Smt. Uma Chouhan, Bhopal V. The ITO 1(1), Bhopal

ITA 222/IND/2011

• Counselvise Citation: 22222714 RSA 2011
• Duration Of Justice: 1 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-10-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2005-2006
• Appeal Filed On: 29-08-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ARUN DEWAN
• Assessee Lawyers: GIRISH AGRAWAL; SSH H P VERMA ASHISH GOYAL
• Keywords: Income from undisclosed sources; Opportunity of being heard; Initiation of penalty proceedings
• Section: 143(3); 234B

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL, INDORE SMC BENCH, INDORE BEFORE SHRI R.C. SHARMA, ACCOUNTANT MEMBER ITA NO.222/IND/2011 A.Y. 2005-06 SMT. UMA CHOUHAN, BHOPAL PAN ADCPC 6375 P . APPELLANT VS. ITO-1(1), BHOPAL . RESPONDENT APPELLANT BY : S/SH. H.P. VERMA, ASHISH GOYAL & GIRISH AGRAWAL RESPONDENT BY : SHRI ARUN DEWAN DATE OF HEARING : 27.10.2011 DATE OF PRONOUNCEMENT : 27.10.2011 ORDER THIS APPEAL IS FILED BY THE ASSESSEE CHALLENGING T HE EXPARTE ORDER OF THE LEARNED COMMISSIONER OF INCOME TAX (AP PEALS)-I, BHOPAL, DATED 15.2.2010 FOR THE AY 2005-06 ON THE F OLLOWING GROUNDS: 1. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) ERRED IN PASSING THE APPELLATE ORDER WITHOUT AFFORDING THE PROPER OPPORTUNITY OF BEING HEARD AND DECIDING THE CASE WITHOUT GOING INTO MERITS OF THE CASE. 2 2. THAT UNDER THE CIRCUMSTANCES, THE LD. CIT(A) ERRED IN CONFIRMING THE ADDITION OF RS.2,48,200/- BEING INCOME FROM AGRICULTURAL INCOME CONVERTING THE SAME INTO INCOME FROM OTHER SOURCES WITHOUT CONSIDERING THE FACTS AND CIRCUMSTANCES OF THE CASE AND DISREGARDING THE DOCUMENTS OF THE AGRICULTURAL HOLDINGS FILED AT THE TIME OF REGULAR ASSESSMENT. 3. THAT OF THE FACTS AND IN CIRCUMSTANCES OF THE CASE, CHARGING OF INTEREST OF RS.14,190/- U/S 234B IS NOT JUSTIFIED. 4. THAT OF THE FACTS AND IN CIRCUMSTANCES OF THE CASE, INITIATION OF PENALTY PROCEEDINGS U/S 271(1)(B) IS NOT JUSTIFIED. 2. WE HAVE HEARD LD. REPRESENTATIVES OF BOTH THE PA RTIES AND HAVE GONE THROUGH THE MATERIAL AVAILABLE ON RECORD. 3. FACTS, IN BRIEF, ARE THAT THE ASSESSEE IS AN IND IVIDUAL. SHE HAD FILED HER RETURN FOR AY 2005-06 ON 1.8.2005 SHO WING NIL INCOME AND AGRICULTURAL INCOME AT RS.2,48,200/-. TH E PREVIOUS COUNSEL OF ASSESSEE SUBMITTED SOME DOCUMENTS REGARD ING AGRICULTURAL HOLDING TO THE AO. HOWEVER, THE AO DID NOT GIVE CREDENCE TO THE SAID DOCUMENTS DISREGARDING THE WHO LE AGRICULTURAL INCOME OF RS.2,48,200/- AND AS SUCH, T HE AO COMPLETED ASSESSMENT U/S 143(3) ON 30.11.2007 DETER MINING THE TOTAL TAXABLE INCOME AT RS.2,48,200/-BY TREATING TH E SAME AS INCOME FROM UNDISCLOSED SOURCES. ON APPEAL, THE LD. CIT(A) CONFIRMED THE ACTION OF THE AO. 3 4. I HAVE CONSIDERED THE RIVAL SUBMISSIONS OF LD. REPRESENTATIVES OF BOTH SIDES AND PERUSED THE MATER IAL AVAILABLE ON RECORD. THE LD. COUNSEL FOR THE ASSESSEE SUBMIT TED THAT AT THE TIME OF ASSESSMENT PROCEEDINGS AND AT THE TIME OF A PPELLATE STAGE ALSO, THE PREVIOUS COUNSEL OF THE ASSESSEE HAD NOT INTIMATED THE DATE OF HEARINGS TO THE ASSESSEE AND THEREFORE, NEC ESSARY DOCUMENTS PROVING THE AGRICULTURE INCOME COULD NOT BE PRODUCED AND THE APPEAL WAS DECIDED WITHOUT HEARING THE ASSE SSEE. THE LD. COUNSEL FOR THE ASSESSEE, THEREFORE, SUBMITTED THAT IN VIEW OF THE CIRCUMSTANCES NARRATED ABOVE AND IN THE INTEREST OF JUSTICE, ONE MORE OPPORTUNITY MAY BE PROVIDED TO THE ASSESSEE TO EXPLAIN HER CASE BEFORE THE AO. ON THE OTHER HAND, LD. DR BANKE D UPON THE ORDERS OF THE REVENUE AUTHORITIES BUT DID NOT CONTR OVERT THE ASSERTION MADE BY THE LD. COUNSEL OF THE ASSESSEE B Y BRINING ANY POSITIVE MATERIAL ON RECORD. 5. ON CONSIDERATION OF ABOVE, I FIND FORCE IN THE S UBMISSION OF THE ASSESSEE BECAUSE IT IS NOTICED THAT THE ASSESSE E HAS CLAIMED THAT THE PREVIOUS COUNSEL OF THE ASSESSEE HAD NOT I NTIMATED THE DATE OF HEARINGS OF THE ASSESSMENT PROCEEDINGS TO H ER AND EVEN BEFORE LD. CIT(A), NO ONE WAS PRESENT TO EXPLAIN TH E CASE. THESE FACTS COULD NOT BE CONTROVERTED BY BRINGING ANY POS ITIVE MATERIAL 4 ON RECORD BY THE LD. SR. DR. THEREFORE, IN THE INT EREST OF JUSTICE AND IN ORDER TO GIVE ONE MORE OPPORTUNITY, I, WITHO UT GOING INTO THE MERITS OF THE APPEAL, REMAND THE ISSUES OF THIS APPEAL BACK TO THE FILE OF THE ASSESSING OFFICER FOR FRESH ADJUDIC ATION IN ACCORDANCE WITH LAW FOR WHICH DUE OPPORTUNITY OF BE ING HEARD BE PROVIDED TO THE ASSESSEE WITH FURTHER LIBERTY TO FU RNISH EVIDENCE, IF ANY, IN SUPPORT OF HER CLAIM. IN THE RESULT, THIS APPEAL OF THE ASSESSEE IS ALLO WED FOR STATISTICAL PURPOSES ONLY. SD/- (R.C. SHARMA) ACCOUNTANT MEMBER DATED: 27.10.2011 COPY TO : APPELLANT/RESPONDENT/CIT/CIT(A)/DR !VYAS!