Kalpana Shukla, Angul V. ITO, Angul Ward, Angul

ITA 159/CTK/2016

• Counselvise Citation: [2022] 105 COUNSELVISE.COM (IT) 5291 (ITAT-CUTTACK)
• Duration Of Justice: 5 year(s) 11 month(s) 10 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-04-2022
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2013-2014
• Appeal Filed On: 24-04-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Unexplained investment; Gift; Opportunity of being heard; Additional evidence; Tangible material
• Section: 69

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, BEFORE S/ AND ARUN KHODPIA, ACCOUNTANT MEMBER Kalpana Shukla, At: ShuklaBhawan, Similipada, Panchamukhi Chowk, Angul (Appellant Per C.M.Garg Both the of the CIT(A) 2016 for the assessment year 2. In ITA No.158/CTK/2016 for A.Y. 2012 the following grounds: “(A) For that the orders of the forums below are most arbitrary, excessive and passed need to be quashed and deleted. (B) For that the alleged unexplained investment found in purchase of land at Rs.32,10,224/ decimals at different places in the locality, the amount was invested IN THE INCOME TAX APPELLATE TRIBUNAL, CUTTACK BENCH, CUTTACK S/SHRI CHANDRA MOHAN GARG, JUDICIAL AND ARUN KHODPIA, ACCOUNTANT MEMBER ITA Nos.158 & 159/CTK/2016 Assessment Years : 2012-13 & 2013 Kalpana Shukla, At: Bhawan, Similipada, Panchamukhi Chowk, Angul Vs. ITO, Angul Ward, PAN/GIR No.ADQPS 4699 J (Appellant) .. ( Respondent Assessee by : Shri Aman Shukla Revenue by : Shri S.C.Mohanty, Addl. Date of Hearing : 29/3/ 20 Date of Pronouncement : 4/4 O R D E R g, JM Both the appeals filed by the assessee are directed of the CIT(A)-2, Bhubaneswar dated 3 rd March, 2016 and 28 for the assessment years 2012-13 & 2013-14. In ITA No.158/CTK/2016 for A.Y. 2012-13, the assessee has raised the following grounds: (A) For that the orders of the forums below are most arbitrary, excessive and passed without proper verification of details. Hence need to be quashed and deleted. (B) For that the alleged unexplained investment found in purchase of land at Rs.32,10,224/- measuring Ac.0.26 dec decimals at different places in the locality, the amount was invested Page1 | 7 IN THE INCOME TAX APPELLATE TRIBUNAL, JUDICIAL MEMBER AND ARUN KHODPIA, ACCOUNTANT MEMBER 158 & 159/CTK/2016 13 & 2013-14 ITO, Angul Ward, Angul Respondent) Aman Shukla, AR S.C.Mohanty, Addl. CIT (DR) / 2022 4/2022 are directed against the order March, 2016 and 28 th January, he assessee has raised (A) For that the orders of the forums below are most arbitrary, without proper verification of details. Hence (B) For that the alleged unexplained investment found in purchase measuring Ac.0.26 dec. and Ac.0.14 decimals at different places in the locality, the amount was invested ITA Nos.158 & 159/CTK/2016 Assessment Years : 2012-13 & 2013-14 Page2 | 7 by the husband of the Appellant therefore the submission of the Appellant made regarding purchase of land for Philips Carbon Black Limited (PCBL) through Raj Kumar Shukla and payments were made from his Indusind Bank Account in cheque on 21.09.201, but the purchases of land were registered in the appellant's name on behalf of R.K. Shukla who was out of station and this was done in the extreme urgency stage presuming that delay in executing the transfer of property would lead to complication and fraud by the other party. Therefore the matter was not appreciated even though the investment made by her husband were to be considered in the hands of her husband but not in the hands of the appellant. As such the additions reduced to Rs.2,10,224/- should be quashed because the appellant had proceeded and stepped into the shoes of her husband. (c) For that the non-disclosure of correct incentive on sales of Rs.2,30,439/- which was submitted that alleged disclosure of the appellant should not have been sustained and the facts explained should have been correctly examined appreciating the details furnished should have been confronted to delete the additions. This was found to be most illegal in to to. (D) For that the amount out of Rs. 5,76,940/- as the interest should not have been treated as undisclosed incentives on sales and such addition should have been deleted in the facts of the case. The forums below