Ramaben Mansukhbhai Sidhpara, Surat V. The Income Tax Officer, Ward-9(3), Surat

ITA 1600/AHD/2016

• Counselvise Citation: [2018] 111 COUNSELVISE.COM (IT) 1897 (ITAT-SURAT)
• Duration Of Justice: 1 year(s) 9 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-03-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2007-2008
• Appeal Filed On: 14-06-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MRS R KAVITHA
• Keywords: Unexplained investment; Income from undisclosed sources; Principle of natural justice
• Section: 69

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL,SURAT BENCH,SURAT , , BEFORE SHRI C.M.GARG, JUDICIAL MEMBER AND SHRI O.P.MEENA, ACCOUNTANT MEMBER . / ITA NO.1600/AHD/2016/SRT [ [ / ASSESSMENT YEAR: 2007-08 SHRIRAMABENMANSUKHBHAISIDHPARA, 4/5, GOPNIWAS, NEAR UMIYADHANMANDIR, VAISHALIROAD,VARACHHA, SURAT 395 006. [PAN: BEMPS 7060B] VS. INCOME TAX OFFICER, WARD-9(3), SURAT. ( / APPELLANT) ( /RESPONDENT) / APPELLANT BY : NONE /RESPONDENT BY : MRS. R.KAVITHA, SR. D.R /DATE OF HEARING : 16-03-2018 /DATE OF PRONOUNCEMENT : 20-03-2018 / ORDER PERC.M.GARG, JUDICIAL MEMBER : THIS APPEAL HAS BEEN FILED BY THE ASSESSEE AGAINST THE ORDER OF COMMISSIONER OF INCOME TAX (APPEALS)-3, SURAT (CIT(A) FOR SHORT) DATED 15.03.2016 FOR THE ASSESSMENT YEAR (AY) 2007-08 PASSED IN THE FIRST APPEALNO.CAS/3/TRFD/V/268/2014-15. 2. THE GROUNDS RAISED BY THE ASSESSEE READ AS FOLLOWS: 2 ITA NO.1600/AHD/2016/SRT (A.Y: 2007-08) SHRIRAMABENMANSUKHBHAISIDHPARA 1. THE AO HAS ERRED IN MAKING ADDITION OFRS. 5,11,011/- WITHOUT ANY JUSTIFICATION. 2. THE A.O. WAS SPECIFICALLY REQUESTED DURING HEARING ON 22.09.2014 THAT COPY OF THE ALLEGED STATEMENT OF THE ASSESSEE CONFESSING THATRS5,11,011/-IS UNACCOUNTED INCOME BE PROVIDED. A.O. HOWEVER DID NOT DEAL WITH THIS AND VERY CASUALLY DISMISSED THIS DEMAND AS VERY GENERAL NATURE. THIS IS VIOLATION OF PRINCIPALS OF NATURAL JUSTICE. 3. THE A.O. HAS IN ANY CASE SELECTIVELY CONSIDERED THE STATEMENT OF THEASSESSEE. 4. THE A.O. HAS IGNORED THE SUBMISSIONS MADE ON 08.07.2014 GIVING PARTICULARS OF THE TRANSACTION AND HOW MONEY HAS BEEN RAISED. 5. THE A.O. HAS MADE ONE MORE ERROR WHILE IGNORING DOCUMENTARY PROOF SUBMITTED HIM ON 02.09.2014. 6. LEARNED C.L.T. ALSO MADE ERROR WHILE PASSING HIS ORDER IN FIRST APPEAL AND WENT MECHANICALLY TO FOLLOW WHAT WAS CONCLUDED BY THE A.O 7. LEARNED C.L.T. DID PROVIDE COPY OF THE STATEMENTS TO THE A R AND A.R DID NOT SUBMIT ANY COMMENT. BUT IT WAS EXPECTED OF CIT TO PERUSE THE ENTIRE STATEMENT AND NOT JUMP TO CONCLUSION READING ONLY FEW THEREOF. 