The ITO 1 (3), V. Smt Daljit kaur Bhatia,

ITA 170/IND/2009

• Counselvise Citation: [2011] 134 COUNSELVISE.COM (IT) 9570 (ITAT-INDORE)
• Duration Of Justice: 1 year(s) 10 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 02-03-2011
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 14-02-2011
• Assessment Year: 1999-2000
• Appeal Filed On: 03-04-2009
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: PRADEEP KUMAR MITRA
• Assessee Lawyers: R L AKOTIYA
• Keywords: Search and seizure; Opportunity of being heard

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL, INDORE BENCH, INDORE BEFORE SHRI JOGINDER SINGH, JUDICIAL MEMBER AND SHRI R.C. SHARMA, ACCOUNTANT MEMBER ITA NO.96/IND/2009 A.Y. 1999-00 SMT. DALJEET KAUR BHATIA, 458, VISHNUPURI COLONY, INDORE PAN AJFPB 8276 R APPELLANT VS INCOME TAX OFFICER-1(2), INDORE RESPONDENT AND, ITA NO.170/IND/2009 A.Y. 1999-00 INCOME TAX OFFICER-1(3), INDORE APPELLANT VS SMT. DALJEET KAUR BHATIA, 458, VISHNUPURI COLONY, INDORE PAN AJFPB 8276 R RESPONDENT ASSESSEE BY : SHRI R.L. AKOTIYA, CA DEPARTMENT BY : SHRI PRADEEP KUMAR MITRA, SR. DR O R D E R PER JOGINDER SINGH, JUDICIAL MEMBER THESE CROSS-APPEALS BY THE ASSESSEE AND REVENUE ARE AGAINST THE ORDER OF THE LEARNED CIT(A)-I, INDORE, DATED 27.1.2 009. 2 2. DURING HEARING OF THESE APPEALS, WE HAVE HEARD SHRI R.L. AKOTIYA, LD. COUNSEL FOR THE ASSESSEE AND SHRI PRADEEP KUMAR MITRA, LD. SR. DR. THE CRUX OF ARGUMENTS ON BEHALF OF THE ASSESSEE IS THAT ONE LATE GURBACHAN SINGH, FATHER OF THE ASSESSEE, EXECUTED A WILL DATED 11.4.1985 IN THE PRESENCE OF TWO ATTESTING WITNESSE S NAMELY, SHRI TRILOK CHAND BHATIA AND SHRI RAVEL SINGH BHATIA. SHRI GURB ACHAN SINGH BREATHED HIS LAST ON 22.5.1985 AND ONE OF THE WITNE SSES SHRI RAVEL SINGH DIED ON 15.7.2001. THE SURVIVING WITNESS SHRI TRILOK CHAND BHATIA WAS CLAIMED TO BE EXAMINED BY THE ASSESSING OFFICER WHO CLAIMED TO HAVE CONFIRMED HIS SIGNATURE ON THE WILL. THE LD. C OUNSEL FOR THE ASSESSEE CONTENDED THAT THE WILL DATED 11.4.1985 IS VERY MUCH GENUINE. IT WAS FURTHER SUBMITTED THAT DURING RAID ON THE HU SBAND OF THE ASSESSEE, THE OFFICIALS OF THE CBI DELIBERATELY DID NOT TOOK COGNIZANCE OF THE WILL WHICH WAS DULY FOUND AT THE TIME OF THE SEARCH. ON THE OTHER HAND, THE LD. SR. DR CONTENDED THAT I T IS PURELY AN AFTERTHOUGHT OF THE ASSESSEE AND IT IS PRESUMED THA T THE WILL WAS CREATED AFTERWARDS. ON THE APPEAL OF THE REVENUE, THE LD. S R. DR CONTENDED THAT THE LD. CIT(A) GAVE PART RELIEF TO THE ASSESSEE WIT HOUT ANY REASON AND ON THE APPEAL OF THE ASSESSEE, IT WAS CONTENDED THAT A FTER CONSIDERING FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) HAS A LREADY TAKEN A LENIENT VIEW, THEREFORE, THE SUSTAINANCE OF PART AD DITION WAS DEFENDED. 3 3. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS OF LD. REPRESENTATIVES OF BOTH SIDES AND PERUSED THE MATERIAL AVAILABLE ON RE CORD. IN VIEW OF THE FACTS NARRATED BEFORE US AND THE CLAIM OF THE ASSES SEE THAT THE IMPUGNED WILL WAS VERY MUCH IN EXISTENCE AT THE TIM E OF THE SEARCH BY THE OFFICIALS OF THE CBI, THEREFORE, WITHOUT GOING INTO THE MERITS OF THE CASE, WE REMAND BOTH THESE FILES TO THE FILE OF THE LD. ASSESSING OFFICER TO EXAMINE THE GENUINENESS AND THE AUTHENCITY OF TH E WILL. THE LD. ASSESSING OFFICER IS AT LIBERTY TO GET THE WILL EXA MINED FROM THE FORENSIC LABORATORY OR FROM THE GOVERNMENT EXAMINER OF DOCUM ENTS/RECOGNIZED HANDWRITING EXPERT OR ANY OTHER METHOD AND THEN TO TAKE A DECISION IN ACCORDANCE WITH LAW. THE LD. CIT(A) HAS GIVEN PART RELIEF TO THE ASSESSEE ON THE BASIS OF AVAILABILITY OF HUGE CASH AND THE C APITAL ACCOUNT FOR THE YEAR ENDED ON 31.3.1996 ONWARDS AS HAS BEEN REPRODU CED AT PAGES 4 TO 6 OF THE IMPUGNED ORDER WHEREIN INVESTMENTS TOWA RDS PURCHASE OF MOVABLE AND IMMOVABLE PROPERTIES HAVE BEEN CONSIDER ED. IT IS FURTHER SEEN THAT THE LD. CIT(A) IN CONCLUDING PARA HAS MEN TIONED THAT IT APPEARS THAT SUCH AGREEMENT HAVE BEEN GOT PREPARED AS A RESULT OF AFTERTHOUGHT AND DID NOT CONSIDER THE ADDITIONAL E VIDENCE FILED BEFORE HIM. SINCE NO PREJUDICE IS CAUSED TO EITHER SIDE, W E ARE OF THE VIEW THAT BOTH THESE APPEALS SHOULD BE REMANDED BACK TO THE F ILE OF THE LD. ASSESSING OFFICER WHO WILL EXAMINE THE AUTHENCITY A ND GENUINENESS OF THE WILL AND WILL DECIDE IN ACCORDANCE WITH LAW. NE EDLESS TO MENTION HERE 4 THAT DUE OPPORTUNITY OF BEING HEARD BE PROVIDED TO THE ASSESSEE. BOTH THESE APPEALS ARE ALLOWED FOR STATISTICAL PURPOSES ONLY. ORDER PRONOUNCED IN THE OPEN COURT IN THE PRESENCE OF LD. REPRESENTATIVES OF BOTH THE SIDES AT THE CONCLUSION OF THE HEARING ON 28 TH FEBRUARY, 2011. (R.C.SHARMA) (JOGINDER SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 2 ND MARCH, 2011 COPY TO: APPELLANT, RESPONDENT, CIT, CIT(A), DR, G UARD FILE !VYAS!