SMT. PANCHI DEVI, BASWA V. ITO, WARD, DAUSA

ITA 1324/JPR/2019

• Counselvise Citation: [2020] 110 COUNSELVISE.COM (IT) 8490 (ITAT-JAIPUR)
• Duration Of Justice: 7 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-07-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2010-2011
• Appeal Filed On: 03-12-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: CHANCHAL MEENA ACIT
• Assessee Lawyers: S L PODDAR
• Keywords: Unexplained investment; Additional evidence; Reasonable cause; Corroborative evidences; Condonation of delay; Reason to believe; Set aside
• Section: 142(1); 250; 147; 148; 144

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHE S,A 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 VIKRAM SINGH YADAV, AM VK;DJ VIHY LA- @ ITA NO. 1324/JP/2019 FU/KZKJ.K O'K Z @ ASSESSMENT YEAR : 2010-11 SMT. PANCHI DEVI W/O SH. RAM KISHAN MEENA, VILLAGE- PUNDARPADA, TEHSIL- BASWA, DAUSA. CUKE VS. THE ITO, WARD, DAUSA. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO.: EIJPD 0848 G VIHYKFKHZ@ APP ELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ L S@ ASSESSEE BY : SHRI S. L. PODDAR (ADV.) JKTLO DH VKSJ LS @ REVENUE BY : MISS CHANCHAL MEENA (ACIT) LQUOKBZ DH RKJH[ K@ DATE OF HEARING : 09/07/2020 MN?KKS'K.KK DH RKJH[ K@ DATE OF PRONOUNCEMENT: 10/07/2020 VKNS'K@ ORDER PER: VIJAY PAL RAO, J.M. THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST TH E ORDER DATED 29.03.2019 OF LD. CIT(A), ALWAR FOR THE ASSESSMENT ORDER 2010-11. DUE TO PREVAILING COVID-19 PANDEMIC CONDITION THE HEARI NG OF THE APPEAL IS CONCLUDED THROUGH VIDEO CONFERENCE. 2. THERE IS DELAY OF 152 DAYS IN FILING THE PRESENT APPEAL. THE ASSESSEE HAS FILED AN APPLICATION FOR CONDONATION O F DELAY WHICH IS SUPPORTED BY THE AFFIDAVIT OF THE ASSESSEE. ITA NO. 1324/JP/2019 SMT. PANCHI DEVI VS. ITO 2 3. WE HAVE HEARD THE LD. AR AS WELL AS THE LD. DR ON CONDONATION OF DELAY IN FILING THE APPEAL. THE ASSESSEE HAS EXP LAINED THE CAUSE OF DELAY AS THE IMPUGNED ORDER OF THE LD. CIT(A) WAS N OT RECEIVED BY THE ASSESSEE AND ONLY WHEN THE ASSESSEE GOT A CERTIFIED COPY OF THE SAME THE PRESENT APPEAL HAS BEEN FILED. THE LD. AR OF TH E ASSESSEE HAS FURTHER POINTED OUT THAT EVEN THE NOTICES ISSUED U/ S 148 AS WELL AS 142(1) OF THE ACT BY THE AO WERE NOT RECEIVED BY T HE ASSESSEE AND THE ASSESSEE CHALLENGED THE SERVICE OF NOTICES ISSUED B Y THE AO BEFORE THE LD. CIT(A). THE LD. CIT(A) INSTEAD OF DECIDING THE ISSUE, AS RAISED BY THE ASSESSEE HAS REJECTED THE GROUND BY GIVING SOME IRR ELEVANT REASONING. THUS, THE LD. AR HAS SUBMITTED THAT WHEN THE ASSESS EE BELONGS TO A VILLAGE AND HAS NOT RECEIVED THE