Poonam Arora, Panipat V. ITO, Ward-3, Panipat

ITA 1668/DEL/2021

• Counselvise Citation: [2022] 106 COUNSELVISE.COM (IT) 1986 (ITAT-DELHI)
• Duration Of Justice: 7 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-06-2022
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2014-2015
• Appeal Filed On: 11-11-2021
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Principle of natural justice; Condonation of delay; Reassessment proceedings
• Section: 147; 69

Judgement Text

I.T.A.Nos.9674/Del/2019 & 1668/Del/2021 1 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH “SMC” NEW DELHI SHRI CHANDRA MOHAN GARG, JUDICIAL MEMBER आ.अ.स ं /.I.T.A No.9674/Del/2019 /Assessment Year: 2014-15 Naveen Arora S/o Chaman Lal, 205-L, Model Town, Panipat, Haryana. ब म Vs. ITO Ward 3, Panipat, Haryana. PAN No. ADHPA3372M अ Appellant /Respondent & आ.अ.स ं /.I.T.A No.1668/Del/2021 /Assessment Year: 2014-15 Poonam Arora H.No. 205-L, Model Town, Panipat, Haryana. ब म Vs. ITO Ward 3, Panipat, Haryana. PAN No. ADHPA3373L अ Appellant /Respondent िनधा रतीक ओरसे /Assessee by Shri K.C. Aneja, Adv. राज वक ओरसे /Revenue by Shri Om Prakash, Sr. DR स ु नवाईक तारीख/ Date of hearing: 09.06.2022 उ ोषणाक तारीख/Pronouncement on 29.06.2022 आदेश /O R D E R ITA No. 9674/Del/2019 has been filed against the order of Ld. Commissioner of Income Tax (Appeals), Karnal dated 25.10.2019 and ITA No. 1668/Del/2021 has been filed against the order of Ld.CIT(A), Karnal order dated 30.01.2020 both for AYs 2014-15. I.T.A.Nos.9674/Del/2019 & 1668/Del/2021 2 2. Application for condonation of delay in ITA No. 1668/Del/2021. I have heard the argument of both the sides and carefully perused the relevant material placed on record. Since the Ld. CIT(A) passed impugned First Appellate Order on 30.01.2020 and immediately thereafter pandemic of Covid-19 started. As per the facts stated in the condonation petition and supportive affidavit thereof the assessee could be able to get the copy of the First Appellate Order dated 30.01.2020 only on 27.10.2021. On being asked by the Bench the Ld. Sr. DR strongly opposed to the condonation petition. However, in all fairness, the Ld. Sr. DR also submitted that due to pandemic of Covid-19 there are several directions and orders from the Hon’ble Supreme Court and Hon’ble High Court to take a liberal approach while adjudicating the prayer of condonation of delay. Therefore, Department has no serious objection if the delay in filing the appeal before the Tribunal by the assessee is condoned on account of pandemic of Covid-19. 3. On careful consideration of above submission, I am of the considered view that the cause stated in the application and affidavit of Smt. Poonam Arora there was a sufficient cause explaining the delay in filing delayed appeal before the Tribunal. Therefore, delay in filing appeal before the Tribunal is condoned. Respectfully following the judgment of Hon’ble Supreme Court in the case of Collector Land Acquisition Vs. MST Katiji & Ors. (167 ITR 471). I.T.A.Nos.9674/Del/2019 & 1668/Del/2021 3 4. Since, the Ld. Representative of both the sides have agreed to the fact that the facts and circumstances of both the cases are quite similar and identical. Therefore, for the sake of convenience ITA No. 9474/Del/2019 is taken as a lead case for adjudicating the matter. Assessee has raised the following grounds of appeal: - 1. “That on the facts and in the circumstances of case the Assessing Officer has arbitrarily and without any basis made alleged unexplained investment on purchase of House for Rs.38,00,340/- which is bad in law and liable to be deleted. 2. That the Assessing Officer never confronted the fake documents so called Bayana for Rs.1,04,00,511/- on the basis of which additions made for Rs.38,00,340/- without discharging the onus. The additions thus made are highly illegal and liable to be deleted and may please be deleted.” 