Sambhaji Rambhau Bhalekar, Pune V. Income-tax Officer, Ward - 10(3), Pune

ITA 1471/PUN/2018

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 4928 (ITAT-PUNE)
• Duration Of Justice: 4 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-02-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2011-2012
• Appeal Filed On: 17-09-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Salary income; Principle of natural justice; Capital receipt
• Section: 143(3)

Judgement Text

] IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH SMC, PUNE BEFORE SHRI ANIL CHATURVEDI, AM . / ITA NO.1471/PUN/2018 / ASSESSMENT YEAR : 2011-12 SAMBHAJI RAMBHAU BHALEKAR, TRIVENI NAGAR, NEAR VILAS CYCLE MART, TALWADE, TAL. HAVELI, PUNE 411412. PAN : AAOPB3196Q. . / APPELLANT V/S THE INCOME TAX OFFICER, WARD 10(3), PUNE. . / RESPONDENT ASSESSEE BY : SHRI M. K. KULKARNI. REVENUE BY : SHRI RAJESH GAWALI. / ORDER PER ANIL CHATURVEDI, AM : 1. THIS APPEAL FILED BY THE ASSESSEE IS EMANATING OUT OF THE ORDER OF COMMISSIONER OF INCOME TAX (A) 6, PUNE DT.31.0 5.2018 FOR THE ASSESSMENT YEAR 2011-12. 2. THE RELEVANT FACTS AS CULLED OUT FROM THE MATERIAL ON R ECORD ARE AS UNDER :- ASSESSEE IS AN INDIVIDUAL AND IS HAVING INCOME FROM SALARY AND OTHER SOURCES. ASSESSEE FILED HIS RETURN OF INCOME FOR A.Y. 2011-12 ON 14.07.2011 DECLARING TOTAL INCOME OF RS.2,22, 020/-. / DATE OF HEARING : 30.01.2019 / DATE OF PRONOUNCEMENT: 14.02.2019 2 ITA NO.1471/PUN/2018 THE CASE WAS SELECTED UNDER CASS FOR SCRUTINY AND THER EAFTER, ASSESSMENT WAS FRAMED U/S 143(3) OF THE ACT VIDE ORDER DT.21.03.2014 AND THE TOTAL INCOME WAS DETERMINED AT RS.27,68,410/-. AGGRIEVED BY THE ORDER OF AO, ASSESSEE C ARRIED THE MATTER BEFORE LD.CIT(A), WHO VIDE ORDER DT.31.05.2018 (IN APP EAL NO.PN/CIT(A)-6/ITO, WD.10(3)/381/2014-15) DISMISSED THE APPEAL OF ASSESSEE. AGGRIEVED BY THE ORDER OF LD.CIT(A), AS SESSEE IS NOW IN APPEAL AND HAS RAISED THE FOLLOWING GROUNDS : 1. THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW THE LD. CIT(A)-6, AKURDI, PUNE WAS NOT JUSTIFIED IN PAS SING EXPARTEE ORDER AS APPELLANT HEREIN STATES THAT NO NOTICES OF HEARING WAS RECEIVED FROM THE OFFICE OF THE LD. CIT(A). IN V I EW OF THIS IT IS REQUESTED TO SET ASIDE THE APPEAL ORDER OF THE CIT( A) FOR PASSING FRESH APPEAL ORDER TO DO COMPLETE JUSTICE TO THE AS SESSEE. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW THE LD. CIT(A) WAS NOT JUSTIFIED IN CONFIRMING THE ADDITION MADE BY THE A. O. OF RS. 25,00,000/- WHICH HE RECEIVED F ROM HIS FATHER (KARTA OF THE FAMILY) OUT OF THE SALE CONSID ERATION OF THE ANCESTRAL LANDS IN WHICH THIS APPELLANT HAD INHEREN T RIGHTS AND WAS NOT ASSESSABLE IN THE HANDS OF THIS APPELLANT. THE ADDITION BE DELETED. 3. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW THE AMOUNT RECEIVED OF RS. 25 LAKHS WAS NOT THE SAL E CONSIDERATION OF THE PROPERTY SOLELY BELONGING TO T HE APPELLANT . NOTHING WAS TAXABLE IN THE HANDS OF THIS APPELLANT AS IT WAS A CAPITAL RECEIPT . THE ADDITION MADE BY THE A. O. AND SUBJECTED TO TAX AND CONFIRMED BY LD . CIT(A) BE DELETED. 4. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW AND ALTERNATIVELY THE AMOUNT WAS RECEIVED BY THE SM ALLER HUF OF THE APPELLANT WITHOUT ANY PARTITION IN THE BIGGE R HUF AND THEREFORE, THE SAID AMOUNT WAS RECEIVED AS AN ARRAN GEMENT MADE IN THE FAMILY (ORAL). IT WAS A CAPITAL RECEIPT IN THE HANDS OF THIS SMALLER HUF BEING NOT TAXABLE UNDER THE PROVIS IONS OF INCOME-TAX ALSO BEING NOT ON REAL INCOME. THE AD DITION BE DELETED. 5. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW THE DETAILED WRITTEN SUBMISSIONS WERE SUBMITTED BEF ORE LD.CIT(A) ON 26.07.2017. THE LD.CIT(A) OUGHT TO HA VE CONSIDERED THE WRITTEN SUBMISSIONS WHILE PASSING TH E EXPARTE APPEAL ORDER. THE APPEAL ORDER BE SET ASIDE FOR D E NOVO CONSIDERATION. 3 ITA NO.1471/PUN/2018 3. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, AO NOTICE D THAT IN THE BANK ACCOUNT NO.23/51165 OF THE ASSESSEE MAINTAINED WITH NIVEDITA BHAGINI SAHAKARI BANK LTD., NIGIDI, ASSESSEE HAS DEPOSITED CASH OF RS.25 LACS AS AGAINST WHICH ASSESSEE H AS STATED TO HAVE INCOME OF RS.18 LACS FROM SALE OF AGRICULTURAL LAND AN D RS.7 LACS TO BE SAVINGS FROM AGRICULTURAL INCOME. AO NOTED THAT ASSESSEE HAS NOT FILED ANY EVIDENCE IN SUPPORT OF SALE O F LAND, SAVINGS AND AGRICULTURAL INCOME EARNED BY HIM AS CALLED FOR TO PROVE HIS CONTENTIONS. HE ACCORDINGLY CONSIDERED THE CA SH DEPOSITS OF RS.25 LACS IN HIS BANK ACCOUNT AS UNEXPLAINE D DEPOSITS AND ADDED IT TO HIS TOTAL TAXABLE INCOME. AGGRIE VED BY THE ORDER OF AO, ASSESSEE CARRIED THE MATTER BEFORE LD.C IT(A), WHO DISMISSED THE APPEAL OF ASSESSEE BY OBSERVING AS UNDER : 4.1. AS SEEN FROM THE ABOVE, IT IS AMPLY CLEAR THAT THE APPELLANT IS NOT INTERESTED IN PURSUING THE APPEAL. HOWEVER, THE ISSUE IS DECIDED BASED ON THE INFORMATION BASED ON RECORD. IT WAS CONTENDED IN THE SUBMISSIONS THAT THE AMOUNT OF RS.25 LAKHS WAS RECEIVED BY THE HUF OF THE APPELLAN T ON ACCOUNT OF SALE OF ANCESTRAL AGRICULTURAL LAND AND THE APPELLANT WAS SHOWN AS CONSULTING PARTY IN THE CONV EYANCE DEED. IT WAS CLAIMED THAT IT IS NOT CHARGEABLE TO T AX AS IT IS AN AGRICULTURAL LAND AND ALSO IT IS NOT CHARGEABLE IN THE HANDS OF THE APPELLANT. THEREFORE THE SAME IS DISMISSED FOR NON PROSECUTION, IT WAS CLAIMED THAT THE APPELLANT'S FA THER AGED ABOUT 87 YEARS SOLD HIS LAND BY VARIOUS REGISTERS S ALE DEEDS AND AN AMOUNT OF RS.26,61,000/- WAS RECEIVED AND TH E SAME WAS DEPOSITED IN THE APPELLANT'S ACCOUNT. IT WAS CL AIMED THAT THERE WAS NO PARTITION AND THE APPELLANT HAD I NCIDENTAL RIGHTS IN THE ANCESTRAL PROPERTY. 