY BY ORDER SR. PS, I.T.A.T., PUNE