HEENA KETAN OZA, MUMBAI V. ITO 25(2)(1), MUMBAI

ITA 1988/MUM/2013

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 92340 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 1 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-04-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: H
• Next Hearing Date: 15-04-2015
• Assessment Year: 2006-2007
• Appeal Filed On: 12-03-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Onus to prove
• Section: 68; 27

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES F MUMBAI . . , , BEFORE SHRI I.P. BANSAL, JUDICIAL MEMBER AND SHRI N.K.BILLAIYA, ACCOUNTANT MEMBER . / ITA NO. 1988/MUM/2013 / ASSESSMENT YEAR 2006-07 HEENA KETAN OZA, 601, DARSHAN TOWER, OPP PADMA NAGAR, CHIKUWADI, BORIVALI (W), MUMBAI 400092 / VS. THE INCOME TAX OFFICER 25(2)(1), MUMBAI. ! ./ ./ PAN/GIR NO. : AADPO 9351K ( !$ / APPELLANT ) .. ( %&!$ / RESPONDENT ) ASSESSEE BY NONE RESPONDENT BY : SHRI JITENDRA KUMAR ( ) * / DATE OF HEARING : 20/04/2015 ( ) * / DATE OF PRONOUNCEMENT : 20/04/2015 / O R D E R PER I.P.BANSAL, JM: THIS IS AN APPEAL FILED BY THE ASSESSEE AND IT IS DIRECTED AGAINST ORDER PASSED BY LD. CIT(A) -35MUMBAI DATED 7/1/2013 FOR A SSESSMENT YEAR 2006- 07. GROUNDS OF APPEAL READ AS UNDER: 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW, THE LD. CIT (A) ERRED IN CONFIRMING LEVY OF PENALTY U/S. 27 1(1)(C) OF RS.431589/- . / ITA NO. 1988/MUM/2013 / ASSESSMENT YEAR 2006-07 2 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW, THE LD CIT(A) HAVE APPRECIATED BUT NOT RECOGNIZED MERCY ON APPELL ANT FOR SITUATION OF THE APPELLANT IN WHICH SHE PASSES DURING ASSESSMENT AND APPELLANT PROCEEDINGS 3 ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD CIT(A) NOT CONSIDERED THE SUBMISSION MADE BY THE APPELLANT IN RESPECT OF AMOUNT RECEIVED BY APPELLANT FROM HIS RELATIVES FOR CANCER TREATMEN T OF HER HUSBAND AND MAINTENANCE EXPENSES OF HOUSE AND HER THREE CHILDRE N. 4 ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD.CIT (A) DISREGARDED SUBMISSION MADE BY APPELLANT FOR DETAIL S OF RELATIVES FROM WHICH LOANS HAVE BEEN RECEIVED. 5 ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT A PASSED ORDER ON THE BASIS OF NON SUBMISSION OF CONF IRMATIONS, HOWEVER IT WAS NOT INSISTED OR DEMANDED BY THE CIT ANY TIME DURING THE PROCEEDING. 