5. The Ld. Counsel of the assessee drawing our attention towards assessment as well as First Appellate Order submitted that in this case the Assessing Officer initiated reassessment proceedings on the strength of a so called document “Bayana” which was never confronted to the assessee neither by the assessee nor by the Ld. CIT(A). Further drawing my attention towards Form No. 35 along with First Appellate Order the Ld. Counsel submitted that despite the fact that the assessee raised this ground before the Ld. CIT(A), this grievance of assessee was never adjudicated by the Ld. CIT(A). The Ld. Counsel vehemently pointed out that the assessee, during the assessment proceedings had submitted an I.T.A.Nos.9674/Del/2019 & 1668/Del/2021 4 affidavit deposed on 12.12.2018 categorically submitted before the Assessing Officer that despite several efforts Shri Pankaj Jagga and Smt. Anupam Jagga are not traceable neither at their given address 20, Gole Market, Model Town, Panipat nor at Jagga’s contact no. [phone]. Shri Aneja submitted that the assessee made all efforts to trace Shri Jagga and his wife to substantiate his explanation before the Assessing Officer and before the Ld. CIT(A) also but they were not traceable on the given address and mobile number. The Ld. Counsel also pointed out that when the so called “Bayana” had never been confronted to the assessee during assessment and First Appellate Proceedings then no addition can be made in the hands of the assessee in violation of principles of natural justice. He also contended that the Assessing Officer wrongly shifted onus on the shoulders of the assessee by saying that the assessee has failed to prove the genuineness of source of investment, whereas the onus was on the shoulders of the Assessing Officer to establish that the assessee has paid over and above amount from the registered sale deed under so called “Bayana” but the AO neither confronted this so called document to the assessee nor bring on record any other positive and reliable document to prove that the assessee has paid over and above amount in addition to the amount stated in the registered sale deed executed by Shri Pankaj Jagga and his wife Smt. Poonam Arora in favour of the assessee. The Ld. Counsel submitted that there is no mentioning in the satisfaction note as well as in the assessment order what is the I.T.A.Nos.9674/Del/2019 & 1668/Del/2021 5 source of so called “Bayana” document and even if where was a document in the hands of the Assessing Officer then the same should have been confronted to the assessee before disbelieving the explanation of the assessee and making any addition in the hands of the assessee on the strength such baseless document. Lastly, the Ld. Counsel prayed that addition made in the hands of the assessee as well as his wife Smt. Poonam Arora may kindly be deleted. 6. Reply to the above, the Ld. Sr. DR drew our attention towards relevant part of assessment order at page 3 & 4 and submitted that the assessee was provided sufficient opportunity to produce relevant documentary evidence but the assessee has not provided the same reason best known to him. The Ld. Sr. DR submitted that merely filing an affidavit is not sufficient evidence to support his reply, whereas he is signed the “Bayana” in presence of two independent witnesses and assessee failed to produce Shri Pankaj Jagga, the second party, for confirmation of actual consideration paid by him. Therefore, the impugned assessment order and First Appellate Order may kindly be confirmed. 7. Placing rejoinder to the above, the Ld. Counsel submitted that neither from the assessment order nor from the First Appellate Order, it can be seen that the so called document “Bayana” was confronted to the assessee by way of any show cause notice or order sheet entry. The Ld. I.T.A.Nos.9674/Del/2019 & 1668/Del/2021 6 Counsel submitted that the Assessing Officer or the Ld. CIT(A) was also empowered the two witnesses stated to be mentioned in the so called “Bayana” but without undertaking such exercise the Assessing Officer proceeded to make addition in the hands of the assessee on the basis of such sham and baseless document which is not sustainable. 8. On careful consideration of rival submission, I am of the considered view that the main controversy triggered against the assessee by the Assessing Officer by initiating reassessment proceedings u/s 147 of the Act revolves around a document called “Bayana”. On the basis of such document the AO formed a belief that the assessee has paid amount of Rs.1,05,00,511/- against purchase of property jointly with his wife Smt. Poonam Arora from Smt. Anupam Jagga wife of Shri Pankaj Jagga and the amount of Rs.48,00,000/- has been mentioned in the registered sale deed to hide actual payment/investment made by the assessee. The main bone of contention by the appellant-assessee is that the so called “Bayana” document was never confronted to the assessee neither by the assessee nor by the Ld. CIT(A) despite the assessee raised a specific ground no. 2 in this regard before the Ld. CIT(A). First of all from the assessment order, I am