NOTICES ISSUED BY THE AO AS WELL AS THE IMPUGNED ORDER OF THE LD. CIT(A) THEN THE DELAY IN FILING THE APPEAL IS NEITHER INTENTION NOR WILLFUL BUT DUE TO THE REASON S AS EXPLAINED BY THE ASSESSEE. HE HAS RELIED UPON THE JUDGMENT OF HONBL E BOMBAY HIGH COURT IN CASE OF VIJAY VISHAN MEGHANI VS. DCIT (2017) 398 ITR 250 AS WELL AS OTHER DECISIONS ON THIS POINT THE COURT SHOULD TAKE LENIENT VIEW WHILE CONSIDERING REASONABLE/SUFFICIEN T CAUSE FOR DELAY AND THE MATTERS SHOULD BE DECIDED ON MERITS INSTEAD OF TECHNICAL REASONS. THUS, THE LD. AR HAS PLEADED THAT THE DELAY OF 152 DAYS IN FILING THE ITA NO. 1324/JP/2019 SMT. PANCHI DEVI VS. ITO 3 APPEAL MAY BE CONDONED AND THE ASSESSEE OF THE APPE AL BE DECIDED ON MERITS. 4. ON THE OTHER HAND, THE LD. DR HAS VEHEMENTLY OPP OSED TO THE CONDONATION OF DELAY AND SUBMITTED THAT THE ASSESSE E DID NOT ATTEND THE PROCEEDINGS BEFORE THE AO AND THE ASSESSMENT OR DER WAS PASSED EX-PARTE. FURTHER, THE ASSESSEE WITHOUT EXPLAINING THE REASONS FOR NOT PRODUCING EVIDENCE BEFORE THE AO SOUGHT TO FILE THE SAME BEFORE THE LD. CIT(A) WHICH WAS DECLINED BY THE LD. CIT(A). 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AS WELL AS RELEVANT MATERIAL ON RECORD. THE ASSESSEE IS NOT A REGULAR T AX PAYER AND THE AO HAS ISSUED NOTICES U/S 148 OF THE ACT TO ASSESS A S UM OF RS. 6,00,000/- BEING UNEXPLAINED INVESTMENT IN PURCHASE OF THE PRO PERTY. THE ASSESSMENT WAS COMPLETED U/S 144 R.W.S. 147 OF THE ACT WHEN NOBODY HAS APPEARED ON BEHALF OF THE ASSESSEE. WHILE COMPL ETING THE ASSESSMENT, THE AO HAS ASSESSED THE TOTAL INCOME OF THE ASSESSEE AT RS. 6,00,000/- BEING UNEXPLAINED INVESTMENT IN LAND . THE ASSESSEE FILED BEFORE THE LD. CIT(A) AND CHALLENGED THE SERVICE OF NOTICES U/S 148 AS WELL AS U/S 142(1) OF THE ACT. THE LD. CIT(A) HAS P RODUCED THIS GROUND IN PART 5 OF THE IMPUGNED ORDER IS AS UNDER:- ITA NO. 1324/JP/2019 SMT. PANCHI DEVI VS. ITO 4 5. THE GROUND NO. 1 IS AGAINST THE RECEIVING OF NO TICE U/S 148 AND U/S 142(1) OF THE ACT 1961 AND PASSING THE EX-P ARTY ASSESSMENT ORDER. HOWEVER, THE LD. CIT(A) HAS NOT ADJUDICATED THIS F ACTUAL ISSUE OF VALID SERVICE OF NOTICE ISSUED U/S 148 AS WELL AS U/S 142 (1) OF THE ACT BUT REJECTED THE GROUNDS OF THE ASSESSEE IN PARA 5.3 AS UNDER:- 5.3 I HAVE PERUSED THE ASSESSMENT ORDER AS WELL AS SUBMISSIONS FILED BY THE APPELLANT. THE REOPENING OF THE ASSESS MENT IN THE PRESENT CASE IS UNDER THE PROVISIONS OF SECTION 147 (1). THE ASSESSING OFFICER MUST HAVE REASON TO BELIEVE THAT ANY INCOME CHARGEABLE TO TAX HAS ESCAPED ASSESSMENT FOR THE AS SESSMENT YEAR IN QUESTION. THE EXPRESSION 'REASON', AS THE S UPREME COURT