Mrs. Sangeeta Sharad Patil, Satara V. Income-tax Officer,

ITA 1708/PUN/2014

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 9306 (ITAT-PUNE)
• Duration Of Justice: 3 year(s) 5 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-02-2018
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC
• Assessment Year: 2005-2006
• Appeal Filed On: 11-09-2014
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: MUKESH JHA
• Keywords: Period of limitation; Time period of passing order

Judgement Text

SMC IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, PUNE . , BEFORE SHRI D. KARUNAKARA RAO, AM . / ITA NO.1708/PUN/2014 / ASSESSMENT YEAR : 2005-06 MRS. SANGEETA SHARAD PATIL, ATAKE, KARAD, DIST. SATARA - 415 110 PAN : ATUPP8385Q . /APPELLANT VS. INCOME-TAX OFFICER, CIB, KOLHAPUR . / RESPONDENT / APPELLANT BY : SHRI M.K. KULKARNI / RESPONDENT BY : SHRI MUKESH JHA, JCIT / DATE OF HEARING : 23.02.2018 / DATE OF PRONOUNCEMENT: 23.02.2018 / ORDER PER D. KARUNAKARA RAO, AM : THIS IS THE APPEAL FILED BY ASSESSEE AGAINST THE ORDER OF CIT(A) CENTRAL, PUNE DATED 17-02-2014 FOR THE ASSESSMENT YEAR 2005-0 6. 2. ASSESSEE RAISED THE FOLLOWING GROUNDS OF APPEAL AND THE SAME ARE EXTRACTED AS UNDER : 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW THE LD.CIT(A) WAS NOT JUSTIFIED IN CONFIRMING THE ADDIT ION OF RS.1,70,625/- MADE BY THE A.O. IN AN ASSESSMENT ORDER PASSED UNDE R S.144 OF THE ACT. THE ADDITION MADE U/S.69 IS UNWARRANTED AND NOT SUS TAINABLE. IT BE SET ASIDE. 2. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND I N LAW IT WAS PLEADED BEFORE LD.CIT(A) THAT THE ASSESSMENT ITSELF WAS BARRED BY LIMITATION THE ISSUE RAISED THROUGH GROUNDS OF APPEA L. THE LD.CIT(A) FAILED TO APPRECIATE THE LEGAL ISSUE IN ITS PROPER PERSPECTIVE. THE ASSESSMENT BEING NOT SUSTAINABLE BE SET ASIDE. 3. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND I N LAW THE LADY ASSESSEE IS COMING FROM DEEPER MOFUSSIL AREA. BEIN G NOT CONVERSANT WITH LEGAL ASPECTS COULD NOT DECIDE HOW TO PROCEED FURTH ER. IN THE PROCESS THE FILING OF APPEAL IS DELAYED BY 29 DAYS WHICH OUGHT TO HAVE BEEN FILED ON OR BEFORE 24-5-2014. THE DETAILED AFFIDAVIT WILL B E FILED EXPLAINING THE 2 DELAY. THE DELAY BE CONDONED AND THE APPEAL BE ADM ITTED FOR ADJUDICATION IN ACCORDANCE WITH THE PROVISIONS OF L AW. 4. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND I N LAW THE LEVY OF INTEREST U/S.234B AND 234C IS NOT JUSTIFIED. 5. THE APPELLANT CRAVES/LEAVE TO ADD, AMEND OR ALTE R ANY OF THE ABOVE GROUNDS OF APPEAL. 3. BRIEFLY STATED RELEVANT FACTS ARE THAT THIS IS A CASE WHERE ASSESSMENT PROCEEDINGS STARTED WITH THE ISSUE OF NOTICE U/S.142(1) OF THE ACT IN CONNECTION WITH AN INFORMATION RECEIVED FROM AIR U/S.285BA OF THE ACT. AS PER THE INFORMATION, ASSESSEE TOGETHER WIT H MANY OTHERS, MADE INVESTMENT OF RS.1,70,625/- WHICH CONSTITUTES HER SHA RE IN PURCHASING OF THE PROPERTY IN THE F.Y. 2004-05. THERE IS NO RESPONSE FROM THE ASSESSEE TO THE SAID NOTICE. ACCORDINGLY, THE A O PROCEEDED TO MAKE THE ASSESSMENT U/S.144 OF THE I.T. ACT DETERMINING THE TOTAL INCOME AT RS.1,70,625/-. 