4.2. THOUGH, THE APPELLANT'S AR HAD MADE THE ABOVE SUBMISSION BUT DID NOT SUBMIT ANY EVIDENCE OF THE S ALE OF THE PROPERTY AND ALSO AS TO WHY THE WHOLE' CONSIDERATIO N WAS RECEIVED ONLY BY THE APPELLANT. IT WAS ALSO NOT EST ABLISHED AS TO THE LOCATION OF THE PROPERTY SOLD TO FIND WHETHE R THE SAME IS LIABLE TO TAX, AS THE DETAILS ARE NOT FORTHCOMING, IT HAS TO BE PRESUMED THAT THE DEPOSIT IS LIABLE TO BE CHARGEABL E. 4 ITA NO.1471/PUN/2018 AGGRIEVED BY THE ORDER OF LD.CIT(A), ASSESSEE IS NOW IN APPEAL BEFORE ME. 4. BEFORE ME, LD.A.R. AT THE OUTSET SUBMITTED THAT LD.CIT(A) HAS PASSED AN EX-PARTE ORDER AND NOT ON MERITS. HE F URTHER SUBMITTED THAT DUE TO UNAVOIDABLE CIRCUMSTANCES, ASSESSE E COULD NOT APPEAR BEFORE LD.CIT(A). HE SUBMITTED THAT IF GIVEN A C HANCE, ASSESSEE UNDERTAKES TO APPEAR BEFORE LOWER AUTHORITIES AND FURNISH ALL THE REQUIRED DETAILS TO SUBSTANTIATE THE CASH DEPOSITS . LD.D.R. ON THE OTHER HAND SUPPORTED THE ORDER OF AO AND LD.CI T(A) AND OBJECTED TO LD.A.R.S PRAYER FOR 2 ND INNINGS. 5. I HAVE HEARD THE LD.D.R. AND PERUSED THE MATERIAL ON RECORD. THE ISSUE IN THE PRESENT CASE IS WITH RESPECT TO THE AD DITION OF RS.25 LACS ON ACCOUNT OF UNEXPLAINED DEPOSITS. THE PER USAL OF ORDER OF LD.CIT(A) REVEALS THAT LD.CIT(A) HAS PASSED AN EX -PARTE ORDER WITHOUT DECIDING THE ISSUE ON MERITS. THOUGH, IT I S A FACT THAT DESPITE SERVICE OF NOTICES ON VARIOUS OCCASION S, THERE WAS NO APPEARANCE FROM THE SIDE OF ASSESSEE. HOWEVER, I N VIEW OF THE WELL SETTLED PRINCIPLE OF NATURAL JUSTICE THAT SUFFICIENT OPPORTUNITY OF HEARING SHOULD BE AFFORDED TO THE PARTIES AND NO PARTY SHOULD BE CONDEMNED UNHEARD, I AM OF THE VIEW THA T ONE MORE OPPORTUNITY BE GRANTED TO ASSESSEE TO PRESENT H IS CASE. I THEREFORE RESTORE THE MATTER BACK TO THE FILE OF LD.CIT(A) TO DECIDE THE ISSUE ON MERITS IN ACCORDANCE WITH LAW. NEEDLESS TO STATE THAT LD.CIT(A) SHALL GRANT ADEQUATE OPPORTUNITY OF HEARING TO BO TH THE PARTIES. ASSESSEE IS ALSO DIRECTED TO PROMPTLY FURNISH ALL T HE DETAILS CALLED FOR BY THE LOWER AUTHORITIES. IN VIEW OF MY DECISION TO 5 ITA NO.1471/PUN/2018 RESTORE THE ISSUE TO LD.CIT(A), I AM NOT ADJUDICATING ON M ERITS THE GROUNDS OF THE APPEAL RAISED BY THE ASSESSEE. THUS, THE GROUNDS OF ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWE D FOR STATISTICAL PURPOSES. ORDER PRONOUNCED ON THE 14 TH DAY OF FEBRUARY, 2019. SD/- ( ANIL CHATURVEDI ) ' / ACCOUNTANT MEMBER PUNE; DATED : 14 TH FEBRUARY, 2019. YAMINI #$%&'(' % / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT 3. 4. 5 6. CIT(A)-6, PUNE. PR. CIT-5, PUNE. '#$ %%&',) &', *+ / DR, ITAT, SMC PUNE; $-.// GUARD FILE. / BY ORDER // TRUE COPY // 012%3&4 / SR. PRIVATE SECRETARY ) &' , / ITAT, PUNE.