should have given the scope to explain with supporting evidences. (E) For that the alleged unexplained investment of Rs. 5,00,000/- shown as the capital investment in M/s. Anu Gitanjali Creations was illegally held to be the income of the Appellant U/s. 69 of the IT. Act Further the details of the amount shown in the Forum below should have been confronted inviting reply otherwise the amount added is liable to be deleted due to non-application of mind and failure to carry out the remedies available under the law. (F) For that the addition of Rs. 52,50,000/- under unsecured cash credit regarding the gifts, donations received from the relatives, and the details furnished describing die donors, etc. should have been verified and deleted. Hence the order passed should be quashed. (G) For that the entire Assessment is made in a most whimsical, absurd, slipshod method although the Appellant furnished the explanation from time to time and made appeals furnishing the books of account available with them. The Ld. Assessing Officer had ITA Nos.158 & 159/CTK/2016 Assessment Years : 2012-13 & 2013-14 Page3 | 7 no justification to proceed for passing order initiating proceeding U/s. 147 of the I.T. Act and should not have treated as escaped income unless tangible materials found after completion of the Assessment otherwise the proceedings taken U/s. 69 of the I.T. Act needs to be quashed.’ 3. In ITA No.159/CTK/2016 for A.Y. 2013-14, the assessee has raised the following grounds: “A) For that the order of the Forum below is highly arbitrary in the facts of the case. (B) For that the order passed U/s. 143(3)/147 of the I.T. Act without having proper satisfaction and element of escapement. Hence the order passed is liable to be deleted. (C) For that addition of Rs. 1,25,620/- by the Ld. Assessing Officer as alleged nondisclosure of correct incentives and sales and confirmed in the order of First Appeal by the Ld. CIT (Appeals) even though it was admitted that the transaction relates to have been made between M/s. REEBOK and M/s. Anu Rbk Store, but confirmed the addition on alleged ground staling that the Appellant did not disclose the transactions fully and truly is unjust in the facts of the case and liable to be deleted. (D) For that the disallowance of bank interest, unexplained deposit of amount in Bank account as found is without any confrontation. The Ld. CIT(A). in erratic and absurd manner proceeded in the same way of Assessing Officer without collecting specific information for confrontation and verification of details. Therefore, the whole order is passed in cryptic and confused manner just in slipshod method leading the inflation of income is required to be quashed. (E) For that on account of unexplained cash deposit of Rs. 13,47,700/- in S.B. Account and in H.D.F.C. Bank should not have been rejected without confrontation, even if the details were submitted by the Appellant at the time of hearing. (F) For that the Forums below in a routine manner made the disallowance without allowing the materials furnished and in case of further information no chance was given but passed the order beyond the purview of the statute. Hence the order passed needs to be quashed. ITA Nos.158 & 159/CTK/2016 Assessment Years : 2012-13 & 2013-14 Page4 | 7 (G) For that the forum below should have examined the detail information furnished and without inference and without running and brushing the details in cryptic manner, hence the order should have been quashed.” 3. Ld A.R. of the assessee referred to three applications dated 19.11.2019, 31.10.2020 and 12.10.2021 filed before the Tribunal, wherein, it was contended that the assessee furnished two cash books in the form of additional evidence for the assessment year 2012-13 on 9.1.2020 and for the assessment year 2013-14 on 9.1.2020 received by the Tribunal on 10.1.2020. Ld A.R. submitted that these additional evidences could not be produced before the AO as well as before the ld CIT(A) as the relevant papers and documents and books of account in respect of M/s. Anu Reebok Stores were seized by the department and thereafter same materials were seized by CBI. Therefore, the assessee was prevented by sufficient cause for not furnishing the above documents before the lower authorities, based on which, the additions were made. Ld A.R. prayed that these additional evidences may be admitted and restored back to the file of the AO for fresh consideration considering the circumstances on which, these were not considered by the lower authorities. 