6 ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD CIT A DISREGARDED PERSONAL APPEARANCE OF APPELLANT AND HE R CANCER SUFFERING HUSBAND ,IN WHICH APPELLANT EXPLAINED ALL THE DETAI LS IN RESPECT OF SITUATION IN WHICH PETTY LOANS WERE TAKEN FROM RELATIVES AND EXP ENSES INCURRED ON CANCER TREATMENT OF HER HUSBAND. APPELLANT ALSO STATES THA T BEFORE CIT(A) IN ORIGINAL ASSESSMENT APPEAL WILL BE WITHDRAWN ON ASSURANCE OF CIT A THAT FURTHER PENALTY PROCEEDING WOULD NOT BE INITIATED AGAINST ASSESSEE. HOWEVER THIS FACT WAS NOT CONSIDERED BY LEARNED OFFICER OR HON CIT DURING THE COURSE OF PENALTY PROCEEDING. 7 APPELLANT, BEING WOMAN ASSESSEE , PASSING THROUGH FINANCIAL CRISIS DUE TO MAINTENANCE OF HOUSE, TAKING CARE OF THREE SCHOOL C OLLEGE GOING CHILDREN AND TREATMENT OF HER HUSBAND SUFFERING FROM CANCER AND HAVING BEEN OPERATED TWICE, NOT ABLE TO PAY DUES RAISED IN ASSESSMENT PROCEEDIN G THEREFORE PRAY TO NOT LOADED PENALTY ON APPELLANT. 8 THE APPELLANT PRAYS THAT THE PENALTY OF RS. 4,31, 589/- LEVIED BY LEARNED OFFICER AND CONFIRMED BY CIT (A) MAY BE DELETED. 9 THE APPELLANT PRAYS THAT PENDING DISPOSAL OF APPE AL BY YOUR HONOR, THE DEMAND OF RS 4,31,589/- RAISED BY LEARNED OFFICER A ND CONFIRMED BY HON CIT ON THE APPELLANT MAY KINDLY BE STAYED 2. IN THE PRESENT CASE HUSBAND OF THE ASSESSEE WAS SUFFERING FROM CANCER. FOR HIS TREATMENT LIKE CHEMOTHERAPY, OPERATIONS ETC . THE ASSESSEE TOOK AMOUNT FROM RELATIVES, WHICH WERE DEPOSITED IN THE BANK AN D WAS AGGREGATING TO A SUM OF RS.12,82,200/-. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, AO ASKED THE ASSESSEE TO EXPLAIN THE SAME AND THROUGH LETTE R DATED 24/11/2008 IT WAS SUBMITTED THAT THESE AMOUNTS WERE OBTAINED BY THE ASSESEE. THE AO FURTHER . / ITA NO. 1988/MUM/2013 / ASSESSMENT YEAR 2006-07 3 REQUIRED THE ASSESSEE TO PROVIDE 10 OF THE LOAN CRE DITORS FOR CROSS EXAMINATION. HAVING FAILED TO DO SO THE SAID AMOUNT WAS ADDED T O THE INCOME OF THE ASSESSEE UNDER SECTION 68 OF THE INCOME TAX ACT, 19 61 (THE ACT). IN QUANTUM PROCEEDINGS AN APPEAL WAS FILED BY THE ASSESSEE BEF ORE LD. CIT(A) WHICH WAS DECIDED VIDE ORDER DATED 11/1/2010. DURING THE COU RSE OF HEARING FOLLOWING LETTER DATED 8/10/2010 WAS SUBMITTED BY THE ASSESSE E: 3. WHEN THE APPEAL WAS POSTED FOR HEARING THE APP ELLANTS REPRESENTATIVE FILED A LETTER DATED 08/01/2010 SIGNED BY THE APPELLANT H ERSELF WITHDRAWING THE APPEAL. THE ABOVE LETTER READ AS UNDER:- REF:- APPEAL NO.ITC(A)/35/ITO-25(2)(1)/ITA-371/080 4 FOR ASSESSMENT YEAR 2006-07. REG: WITHDRAWAL OF APPEAL AGAINST ORDER U/S.143(3) WITH REFERENCE TO THE ABOVE/ I WISH TO INFORM YOUR GOOD SELF THAT/ 1. MY HUSBAND MR. KETAN OZA IS UNDER TREATMENT FOR THE 'CANCER SURGERY' SINCE LAST FIVE MONTHS AND WILL HAVE TO CONTINUE TH E TREATMENT FOR ANOTHER FIVE -SIX MONTHS. 