Late Sh. Gurdial Singh through L/H Narinder Singh, Dera Bassi V. ITO, W-6(4), Mohali

ITA 1615/CHANDI/2018

• Counselvise Citation: [2020] 110 COUNSELVISE.COM (IT) 6085 (ITAT-CHANDIGARH)
• Duration Of Justice: 1 year(s) 8 month(s) 20 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-09-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2005-2006
• Appeal Filed On: 28-12-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ARVIND SUDARSHAN
• Assessee Lawyers: S K MUKHI
• Keywords: Additional evidence; Condonation of delay
• Section: 13

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL CHANDIGARH BENCHES, SMC, CHANDIGARH BEFORE MS. DIVA SINGH, JUDICIAL MEMBER ITA NO.1615/CHD/2018 ASSESSMENT YEAR: 2005-06 LATE SH. GURDIAL SINGH VS. THE ITO THROUGH L/H NARINDER SINGH WARD 6(4), MOHALI VILL: DANNONI, TEH-DERA BASSI MOHALI, PUNJAB PAN NO. DBJPS9574L (APPELLANT) (RESPONDENT) ASSESSEE BY : SH. S.K. MUKHI REVENUE BY : SH. ARVIND SUDARSHAN DATE OF HEARING : 17/09/2020 DATE OF PRONOUNCEMENT :18/09/2020 ORDER THE PRESENT APPEAL HAS BEEN FILED BY THE ASSESSEE ( LEGAL HEIR) IN WHOSE NAME THE ORDER WAS PASSED BY THE LD. CIT(A) ALSO WH EREIN THE CORRECTNESS OF THE SAID ORDER DT. 27/09/2018 OF LD. CIT(A)-1, CHA NDIGARH PERTAINING TO 2005-06 ASSESSMENT YEAR IS ASSAILED ON THE FOLLOWING GROUND S: 1. THAT THE ORDERS OF LD. CIT(A) IS ILLEGAL, ERRONEOUS AND PERVERSE AND THUS NEEDS TO BE QUASHED. 2. (A) THAT THE LD. CIT(A) IS NOT JUSTIFIED IN CONCURR ING WITH THE IMPUGNED ADDITION ON ACCOUNT OF RS. 2,00,000/- BEING THE AMO UNT INVESTED BY THE APPELLANT OUT OF HIS AGRICULTURAL INCOME HAVING SUFFICIENT AG RICULTURAL LAND WHICH IS ILLEGAL, ARBITRARY AND THUS BAD IN LAW. (B) THAT WITHOUT PREJUDICE TO ABOVE, THE APPELLANT ALSO DISPUTES THE QUANTUM OF ADDITION AS HIGHLY EXCESSIVE. 3. THAT THE APPELLANT CRAVES LEAVE TO ADD, AMEND OR DELETE ANY OF THE GROUNDS OF APPEAL ON OR BEFORE THE DISPOSAL OF THE PRESENT APPEAL. 2 2. HOWEVER BEFORE PROCEEDING TO ADDRESS THE SPECIFI C GRIEVANCE OF THE ASSESSEE IT IS RELEVANT TO FIRST ADDRESS THE DEALY OF 17 DAYS POINTED OUT BY THE REGISTRY IN THE FILING OF THE PRESENT APPEAL. 2.1 LD. AR RELYING UPON THE APPLICATION MOVED BY TH E ASSESSEE SUBMITTED THAT THE DELAY HAS OCCURRED ON ACCOUNT OF THE FACT THAT THE COPY OF THE IMPUGNED ORDER COULD NOT BE SERVED UPON THE ASSESSE E BY THE DEPARTMENT. THE REASON BEING THAT THE ASSESSEES RESIDENCE IS IN A REMOTE PART OF THE VILLAGE AND COPY OF THE IMPUGNED ORDER COULD NOT BE MADE AVAILA BLE. SUBSEQUENTLY THE ASSESSEE OBTAINED THE ORDER FROM THE LD. CIT(A). AT TENTION WAS INVITED TO THE FACTS THAT THE ASSESSEE HAVING LOST HIS FATHER WAS HANDICAPPED AND HENCE THERE IS DELAY OF 17 DAYS EVEN, OTHERWISE IT IS PLEADED T HAT THE DELAY IS UNINTENTIONAL AND INADVERTENT. 2.2. THE LD. SR. DR MR. ARVIND SUDARSHAN ON A PERUS AL OF THE CONDONATION OF DELAY APPLICATION DT. 09/09/2019 POSED NO OBJECTION TO THE DELAY BEING CONDONED. 