M/S. KALPANA, JAIPUR V. ITO, WARD-5(1), JAIPUR

ITA 195/JPR/2020

• Counselvise Citation: [2020] 110 COUNSELVISE.COM (IT) 8421 (ITAT-JAIPUR)
• Duration Of Justice: 4 month(s) 20 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-07-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2011-2012
• Appeal Filed On: 17-02-2020
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Reopening of assessment; Opportunity of being heard; Additional evidence; Condonation of delay; Set aside
• Section: 142(1); 234B; 139(1); 72; 147; 148; 144

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHE S,A JAIPUR JH FOT; IKY JKO] U;KF;D LNL; ,OA JH FOE FLAG ;KNO] YS[KK LNL; DS LE{K BEFORE: SHRI VIJAY PAL RAO, JM & SHRI VIKRAM SINGH YADAV, AM VK;DJ VIHY LA- @ ITA NO. 195/JP/2020 FU/KZKJ.K O'K Z @ ASSESSMENT YEAR : 2011-12 M/S KALPANA 119, 3 RD FLOOR MAHADEV NAGAR, VAISHALI NAGAR, JAIPUR. CUKE VS. THE ITO, WARD-5(1), JAIPUR. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO.: BIMPK 4068 F VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ L S@ ASSESSEE BY : SMT. SUHANI MAHARWAL (C.A.) JKTLO DH VKSJ LS @ REVENUE BY : MISS. CHANCHAL MEENA (ADDL.CIT) LQUOKBZ DH RKJH[ K@ DATE OF HEARING : 06/07/2020 MN?KKS'K.KK DH RKJH[ K@ DATE OF PRONOUNCEMENT: 07/07/2020 VKNS'K@ ORDER PER: VIJAY PAL RAO, J.M. THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST TH E ORDER DATED 09.01.2020 OF LD. CIT(A)-II, JAIPUR FOR THE ASSESSM ENT ORDER 2011-12. DUE TO PREVAILING COVID-19 PANDEMIC CONDITION THE H EARING OF THE APPEAL IS CONCLUDED THROUGH VIDEO CONFERENCE. THE A SSESSEE HAS RAISED THE FOLLOWING GROUNDS:- 1. THE VERY ACTION TAKEN U/S 147 R/W 148 IS BAD IN LAW WITHOUT JURISDICTION AND BEING VOID-AB-INITIO, THE SAME KIN DLY BE QUASHED. ITA NO. 195/JP/2020 M/S KALPANA VS. ITO 2 CONSEQUENTLY THE IMPUGNED ASSESSMENT FRAMED U/S 144 R.W.S. 147 DATED 05.11.2018 ALSO KINDLY BE QUASHED. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E, LD. CIT(A) ERRED IN PASSING ORDER WITHOUT AFFORDING REASONABLE OPPORTUNITY OF BEING HEARD WHICH IS IN VIOLATION OF NATURAL JUS TICE AND LIABLE TO BE SET ASIDE. 3. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E, LD. CIT(A) DID NOT ALLOW THE CONDONATION OF DELAY OF APPEAL IN SPITE OF VALID REASONS PROVIDED BY THE ASSESSEE. 4. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E, LD. AO ERRED AND SIMULTANEOUSLY LD. CIT(A) SUSTAIN IN ADDI NG ADDITION OF RS. 905000/- ON ACCOUNT OF THE ALLEGED UNEXPLAINED INCOME I.E. RS. 545000/- TIME DEPOSITS WITH BANK RS. 360000/- CASH DEPOSITED IN BANK THE ADDITION IS WITHOUT ANY BASIS AND UNJUSTIFIED LIABLE TO BE QUASHED. 5. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E, LD. AO ERRED AND SIMULTANEOUSLY LD. CIT(A) SUSTAIN IN CHA RGING INTEREST U/S 234A, 234B AND 234C OF THE ACT. THE APPELLANT T OTALLY DENIES ITS LIABILITY OF CHARGING ANY SUCH INTEREST. THE IN TEREST SO CHARGED, BEING CONTRARY TO THE PROVISIONS OF LAW AND FACTS, KINDLY BE DELETED IN FULL. 2. GROUND NO. 1 IS REGARDING VALIDITY OF REOPENING OF ASSESSMENT. AT THE TIME HEARING, THE LD. AR OF THE ASSESSEE AS STA TED AT BAR THAT THE ASSESSEE DOES NOT PRESS GROUND NO. 1 AND THE SAME M AY BE DISMISSED AS NOT PRESSED. THE LD. DR HAS RAISED NO OBJECTION IF GROUND NO. 1 OF THE ASSESSEES APPEAL IS DISMISSED AS NOT PRESSED. ACCORDINGLY THE GROUND NO. 1 OF THE ASSESSEES APPEAL IS DISMISSED BEING NOT PRESSED. ITA NO. 195/JP/2020 M/S KALPANA VS. ITO 3 3. GROUND NO. 2 AND 3 ARE REGARDING THE EX-PARTE IM PUGNED ORDER PASSED BY THE LD. CIT(A) AND TO DECLINE THE CONDONA TION OF DELAY OF 20 DAYS IN FILING THE APPEAL BEFORE THE LD. CIT(A). TH E LD. AR OF THE ASSESSEE HAS SUBMITTED THAT THE ASSESSEE IS 72 YEAR S OLD WIDOW LIVING ALONE AND HER CHILDREN ARE NOT LIVING WITH HER. DUE TO HER OLD AGE, THE ASSESSEE WAS NOT ABLE TO HAND OVER THE RELEVANT DOC UMENTS BEFORE THE LD. CIT(A). THE AR HAS POINTED OUT THAT THE ASSESSE E IS NOT A REGULAR TAX PAYER AND ONLY BECAUSE CERTAIN TRANSACTIONS DUR ING THE YEAR REGARDING DEVELOPMENT OF THE PLOT OF LAND THE ASSES SEE RECEIVED AMOUNT AND DEPOSIT IN THE BANK ACCOUNT OF THE ASSES SEE, THEREFORE, IN THESE FACTS AND CIRCUMSTANCES OF THE CASE THE EXPLA NATION OF THE ASSESSEE FOR DELAY IN FILING THE APPEAL MAY BE COND ONED. THE LD. AR HAS ALSO POINTED OUT THAT THE ASSESSEE HAS ENTERED INTO THE DEVELOPMENT AGREEMENT WITH THE DEVELOPER FOR DEVELOPMENT OF HER PLOT NO. 165, PRATAP GRIH NIRMARN SAHKARI SAMITI, VAISHALI NAGAR, QUEENS ROAD, JAIPUR. UNDER THE SAID DEVELOPMENT AGREEMENT THE AS SESSEE RECEIVED A SUM OF RS. 5,00,000/- OUT OF WHICH RS. 2,51,000/- T HROUGH CHEQUE AND BALANCE AMOUNT OF RS. 2,49,000/- WAS RECEIVED IN CA SH. ALL THESE FACTS ARE NARRATED IN THE DEVELOPMENT AGREEMENT ITSELF, T HEREFORE, THE SAID DOCUMENTS IS RELEVANT FOR DECIDING THE ISSUE OF ADD ITION MADE BY THE AO ITA NO. 195/JP/2020 M/S KALPANA VS. ITO 4 ON ACCOUNT OF TERM DEPOSIT AS WELL AS CASH DEPOSIT IN THE BANK ACCOUNT OF THE ASSESSEE. THE LD. AR HAS ALSO REFERRED TO BA NK ACCOUNT STATEMENT OF THE ASSESSEE AND SUBMITTED THAT THE ASSESSEE HAS WITHDRAWN VARIOUS AMOUNT FROM HER BANK ACCOUNT