IN ASSISTANT CIT VS. RAJESH JHAVERI STOCK BROKER PV T. LTD.2 HAS HELD, MEANS A CAUSE OR JUSTIFICATION. IF THE ASSESS ING OFFICER HAS A CAUSE OR JUSTIFICATION TO KNOW OR SUPPOSE THAT IN COME HAD ESCAPED ASSESSMENT, HE CAN BE SAID TO HAVE REASON T O BELIEVE THAT INCOME HAD ESCAPED ASSESSMENT. THE SUPREME COU RT HAS HELD THAT THE EXPRESSION CANNOT BE READ TO MEAN THA T THE ASSESSING OFFICER SHOULD HAVE FINALLY ASCERTAINED T HE FACT BY LEGAL EVIDENCE OR CONCLUSION. AT THAT STAGE WHAT IS REQUIRED IS 'REASON TO BELIEVE' AND NOT THE ESTABLISHMENT OF ES CAPEMENT OF INCOME. WHETHER THE MATERIALS WOULD CONCLUSIVELY PR OVE AN ESCAPEMENT OF INCOME IS NOT THE CONCERN AT THAT STA GE. ACCORDINGLY, APPELLANT'S GROUND OF APPEAL ON THE IS SUE IS DISMISSED. THUS, IT IS CLEAR THAT THE LD. CIT(A) HAS DECIDED T HIS ISSUE OF VALIDITY OF REOPENING INSTEAD OF DECIDING THE FACTUAL ASPECT OF VALID SERVICE OF NOTICES AS CHALLENGED BY THE ASSESSEE. THE ASSESSEE HAVING A RURAL BACK ITA NO. 1324/JP/2019 SMT. PANCHI DEVI VS. ITO 5 GROUND AND WITHOUT ANY SOURCE OF INCOME HAS EXPLAIN ED THE REASONS FOR NON APPEARS BEFORE THE AO AS NON RECEIPT OF NOTICES ISSUED BY THE AO. FURTHER, THE DELAY IN FILING THE APPEAL IS ALSO EXP LAINED DUE TO THE REASONS OF NON RECEIPT OF THE IMPUGNED ORDER OF THE LD. CIT(A) AND ONLY AFTER THE CERTIFIED COPY OBTAINED FROM THE OFFICE O F THE LD. CIT(A) THE ASSESSEE HAS FILED THE APPEAL. THERE IS NO MATERIAL OR FACT ON RECORD TO CONTROVERT THE REASONS EXPLAINED BY THE ASSESSEE IN THE APPLICATION FOR CONDONATION OF DELAY WHICH IS DULY SUPPORTED BY THE AFFIDAVIT WHEREIN THE ASSESSEE HAS SOLEMNLY AFFIRMED THE NON RECEIPT OF THE IMPUGNED ORDER AND SUBSEQUENT CERTIFIED COPY OBTAINED ONLY O N 14.11.2019. ACCORDINGLY, IN THE FACTS AND CIRCUMSTANCES OF THE CASE AND KEEPING IN VIEW THE RURAL BACK GROUND AND VILLAGE ADDRESS OF T HE ASSESSEE IN TEHSIL BASWA WE ARE SATISFIED THAT THE ASSESSEE WAS HAVING A REASONABLE CAUSE FOR DELAY IN FILING THE PRESENT APPEAL. THERE FORE, IN THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN THE INTEREST OF JU STICE WE CONDONE THE DELAY OF 152 DAYS IN FILING THE APPEAL. 6. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS:- 1. UNDER THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE THE LEARNED CIT(A) HAS ERRED IN CONFIRMING THE ADDITION OF RS. 6,00,000/- ON ACCOUNT OF UNEXPLAINED INVESTMENT FOR PURCHASE OF PROPERTY. ITA NO. 1324/JP/2019 SMT. PANCHI DEVI VS. ITO 6 2. UNDER THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE THE LEARNED CIT(A) HAS ERRED IN NOT ALLOWING OPPORTUNIT Y OF BEING HEARD FOR SUBMITTING THE APPLICATION UNDER RULE 46A OF THE INCOME TAX RULES, 1962 WHEN THE ORDER WAS PASSED U/S 144 O F THE INCOME TAX ACT, 1961. 