2.3. I HAVE HEARD THE SUBMISSIONS AND PERUSED THE R ECORD IN THE FACTS AS PLEADED AND AVAILABLE ON THE RECORD, I HOLD THAT TH E DELAY BEING UNINTENTIONAL AND INADVERTENT DESERVED TO BE CONDONED. IT IS SEEN THAT NO ADVANTAGE HAS BEEN DRAWN BY THE ASSESSEE IN THE FILING THE APPEAL LATE AND NO UNDUE ADVANTAGE HAS BEEN VISITED UPON THE REVENUE IN CASE THE DELAY IS CONDONED. 2.4 ACCORDINGLY, ON CONSIDERATION OF THE ENTIRETY O F THE FACTS AND CIRCUMSTANCES AND PLEADINGS THE DELAY OF 17 DAYS IS CONDONED. SAID ORDER WAS PRONOUNCED IN THE OPEN COURT VIA WEBEX AND THE PART IES WERE DIRECTED TO ARGUE THE APPEAL ON MERITS. 3 3. LD. AR INVITING ATTENTION TO THE SPECIFIC FINDIN GS OF THE LD. CIT(A) ARRIVED AT IN PARA 6.2.1 SUBMITTED THAT THE SAID FINDINGS HAS BEE N ARRIVED AT IGNORING THE FACTS AND EVIDENCE ON RECORD. 4. INVITING ATTENTION TO PAPER BOOK RUNNING INTO 1 4 PAGES THE LD. AR RELIED UPON THE DOCUMENTS AT PAGE 8 TO 13 SUBMITTED THAT T HESE WERE THE COPIES OF JAMABANDI SHOWING NOT ONLY OWNERSHIP OF AGRICULTURE LAND AS PLEADED BUT ALSO EVIDENCING THE FACT THAT IT WAS UNDER SELF CULTIVAT ION, AT THE RELEVANT POINT OF TIME. 5. ON A PERUSAL OF THE IMPUGNED ORDER IT IS SEEN TH AT THESE DOCUMENTS WERE FILED AS FRESH EVIDENCE BEFORE THE LD. CIT(A) AND W ERE REMANDED BACK TO THE A.O. HOWEVER THESE APPEARS NOT TO HAVE BEEN TAKEN INTO C ONSIDERATION WHILE ARRIVING AT THE FINDINGS. 6. IN THESE CIRCUMSTANCES THE LD. AR WAS REQUIRED T O ADDRESS WHETHER THERE WAS A TRANSLATION OF THESE DOCUMENTS FILED IN GURUM UKHI OR WOULD HE BE WILLING FOR THE ISSUE BEING REMANDED BACK FOR CONSIDERATION AND VERIFICATION. 7. THE LD. AR SUBMITTED THAT HE HAS NO OBJECTION IF THE ISSUE IS REMANDED BACK TAKING INTO CONSIDERATION THE FACT THAT THE ASSESSE E WAS THE OWNER OF ABOUT 26 ACRES OF LAND AT THE RELEVANT POINT OF TIME WHICH W AS UNDER SELF CULTIVATION EVIDENCED BY THE JAMABANDI RECORD AND THUS THE AMOU NT OF RS. 2 LACS COULD BE SAID TO HAVE BEEN SOURCED FROM THIS. APROPOS THE AM OUNT BEING TRANSFERRED BY CHEQUE AS NOTED BY THE TAX AUTHORITIES IT WAS HIS S UBMISSION THAT IT WAS A VERY OLD ACCOUNT AND THE BANK FAILED TO BE IN A POSSESSION T O GIVE ANY EVIDENCE AS TO THE SOURCE HOWEVER IN CASE THE TAX AUTHORITY ARE IN A P OSITION TO DEMOLISH THE ASSESSEES CLAIM HE MAY BE GIVEN TIME TO RESPOND. T HE FACT REMAINS THAT OWNERSHIP OF LAND IS AVAILABLE AND EVIDENCE OF AGRICULTURE AC TIVITIES THEREON IS ALSO THERE THIS WOULD DEMONSTRATE THE PRESUMPTION THAT THE FUNDS WE RE AVAILABLE FROM WHICH THE DEPOSITS ARE MADE. IT WAS SUBMITTED THAT IT WOULD B E SUPPORTED BY THE DECISION OF THE JURISDICTIONAL HIGH COURT IN THE CASE OF CIT VS . SHRI JARNAIL SINGH KARTA IN ITA NO. 4 166 OF 2008 DT. 12/05/2008, COPY OF THE SAID DECISI ON IT WAS SUBMITTED WAS MADE AVAILABLE TO THE LD. CIT(A) AVAILABLE AT PAGE 2 TO 7 AND RELIED UPON. 8. THE LD. SR. DR MR. ARVIND SUDARSHAN CONSIDERING THE FACTS POSED NO OBJECTION TO THE REMAND OF THE ISSUE BACK TO THE FILE OF THE LD. CIT(A). 