PRIOR TO THE TERM DEPO SIT AS WELL AS CASH DEPOSIT. THUS, THE LD. AR HAS SUBMITTED THAT THE DO CUMENTS WHICH ARE NOW FILED BY THE ASSESSEE ARE AVAILABLE IN THE PUBL IC DOMAIN AND COULD HAVE BEEN VERIFIED BY THE AO AT THE TIME OF ASSESSM ENT. IF THESE DOCUMENTS ARE TO BE CONSIDERED THEN THE ASSESSEE HA S EXPLAINED THE SOURCE OF TERM DEPOSIT OF RS. 5,49,000/- AND CASH D EPOSIT OF RS. 3,60,000/- . HENCE, THE LD. AR HAS PLEADED THAT THE DELAY OF 20 DAYS IN FILING THE APPEAL MAY BE CONDONED AND THE ADDITION CONFIRMED BY THE LD. CIT(A) MAY BE DELETED. 4. ON THE OTHER HAND, LD. DR HAS SUBMITTED THAT THE AO HAS GIVEN MORE THAN SUFFICIENT OPPORTUNITIES TO THE ASSESSEE TO APPEAR AND PRODUCE THE EVIDENCE HOWEVER, THE ASSESSEE CHOSEN N OT TO APPEAR EITHER BEFORE THE AO NOR BEFORE THE LD. CIT(A). THE NOTICES ISSUED BY THE AO AND THE LD. CIT(A) WERE SENT AT THE ADDRESS GIVEN BY THE ASSESSEE, THEREFORE, THE ASSESSEE CANNOT TAKE THE E XCUSE OF HER OLD AGE FOR NOT COMPLYING THE NOTICES. THE LD. DR HAS FURTH ER POINTED OUT THAT THE REASONS EXPLAINED BY THE ASSESSEE ARE NOT REASO NABLE EXPLANATION ITA NO. 195/JP/2020 M/S KALPANA VS. ITO 5 FOR NOT PRODUCING THE DOCUMENTS BEFORE THE AUTHORIT IES BELOW. ACCORDINGLY SHE HAS RELIED UPON THE ORDERS OF THE A UTHORITY BELOW AND OPPOSED TO THE ADMISSION OF ADDITIONAL EVIDENCE PRO DUCED BY THE ASSESSEE. 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AS W ELL AS RELEVANT MATERIAL ON RECORD. THERE IS NO DISPUTE THAT THE AS SESSEE IS NOT A REGULAR TAX PAYER OR TAX ASSESSEE. THE ASSESSEE HAS NOT FILED RETURN OF INCOME U/S 139(1) OF THE ACT BUT ON THE BASIS OF TH E INFORMATION REGARDING THE TERM DEPOSIT AND CASH DEPOSIT IN THE BANK ACCOUNT OF THE ASSESSEE THE AO ISSUED NOTICE U/S 148 ON 28.03.2018 . THERE WAS NO COMPLIANCE ON BEHALF OF THE ASSESSEE TO BE NOTICES ISSUED U/S 148 AS WELL AS U/S 142(1) OF THE ACT. ACCORDINGLY, THE AO FRAMED ASSESSMENT U/S 144 R.W.S. 147 OF THE ACT WHEREBY THE ADDITION ON ACCOUNT OF UNEXPLAINED SOURCE OF TIME DEPOSIT OF RS. 5,45,000/ - AND ON ACCOUNT OF UNEXPLAINED SOURCE OF CASH DEPOSIT OF RS. 3,50,000/ - WERE MADE BY THE AO. THUS, THE TOTAL INCOME OF THE ASSESSEE WAS ASSE SSED AT RS. 9,05,000/-. THE ASSESSEE CHALLENGED THE ACTION OF T HE AO BEFORE THE LD. CIT(A) HOWEVER, THE LD. CIT(A) DISMISSED THE APPEAL OF THE ASSESSEE BOTH ON THE GROUND OF DELAY OF 20 DAYS AS WELL AS O N MERITS. AS REGARDS THE DELAY OF 20 DAYS IN FILING THE APPEAL THE ASSES SEE HAS EXPLAINED THE ITA NO. 195/JP/2020 M/S KALPANA VS. ITO 6 REASONS THAT SHE IS AN OLD WIDOW OF 72 