Late Shri Vishnudas Sharma, Nanded V. ITO, Nanded

ITA 1273/PUN/2009

• Counselvise Citation: [2011] 140 COUNSELVISE.COM (IT) 49816 (ITAT-PUNE)
• Duration Of Justice: 1 year(s) 6 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-05-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2003-2004
• Appeal Filed On: 06-11-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: L RAMAJI RAO
• Assessee Lawyers: S N DOSHI
• Keywords: Opportunity of being heard; Additional evidence

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH A , PUNE BEFORE SHRI I.C. SU DHIR JUDICIAL MEMBE R AND SHRI D. KARUNAKARA RAO ACCOUNTANT MEMBER ITA NO. 1273 /PN/200 9 ( ASSTT. YEAR : 200 3 - 04 ) LATE SHRI. VISHNUDAS SHARMA , APPELLANT L/H. SMT. L AXMIBAI SHARMA GOKUL NAGAR, NANDED P A N : NOT AVAILABLE VS. TAX RECOVERY OFFICER (I.T) , CONCURRED WITH RESPONDENT ITO WARD 3(1), NANDED APPELLANT BY : SHRI S.N. DOSHI RESPONDENT BY : SHRI L. RAMAJI RAO ORDER PER D. KARUNAKARA RAO A M THE ASSESSEE HAS QUESTIONED FIRST APPELLATE ORDER WHEREBY LD CIT(A) HAS SUSTAINED THE ADDITION OF RS. 11,00,000/ - ON ACCOUNT OF UNDISCLOSED INVESTMENT RELYING UPON THE DECLARATION MADE IN THE STATEMENT RECORDED AT THE TIME OF SURVEY. 2. THE LD. A.R. CONTENDED THAT WHEN STATEMENT OF THE ASSESSEE (THE LATE HUSBAND OF THE LEGAL HEIR) WAS RECORDED DURING THE COURSE OF SURVEY OPERATION, HE WAS NOT FEELING WELL AND DUE TO ILL - HEALTH, HE HAD GIVEN STATEMENT UNDER PR ESSURE. THE AUTHORISED OFFICER AT THE TIME OF SURVEY, DID NOT BOTHER TO OBTAIN INFORMATION FROM THE FIRM SAMAY PLAZA TO CONFIRM ABOUT THE FACT AS TO WHETHER THE ASSESSEE HAD MADE ANY INVESTMENT IN THE LATE SHRI. VISHNUDAS SHARMA A.Y. 2003 - 04 2 SAID FIRM. ON THE BASIS OF SUCH STATEMENT OF THE ASSESSEE , THE A.O. HAS MADE ADDITION WHICH HAS BEEN UPHELD BY THE LD CIT(A) WITHOUT APPRECIATING THAT THE ADDITION IN QUESTION HAS BEEN MADE BY THE A.O WITHOUT ANY COGENT EVIDENCE OR PROOF. HE SUBMITTED THAT SAMAY PLAZA SCHEME IS OWNED BY M/S. SAHARA CONSTRUCTION AND NO SUCH INVESTMENT APPEARS IN THE BOOKS OF THE SAID M/S. SAHARA CONSTRUCTION. THE LD. A.R. SUBMITTED THAT IN SUPPORT OF H IS CASE, THE ASSESSEE WANTED TO FURNISH SOME EVIDENCE, BUT DUE TO SOME CIRCUMSTANCES BEYOND H IS POWER & CONTROL, HE COULD NOT FILE THE SAME BEFORE THE AUTHORITIES BELOW. NOW, THE WIFE OF THE ASSESSEE WHO IS LEGAL HEIR OF THE ASSESSEE HAS BEEN ABLE TO COLLECT THOSE EVIDENCES AND THUS HAS MADE REQUEST TO THE TRIBUNAL TO ADMIT THE FOLLOWING ADDITIONAL EVIDENCES TO MEET THE END OF JUSTICE TO DECIDE THE ISSUE INVOLVED PROPERLY : 1. AFFIDAVIT OF SHRI. GHANSHAMDAS SHARMA DATED 06/02/2011. 