2. I HAVE THREE CHILDREN, OUT OF WHICH TWO ARE BELO W 5 YEARS AND ELDER DAUGHTER IS STUDYING IN L;!H STANDARD. DUE TO ABOVE MENTIONED CIRCUMSTANCES/ I AM UNDER VE RY MUCH PRESSURE TO TAKE CARE OF FAMILY AND I AM NOT IN POSITION TO PURSUE T HE APPEAL FILED BY ME AGAINST ASSESSMENT ORDER U/S.14J(J) FOR THE ASSESSMENT YEAR 2006-07 AND IN ORDER TO TAKE PROPER CARE OF AILING HUSBAND AND CHILDREN/ I WOULD LIKE TO HAVE PEACE OF MIND. AND HENCE LAM WITHDRAWING ANY ABOVE REFERRED APPEAL WITH A HUMBLE REQUEST FOR NOT INITIATING ANY PENALTY PROCEEDINGS UNDER SECTION 271(1)(C).' IT IS IN THIS MANNER THE APPEAL FILED BY THE ASSESS EE IN QUANTUM PROCEEDINGS WAS DISMISSED BY LD. CIT(A) AS WITHDRAWN, BY MENTIO NING THAT HE CANNOT GIVE ANY COMMENT REGARDING PENALTY PROCEEDINGS AS THE PE NALTY PROCEEDINGS ARE INDEPENDENT OF THE ASSESSMENT PROCEEDINGS. 2.1 CONSIDERING THE AFOREMENTIONED FACTS AO HAS IMP OSED CONCEALMENT PENALTY VIDE IMPUGNED ORDER DATED 28/4/2010. THE P ENALTY HAS BEEN LEVIED ON THE GROUND THAT DESPITE THE ASSESSEE HAD FILED EXPL ANATION IN THE COURSE OF . / ITA NO. 1988/MUM/2013 / ASSESSMENT YEAR 2006-07 4 ASSESSMENT PROCEEDINGS, THOUGH LOANS WERE TAKEN FR OM DIFFERENT PERSONS, BUT ASSESSEE DID NOT FURNISH DETAILS OF THE LOAN CREDIT ORS, SUCH AS LOAN CONFIRMATION, COPY OF RETURN OF INCOME, PAN ETC. AN D ALSO DID NOT PRODUCE THEM FOR VERIFICATION. THUS, THE ASSESSEE HAD FAIL ED TO DISCHARGE THE PRIMARY ONUS TO PROVE THE DEPOSITS IN THE BANK ACCOUNT. IN THIS MANNER PENALTY HAS BEEN LEVIED OF RS.4,31,589/-. THE PENALTY WAS CH ALLENGED IN AN APPEAL FILED BEFORE LD. CIT(A), WHICH IS DECIDED AGAINST THE ASS ESSEE VIDE IMPUGNED ORDER DATED 7/1/2013. 2.2 DURING THE COURSE OF HEARING BEFORE LD. CIT(A) THE ASSESSEE APPEARED PERSONALLY WITH HER AILING HUSBAND AND IT WAS SUBMI TTED THAT HER HUSBAND SHRI KETAN OZA WAS SUFFERING FROM CANCER AND THE CASH DEPOSITED IN THE BANK ACCOUNT WERE TAKEN FROM HER VARIOUS RELATIVES TO ME ET THE EXPENSES. IT WAS FURTHER EXPLAINED THAT SHE HAD WITHDRAWN THE APPEAL TO BUY MENTAL PEACE BECAUSE SHE WAS UNABLE TO ATTEND TO HER AILING HUSB AND AND HER CHILDREN. IT WAS ALSO EXPLAINED THAT THE MONEY DEPOSITED IN THE BANK ACCOUNT WERE NOT HER MONEY RATHER BORROWALS FROM RELATIVES. 