8. PERUSAL OF THE STATEMENT INDICATES THAT IT IS NOT VOLUNTARY BUT SOME PREVIOUSLY WRITTEN STATEMENT HAS BEEN PLACED BEFORE THE UNEDUCATED ASSESSEE AND HER SIGNATURES ARE OBTAINED. MOREOVER A.O AND C.I.T HAVE IGNORED THE REPLY TO Q.9 WHICH CLARIFIES SOURCE OF THE SO CALLED UNASSESSED INCOME. 9. MORE WILL BE ORALLY SUBMITTED. 10. IT IS THEREFORE MOST HUMBLY PRAYED THAT: A. THIS HON'BLE TRIBUNAL MAY ORDER DELETION OF ADDITION AMOUNTING TO RS. 5,11,011/- MADE BY THE ASSESSMENT OFFICER IN THE ASSESSMENT FOR AY 2007-08 AND OBLIGE. B. THIS HON'BLE TRIBUNAL MAY PASS ANY OTHER AND FURTHER ORDER AS MAY BE DEEMED PROPER AND NECESSARY IN THE FACTS AND CIRCUMSTANCES OF THE CASE AND OBLIGE. 3. WHEN THE CASE WAS CALLED FOR HEARING EITHER THE ASSESSEE NOR HER REPRESENTATIVE APPEARED AND THERE IS NO ADJOURNMENT APPLICATION ON BEHALF OF 3 ITA NO.1600/AHD/2016/SRT (A.Y: 2007-08) SHRIRAMABENMANSUKHBHAISIDHPARA THE ASSESSE, BUT ON PERUSAL OF THE APPEAL RECORDS INTER ALIA ASSESSMENT AND FIRST APPELLATE ORDER, WE MADE A VIEW THAT THE APPEAL CAN BE DISPOSED OF AFTER HEARING THE LD. DEPARTMENTAL REPRESENTATIVE (DR). THEREFORE, WE PROCEED TO DECIDE APPEAL ON MERITS. 4. WE HAVE HEARD THE ARGUMENTS OF LD. DR AND CAREFULLY PERUSED THE RELEVANT MATERIAL PLACED ON THE RECORD OF THE TRIBUNAL. IT WAS SUBMITTED BY THE LD. ASSESSEES REPRESENTATIVE (AR) BEFORE THE AUTHORITIES BELOW THAT DURING THE ASSESSMENT PROCEEDINGS ON 22.09.2014 THE ASSESSEE REQUESTED THE AO TO PROVIDE COPY OF THE ALLEGED STATEMENT OF THE ASSESSEE CONFESSING THAT RS. 5,11,011/- IS UNACCOUNTED INCOME OF THE ASSESSEE, BUT THE AO DISMISSED THE REQUEST OF THE ASSESSEE IN A CASUAL MANNER WHICH IS CLEAR VIOLATION OF PRINCIPLES OF NATURAL JUSTICE. THE LD. AR FURTHER SUBMITTED THAT THE AO IGNORED WRITTEN SUBMISSIONS OF THE ASSESSEE VIDE DATED 08.07.2014, WHEREIN ALL DETAILS AND PARTICULARS REGARDING THE TRANSACTION AND HOW MONEY HAS BEEN RAISED WERE MENTIONED AND THE AO ALSO IGNORED DOCUMENTARY PROOF SUBMITTED BEFORE HIM ON 02.09.2014. THE LD. AR VEHEMENTLY POINTED OUT THAT THE FIRST APPELLATE AUTHORITY DISMISSED APPEAL OF THE ASSESSEE MECHANICALLY WITHOUT CONSIDERING THE SUBMISSIONS AND FACTS OF THE CASE. THE LD. AR SUBMITTED THAT REPLY TO QUESTION NO.9 OF THE ASSESSEE CLARIFIES THE SOURCE OF SO CALLEDUNEXPLAINED INVESTMENT. 