Smt. Neelam Gupta, Bhind V. I.T.O., Ward-2(1), Gwalior

ITA 21/AGR/2013

• Counselvise Citation: [2013] 120 COUNSELVISE.COM (IT) 2146 (ITAT-AGRA)
• Duration Of Justice: 5 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-07-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 17-07-2013
• Assessment Year: 2001-2002
• Appeal Filed On: 21-01-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S D SHARMA
• Assessee Lawyers: S K AGARWAL
• Keywords: Gift; Opportunity of being heard
• Section: 148; 263

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AGRA BENCH, AGRA BEFORE SHRI BHAVNESH SAINI, JUDICIAL MEMMBER AND SHRI A.L. GEHLOT, ACCOUNTANT MEMBER ITA NO. 21 AGRA/ 2013 ASSESSMENT YEAR 2001-02 SMT. NEELAM GUPTA, VS. ASSESSING OFFICER, RANGE 2 (1), GOHADI GATE, GOHAD CITY CENTER, DISTT. BHIND GWALIOR (PAN ABDPG 5729 J) (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI S.K.AGARWAL, ADVOCATE RESPONDENT BY : SHRI S.D. SHARMA, JR. D.R. DATE OF HEARING : 17.07.2013 DATE OF PRONOUNCEMENT : 19.07.2013 ORDER PER BHAVNESH SAINI, JUDICIAL MEMBER THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF LEARNED CIT(A) GWALIOR DATED 09.11.2012 FOR A.Y. 2001-02. 2. THE ASSESSEE HAS RAISED TWELVE GROUNDS OF APPEAL , BUT IN NONE OF THE GROUNDS THE ASSESSEE HAS RAISED ANY RELEVANT GROUNDS OF APP EAL. THE ORDERS OF THE AUTHORITIES BELOW WOULD REVEAL THAT THE ASSESSEE HA S CHALLENGED THE ADDITION OF ITA NO.21/AGRA/2013 A.Y.2001-02 2 RS.1,00,000/- ON ACCOUNT OF UNEXPLAINED GIFT. LD. C OUNSEL FOR THE ASSESSEE TENDERED UNCONDITIONAL APOLOGY FOR NOT MAKING PROPE R GROUNDS OF APPEAL IN THE MATTER. 3. BRIEFLY THE FACTS OF THE CASE ARE THAT ASSESSEE FILED RETURN OF INCOME FOR ASSESSMENT YEAR UNDER APPEAL DECLARING INCOME OF RS .80,226/-, WHICH WAS PROCESSED UNDER SECTION 143(1) OF THE I.T. ACT. SUB SEQUENTLY, IT WAS NOTICED THAT THE ASSESSEE HAS CREDITED AN AMOUNT OF RS.1,00,000/ - AS GIFT RECEIVED IN HER CAPITAL ACCOUNT FILED WITH THE RETURN OF INCOME AND ASSESSM ENT WAS REOPENED. DURING THE COURSE OF RE-ASSESSMENT PROCEEDINGS, THE A.O. HAS O BTAINED AFFIDAVIT OF THE DONOR SHRI RAMJI LAL GOYAL AND AFTER SATISFYING HIMSELF A BOUT THE CREDITWORTHINESS OF THE DONOR AND GENUINENESS OF THE GIFT HAS DROPPED THE P ROCEEDINGS UNDER SECTION 148 OF THE I.T. ACT VIDE NOTE SHEET ENTRY DATED 14.02.2 006 ACCEPTING THE GENUINENESS OF THE GIFT IN THE MATTER. THE ORDER WAS REVISED BY LD . CIT GWALIOR BY TREATING THE ACTION OF THE A.O. AS ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF REVENUE AND A.O. WAS DIRECTED TO MAKE FRESH ASSESSMENT AS PER HER OR DER UNDER SECTION 263 OF THE I.T. ACT DATED 28.03.2008. THE A.O. PASSED THE ASSE SSMENT ORDER DATED 05.12.2008 UNDER SECTION 144/263 OF THE I.T. ACT AND IN THE AB SENCE OF ANY DETAILS AVAILABLE ON RECORD MADE THE ADDITION OF RS.1,00,000/- ON ACCOUN T OF UNEXPLAINED CASH GIFT ITA NO.21/AGRA/2013 A.Y.2001-02 3 RECEIVED OF RS.1,00,000/- IN A.Y.2001-02. THE ADDIT ION WAS CONFIRMED BY THE LD. CIT(A) IN THE ABSENCE OF ANYTHING PROVED BY THE ASS ESSEE. APPEAL OF THE ASSESSEE WAS ACCORDINGLY DISMISSED. 4. LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE ASSESSEE HAD RECEIVED GIFT OF RS.1,00,000/- FROM SRI RAMJI LAL GOYAL ON 23.03.200 2 THROUGH DEMAND DRAFT NO.090206, CENTRAL BANK OF INDIA, WHICH IS FALLS IN A.Y.2002-03. COPY OF THE RETURN FILED FOR A.Y.2002-03 SHOWING GIFT AMOUNT IN QUESTION, AFFIDAVIT OF THE DONOR, WHO IS FATHER OF THE ASSESSEE, HAVE BEEN FIL ED IN SUPPORT OF THE CONTENTION. ON THE OTHER HAND, LD. D.R. RELIED UPON THE ORDERS OF THE AUTHORITIES BELOW. 5. ON CONSIDERATION OF THE RIVAL SUBMISSIONS, WE AR E OF THE VIEW THAT THE MATTER REQUIRES RECONSIDERATION AT THE LEVEL OF THE A.O. T HE ASSESSEE HAS CLAIMED THAT GIFT OF RS.1,00,000/- WAS RECEIVED FROM SRI RAMJI LAL GO YAL, WHO IS FATHER OF THE ASSESSEE, ON 28.03.2002 THROUGH DEMAND DRAFT. AFFID AVIT OF THE DONOR IS FILED ON RECORD. THE ACKNOWLEDGEMENT OF FILING OF THE RETURN FOR A.Y.2002-03 IS ALSO FILED ALONG WITH COMPUTATION OF INCOME IN WHICH ASSESSEE HAS SHOWN TO HAVE RECEIVED GIFT OF RS.1,00,000/- IN HER CAPITAL ACCOUNT. THE D OCUMENTS ON RECORD, PRIMA-FACIE PROVED THAT THE GIFT RECEIVED BY ASSESSEE APPEARS T O BE RECEIVED IN SUBSEQUENT A.Y.2002-03. THEREFORE, IT IS NOT RELEVANT TO THE A SSESSMENT YEAR UNDER APPEAL I.E. ITA NO.21/AGRA/2013 A.Y.2001-02 4 2001-02. THEREFORE, NO SUCH ADDITION COULD BE MADE IN THE CASE OF THE ASSESSEE. HOWEVER, THE RECORD REVEALS THAT NO SUCH FACTS WERE SUBMITTED EITHER BEFORE A.O. OR BEFORE LD. CIT(A). LD. COUNSEL FOR THE ASSESSEE REFERRED TO REPLY FILED BEFORE CIT GWALIOR IN THE PROCEEDING UNDER SECTION 263 OF THE ACT, BUT IN THE SAID REPLY ALSO ASSESSEE HAS NO WHERE EXPLAINED THAT THE GIFT IN QU ESTION PERTAINED TO SUBSEQUENT A.Y.2002-03. IT IS, THEREFORE, CLEAR CASE OF NEGLIG ENCE ON THE PART OF THE LD. COUNSEL FOR THE ASSESSEE WHO IS NOT PLEADING THE CORRECT FA CTS BEFORE THE AUTHORITIES BELOW, OTHERWISE THE