unable to see any exercise undertaken by the AO to confront the said document “Bayana” to the assessee in any manner by way of show cause notice or note sheet entry/order sheet entry. From the assessment order I also see that the AO has reproduced an affidavit of appellant Shri Naveen Arora, wherein the assessee I.T.A.Nos.9674/Del/2019 & 1668/Del/2021 7 categorically stated that despite several efforts he could not trace Shri Pankaj Jagga and his wife Smt. Anupam Jagga from the given address nor Pankaj Jagga was available on the given mobile number. In para 8 of affidavit the appellant clearly stated that he is ready to bear the tax/interest/penalty/prosecution eventually, if in future, Shri Pankaj Jagga and Smt. Anupam Jagga is caught by the Income Tax Department and admits the execution of impugned agreement of Rs.1.10 crores for purchase of property. 9. In this situation when the assessee has submitted all the necessary documents under our command such as registered sale deed etc. then he is not expected to controvert the so called “Bayana” which was never confronted to him by the Assessing Officer. Further, from the copy of First Appellate Order available on record it is clear that the assessee has raised ground no. 2 contending that the AO never confronted so called “Bayana” document on the basis of which addition has been made in the hands of the assessee without discharging the onus by the AO. However, from the entire First Appellate Order it is clearly stated that the Ld. CIT(A) has reproduced almost the entire assessment order and thereafter in the last para he dismissed the appeal of the assessee by holding that it has only been stated that the AO has relied on first document but no efforts has been made to prove the AO wrong, therefore, the addition is totally justified. I.T.A.Nos.9674/Del/2019 & 1668/Del/2021 8 10. The Ld. CIT(A) has not considered and adjudicated the grievance of the assessee in ground no. 2. Therefore, I am compelled to hold that neither the AO nor the Ld. CIT(A) has confronted the so called document “Bayana” to the assessee and the Assessing Officer without confronting the same shifted the onus on the shoulders of the assessee to establish that the assessee failed to produce Shri Pankaj Jagga, the second party for confirmation and submissions of the assessee are found to be not reliable and trustworthy merely filing of affidavit is not sufficient evidence to account his reply. 11. In my considered and humble opinion the AO initiated reassessment proceedings on the strength of some document called “Bayana” which was never confronted to the assessee neither by the AO nor the Ld. CIT(A) then how we can expect the assessee to submit his explanation and to controvert the same. The assessee submitted affidavit showing his efforts and inability to produce the seller and his wife but the same was not considered in the right perspective by the authorities below. 12. In view of foregoing discussion, I reach to a logical conclusion that the assessee was never confronted with the based document i.e. “Bayana” to the assessee which was the sole cause for triggering reassessment proceedings against the assessee u/s 147 of the Act. The assessee consistently submitting before the authorities below and I.T.A.Nos.9674/Del/2019 & 1668/Del/2021 9 specifically before the Ld. CIT(A) by raising ground no. 2 but from the First Appellate Order as well as assessment proceedings it is clearly visible that the Ld. CIT(A) did not adjudicate the grievance of the assessee nor confronted the so called document “Bayana” to the assessee during First Appellate Proceedings and directly jump to the conclusion that the basis taken by the AO for making addition in the hands of the assessee and his wife is correct and the assessee has not been able to explain the difference in figures as per “Bayana” and the registered sale deed. It was also alleged that the assessee despite various opportunities did not produce the seller Shri Pankaj Jagga and the “Bayana” document is solid evidence and the amount stated to be transacted and merely by filing a self serving affidavit, the assessee cannot be said to have discharged his onus. But I am not in agreement with his findings recorded by the Ld. First Appellate Authority as the alleged “Bayana” was picked up by the AO for initiating reassessment proceedings against the assessee but the same was never confronted to the assessee neither during the assessment proceedings nor during the First Appellate Proceedings