SMT KISMAT KANWAR, Jaipur V. ITO, Jaipur

ITA 231/JPR/2011

• Counselvise Citation: [2011] 119 COUNSELVISE.COM (IT) 7203 (ITAT-JAIPUR)
• Duration Of Justice: 7 month(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-11-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 22-09-2011
• Assessment Year: 2006-2007
• Appeal Filed On: 14-03-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: VINOD JOHARI
• Keywords: Opportunity of being heard; Source of fund
• Section: 148

Judgement Text

1 ITA 231-11 IN THE INCOME TAX APPELLATE TRIBUNAL JAIPUR BENCH B JAIPUR BEFORE SHRI R.K. GUPTA AND SHRI N.L. KALRA ITA NO. 231/JP/2011 ASSTT. YEAR : 2006-07. SMT. KISMAT KANWAR, VS. THE INCOME-TAX OFFICER, B-2, BAWADI HOUSE, LINK ROAD, WARD 3(3), SC ROAD, JAIPUR. JAIPUR. (APPELLANT) (RESPONDENT) APPELLANT BY : WRITTEN SUBMISSION RESPONDENT BY : SHRI VINOD JOHARI DATE OF HEARING : 19.10.2011 DATE OF PRONOUNCEMENT : 04.11.2011 ORDER DATE OF ORDER : 04/11/2011. PER R.K. GUPTA, J.M. THIS IS AN APPEAL BY ASSESSEE AGAINST THE ORDER OF LD. CIT (A) RELATING TO ASSESSMENT YEAR 2006-07. 2. THE ASSESSEE IS OBJECTING IN CONFIRMING THE ADDI TION OF RS.41,30,200/- UNDER SECTION 69B OF THE I.T. ACT. 3. BRIEF FACTS OF THE CASE ARE DISCUSSED IN THE ORD ER OF LD. CIT (A) ARE AS UNDER :- AS PER THE ASSESSMENT ORDER, TAX EVASION PETITIO N (TEP) WAS RECEIVED BY THE DEPARTMENT AND ACCORDINGLY ENQUIRY WAS CONDUCTE D AND STATEMENT OF THE APPELLANT WAS RECORDED U/S 131. THE APPELLANT WAS ASKED TO EXPLAIN THE SOURCE OF FUNDS UTILIZED IN PURCHASE OF PROPERT Y BEING AGRICULTURAL LAND AT MALPURA, DISTT. TONK FOR RS. 38.65 LACS AND PAYM ENT OF STAMP DUTY OF 2 RS. 2,65,200/-. RETURN OF INCOME DECLARING AN INCOM E OF RS. 1,27,028/- WAS FILED ON 24.8.06. AND ON BEING RECEIVING INFORM ATION, NOTICE U/S 148 ISSUED ON 1.12.09, ON THE APPELLANT HERSELF. THE SOURCE OF INVESTMENT WAS EXPLAINED AS SAVINGS F ROM AGRICULTURE INCOME EARNED DURING THE EARLIER YEARS. THAT THE AP PELLANT WAS CARRYING OUT AGRICULTURAL ACTIVITIES ON THE LAND OF HER FATHER I N LAW. AGRICULTURAL LAND WAS GIVEN ON BATAI. IT WAS EXPLAINED THAT NO ACTUAL SALE WAS TAKEN PLACE. HER FATHER IN LAW HAS TWO SONS ONE BEING HUSBAND OF THE APPELLANT EXPIRED IN 1996 AND ANOTHER SON WERE TRYING TO TAKE INCOME AND PROPERTY FROM HIS FATHER ILLEGALLY. IN ORDER TO RESOLVE THE DISPUTE HE EXECUTED THE SALE DEED IN FAVOUR OF THE APPELLANT WITHOUT ACCEPT ING ANY CONSIDERATION AT ALL. EVEN IF, IT IS PRESUMED THAT THE APPELLANT HA S PAID FULL CONSIDERATION, SINCE YEARLY INCOME OF RS. 7-8 LACS FROM AGRICULTUR AL LAND ULTIMATELY GOES IN THE HANDS OF THE APPELLANT AND, THEREFORE, SHE H AS PURCHASED THE PROPERTY FROM SAVINGS MADE OUT OF THIS INCOME. AGRICULTURAL LAND HOLDING WAS IN THE NAME OF FATHER IN LAW AND IT WAS HE ONLY WHO MA NAGED THE LAND THOUGH THE SALE