4. DURING THE FIRST APPELLATE PROCEEDINGS, ASSESSEE MADE ELABORATE SUBMISSIONS IN CONNECTION WITH THE GROUNDS RAISED BEFORE H IM. IN THESE PROCEEDINGS, ASSESSEE RAISED AN ISSUE RELATING TO T HE DATE OF COMPLETION OF THE ASSESSMENT ON 31-12-2007 AS THE ORDE R OF ASSESSMENT WAS RECEIVED LATE ON 12-01-2008. IN THIS RE GARD, ASSESSEE SUBMITTED THE SERVICE OF NOTICE AS PROOF OF MAKING ASSESSM ENT ORDER BEYOND THE TIME ALLOWED BY THE STATUTE. ASSESSEE RAISE D THE ISSUE RELATING TO THE COMPLETION OF THE ASSESSMENT AFTER THE D UE DATE EXPIRED. AFTER EXAMINING THE EVIDENCES, CIT(A) CAME TO THE CONCLUSIO N THAT THE QUALITY OF EVIDENCE FURNISHED BY THE ASSESSEE IS NOT SUSTA INABLE. ACCORDINGLY, AS PER THE DISCUSSION GIVEN IN PARA NO.6.6 OF T HE IMPUGNED ORDER, THE CIT(A) DISMISSED THIS PART OF THE ALLEGATION OF THE ASSESSEE AND APPROVED THE DATE OF ASSESSMENT MADE BY THE AO. ON MERITS, 3 CIT(A) HELD THAT THE ASSESSEE FAILED TO DEMONSTRATE THE S OURCE OF THE SAID SUM OF RS.1,70,625/-, THEREFORE, AS PER THE DISCUSSION GIVEN IN PARA NO.11.1 OF THE CIT(A)S THE ADDITION MADE BY THE AO IN THE EXPARTE ASSESSMENT U/S.69 OF THE ACT WAS CONFIRMED. 5. AGGRIEVED WITH THE ORDER OF CIT(A), THE ASSESSEE IS IN APPEAL BEFORE THE TRIBUNAL. 6. AT THE OUTSET, BEFORE ME, LD. COUNSEL FOR THE ASSESSEE BROUGHT MY ATTENTION TO GROUND NO.3 AND THE CONTENTS OF THE AFFIDAV IT AND SUBMITTED THAT THE APPEAL IS FILED BELATEDLY BEFORE THE TRIB UNAL. THERE IS A DISCREPANCY WITH REGARD TO THE NUMBER OF DAYS OF DE LAY. ASSESSEE MENTIONED THAT THE DELAY IS FOR 29 DAYS AS AGAINST THE D ELAY OF 111 DAYS QUANTIFIED BY THIS OFFICE. IT IS A FACT THAT THE DUE DATE FOR FILING OF THE APPEAL IS 24-05-2014. NOTWITHSTANDING THE SAID DISCREPAN CY WITH REGARD TO THE NUMBER OF DAYS, THE EXPLANATION GIVEN BY T HE ASSESSEE IN THE AFFIDAVIT DATED 07-10-2006 MENTIONS THE FOLLOWING REASONS FOR DELA Y. 5. I FURTHER STATED THAT I AM RESIDENT OF SMALL VI LLAGE ATKE WHERE MAINLY THE RESIDENTS ARE AGRICULTURISTS. I WAS GIV EN TO UNDERSTAND THAT THE INCOME-TAX WAS NOT LEVIABLE ON AGRICULTURAL ACT IVITIES AND SALE AND PURCHASE OF AGRICULTURAL LANDS. IN VIEW OF THIS NO N INCOME-TAX RETURN CAME TO BE FILED BY ME. I ALSO STATED THAT I HAD N OT FILED THE RETURN OF INCOME EXPLAINING THE INVESTMENT IN AGRICULTURAL LA ND OF RS.1,70,625/- THE ASSESSMENT WAS COMPLETED EXPARTE WITHOUT MY PRE SENCE BEFORE OFFICER AT KOLHAPUR. WHEN I WAS TOLD THIS I HAD FI LED MY APPEAL BEFORE COMMISSIONER AT KOLHAPUR. THE SAME WAS REPRESENTED BY MY CONSULTANT. THE FURTHER APPEAL WAS REQUIRED TO BE FILED BEFORE HONBLE TRIBUNAL, PUNE WITHIN SIXTY-DAYS TIME. BUT IN VIE W OF MY POSITION ABOVE ULTIMATELY IT GOT DELAYED BY 29 DAYS. I HAD NO INT ENTION TO DELAY THE APPEAL. THE BALANCE OF CONVENIENCE IS IN MY FAVOUR . THE REASONS ASSIGNED ARE BONAFIDE. 