7. THE LD. AR OF THE ASSESSEE HAS SUBMITTED THAT TH E LAND IN QUESTION WAS PURCHASED BY THE HUSBAND OF THE ASSESS EE IN THE JOINT NAME AND THEREFORE, THE INVESTMENT IN QUESTION OF R S. 6,00,000/- WAS MADE BY THE HUSBAND OF THE ASSESSEE AND NOT BY THE ASSESSEE. IT IS ONLY BECAUSE OF THE FACT THAT THE LAND IN QUESTION WAS PURCHASED IN THE JOINT NAME HER NAME IS APPEARING IN THE SALE DEED. THE ASSESSEE HAS EXPLAINED THIS FACT AND ALSO SUPPORTED BY THE EVIDE NCE BEFORE THE LD. CIT(A) HOWEVER, THE LD. CIT(A) HAS DECLINED TO ADMI T THE EVIDENCE FILED BY THE ASSESSEE IN SUPPORT OF THE EXPLANATION AND S OURCE OF THE SAID INVESTMENT OF RS. 6,00,000/-. BEFORE US THE LD. AR OF THE ASSESSEE HAS PLEADED THAT WHEN THE ASSESSMENT WAS COMPLETED EX-P ARTE DUE TO THE REASON OF NON SERVICE OF NOTICES THEN THE ASSESSEE SHOULD HAVE BEEN ALLOWED TO PRODUCE THE SUPPORTING EVIDENCE TO EXPLA IN THE SOURCE OF INVESTMENT. THEREFORE, IT IS PRAYED THAT THE ADDITI ONAL EVIDENCE FILED BY THE ASSESSEE BEFORE THE LD. CIT(A) MAY BE ADMITTED AND THE MATTER MAY BE SET ASIDE TO THE RECORD OF THE LD. CIT(A) FOR DE CIDING THE SAME ON MERITS AFTER CONSIDERING THE EVIDENCE FILED BY THE ASSESSEE. ITA NO. 1324/JP/2019 SMT. PANCHI DEVI VS. ITO 7 8. ON THE OTHER HAND, THE LD. DR HAS VEHEMENTLY OPP OSED TO THE PRAYER OF ADMITTING THE ADDITIONAL EVIDENCE AND CON TENDED THAT THOUGH THE ASSESSEE PRODUCED EVIDENCE BEFORE THE LD. CIT(A ) HOWEVER, THE ASSESSEE HAS NOT EXPLAINED ANY REASONS AS TO WHY TH E SAID EVIDENCE WAS NOT PRODUCED BEFORE THE AO. FURTHER, THE ASSESS EE EVEN NOT FILED ANY APPLICATION UNDER RULE 46A OF THE INCOME TAX RU LES HENCE, THE LD. CIT(A) DECLINED TO ADMIT THE ADDITIONAL EVIDENCE WH ICH IS JUSTIFIED. 9. WE HAVE CONSIDERED RIVAL SUBMISSIONS AS WELL AS RELEVANT MATERIAL ON RECORD. UNDISPUTEDLY THE ASSESSMENT ORDER WAS PA SSED EX-PARTE WHEN NOBODY HAS ATTENDED THE PROCEEDINGS BEFORE THE AO. IT IS PERTINENT TO NOTE THAT THE ASSESSEE HAS GIVEN THE R EASONS FOR NON APPEARANCE BEFORE THE AO AS THE NOTICES ISSUED BY T HE AO U/S 148 AS WELL AS 142(1) WERE NOT SERVED UPON THE ASSESSEE. T HE ASSESSEE HAS DULY TAKEN THIS GROUND BEFORE THE LD. CIT(A) HOWEVE R, THE LD. CIT(A) INSTEAD OF VERIFYING THIS FACT OF VALID SERVICE OF NOTICES ISSUED BY THE AO HAS REJECTED THE GROUND OF APPEAL BY GIVING SOME DI FFERENT REASONING. THE RELEVANT PART OF THE LD. CIT(A) IMPUGNED ORDER HAS REPRODUCED IN THE FOREGOING PART OF THIS ORDER. THUS, IT IS CLEAR FROM THE IMPUGNED ORDER THAT THIS OBJECTION OF THE ASSESSEE OF NON SE