4. Replying to above, ld Sr DR objected to admission of additional evidences in the form cash book and books of account. Ld Sr DR keeps on record the objection to production of additional evidence in violation of Rule 29 of ITAT Rules regulating this aspect. He submitted that the provision ITA Nos.158 & 159/CTK/2016 Assessment Years : 2012-13 & 2013-14 Page5 | 7 envisages only two exceptional circumstances to the general prohibition of additional evidence. One is “if the Tribunal requires and the other is if the income tax authorities have decided the case without giving sufficient opportunity to the assessee to adduce evidence. He submits that neither of two situations exists in this case. Ld Sr DR submitted that the additional evidences were after thought and prepared to suit the assessee. 5. We have heard the rival submission and perused the record of the case. From the orders of lower authorities, it is clear that the additions/disallowance have been made for want of books of account as well as cash book of the assessee. We reproduce below Rule 29 of I.T.Rules: "29. Production of additional evidence before the Tribunal.--The parties to the appeal shall not be entitled to produce additional evidence either oral or documentary before the Tribunal, but if the Tribunal requires any documents to be produced or any witness to be examined or any affidavit to be filed to enable it to pass orders or for any other substantial cause, or, if the income-tax authorities have decided the case without giving sufficient opportunity to the assessee to adduce evidence either on points specified by them or not specified by them, the Tribunal, for reasons to be recorded, may allow such document to be produced or witness to be examined or affidavit to be filed or may allow such evidence to be adduced.” 6. On a plain reading of the Rule 29, of I.T.Rules, we observe that if the income tax authorities have decided the issue without giving sufficient opportunity to the assessee to adduce evidence either on points specified by them or not specified by them, the Tribunal, for reasons to be recorded, may allow such document to be produced or witness to be examined or ITA Nos.158 & 159/CTK/2016 Assessment Years : 2012-13 & 2013-14 Page6 | 7 affidavit to be filed or may allow such evidence to be adduced. In the present case, as contended by ld A.R. the cash books and books of accounts were under the custody of the income tax department and later on was seized by the CBI. Therefore, these documents were not produced before the lower authorities while passing the orders. From the above, we are satisfied that the assessee was prevented by sufficient cause for not presenting the above documents before the AO as well as ld CIT(A). In view of above, we admit the additional evidence in the form of cash book for the assessment year 2012-13 & 2013-14 and restore the matter back to the file of the AO to consider these additional evidences and pass fresh assessment orders for both the assessment years. Simultaneously, we direct the assessee to furnish the requires details such cash book as submitted before the Tribunal, and as other evidences required by the AO/to be submitted by the assessee for fresh consideration of the issue by the AO. The AO is directed to allow sufficient opportunity of being heard to the assessee. 7. In the result, appeals of the assessee are allowed. Order pronounced on 4 /4 /2022. Sd/- sd/- (Arun Khodpia) (Chandra Mohan Garg) ACCOUNTANT MEMBER JUDICIAL MEMBER Cuttack; Dated 4 /04/2022 B.K.Parida, SPS (OS) ITA Nos.158 & 159/CTK/2016 Assessment Years : 2012-13 & 2013-14 Page7 | 7 Copy of the Order forwarded to : By order Sr.Pvt.secretary ITAT, Cuttack 1. The Appellant : Kalpana Shukla, At: Shukla Bhawan, Similipada, Panchamukhi Chowk, Angul 2. The Respondent. ITO, Angul Ward, Angul 3. The CIT(A)-2, Bhubaneswar 4. Pr.CIT-2, Bhubaneswar 5. DR, ITAT, Cuttack 6. Guard file. //True Copy//