2.3 CONSIDERING THESE SUBMISSIONS OF THE ASSESSEE I T IS OBSERVED BY LD. CIT(A) THAT HE HAS SYMPATHETICALLY CONSIDERED THE S UBMISSIONS OF THE ASSESSEE, WHEREIN ASSESSSEE HAS PRODUCED HER HUSBAND, WHO IS SUFFERING FROM CANCER. IT IS FURTHER OBSERVED BY LD. CIT(A) THAT IT REMAIN S THE FACT THAT ASSESSEE COULD NOT FILE CONFIRMATION FROM RELATIVES REGARDING THE AMOUNT OF MONEY RECEIVED FOR THE TREATMENT OF HER HUSBAND. IT WAS NOT SO DONE BEFORE AO AND EVEN BEFORE HIM. THE QUANTUM APPEAL OF THE ASSESSEE HAS ALREA DY BEEN DISMISSED AND IN THE GIVEN CIRCUMSTANCES, I DO NOT HAVE ANY OTHER CHOICE AND ALSO CONSTRAIN TO UPHOLD THE PENALTY. THE ASSESSEE IS AGGRIEVED AND HAS FILED AFOREMENTIONED GROUNDS OF APPEAL. . / ITA NO. 1988/MUM/2013 / ASSESSMENT YEAR 2006-07 5 3. THIS APPEAL WAS EARLIER FIXED FOR HEARING ON 15/ 04/2015, WHEN IT WAS ADJOURNED FOR WANT OF TIME TO 20/04/2014. HOWEVE R, ON 20/04/2015 NONE WAS PRESENT ON BEHALF OF THE ASSESSEE. IT IS IN TH ESE CIRCUMSTANCES WE PROCEED TO DECIDE THE APPEAL EX-PARTE QUA THE ASSESSEE ON M ERITS AFTER HEARING LD. DR. 4. LD. DR NARRATED THE FACTS AND RELIED UPON THE O RDER PASSED BY AO AND LD. CIT(A). 5. WE HAVE CAREFULLY CONSIDERED THE SUBMISSIONS OF LD. DR. WE HAVE ALSO GONE THROUGH THE ASSESSMENT ORDER AS WELL AS THE OR DER PASSED BY LD. CIT(A) IN QUANTUM APPEAL, PENALTY ORDER AND ORDER OF LD. CIT( A) IN PENALTY PROCEEDINGS. AFTER CAREFUL CONSIDERATION, WE FIND THAT HUSBAN D OF THE ASSESSEE WAS AILING AND THE MONEY WAS RECEIVED BY THE ASSESSEE FOR HIS TREATMENT WHICH WAS CREDITED IN THE BANK ACCOUNT. THE MONEY DEPOSITE D IN THE BANK ACCOUNT WAS NOT FOR ANY OTHER PURPOSE. THE DETAILS WERE GIVEN TO THE AO DURING THE COURSE OF ASSESSMENT PROCEEDINGS. HOWEVER, THE ASSESSEE DUE TO THE FACT THAT MORE ATTENTION WAS REQUIRED TOWARDS AILING HUSBAND AND T OWARDS MAINTENANCE OF THE FAMILY WHICH CONSISTS THREE CHILDREN WHICH WERE MI NOR AND SCHOOL GOING, THEREFORE, THE ASSESSEE COULD NOT FURNISH PROPER DE TAILS TO SATISFY THE REQUIREMENT OF SECTION 68 OF THE ACT. THUS, THE ADDITION WAS MADE BY THE AO. 5.1 WHEN QUANTUM APPEAL WAS HEARD BY CIT(A) SIMIL AR CIRCUMSTANCES PREVAILED AND DUE TO ENGAGEMENT OF THE ASSESSEE T O DO THE WORK OF LOOKING AFTER HER AILING HUSBAND AND FAMILY, SHE COULD NOT COLLECT THE EVIDENCE TO ADHERE TO THE REQUIREMENT LAID DOWN IN SECTION 68. THEREFORE, SHE SUBMITTED A REQUEST BEFORE CIT(A) TO WITHDRAW THE APPEAL SUB JECT TO NON-LEVY OF CONCEALMENT PENALTY. THIS REQUEST OF THE ASSESSEE IS