MATTER WOULD NOT HAVE REACHED UP TO T HE STAGE OF THE APPELLATE TRIBUNAL. LD. COUNSEL FOR THE ASSESSEE HAS NO ANSWE R TO THE SAME AS TO WHY THE CORRECT FACTS WERE NOT PLEADED IN THE MATTER. THE C OUNSEL FOR THE ASSESSEE HAS NOT ONLY DUTY TO DEFEND THE CASE OF THE CLIENT IN PROPER AND DILIGENT MANNER BUT ALSO DUTY TO ASSIST THE AUTHORITIES BELOW IN ARRIVING AT THE JUST DECISION IN THE MATTER. HOWEVER, LD. COUNSEL FOR THE ASSESSEE HAS FAILED TO DISCHARGE HIS DUTIES AS PER LAW AS HAVE BEEN ASSIGNED TO HIM. EVEN AS NOTED ABOVE, THE GROUNDS OF THE APPEAL ARE ALSO NOT PROPERLY PREPARED IN THE MATTER. FURTHER, WE MAY ALSO NOTE NEGLIGENCE ON THE PART OF THE A.O. IN COMPUTING THE INCOME OF THE ASSESSEE. THE A.O. HAS MENTIONED THAT RETURN OF INCOME FOR A.Y. 2001-02 HA S BEEN FILED ON 23.07.2002 DECLARING INCOME OF RS.80,226/-. THIS FACT ITSELF I S INCORRECT BECAUSE THE ASSESSEE FILED COPY OF THE ACKNOWLEDGEMENT OF THE RETURN AND COMPUTATION OF INCOME IN THE ITA NO.21/AGRA/2013 A.Y.2001-02 5 APPEAL PAPERS WHICH SHOWS THAT FOR A.Y. 2001-02 RET URN OF INCOME IS FILED ON 03.07.2001 DECLARING INCOME OF RS.82,360/-. IN A.Y. 2002-03 ASSESSEE HAS DECLARED INCOME OF RS.80,226/- AND SUCH RETURN IS F ILED ALONG WITH THE COMPUTATION OF INCOME SHOWING THE SAME AMOUNT AND THE GIFT RECE IVED IN SUBSEQUENT A.Y.2002- 03. THEREFORE, A.O. HAS ALSO TAKEN WRONG FIGURE IN THE ASSESSMENT ORDER OTHER WISE THE FACT WOULD HAVE BEEN OTHERWISE. IT, THEREFORE, APPEARS TO BE GROSS NEGLIGENCE ON THE PART OF THE A.O. AS WELL AS LD. COUNSEL FOR THE ASSESSEE IN NOT MAKING OUT A PROPER CASE IN THE MATTER. WE ACCORDINGLY, SET ASID E THE ORDERS OF THE AUTHORITIES BELOW AND RESTORE THE MATTER IN ISSUE TO THE FILE OF THE A.O. WITH DI RECTION TO VERIFY ALL THE FACTS AS NOTED IN THE ORDER AND PASS A REAS ONED ORDER BY GIVING REASONABLE SUFFICIENT OPPORTUNITY OF BEING HEARD TO THE ASSESS EE. THE ASSESSEE IS DIRECTED TO COOPERATE WITH THE A.O. AND IS ALSO DIRECTED TO PRO DUCE ALL RELEVANT EVIDENCES BEFORE HIM FOR DISPOSAL OF THE MATTER IN QUESTION. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSES. (ORDER PRONOUNCED IN THE OPEN COURT) SD/- SD/- (A.L. GEHLOT) (BHAV NESH SAINI) ACCOUNTANT MEMBER JUDICIAL MEMBER AMIT/ ITA NO.21/AGRA/2013 A.Y.2001-02 6 COPY OF THE ORDER FORWARDED TO:- 1. APPELLANT 2. RESPONDENT 3. CIT (APPEALS) CONCERNED 4. CIT CONCERNED 5. D.R., ITAT, AGRA BENCH, AGRA 6. GUARD FILE. BY ORDER SR. PRIVATE SECRETARY INCOME TAX APPELLATE TRIBUNAL, AGRA TRUE COPY