ACIT, New Delhi V. Sh. Nagendra Nath Jha, New Delhi

ITA 1314/DEL/2011

• Counselvise Citation: 131420114 RSA 2011
• Duration Of Justice: 4 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 02-08-2011
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: E
• Next Hearing Date: 02-08-2011
• Assessment Year: 2007-2008
• Appeal Filed On: 14-03-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MRS SRUJANI MOHANTY
• Assessee Lawyers: DR ANTHWAL
• Keywords: Additional evidence
• Section: 54

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH E NEW DELHI) BEFORE SHRI RAJPAL YADAV AND SHRI K.D. RANJAN ITA NO. 1314/DEL/2011 ASSESSMENT YEAR: 2007-08 ASSISTANT COMMISSIONER OF INCOME-TAX, VS. SHRI NAGE NDRA NATH JHA, CIRCLE 40(1), 51-GOLF LINK, NEW DELHI. NEW DELHI. (PAN: AAFPJ2409R) (APPELLANT) (RESPONDENT) APPELLANT BY: MRS. SRUJA NI MOHANTY, SR.DR RESPONDENT BY: SHRI DR ANTHWAL, ADV. ORDER PER RAJPAL YADAV: JUDICIAL MEMBER THE REVENUE IS IN APPEAL BEFORE US AGAINST THE ORD ER OF LEARNED CIT(APPEALS) DATED 31.01.2011 PASSED FOR ASSESSMENT YEAR 2007-08. IN THE FIRST GROUND OF APPEAL, REVENUE HAS PLEADED THAT LE ARNED CIT(APPEALS) HAS ERRED IN DELETING THE ADDITION OF RS.15 LACS. 2. THE BRIEF FACTS OF THE CASE ARE THAT ASSESSEE HA S FILED HIS RETURN OF INCOME ON 25 TH JULY 2007 DECLARING TOTAL INCOME OF RS.7,76,620 FR OM SALARY (PENSION FROM GOVERNMENT OF INDIA) AND INCOME FROM OTHER SOURCES. THE CASE OF THE ASSESSEE WAS SELECTED FOR SCRUTINY ASSE SSMENT AND A NOTICE UNDER SEC. 143(2) OF THE INCOME-TAX ACT, 1961 WAS ISSUED ON 21.07.2008. DURING THE SCRUTINY OF ACCOUNTS, IT REVEALED TO THE ASSESS ING OFFICER THAT A SUM OF RS.15 LACS WAS DEPOSITED ON 22.8.2006 IN THE SAVING BANK ACCOUNT OF THE 2 ASSESSEE WITH BANK OF INDIA, KHAN MARKET, NEW DELHI . THE ASSESSEE FAILED TO FURNISH THE SOURCE OF THE DEPOSITS AND, THEREFOR E, ASSESSING OFFICER HAS MADE AN ADDITION OF RS.15 LACS IN THE INCOME OF THE ASSESSEE. 3. BEFORE THE LEARNED CIT(APPEALS), IT WAS CONTENDE D THAT A SUM OF RS.15 LACS WAS TAKEN AS A LOAN FROM SHRI N.S.S. MAN I, THROUGH ACCOUNT PAYEE CHEQUE AND IT WAS RETURNED TO THE CREDITOR TH ROUGH ACCOUNT PAYEE CHEQUE. THE CONFIRMATION COULD NOT BE FILED DURING THE ASSESSMENT PROCEEDINGS BECAUSE SHRI N.S.S. MANI WAS OUT OF THE COUNTRY. A CONFIRMATION WAS FILED BEFORE THE LEARNED CIT(APPEA LS) AND PERMISSION TO ADDUCE ADDITIONAL EVIDENCE WAS SOUGHT. LEARNED FIRS T APPELLATE AUTHORITY HAS CALLED FOR A REMAND REPORT FROM THE ASSESSING O FFICER. ASSESSING OFFICER WAS SATISFIED WITH THE QUALITY OF EVIDENCE AS FAR A S LOAN TAKEN BY THE ASSESSEE IS CONCERNED BUT PLEADED TO THE LEARNED CIT(APPEALS ) THAT SUFFICIENT OPPORTUNITIES WERE GRANTED TO THE ASSESSEE, THEREFO RE, HE SHOULD NOT BE PERMITTED TO ADDUCE ADDITIONAL EVIDENCE. 