Hemlata Agarwal, Kalimpong V. ITO, Ward - 1, Kalimpong, Kalimpong

ITA 1205/KOL/2010

• Counselvise Citation: [2011] 134 COUNSELVISE.COM (IT) 9403 (ITAT-KOLKATA)
• Duration Of Justice: 7 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-01-2011
• Appeal Filed By: Assessee
• Bench Allotted: SMC
• Assessment Year: 2006-2007
• Appeal Filed On: 14-06-2010
• Court: TRIBUNAL
• Department Lawyers: PIYUSH KOLHE LD
• Assessee Lawyers: S N GANGULY LD
• Keywords: Gift; Opportunity of being heard; Additional evidence

Judgement Text

, - IN THE INCOME TAX APPELLATE TRIBUNAL SMC-B BENCH : KOLKATA () BEFORE .., , SHRI B.K.HALDAR, ACCOUNTANT MEMBER ! / I.T.A.NO. 1205/KOL/2010 '#$ %&'/ ASSESSMENT YEAR : 2006-07 HEMLATA AGARWAL PAN: ACTPA 9051C - %# - - VERSUS -. INCOME-TAX OFFICER WARD 1, KALIMPONG (*+ / APPELLANT ) (,-*+/ RESPONDENT) *+ . / / FOR THE APPELLANT: / SHRI S.N.GANGULY, LD.AR ,-*+ . / / FOR THE RESPONDENT : / SHRI PIYUSH KOLHE, LD.DR 0 / ORDER .., , SHRI B.K.HALDAR, ACCOUNTANT MEMBER . THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER OF THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS), SILIGURI DATED 18/03/2010 FO R THE ASSESSMENT YEAR 2006-07. 2. THE APPEAL OF THE ASSESSEE IS DELAYED BY 8 DAYS. CONDONATION PETITION IS ON RECORD. THE LD.DR HAS NOT OBJECTED TO CONDONATION OF IMPUGNED DELAY. THE DELAY OF 8 DAYS IS CONDONED AND THE APPEAL OF THE ASSESSEE IS ADMITTED. 3. THE APPELLANT HAS TAKEN FOLLOWING GROUND OF APPE AL:- THAT THE APPEAL ORDER DATED 18.03.2010 PASSED BY TH E LD.C I T (APPEAL),SILIGURI UNDER APPEAL CASE NO- 100/CIT(A)/ SLG/08-09 IS ARBITRARY, ERRONEOUS AND IS BAD IN LAW. THAT THE ADDITION MADE BY THE LD ASSESSING OFFICER, KALIMPONG CONSIDERING LOAN AMOUNTING TO RS 2,85,000/- AS CASH CREDIT SHOULD HAVE BEEN ACCEPTED AS LOAN BY THE LD CIT(APPEAL) CO NSIDERING THE FACTS AND CIRCUMSTANCES OF THE CASE. THAT THE LD CIT (APPEALS),SILIGURI, FURTHER FAILED TO CONSIDER THAT THE LOAN AMOUNTING TO RS 38,000/- RECEIVED FROM TWO NEA R RELATIVES OF THE PETITIONER SHOULD HAVE BEEN ALLOWED.THE SAME WAS DU LY ACCOUNTED FOR. THE LD C I T (APPEAL) ALSO FAILED TO CONSIDER THAT THE LOAN GIVER HAD P A N AND THE REGULAR ASSESSEE UNDER THE INCOME TAX A CT1961 AND THE AMOUNT RECEIVED BY YOUR PETITIONER SHOULD NOT BE CO NSIDERED AS CASH CREDIT. THAT THE DISALLOWANCE OF GIFT RECEIVED BY YOUR PETI TIONER AMOUNTING TO RS 22,700/- IS