5. THE LD. DEPARTMENTAL REPRESENTATIVE (DR) STRONGLY SUPPORTED THE ACTION OF THE AO AND CONTENDED THAT DUE TO LACK OF VERIFIABILITY OF CASH FLOW, 4 ITA NO.1600/AHD/2016/SRT (A.Y: 2007-08) SHRIRAMABENMANSUKHBHAISIDHPARA CASH WITHDRAWALS DETAILS, THE EXPLANATION OF THE ASSESSEE REGARDING SOURCE OF INVESTMENT DURING A.Y 2007-08 WHICH WAS ALSO CONFIRMED BY ASSESSEE DURING HIS STATEMENT, WAS NOT SATISFACTORY THEREFORE, THE AO WAS RIGHT IN MAKING ADDITION AND LD. CIT(A) WAS ALSO CORRECT IN UPHOLDING THE SAME. 6. AT THE VERY OUTSET, FROM THE SUBMISSIONS OF THE ASSESSEE AS NOTED BY THE AO IN PARA 6, VIDE DATED 22.09.2014 IT IS CLEAR THAT THE ASSESSEE MADE A REQUEST TO THE AO TO PROVIDE COPY OF THE STATEMENT ALLEGEDLY GIVEN BY HER ON THE BASIS OF WHICH THE AO MAKE ALLEGATION OF UNEXPLAINED INVESTMENT BY THE ASSESSEE. FURTHER, IN PARA 6.2 THE LD. CIT(A) ALSO NOTED SUBMISSIONS OF THE ASSESSEE DATED 08.07.2014 WHEREIN THE ASSESSEE EXPLAINED IN THE SOURCE OF PAYMENT OF RS. 5,11,011/- SUBMITTED THAT FOR PURCHASE OF LAND FROM SAPUTARA HILLS RESORT PVT. LTD. DURING F.Y. 2006-07 COPY OF THE PURCHASE AGREEMENT (SATAKHAT) IS ENCLOSED. IT WAS ALSO STATED THAT RS. 2,90,000/- PAID BY SIDHAPARARAMABENMANSUKHBHAI AND RS. 2.21,000/- PAID BY HER HUSBAND SHRIMANSUKHBHAIGORDHANBHAI PATEL AND THE SAME ADVANCE PAYMENTS ARE REFLECTED IN THEIR BALANCESHEET. THE LD. AR, BEFORE THE AO ALSO SUBMITTED COPY OF BANK STATEMENT OF ASSESSEE AND HER HUSBAND SHOWING SOURCE OF PAYMENT MADE BY THE ASSESSEE TOWARDS INVESTMENT OF IMPUGNED AMOUNT. ALONG WITH SUBMISSIONS DATED 02.09.2014 AS NOTED BY THE LD. CIT(A) IN SAME PARA 6.2 THE ASSESSEE ALSO FURNISHED DOCUMENTARY EVIDENCE VIZ. CASH BOOK FOR F.Y. 2006-07 ALONGWITH CASH FLOW STATEMENT, COPY OF I.T RETURN ACKNOWLEDGMENT FOR PRECEDING THREE PREVIOUS YEARS AND DETAILS OF AGRICULTURAL INCOME EARNED DURING THE YEAR ALONGWITH COPY OF 7/12 AND 8-A. 5 ITA NO.1600/AHD/2016/SRT (A.Y: 2007-08) SHRIRAMABENMANSUKHBHAISIDHPARA 7. ON CAREFUL CONSIDERATION OF ABOVE SUBMISSIONS OF THE ASSESSEE BEFORE THE AUTHORITIES BELOW AND ALLEGATIONS OF THE AO AS WELL AS OF THE LD. CIT(A) FOR MAKING AND UPHOLDING THE ADDITION, WE ARE OF THE VIEW THAT THE ASSESSEE ASKED THE COPY OF STATEMENT WHICH WAS TAKEN AS BASIS FOR MAKING ADDITION BUT THE SAME WAS NOT PROVIDED TO THE ASSESSEE FOR THE REASONS BEST KNOWN TO THE AUTHORITIES BELOW. THIS ACT ITSELF IS SUFFICIENT TO DISMISS THE ADDITION MADE BY THE AO AND UPHELD BY THE LD. CIT(A) AS THE ADDITION CANNOT BE MADE ON THE BASIS OF A DOCUMENT WHICH WAS NOT CONFRONTED TO THE ASSESSEE DURING ASSESSMENT PROCEEDINGS DESPITE HER REPEATED REQUESTS AND THIS OMISSION ON THE PART OF AO MAKES ASSESSMENT ORDER VIOLATION OF PRINCIPLES OF NATURAL JUSTICE. 