9. I HAVE HEARD THE SUBMISSIONS AND PERUSED THE MAT ERIAL AVAILABLE ON THE RECORD IT IS SEEN THAT BEFORE THE LD. CIT(A) THE IS SUE FOR CONSIDERATION WAS THE DEPOSIT OF RS. 11,00,000/- FOR WHICH THE ASSESSEE H AD FILED FRESH EVIDENCE WHICH HAD BEEN ADMITTED AS DISCUSSED IN PARA 6.1.1 OF THE IMPUGNED ORDER. ON PERUSAL OF THE SAME IT IS SEEN THAT COPY OF JAMABANDI WAS MADE AVAILABLE TO THE A.O. AS WELL AS LD. CIT(A). NOW THE ASSESSE HAS FURNISHED BEFORE YOUR GOOD SE LF ADDITIONAL EVIDENCE IN WHICH HE HAS FURNISHED THE COPY OF SALE DEEDS TO PROVE TH E SOURCE OF INVESTMENT, DETAILS OF SHARE ALLOTMENT BY M/S BASSI TUBES PVT. LTD. TO PRO VE GENUINENESS OF SHARE ALLOTMENT, COPY OF JAMABANDI TO PROVE CREDIT WORTHINESS, DEATH CERTIFICATE OF S H. GURDIAL SINGH AND COPY OF BANK STATEMENT TO PROVE THE GENUINENESS OF TRANSACTION. THE ASSESSEE HAS FURNISHED THE NET INVESTMENT WAS RS. 5,34,000/- ONLY OUT OF WHICH 53400 SHARES @ RS. 10 EACH SHARE WERE ALLOTTED TO THE ASSESSEE. EMPHASIS SUPPLIED 10. IT IS SEEN IN THE FOLLOWING DECISION ARRIVED AT BY THE LD. CIT(A) THAT THERE IS NO DISCUSSION WHATSOEVER ON THE EVIDENCE FILED IN R EGARD TO THE AGRICULTURAL ACTIVITY. THE LD. CIT(A) MERELY REJECTED THE CLAIM TAKING INTO CONSIDERATION THE FACT THAT THE MONEY WAS RECEIVED BY WAY OF BANK TRA NSFER. THERE IS NO EVIDENCE TO SHOW THAT THE BANK TRANSFER WAS NOT FROM AGRICUL TURAL ACTIVITY THE PRESUMPTION DRAWN IS NOT SUSTAINABLE. THE RELEVANT FINDINGS IS REPRODUCED HEREUNDER: 6.2.1 AS REGARDS THE DEPOSITS OF RS. 2,00,000/- IS CONCERNED, THE APPELLANT STATED THAT THE MONEY WAS OUT HIS AGRICULTURAL INCO ME. HE HAS FURTHER STATED THAT APPELLANT OWNS 24 ACRES OF LAND AND HAS ADEQUATE IN COME TO JUSTIFY THE INVESTMENT OF RS. 2,00,000/-. HOWEVER, ON GOING THR OUGH THE BANK ACCOUNT OF THE APPELLANT, IT IS SEEN THAT THE MONEY HAS BEEN RECEI VED BY BANK TRANSFER. THE APPELLANT HAS NOT BEEN ABLE TO EXPLAIN THE SOURCE O F THE TRANSFER. HENCE, IN ABSENCE OF ANY EXPLANATION REGARDING THE SOURCE OF RS. 2,00,000/- THE ADDITION OF THIS AMOUNT IS UPHELD. 5 11. IN THE LIGHT OF THE ARGUMENT OF THE PARTIES BEF ORE THE BENCH, AND THEIR PRAYER CONSIDERING THE TIME LAG QUA THE AMOUNT BEIN G TRANSFERRED BY CHEQUE AND THE POSSIBILITY OF THE RECORD NOT BEING AVAILAB LE THE FACT REMAINS THAT THE EVIDENCE AVAILABLE ON RECORD HAS REMAINED IGNORED. IN THE CIRCUMSTANCES IT IS APPROPRIATE TO ACCEPT THE PRAYER OF THE PARTIES BEF ORE THE BENCH AND REMAND THE ISSUE BACK TO THE FILE OF THE LD. CIT(A) WITH D IRECTION TO TAKEN INTO CONSIDERATION THE EVIDENCE RELIED UPON AND IN CASE THE REVENUE HAS ANY CONTRARY EVIDENCE TO MAKE IT AVAILABLE TO THE ASSES SEE WITH REASONABLE OPPORTUNITY TO REBUT THE SAME BEING GRANTED. 12. IT GOES WITHOUT SAYING THAT THE LEGAL PRINCIPLE S RELIED UPON AND THE EVIDENCE ON RECORD CANNOT BE DISCARDED SUBJECT TO T HE ABOVE DIRECTIONS THE GROUND RAISED BY THE ASSESSEE ARE ALLOWED. SAID ORD ER WAS PRONOUNCED IN THE OPEN COURT VIA WEBEX AT THE TIME OF HEARING ITSELF. 13. IN THE RESULT THE APPEAL OF THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSES. SD/- (DIVA SINGH) JUDICIAL MEMBER DATED : 18/09/2020 AG COPY TO: THE APPELLANT, THE RESPONDENT, THE CIT, TH E CIT(A), THE DR