ARBITRARY AS IT IS AN ACCUMULATION O F SMALL RECEIPTS FROM FRIENDS ON RELIGIOUS OCCASIONS AND THE ACCUMULATED GIFT BELOW THE RS 25000/- IS ELIGIBLE FOR ACCEPTANCE AND ALLOWABLE CO NSIDERING IT AS NOMINAL. ITA NO. 1205.KOL/2010 2 THAT YOUR PETITIONER CRAVES LEAVE OF YOU TO FILE AD DITIONAL GROUND OR GROUNDS OF APPEAL ON OR BEFORE THE FINAL DATE OF HE ARING. 4. THE ASSESSEE IS PROPRIETOR OF M/S. HEM INTERNAT IONAL. FOR THE AY 2006-07 SHE DISCLOSED A TOTAL INCOME OF RS.1,44,460/-. DURING THE SCRUTINY ASSESSMENT PROCEEDINGS IT WAS STATED BY HER THAT SHE HAS NO KNOWLEDGE REGARDING THE BUSINESS AND W AS UNABLE TO FURNISH BOOKS OF ACCOUNT ETC. RELATING TO THE BUSINESS AS THE SAME WERE LYING WIT H HER HUSBAND AT KOLKATA. SHE ALSO FURNISHED COPY OF GENERAL DIARY FILED BEFORE THE LOCAL POLI CE STATION DATED 02/08/2008. HOWEVER, SUCH CONTENTION OF THE ASSESSEE WAS NOT ACCEPTED BY THE AO. FROM THE DOCUMENTS FURNISHED ALONG WITH THE RETURN OF INCOME THE AO NOTICED THAT LOAN OF R S.2,85,000/- WAS TAKEN FROM THE ASSESSEES HUSBAND, SHRI MUKESH AGARWAL AND A FURTHER LOAN OF RS.38,000/- WAS TAKEN FROM SOME OTHER PARTIES. IT WAS ALSO NOTED BY HIM THAT THE ASSESSE E RECEIVED GIFTS OF RS.22,700/- DURING THE RELEVANT PREVIOUS YEAR. 4.1 AS THE ASSESSEE COULD NOT EXPLAIN THE ABOVE SAT ISFACTORILY, THE AO MADE ADDITIONS U/S. 68 OF THE ACT OF RS.2,85,000/-, RS.38,000/- AND RS.22,700 /-. THE AO ALSO MADE SOME OTHER ADDITIONS WITH WHICH ARE NOT CONCERNED. 5. AGGRIEVED THE ASSESSEE FILED APPEAL BEFORE THE LD.CIT(A). 6. BEFORE THE LD.CIT(A), IT WAS CONTENDED THAT THE ASSESSEE DID NOT HAVE ANY KNOWLEDGE ABOUT THE BUSINESS AND BOOKS OF ACCOUNT ETC WERE LYING WI TH HER HUSBAND, WITH WHOM SHE HAD STRAINED RELATIONSHIP. HOWEVER, AS THERE WAS NO EVIDENCE ON RECORD TO SUPPORT THE ABOVE CONTENTION OF THE ASSESSEE THE LD.CIT(A) CONFIRMED THE IMPUGNED ADDIT IONS. 7. AGGRIEVED THE ASSESSEE HAS FILED APPEAL BEFORE T HE TRIBUNAL. 8. THE LD.AR FOR THE ASSESSEE HAS SUBMITTED PAPER B OOK CONSISTING OF 21 PAGES, PAGES 8-21 BEING ADDITIONAL EVIDENCES. IT WAS CONTENDED BY HIM THAT THIS WOULD SHOW THAT THE ASSESSEE FINALLY FILED A SUIT OF MAINTENANCE AGAINST HER HUSBAND. AS THIS WOULD GO TO PROVE THAT THE CONTENTION OF THE ASSESSEE THAT DUE TO STRAINED RELATIONSHIP WITH HER HUSBAND, NECESSARY DOCUMENTS AS REQUIRED BY THE AO COULD NOT BE PRODUCED BEFORE HIM OR EVEN BEF ORE THE