PROCEEDS OF AGRICULTURE PRODUCES WERE HAND ED OVER TO HER BY FATHER IN LAW. THE AO NOT ACCEPT THIS EXPLANATION F OR WANT OF DOCUMENTARY EVIDENCE. THE AO HAS GATHERED FACTS AND FOUND THAT HER FATHER IN LAW HAD TWO SONS AND BOTH DIED LONG BACK. BOTH THE SONS FAMILIES WE RE DEPENDENT ON HIM FOR SUPPORT AND, THEREFORE, IT WAS UNBELIEVABLE THA T ENTIRE SALE PROCEEDS WERE HANDED OVER TO THE APPELLANT WHEN HER FATHER I N LAWS MAJOR SOURCE OF INCOME IS AGRICULTURE. THAT THE ACCUMULATED AMOU NT WAS KEPT WITH HER ONLY WITHOUT INVESTING IT, DOES NOT APPEARS TO BE C ONVINCING. HER FATHER IN LAW IS NOT AN INCOME TAX ASSESSEE AND WAS ELECTED M LC FOR TWO TIMES. THE AO HAS OBSERVED THAT THE APPELLANT HAS FAILED TO PR ODUCE THE SOURCE OF INVESTMENT AND, THEREFORE, AMOUNT INVESTED RS. 41,3 0,200 INCLUDING STAMP DUTY WAS ADDED U/S 69B. 3 4. THE ADDITION MADE BY AO WAS CONFIRMED BY LD. CIT (A) WHILE DECIDING THE APPEAL EX PARTE AS NONE APPEARED ON BEHALF OF THE A SSESSEE. 5. NOW THE ASSESSEE IS IN APPEAL HERE BEFORE THE TR IBUNAL. 6. WRITTEN SUBMISSIONS ON BEHALF OF THE ASSESSEE AR E FILED WHICH ARE PLACED ON RECORD. 7. ON THE OTHER HAND, THE LD. D/R ALSO FILED WRITTE N SUBMISSIONS, COPY OF WHICH IS PLACED ON RECORD. 8. IN THE SAID SUBMISSIONS FILED BY ASSESSEE, IT WA S REQUESTED THAT MATTER BE RESTORED BACK TO THE FILE OF LD. CIT (A) AS THE SAME WAS DEC IDED EX PARTE WITHOUT CONSIDERING THE ISSUE ON MERIT. 9. ON THE OTHER HAND, LD. D/R HAS STATED THAT ALL T HE FACTS HAVE BEEN RECORDED IN THE ORDER OF AO WHICH COULD NOT BE CONTROVERTED. IT WA S ALSO SUBMITTED THAT VARIOUS OPPORTUNITIES WERE GIVEN TO THE ASSESSEE. HOWEVER, THE OPPORTUNITY GIVEN WAS NOT AVAILED. THEREFORE, ORDER OF LD. CIT (A) IS LIABLE TO BE CONFIRMED. 10. AFTER CONSIDERING THE SUBMISSIONS AND PERUSING THE MATERIAL ON RECORD, IT IS NOTED THAT IN THE BRIEF FACTS NOTE CONTAINING WRITTEN SUB MISSIONS IT HAS BEEN STATED THAT NO CONSIDERATION IN CASH WAS TRANSFERRED AS AGRICULTUR AL LAND WAS TRANSFERRED IN HER NAME JUST TO AVOID LITIGATION BETWEEN TWO BROTHERS. THE FATH ER-IN-LAW OF THE ASSESSEE REGISTERED THE AGRICULTURAL LAND IN HER NAME. THIS ASPECT NEEDS TO BE EXAMINED AFRESH AND, THEREFORE, TO MEET THE ENDS OF JUSTICE, WE SET ASIDE THE ORDER OF LD. CIT (A) AND RESTORE THE MATTER BACK TO HIS FILE FOR PASSING A FRESH ORDER AFTER AFFORDI NG REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. WE ORDER ACCORDINGLY. 4 11. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWE D FOR STATISTICAL PURPOSES. 12. THE ORDER IS PRONOUNCED IN THE OPEN COURT ON 04 .11.2011. SD/- SD/- ( N.L. KALRA ) ( R.K. GUPTA ) ACCOUNTANT MEMBER JUDICIAL MEMBER JAIPUR, D/- COPY FORWARDED TO :- SMT. KISMAT KANWAR, JAIPUR. THE ITO WARD 3(3), JAIPUR. THE CIT (A) THE CIT THE D/R GUARD FILE (ITA NO. 231/JP/2011) BY ORDER, AR ITAT JAIPUR.