YEARS AND LI VING ALONE AS HER CHILDREN ARE NOT LIVING WITH HER. SHE HAS ALSO STA TED IN THE APPLICATION THAT DUE TO OLD AGE SHE WAS NOT ABLE TO HAND OVER T HE REQUISITE DOCUMENTS TO THE ADVOCATE/ AUTHORIZED REPRESENTATIV E TO TAKE NECESSARY STEPS FOR FILING THE APPEAL BEFORE THE LD . CIT(A) AND ALSO TO SUBMIT EVIDENCE IN SUPPORT OF THE SOURCE OF TERM DE POSIT AND CASH DEPOSIT IN THE BANK ACCOUNT. THE LD. CIT(A) WAS NOT IMPRESSED WITH THE REASON FOR CONDONATION OF DELAY GIVEN BY THE ASSESS EE. THE RELEVANT PART OF THE ORDER OF THE LD. CIT(A) IN PARA 2 AS UN DER:- 2. THIS APPEAL HAS BEEN FILED ON 25.01.2019 AGAINS T THE ORDER UNDER SECTION 147/144 DATED 05.11.2018 OF I.T. ACT. IN THE FORM NO. 3E THE DATE OF SERVICE OF ORDER IS STATED TO BE 06.12.2018. AS PER THE SERVICE OF THE ASSESSMENT OR DER / DEMAND NOTICE DATED 05.11.2018, THE APPEAL WAS TO B E FILED BY 05.01.2018 WHEREAS THE PRESENT APPEAL IS FILED O N 25.01.2019 I.E. DELAY OF AROUND 20 DAYS. ON PERUSAL OF FORM NO. 35, IT IS SEEN THAT THE PLEA OF IGNORANCE OF LA W AND ASSESSEE IS AGED AROUND 71 YEARS OLD, HAS BEEN GIVE N BY THE APPELLANT. THE REASON FOR CONDONATION OF DELAY GIVE N BY THE APPELLANT IS NOT A VALID REASON AS SHE HAS A QUALIF IED AUTHORIZED REPRESENTATIVE TO REPRESENT HER CASE. TH EREFORE, THE DELAY IS NOT CONDONED. THUS, THE LD. CIT(A) HAS NOT DISPUTED THE FACT AS E XPLAINED BY THE ASSESSEE THAT THE ASSESSEE IS AN OLD WIDOW OF 72 YE ARS AND LIVING ALONE WITHOUT SUPPORT OF HER CHILDREN. THEREFORE, IN THES E FACTS AND ITA NO. 195/JP/2020 M/S KALPANA VS. ITO 7 CIRCUMSTANCES OF THE CASE THE DELAY OF 20 DAYS OUGH T TO HAVE BEEN CONDONED BY THE LD. CIT(A). HAVING CONSIDERED THE F ACTS AND CIRCUMSTANCES OF THE CASE AND PARTICULARLY THE ASSE SSEE BEING AN OLD WIDOW LIVING ALONE, WE CONDONE THE DELAY OF 20 DAYS IN FILING THE APPEAL BEFORE THE LD. CIT(A). 6. AS REGARDS THE ADDITIONAL EVIDENCE PROPOSED TO B E FILED BY THE ASSESSEE WE FIND THAT THE ASSESSEE HAS NOW PRODUCED A DEVELOPMENT AGREEMENT DATED 21.12.2010 WHEREBY THE ASSESSEE HAS AGREED FOR DEVELOPMENT OF HER PLOT OF LAND AND SHARING THE CON STRUCTED AREA IN 50- 50 RATIO WITH THE DEVELOPER. UNDER THE SAID AGREEME NT THE ASSESSEE HAS ALSO RECEIVED RS. 5,00,000/- AND DETAILS OF WHICH A RE GIVEN IN THE AGREEMENT ITSELF. THUS, ONCE THE REGISTERED AGREEME NT SHOWS THE RECEIPT OF RS. 5,00,000 BY THE ASSESSEE THEN, IT I S RELEVANT TO CONSIDER THE SAID AGREEMENT IN SUPPORT OF THE SOURCE OF THE TERM DEPOSIT AND CASH DEPOSIT IN THE BANK ACCOUNT. FURTHER, THE ASSE SSEE HAS ALSO RELIED UPON THE