RVICE OF NOTICES ISSUED BY THE AO WAS EVEN NOT EXAMINED OR VERIFIED BY THE LD. CIT(A). ONCE ITA NO. 1324/JP/2019 SMT. PANCHI DEVI VS. ITO 8 THE ASSESSMENT ORDER WAS PASSED EX-PARTE AND THE AS SESSEE HAS TAKEN A STAND THAT THE NOTICES WERE NOT SERVED UPON THE A SSESSEE THEN THE EVIDENCE PRODUCED BY THE ASSESSEE BEFORE THE LD. CI T(A) IN SUPPORT OF THE SOURCE OF THE INVESTMENT OF RS. 6,00,000/- IN T HE LAND OUGHT TO HAVE BEEN ADMITTED AND CONSIDERED AS THIS WAS THE FIRST OCCASION WHEN THE ASSESSEE COULD FILE THE SAID EVIDENCE. THE LD. CIT( A) INSTEAD OF CONSIDERING THE EVIDENCE FILED BY THE ASSESSEE DECL INE TO ADMIT THE SAME. THE RELEVANT PART OF THE LD. CIT(A) ORDER IN PARA 6.4 IS AS UNDER:- 6.4 I HAVE CONSIDERED THE ABOVE MENTIONED FACTS O F THE CASE. THE ASSESSEE DID NOT ATTEND THE ASSESSMENT PROCEEDI NGS AND ALSO NOT FILED ANY DETAILS BEFORE THE AO. ACCORDINGLY, I DO NOT FIND ANY REASON TO ADMIT ANY ADDITIONAL EVIDENCES AT THIS ST AGE. EVEN THE APPELLANT HAS NOT FILED ANY APPLICATION UNDER RULE 46A OF IT RULE. ACCORDINGLY, THE ADDITION OF RS. 6 LAKHS IS SUSTAIN ED AND THE APPELLANTS GROUND OF APPEAL ON THE ISSUE IS DISMIS SED. THEREFORE, THE LD. CIT(A) HAS REJECTED THE REQUEST FOR ADMISSION OF ADDITIONAL EVIDENCE ON THE GROUND THAT THE ASSESSEE HAS NOT FILED ANY APPLICATION UNDER RULE 46A OF IT RULES. ONCE, THE A SSESSEE HAS EXPLAINED THE REASONS FOR NON PRODUCTION OF EVIDENC E BEFORE THE AO AS THE NOTICES WERE NOT RECEIVED BY THE ASSESSEE THEN THE ADDITIONAL EVIDENCE PROPOSED TO FILE BY THE ASSESSEE OUGHT TO HAVE BEEN CONSIDERED BY THE LD. CIT(A). ACCORDINGLY, IN THE F ACTS AND ITA NO. 1324/JP/2019 SMT. PANCHI DEVI VS. ITO 9 CIRCUMSTANCES OF THE CASE AND IN THE INTEREST OF JU STICE WE ADMIT THE ADDITIONAL EVIDENCE FILED BY THE ASSESSEE AND THE M ATTER IS SET ASIDE TO THE RECORD OF THE LD. CIT(A) FOR DECIDING THE SAME AFRESH AFTER CONSIDERING THE ADDITIONAL EVIDENCE FILED BY THE AS SESSEE AS WELL AS GIVING ONE MORE OPPORTUNITY OF HEARING TO THE ASSES SEE. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOW ED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 10/07/2020. SD/- SD/- FOE FLAG ;KNO FOT; IKY JKO (VIKRAM SINGH YADAV) (VIJAY PAL RAO) YS[KK LNL;@ ACCOUNTANT MEMBER U;KF;D LNL;@ JUDICIAL MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 10/07/2020. * SANTOSH. VKNS'K DH IZFRFYFI VXZSFKR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT- SMT. PANCHI DEVI, DAUSA. 2. IZR;FKHZ@ THE RESPONDENT- ITO, WARD, DAUSA. 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. 1324/JP/2019} VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASST. REGISTRAR