LD.CIT(A). IN VIEW OF THE ABOVE, I ADMIT SUCH ADDITIONAL EVIDENCE FURNISHED BY THE ASS ESSEE BEFORE THE TRIBUNAL FOR THE FIRST TIME. 8.1 THE LD.AR FOR THE ASSESSEE, THEREFORE, CONTENDE D THAT THE SUBMISSION OF THE ASSESSEE BEFORE THE AUTHORITIES BELOW THAT SHE HAD NO KNOWLEDGE OF THE BUSINESS AND ALL THE RELEVANT DOCUMENTS RELATING TO THE BUSINESS WERE WITH HER HUSBAND REQU IRED TO BE ACCEPTED. IT WAS, THEREFORE, PRAYED THAT NECESSARY RELIEF MAY BE GRANTED TO THE ASSESSE E. 9. THE LD.DR, ON THE OTHER HAND, RELIED ON THE ORDE RS OF THE AUTHORITIES BELOW. ITA NO. 1205.KOL/2010 3 10. I HAVE HEARD THE PARTIES AND PERUSED THE RECORD . I AM QUITE CONVINCED THAT THE ASSESSEE WAS HAVING STRAINED RELATIONSHIP WITH HER HUSBAND DUE TO WHICH NECESSARY DOCUMENTS COULD NOT BE PRODUCED BY HER BEFORE THE AUTHORITIES BELOW OR EVE N BEFORE ME. IT IS NOTICED THAT THE SAID PROPRIETARY CONCERN WAS NOT A NEW CONCERN AND WAS EXISTING EVEN IN EARLIER YEARS. THE AO HAS ALSO ACCEPTED THE RETURNED INCOME FURNISHED BY THE ASSESSEE AND THEREAFTER MADE VARIOUS ADDITIONS. AS SUCH THE SURROUNDING CIRCUMSTANCES AND THE CLAIM OF THE ASSESSEE THAT SHE KNEW NOTHING ABOUT THE BUSINESS WOULD GIVE A STRONG INDICATION THAT PR OBABLY THE PROPRIETARY CONCERN WAS A BENAMI CONCERN OF THE ASSESSEES HUSBAND. I FIND THAT THE CASE WAS NOT PROPERLY REPRESENTED BEFORE THE AUTHORITIES BELOW, IN SO FAR AS NO REQUEST WAS MADE TO THE AUTHORITIES BELOW FOR SUMMONING THE HUSBAND OF THE ASSESSEE TO ASCERTAIN THE REAL FACTS . IN THE ABOVE CIRCUMSTANCES, I AM OF THE CONSIDERED OPINION THAT THE IMPUGNED ORDERS OF THE AUTHORITIES BELOW ARE REQUIRED TO BE SET ASIDE AND THE MATTER IS REQUIRED TO BE REMANDED BACK TO THE FILE OF THE AO FOR PASSING A FRESH ORDER AFTER GIVING THE ASSESSEE ADEQUATE OPPORTUNITY OF BEING HEARD. I HOLD ACCORDINGLY. 11. IN THE RESULT, THE APPEAL FILED BY THE ASSESEE IS ALLOWED FOR STATISTICAL PURPOSE. 0 1 2 1# 3 4 THIS ORDER IS PRONOUNCED IN THE OPEN COURT ON 14-0 1-2011 SD/- ( .. , ) (B.K.HALDAR, ACCOUNTANT MEMB ER) (5) DATE :14-01-2011 *PP / SR. PRIVATE SECRETARY : 0 . ,''6 76&8- COPY OF THE ORDER FORWARDED TO: 1. (*+ / APPELLANT ) : HEMLATA AGARWAL B.C MINTRI ROAD, KALIMPONG, 7343 01, W.B 2. ( ,-*+/ RESPONDENT) : ITO, W-1, KALIMPONG 3. '0# ( )/ THE CIT(A) 4. '0# ( )/ THE CIT 5. %9'3 ,'# / DR, KOLKATA BENCH 6. GUARD FILE -6 ,'/ TRUE COPY, 0#1/ BY ORDER, : ; /DEPUTY REGISTRAR