and the assessee rent pillar to post and made several efforts to catch the seller Shri Pankaj Jagga and his wife Smt. Anupam Jagga but despite several efforts he could not produce them before the AO. In my humble opinion the onus lies on the shoulders of the person or the authority who alleges or states some facts on the basis of some evidences oral or documentary in his hands and the onus lay on such person or I.T.A.Nos.9674/Del/2019 & 1668/Del/2021 10 authority stand discharge when such evidence is confronted to the assessee concern asking to submit his explanation but without conducting such exercise the AO draw a conclusion that the assessee and his wife has paid over and above amount to the seller as per “Bayana” and made addition in the hands of the assessee u/s 69 of the Act. But until unless such documentary evidence viz. “Bayana” is not confronted to the assessee then no tax liability can be fasten on the assessee in violation of principles of natural justice. At the cost of repetition, I may point out that the assessee before the Ld. CIT(A) specifically raised ground no. 2 by alleging that the so called “Bayana” document was not confronted to him but the Ld. CIT(A) have not paid any attention to this ground and assessee’s grievance remained unaddressed. It is a well settled principle that any omission made by the AO during the assessment proceedings can be rectified by the Ld. CIT(A) by enjoying coterminous powers with the AO but the Ld. CIT(A) simply reproduce the assessment order and dismissed the appeal in a cryptic manner. Therefore, I am compelled to hold that the addition made in the hands of the assessee on the basis of sole documentary evidence which was never confronted to the assessee cannot be held as sustainable. I may also add that the onus was on the AO to establish that the assessee has paid over and above amount from the registered sale deed as per “Bayana” document and the AO without discharging such onus shifted the onus on the shoulders of the assessee and held that the assessee failed to produce seller Shri Pankaj Jagga and I.T.A.Nos.9674/Del/2019 & 1668/Del/2021 11 he relied on the “Bayana” document for making addition in the hands of the assessee u/s 69 of the Act. Consequently, the addition made by the AO and confirm by the Ld. CIT(A) cannot be held as sustainable and, thus, I direct the AO to delete the same. 13. In the result, the appeal of the assessee is allowed. ITA No. 1668/Del/2021 for AY 2014-15 14. Since, Ld. Representative of both the sides have agreed that facts and circumstances of both the appeals are quite similar and same as under the impugned transaction of purchase of property Shri Naveen Arora and his wife Smt. Poonam Arora purchased 2/3 rd and 1/3 rd part of property respectively. The AO has also made addition in the hands of Smt. Poonam Arora on the strength of some “Bayana” document and it is also bone of contention of the appellant Smt. Poonam Arora that the AO neither provided copy of alleged document “Bayana” nor confronted nor give the particulars for cross examination on the basis of which addition made. Therefore, the addition is purely based on conjectures and assessment, thus, made is without providing opportunity which is wrong and illegal. In ground no. 3 appellant Smt. Poonam Arora categorically alleged that the Ld. CIT(A) remanded the case to the AO on 07.11.2019 and the remained report was neither provided nor further give any document for verification and without any basis the Ld. CIT(A) confirmed the addition. However, from the first appellate order dated 30.01.2020, I.T.A.Nos.9674/Del/2019 & 1668/Del/2021 12 I am unable to see any exercise by the Ld. CIT(A) to confront the so called “Bayana” document to the assessee Smt. Poonam Arora or by the AO during any remained proceedings. I am satisfied that the facts and circumstances of both the cases are quite similar. Therefore, my conclusion recorded in the earlier part of this order for ITA No. 9674/Del/2019 would apply mutatis mutandis to present appeal in hand ITA No. 1668/Del/2021. Therefore, the addition made by the AO regarding 1/3 rd amount cannot be held as sustainable and thus, I direct to delete the same. 15. In the result, both the appeals are allowed. Order pronounced in the open court on 29/06/2022 Sd/- (C.M. GARG) JUDICIAL MEMBER Dated: 29.06.2022 *Kavita Arora, Sr. P.S. Copy of order sent to- Assessee/AO/Pr. CIT/ CIT (A)/ ITAT (DR)/Guard file of ITAT. By order Assistant Registrar, ITAT: Delhi Benches-Delhi