BANK ACCOUNT ITSELF AND WHICH WAS BASIS OF THE ADDITION MADE BY THE AO. HOWEVER, FROM THE VERY SAME BANK ACCOUNT OF THE ASSESSEE IT IS CLEAR THAT PRIOR TO THE TERM DEPOSIT AND CASH DEPOSIT THE ASSESSEE HAS MADE VARIOUS WITHDRAWALS WHICH IS AROUND RS. 5, 00,000/-. THUS, CONSIDERING THIS WITHDRAWAL OF THE ASSESSEE FROM TH E BANK ACCOUNT ITA NO. 195/JP/2020 M/S KALPANA VS. ITO 8 ABOUT RS. 5,00,000/- AND FURTHER, A SUM OF RS. 5,00 ,000/- RECEIVED UNDER THE DEVELOPMENT AGREEMENT OUT OF WHICH RS. 2, 49,000/- RECEIVED IN CASH PRIMA FACIE SUPPORT THE CASE OF THE ASSESSE E. THESE TWO DOCUMENTS BEING A REGISTERED AGREEMENT AND BANK ACC OUNT ARE BEYOND THE SCOPE OF ANY MANIPULATION BY THE ASSESSEE AND D ETAILS OF THE BANK ACCOUNT WAS VERY MUCH AVAILABLE WITH THE AO BEING T HE BASIS OF THIS ADDITION. FURTHER, THE ASSESSEE HAS ALSO FILED AN A FFIDAVIT TO EXPLAIN THE REASONS FOR SOURCE AS WELL AS NOT FURNISHING THE DO CUMENTARY EVIDENCE BEFORE THE AUTHORITY BELOW. HAVING CONSIDERED THE F ACTS AND CIRCUMSTANCES OF THE CASE AS WELL AS THE NATURE OF DOCUMENTS FILED BY THE ASSESSEE AS ADDITIONAL EVIDENCE WE FIND THAT TH OUGH THE ASSESSEE COULD NOT PRODUCE THESE DOCUMENTS BEFORE THE AUTHOR ITIES BELOW HOWEVER, THESE DOCUMENTS WERE VERY MUCH IN EXISTENC E AT THE TIME OF ASSESSMENT AND THERE IS NO SCOPE OF ANY MANIPULATIO N. THEREFORE, IN THE INTEREST OF JUSTICE WE ADMIT THE ADDITIONAL EVI DENCE FILED BY THE ASSESSEE AND SET ASIDE THE MATTER TO THE RECORD OF THE ASSESSING OFFICER TO ADJUDICATE THE SAME AFRESH AFTER VERIFICATION AN D EXAMINATION OF THE ADDITIONAL EVIDENCE FILED BY THE ASSESSEE AS WELL A S GIVING AN OPPORTUNITY OF HEARING TO THE ASSESSEE. SINCE THE M ATTER IS SET ASIDE TO ITA NO. 195/JP/2020 M/S KALPANA VS. ITO 9 THE RECORD OF THE AO THEREFORE, GROUND NO. 3 TO 5 S TAND DISPOSED OF BEING SET ASIDE. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOW ED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 07/07/2020. SD/- SD/- FOE FLAG ;KNO FOT; IKY JKO (VIKRAM SINGH YADAV) (VIJAY PAL RAO) YS[KK LNL;@ ACCOUNTANT MEMBER U;KF;D LNL;@ JUDICIAL MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 07/07/2020. * SANTOSH. VKNS'K DH IZFRFYFI VXZSFKR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT- M/S KALPANA, JAIPUR. 2. IZR;FKHZ@ THE RESPONDENT- ITO, WARD-5(1), JAIPUR. 3. VK;DJ VK;QDR@ CIT 4. VK;DJ VK;QDR@ CIT(A) 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ@ DR, ITAT, JAIPUR. 6. XKMZ QKBZY@ GUARD FILE {ITA NO. 195/JP/2020} VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASST. REGISTRAR