4. LEARNED CIT(APPEALS) HAS CONSIDERED THE REMAND R EPORT SUBMITTED BY THE ASSESSEE AND DELETED THE ADDITION ON THE GROUND THAT ASSESSEE HAS EXPLAINED THE GENUINENESS OF THE LOAN TRANSACTION. 3 5. IN THE SECOND GROUND OF APPEAL, REVENUE HAS PLEA DED THAT LEARNED CIT(APPEALS) HAS ERRED IN DELETING THE ADDITION OF RS.24,49,631. 6. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESS ING OFFICER HAD RECEIVED AN INFORMATION FROM THE AIR WING. ACCORDING TO THE INFORMATION, AN IMMOVEABLE PROPERTY BEARING NO.S-107 (FF), GREATER KAILASH-II, NEW DELHI HAS BEEN SOLD ON 18.10.2006 FOR A CONSIDERATION OF RS.57,50,000. ASSESSEE DID NOT SHOW THE CAPITAL GAIN ARISEN TO HIM ON SALE OF THIS PROPERTY. THE ASSESSEE HAS SUBMITTED BEFORE THE ASSESSING OFFICER THAT THIS PROPERTY BELONGED TO HIS DAUGHTER SMT.ARPANA JHA. SHE HAD EX ECUTED A POWER OF ATTORNEY IN FAVOUR OF HER FATHER FOR SALE OF THE PR OPERTY. THE SALE PROCEEDS WERE DEPOSITED IN THE BANK ACCOUNT NO.6071011000654 WITH BANK OF INDIA, KHAN MARKET, NEW DELHI. ACCORDING TO THE ASSESSEE, THE AMOUNT WAS DEPOSITED IN THE CAPITAL GAIN ACCOUNT UNDER SEC. 54 OF THE ACT, FOR PURCHASE OF RESIDENTIAL PROPERTY. THE AMOUNT COULD NOT BE UT ILIZED FOR THE PURCHASE OF THE PROPERTY AND ACCOUNT WAS CLOSED ON 4.11.2008 BY SMT. ARPANA JHA. SHE HAD PAID THE TAX IN ASSESSMENT YEAR 2009-10 I.E. TH E YEAR IN WHICH CAPITAL GAIN ACCOUNT WAS CLOSED. THE ASSESSEE COULD NOT PRO DUCED RELEVANT DETAILS 4 FROM THE BANK ACCOUNT BEFORE THE ASSESSING OFFICER AND, THEREFORE, ASSESSING OFFICER DID NOT ACCEPT THE CONTENTION OF THE ASSESSEE. 7. BEFORE THE LEARNED CIT(APPEALS), ASSESSEE HAS SU BMITTED COPY OF THE SALE DEED, CERTIFICATE FROM THE BANK, ACKNOWLEDGEME NT OF FILING OF RETURN BY SMT. ARPANA JHA IN ASSESSMENT YEAR 2009-10 EXHIBITI NG THE PAYMENT OF TAX ON CAPITAL GAIN OF RS.30 LACS. ASSESSING OFFICER IN HIS REMAND REPORT ACCEPTED THE GENUINENESS OF ALL THESE DOCUMENTS BUT SUBMITTED THAT SUFFICIENT OPPORTUNITIES WERE GRANTED TO THE ASSESSEE, THEREFO RE, HE BE NOT PERMITTED TO ADDUCE THESE EVIDENCES. 8. LEARNED DR WHILE IMPUGNING THE FINDINGS OF THE L EARNED CIT(APPEALS) ON BOTH THE ISSUES, SUBMITTED THAT LEA RNED CIT(APPEALS) HAS VIOLATED THE CONDITIONS ENUMERATED IN SUB-RULE(1) A ND (2)OF RULE 46A OF THE ACT, THEREFORE, THE ORDER OF THE LEARNED CIT(APPEAL S) DESERVES TO BE SET ASIDE. THE ASSESSEE WAS GIVEN SUFFICIENT OPPORTUNIT IES OF HEARING BY THE ASSESSING OFFICER, HENCE ADDITIONAL EVIDENCE OUGHT NOT TO BE PERMITTED BY THE LEARNED FIRST APPELLATE AUTHORITY. ON THE OTHER HAND, LEARNED COUNSEL FOR THE ASSESSEE RELIED UPON THE ORDER OF THE LEARN ED CIT(APPEALS). 