8. FURTHER, THE ALLEGATION OF THE AO WAS THAT THE ASSESSE PURCHASED A PROPERTY AMOUNTING TO RS. 5,11,011/- AND MADE PAYMENT IN CASH. THE AO TOOK BASIS OF STATEMENT OF ASSESSEE DATED 30.01.2014 BY OBSERVING THAT THE ASSESSEE HERSELF ACCEPTED THAT INVESTMENT IS UNEXPLAINED BUT AS WE HAVE NOTED ABOVE THE COPY OF THE STATEMENT WAS NOT PROVIDED TO THE ASSESSEE THEREFORE THIS ALLEGATION BECOMES BASELESS AND VOID. WE ARE ALSO NOT IN AGREEMENT WITH THE OBSERVATION OF THE LD. CIT(A) IN PARA 7.3 THAT CASH FLOW STATEMENT IS SELF-SERVED DOCUMENT AS ALONG WITH SUBMISSION DATED 08.07.2017, THE ASSESSEE FILED COPY OF THE BANK STATEMENT OF HERSELF AND HER HUSBAND THEREAFTER ON 02.09.2014 COPY OF CASH BOOK ALONG WITH CASH FLOW STATEMENT, COPY OF I.T RETURN FOR PRECEDING THREE YEARS AND EVIDENCE SHOWING AGRICULTURAL INCOME ALONGWITH COPY OF REVENUE RECORD SHOWING AGRICULTURE 6 ITA NO.1600/AHD/2016/SRT (A.Y: 2007-08) SHRIRAMABENMANSUKHBHAISIDHPARA HOLDING IN THE HANDS OF ASSESSEE WHICH ARE THE MOST POSSIBLE EVIDENCE TO EXPLAIN THE SOURCE OF INVESTMENT. IN THIS SCENARIO, CONTENTION OF THE AO AS WELL AS LD. CIT(A) IS NOT FOUND CORRECT AND SUSTAINABLE AND WE HAVE NO HESITATION TO HOLD THAT THE ASSESSEE EXPLAINED SOURCE OF ALLEGED INVESTMENT PROPERTY BY WAY OF AMPLE EVIDENCE AND SHE DISCHARGED HER ONUS LAY ON HER SHOULDERS AS PER REQUIREMENT OF S. 69 OF THE ACT. 9. IN THIS SITUATION, ADDITION MADE BY THE AO AND UPHELD BY THE LD. CIT(A) IS NOT JUSTIFIED AND CORRECT THUS WE DISMISS THE SAME AS BEING NOT SUSTAINABLE. ACCORDINGLY, GROUNDS OF ASSESSEE ARE ALLOWED AND AO IS DIRECTED TO DELETE THE ADDITION. 10. IN THE RESULT,APPEAL OF THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS DAY OF 20 TH MARCH, 2018. / SURAT ; DATED :20 TH MARCH, 2018 EDN / COPY OF THE ORDER IS FORWARDED TO : 1. / THE APPELLANT ; 2. / THE RESPONDENT; 3. ( ) / THE CIT (A) - 3, SURAT; 4. PRL. CIT-III, SURAT; 5. , , / DR, ITAT,SURAT; 6. / GUARD FILE. / BY ORDER, // TRUE COPY // / ASSISTANT REGISTRAR SD/ - SD/ - ( ) ( O.P.MEENA ) / ACCOUNTANT MEMBER ( ) (C.M.GARG) / JUDICIAL MEMBER 7 ITA NO.1600/AHD/2016/SRT (A.Y: 2007-08) SHRIRAMABENMANSUKHBHAISIDHPARA , / ITAT, SURAT