6. IN THE CIRCUMSTANCES THE DELAY THAT OCCURRED IN FILING MY 2 ND APPEAL BE CONDONED AND APPEAL BE ADMITTED FOR HEARI NG TO DO COMPLETE JUSTICE TO ME. 7. FROM THE ABOVE, IT IS EVIDENT THAT THE REPRESENTATIV E/CONSULTANT OF THE ASSESSEE IS TO BE BLAMED FOR THE DELAY. OTHERWISE, ASSESSEE HAS 4 NO INTENTION TO FILE THE APPEAL BELATEDLY. CONSIDERING THE S AME, I AM OF THE VIEW THAT THE DELAY OF 111 DAYS IN FILING THE APPEAL BE ING SMALL IS CONDONED AND THE APPEAL IS ADMITTED FOR ADJUDICATION. 8. GROUND-WISE ADJUDICATION IS GIVEN IN THE FOLLOWING PARAGRAPHS. GROUND NO.1 RELATES TO THE CONFIRMATION OF ADDITION OF RS.1,70,625/- MADE BY THE AO IN THE EXPARTE ASSESSMENT U/S.69 OF THE ACT. IN THIS REGARD, LD. COUNSEL FOR THE ASSESSEE BROUGH T MY ATTENTION TO PARA NO.11.1 OF THE IMPUGNED ORDER OF CIT(A) AND SUBMI TTED THE FACT OF NOT ADJUDICATING THE ISSUE OF MERITS BY PASSING A SPEAK ING ORDER. LD. COUNSEL ALSO BROUGHT MY ATTENTION TO THE AFFIDAVIT FILED BY T HE ASSESSEE DT. 07-10-2016 AND SUBMITTED THAT SHE OWNS 15 ACRES O F LAND AND GREW CROPS SUCH AS SUGARCANE, SOYBEAN, AND SEASONAL VEGETAB LES. SHE EARNS THE AGRICULTURAL INCOME FROM THE SAID AGRICULTURAL ACTIVITIES T O THE TUNE OF RS.2.50 LAKHS PER YEAR DEPENDING ON THE RAINFALL. FURTHER , SHE NARRATED VARIOUS FACTS IN THE SAID AFFIDAVIT RELATING TO THE TRANSACTION. EXPLAINING THE ABOVE FACTS, LD. COUNSEL FOR THE ASSESSEE SU BMITTED THAT ALL THESE ARE NEW FACTS WHICH WERE NOT BROUGHT TO THE NOTICE OF THE REVENUE AUTHORITIES DURING ASSESSMENT/APPELLATE PROCEEDIN GS AND PRAYED FOR REMANDING THIS ISSUE ON MERITS TO THE FILE OF AO FOR FRESH ADJUDICATION. HE ALSO SUBMITTED THE FACT THAT THE ASSES SMENT MADE BY THE AO IS AN EXPARTE ASSESSMENT AND THE SAME WAS COM PLETED WITHOUT HEARING THE ASSESSEE IN A PROPER PERSPECTIVE. 9. ON HEARING BOTH THE PARTIES AND FINDING THE FACTS NARR ATED BY THE ASSESSEE IN THE FORM OF AFFIDAVIT, I AM OF THE VIEW THAT THE PROPOSAL OF THE LD. COUNSEL FOR THE ASSESSEE SHOULD BE CONSIDERED PO SITIVELY. THEREFORE, I REMAND THE ISSUE TO THE FILE OF AO FOR EXAMINI NG THE FACTS PROVIDED IN THE AFFIDAVIT AND MAKE A DENOVO ASSESSMENT ON MERITS. 5 ACCORDINGLY, GROUND NO.1 RAISED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. 10. GROUND NO.2 RELATES TO TIME BARRING NATURE OF THE EX PARTE ASSESSMENT DATED 31-12-2007. IT IS THE CASE OF ASSESS EE THAT, WITH THE SERVICE OF THE SAID ASSESSMENT ORDER ON 12-01-2008, ASS ESSMENT ORDER CANNOT BE CONSIDERED PASSED ON 31-12-2007. OTHERWISE, THE ASSESSEE DID NOT HAVE ANY OTHER EVIDENCE TO DEMONSTRATE THAT T HE ASSESSMENT WAS PASSED AFTER THE DUE DATE OF 31-12-2007. 