5 9. WE HAVE DULY CONSIDERED THE RIVAL CONTENTIONS AN D GONE THROUGH THE RECORD CAREFULLY. THE ASSESSEE HAS SUBMITTED BEFORE THE LEARNED CIT(APPEALS) THAT CREDITOR SHRI N.S.S. MANI WAS OUT OF INDIA, THEREFORE, CONFIRMATION COULD NOT BE FILED. SIMILARLY, WITH RE GARD TO THE CAPITAL GAIN ISSUE, IT WAS SUBMITTED THAT IT IS NOT ASSESSABLE I N THE ASSESSEES HANDS, BECAUSE, PROPERTY BELONGED TO SMT. ARPANA JHA. HE H AS ONLY POWER OF ATTORNEY TO EXECUTE THE SALE. SHE HAD DEPOSITED THE SALE PROCEED IN A CAPITAL GAIN ACCOUNT AND ULTIMATELY CAPITAL GAIN HAS BEEN P AID BY HER ON UNUTILIZED MONEY FOR THE PURCHASE OF NEW HOUSE. THE BANK DID N OT FURNISH THE CERTIFICATE EXHIBITING ALL THESE ASPECTS IN TIME AN D, THEREFORE, IT COULD NOT BE PRODUCED BEFORE THE ASSESSING OFFICER DURING THE AS SESSMENT PROCEEDINGS. CONSIDERING THESE TWO ASPECTS, LEARNED FIRST APPELL ATE AUTHORITY IN THE INTEREST OF JUSTICE AND IN ORDER TO ADJUDICATE THE APPEAL APPROPRIATELY, HE PERMITTED THE ASSESSEE TO PRODUCE THESE EVIDENCES. IN OUR OPINION, SUB- RULE(4) OF RULE 46A AUTHORIZED THE LEARNED FIRST AP PELLATE AUTHORITY TO ENTERTAIN ANY DOCUMENT OR DIRECT THE PARTIES TO PRO DUCE ANY DOCUMENT WHICH CAN HELP THE LEARNED FIRST APPELLATE AUTHORITY TO D ECIDE THE APPEAL. LEARNED CIT(APPEALS) CAN TAKE ANY EVIDENCE FOR JUST DECISIO N OF THE APPEAL. IN THE PRESENT CASE, LEARNED FIRST APPELLATE AUTHORITY HAS CONSIDERED THESE DOCUMENTS IN ORDER TO ADJUDICATE THE CONTROVERSY AP PROPRIATELY AND IN 6 ACCORDANCE WITH LAW. ASSESSING OFFICER DID NOT FIND ANY FAULT WITH THE QUALITY OF EVIDENCE ON MERIT. THEREFORE, FOR TECHNI CAL REASON, ASSESSEE CANNOT BE FASTENED WITH TAX LIABILITY, MORE SO, ON THE ISS UE OF CAPITAL GAIN, ASSESSING OFFICER COULD HAVE CALLED FOR THE INFORMATION FROM THE BANK OF INDIA DURING THE COURSE OF ASSESSMENT PROCEEDINGS. THE REVENUE H AS NOT TAKEN ANY SPECIFIC GROUND OF APPEAL, THAT LEARNED CIT(APPEALS ) HAS ENTERTAINED ADDITIONAL EVIDENCE IN VIOLATION TO SUB-RULE (1) AN D (2) OF RULE 46A OF THE ACT. THUS, CONSIDERING ALL THESE ASPECTS, WE DO NOT FIND ANY MERIT IN THIS APPEAL, IT IS DISMISSED. 10. IN THE RESULT, THE APPEAL OF THE REVENUE IS DIS MISSED. DECISION PRONOUNCED IN THE OPEN COURT ON 02.08.2011 SD/- SD/- ( K.D. RANJAN ) ( RAJPAL YADAV ) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 02/08/2011 MOHAN LAL COPY FORWARDED TO: 1) APPELLANT 2) RESPONDENT 3) CIT 4) CIT(APPEALS) 5) DR:ITAT ASSISTANT REGISTRAR