2. COPIES OF FINAL ACCOUNTS OF M/S. SAMAY PLAZA, PROPRIETOR: SHRI. GHANSHAMDAS SHARMA FOR FINANCIAL YEARS 31/03/2000 AND 31/03/2001. 3. AFFIDAVIT OF SMT. LAXMIBAI VISHNUDAS SHARMA L/H OF THE DECEASED APPELLANT SHRI. VISHNUDAS SHARMA. 4. COPY OF APPLICATION DATED 08/04/2011 MADE TO REGIONAL OFFICER, MIDC, NANDED FOR PROVIDING THE CERTIFICATE TO THE EFFECT THAT SHRI. VISHNUDAS SHARMA D ID NOT OWN ANY PLOT (ALONG WITH FREE ENGLISH TRANSLATION). 3. THE LD. D.R. OBJECTED THE REQUEST OF THE ASSESSEE FOR ALLOWING ADDITIONAL EVIDENCE AT THIS STAGE WITH THIS SUBMISSION THAT SUFFICIENT LATE SHRI. VISHNUDAS SHARMA A.Y. 2003 - 04 3 OPPORTUNITY WAS PROVIDED TO THE ASSESSEE TO ESTABLISH ITS CASE TO WHICH, HE FAILED TO BEFORE THE AUTHORITIES BELOW. 4. CONSIDERING THE ABOVE FACTS AND CIRCUMSTANCES, ESPECIALLY THE ILLNESS OF THE ASSESSEE, WHO LATER ON SUCCUMBED TO HIS ILLNESS AND NOW REPRESENTED BY HIS WIFE, THERE IS NO REASON FOR US TO DOUBT THE ABOVE EXPLANATION FOR NON - FURNISHING OF THE ABOVE STATED EVIDENCE BEFORE THE AUTHORITIES BELOW WHICH THE LEGAL HEIR OF THE ASSESSEE NOW WANTS TO GET ADMITTED AS ADDITIONAL EVIDENCE TO CONSIDER THE QUESTIONED ADDITION AFRESH IN VIEW OF THOSE EVIDENCES . WE THUS TO MEET THE END OF JUSTICE, ADMIT THESE ADDITIONAL EVIDENCES AND WHILE SETTING ASIDE THE ORDERS OF THE AUTHORITIES BELOW ON THE ISSUE, DIRECT THE A.O. TO DECIDE THE ISSUE OF VALIDITY OF ADDITION OF RS. 11,00,000/ - IN QUESTION IN THE HANDS OF THE ASSESSEE AFTER EXAMINING THE VERACITY OF ABOVE STATED ADDITIONAL EVIDENCE AND AFTER AFFORDING THE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. THE GROUND IS THUS ALLOWED FOR STATISTICAL PURPOSES. 5 . IN RESULT, APPEAL IS ALLOWED FOR STATISTICAL PURPOSE S. ORDER PRONOUNCED IN OPEN COURT ON 31ST MAY 2011. SD/ - SD/ - ( I.C. SUDHIR ) JUDICIAL MEMBER ( D. KARUNAKARA RAO) ACCOUNTANT M EMBER PUNE: DATED: 31ST MAY , 2011 US LATE SHRI. VISHNUDAS SHARMA A.Y. 2003 - 04 4 COPY OF THE ORDE R IS FORWARDED TO : 1. THE APP ELLA NT 2. THE RESPONDENT 3. THE CIT , AURANGABAD 4. THE CIT(A) - AURANGABD 4 . THE D.R. ITAT, A BENCH, PUNE 5 . GUARD FILE BY ORDER ASSISTANT REGISTRAR INCOME TAX APPELLATE TRIBUNAL PUNE