11. AFTER HEARING BOTH THE PARTIES ON THIS ISSUE, I HAVE PERUSED PARA NO.6.6 OF THE CIT(A)S ORDER AND FIND THE FOLLOWING LINES ARE RE LEVANT FOR ADJUDICATION OF THIS LEGAL ISSUE RAISED BY THE ASSESSEE IN GROUND NO.2 : 6.6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . CONSIDERING ALL THESE FACTS, AN INTERLUDE OF MERELY 9-10 DAYS BETWEEN THE END OF TH E LIMITATION PERIOD AND ACTUAL SERVICE OF THE ASSESSMENT ORDER ALONG WI TH DEMAND NOTICE, IN MY VIEW, IS A GROSSLY INSUFFICIENT CAUSE TO HOLD TH AT THE ORDER WAS NOT MADE BY THE AO WITHIN THE LIMITATION PERIOD. IT M AY BE REITERATED THAT NO OTHER EVIDENCES, WHATSOEVER, HAS BEEN ADDUCED BY THE APPELLANT. AS THE HON CUTTACK BENCH HAS POINTED OUT, UNDER THE P ROVISIONS OF THE GENERAL CLAUSES ACT, A GOVERNMENT DOCUMENT CANNOT B E QUESTIONED UNLESS AND UNTIL SUBSTANTIAL EVIDENCE HAS BEEN PROD UCED TO DISLODGE THE VERACITY OF THE SAME. IN THE ABSENCE OF ANY SUCH E VIDENCE WORTH THE NAME, THE CONTENTION OF THE APPELLANT UNDER THIS GR OUND THAT THE ORDER, THOUGH BEARING THE DATE 31-12-2007, WAS NOT MADE ON THAT DATE, DESERVES TO BE REJECTED. IT MAY BE ADDED THAT A GA ZETTED OFFICER OF THE GOVT. OF INDIA IS AUTHORISED TO VERIFY/AUTHENTICATE MANY DOCUMENTS AND ISSUE CERTIFICATES ETC. WHICH, ONCE SO VERIFIED BY HIM, ARE TAKEN AS AUTHENTIC. UNDER THE CIRCUMSTANCES, THERE SHOULD O RDINARILY BE NO REASON WHY AN ORDER BEARING A CERTAIN DATE AND DULY SIGNED BY HIM, SHOULD BE SUSPECTED TO NOT HAVE BEEN SIGNED ON THE SAID DATE WITHOUT ANY PERSUASIVE REASON WHATSOEVER FOR BELIEVING SO. 12. ON PERUSAL OF THE ABOVE EXTRACT, I FIND THE ORDER OF CIT(A) IS FAIR AND REASONABLE AND THE ASSESSEE DOES NOT HAVE ANY DIR ECT EVIDENCE TO INDICATE THAT THE ASSESSMENT ORDER WAS PASSED AFTER 31 -12-2007 WHICH IS THE DUE DATE. CIT(A) HAS EXAMINED ALL THE ASPECTS OF TH E ASSESSEES GRIEVANCE BEFORE COMING TO THE CONCLUSION THAT THE ORDER PASSED ON 6 31-12-2007 IS VALID. IN MY VIEW, THE DECISION OF THE CIT(A) IS FAIR AND REASONABLE AND DOES NOT CALL FOR ANY INTERFERENCE. 13. GROUND NO.3 RELATES TO THE REASONS FOR DELAY OF 29 (SIC) DAYS IN FILING THE APPEAL BEFORE THE TRIBUNAL. THIS ISSUE HAS ALREADY BEEN ADJUDICATED BY ME WHILE ATTENDING TO THE PRELIMINARY ISSUES AND RELIED ON THE CONTENTS OF THE AFFIDAVIT FILED BY THE ASSESSEE FOR C ONDONING THE DELAY. ACCORDINGLY, GROUND NO.3 RAISED BY THE ASSESSEE IS ALLOWED. 14. GROUND NOS. 4 RAISED BY THE ASSESSEE IS PREMATURE AND DISMISSED AS SUCH. GROUND NO.5 RAISED BY THE ASSESSEE IS GENERAL IN NATURE. THEREFORE, THE SAME IS DISMISSED. 15. IN THE RESULT, APPEAL OF THE ASSESSEE IS PARTLY ALLO WED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED ON THIS 23 RD DAY OF FEBRUARY, 2018. SD/- (D.KARUNAKARA RAO) / ACCOUNTANT MEMBER / PUNE; DATED : 23 RD FEBRUARY, 2018. SATISH / COPY OF THE ORDER IS FORWARDED TO : 1. / THE APPELLANT; 2. / THE RESPONDENT; 3. ( ) / THE CIT(A) CENTRAL, PUNE 4. / THE CIT CENTRAL, PUNE 5. , , SMC / DR SMC, ITAT, PUNE; 6. / GUARD FILE. / BY ORDER, //TRUE COPY// //TRUE COPY// SENIOR PRI VATE SECRETARY , / ITAT, PUNE