CLEARLY RECORDED IN THE LETTER FURNISHED BY HER WHICH HAS BEEN REPRODUCED I N THE ORDER PASSED BY LD. CIT(A). LD. CIT(A) THROUGH HAS RECOGNIZED SUCH P OSITION OF THE ASSESSEE BUT EXPRESSED HIS INCOMPETENCE TO CONSIDER THAT REQUES T OF THE ASSESSEE FOR . / ITA NO. 1988/MUM/2013 / ASSESSMENT YEAR 2006-07 6 DROPPING THE CONCEALMENT PENALTY PROCEEDINGS AND DISMISS THE APPEAL WITHOUT ACCEPTING THE REQUEST OF THE ASSESSEE. THE AO LEVIED PENALTY KEEPING IN VIEW THE NON FULFILLING OF THE REQUIREMENT OF S ECTION 68 AND ALSO KEEPING IN VIEW THE DISMISSAL OF THE ASSESSEES APPEAL IN QUAN TUM PROCEEDINGS. THOUGH LD. CIT(A) HAS ACCEPTED THE FACT THAT MONEY HAS B EEN TAKEN BY THE ASSESSEE FOR THE TREATMENT OF HER HUSBAND WHO WAS ALSO PRES ENT IN THE APPELLATE PROCEEDINGS, BUT HE HAS CONFIRMED THE LEVY OF CONCE ALMENT PENALTY. 5.2 CONSIDERING ALL THESE FACTS, WE ARE OF THE OPIN ION THAT IT IS A CASE WHERE ASSESSEE COULD NOT SATISFY THE REQUIREMENT OF SECT ION 68 DUE TO THE REASON THAT SHE HAD TO ATTEND SO MAY WORKS SIMULTANEOUSLY AND CONSIDERING THAT THE WORK OF SUPPORTING AILING HUSBAND AND DISTRESSED F AMILY WAS MORE IMPORTANT THAN TO CONTEST THE ADDITIONS IN INCOME TAX PROCEED INGS, THE ASSESSEE HAS WITHDRAWN THE APPEAL WHICH CANNOT BE ADVERSELY SEE N IN THE CONTEST OF LEVY OF CONCEALMENT PENALTY. IT IS A CASE WHERE ASSESSEE D UE TO WANT OF PROPER DOCUMENTS HAS BEEN SADDLED WITH THE LIABILITY OF TA X WHICH CANNOT BE ADVERSELY SEEN FOR LEVY OF CONCEALMENT PENALTY. THE FACT T HAT THE MONEY WAS TAKEN BY THE ASSESSEE FROM VARIOUS RELATIVES FOR THE TREATME NT OF HER HUSBAND AND TO SUPPORT DISTRESSED FAMILY, HAS NOT BEEN DISPROVED OR DISLODGED. THEREFORE, KEEPING IN VIEW THE FACTS AND CIRCUMSTANCES OF THE CASE, WE ARE OF THE OPINION THAT PENALTY HAS WRONGLY BEEN CONFIRMED BY LD. CIT( A) WHICH DESERVES TO BE DELETED. ACCORDINGLY, WE DELETE THE PENALTY AND AL LOW THE APPEAL FILED BY THE ASSESSEE. 6. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 20/04/2015 ( 0 1 2 20/04/2015 ( SD/- SD/- ( / N.K.BILLAIYA ) ( . . / I.P. BANSAL ) / ACCOUNTANT MEMBER / JUDICIAL MEMBER . / ITA NO. 1988/MUM/2013 / ASSESSMENT YEAR 2006-07 7 MUMBAI; 1 DATED 20/04/2015 / COPY OF THE ORDER FORWARDED TO : 1. !$ / THE APPELLANT 2. %&!$ / THE RESPONDENT. 3. 4) ( ) / THE CIT(A)- 4. 4) / CIT 5. 56 %)78 , * 78 , / DR, ITAT, MUMBAI 6. 9 / GUARD FILE. / BY ORDER, & 5) %) //TRUE COPY// / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI . . ./ VM , SR. PS