DCIT, New Delhi V. Smt. Anjana Devi, New Delhi

ITA 2331/DEL/2014

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 2909 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 8 month(s) 10 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-12-2017
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 25-05-2017
• Assessment Year: 2005-2006
• Appeal Filed On: 16-04-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S K JAIN
• Keywords: Unexplained investment; Additional evidence
• Section: 142(1); 144

Judgement Text

ITA NO. 2331/DEL/2014 ASSESSMENT YEAR 2005-06 1 | P A G E IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: A NEW DELHI BEFORE SHRI B.P.JAIN, ACCOUNTANT MEMBER AND SHRI SUDHANSHU SRIVASTAVA, JUDICIAL MEMBER ITA NO. 2331/DEL /2014 ASSTT. YEAR: 2005-06 DCIT, CIRCLE- 25(1), NEW DELHI. VS ANJANA DEVI, 1626, F-2, NAJAFGARH, NEW DELHI. (PAN: AGUPD0090R) (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI S.K. JAIN, SR. DR RESPONDENT BY : NONE PRESENT DATE OF HEARING : 08.11.2017 DATE OF PRONOUNCEMENT: 27.12.2017 ORDER PER SUDHANSHU SRIVASTAVA, J.M. THIS APPEAL HAS BEEN PREFERRED BY THE REVENUE AGAI NST THE ORDER DATED 30.12.2013 PASSED BY THE LD. COMMISSIONER OF INCOME TAX (APPEALS)-XVI, DELHI AND PERTAINS TO ASSESSMENT YEA R 2005-06. 2. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESS EE HAD PURCHASED A PROPERTY JOINTLY WITH MRS SUNITA DEVI AND MRS MEENA GUPTA FOR A TOTAL CONSIDERATION OF RS. 1.68 CRORES AND HER SHAR E WAS 1/4 TH THEREIN ITA NO. 1068/DEL/2017 ASSESSMENT YEAR 2013-14 2 | P A G E AMOUNTING TO RS. 41,42,103/-. THE ASSESSMENT WAS CO MPLETED UNDER SECTION 144 OF THE INCOME TAX ACT, 1961 (HEREINAFTE R CALLED THE ACT) ON 28/12/2007 BY HOLDING THE PROPERTY PURCHASE TRAN SACTION OF RS. 1,68,00,000/- AS UNEXPLAINED INVESTMENT ON THE BASI S OF AN AIR INFORMATION RECEIVED FROM THE CIT (CIB) DELHI. 2.1 AGGRIEVED, THE ASSESSEE PREFERRED AN APPEAL BEF ORE THE LD. CIT (APPEALS) WHO DECIDED THE ISSUE IN FAVOUR OF THE AS SESSEE. AGGRIEVED, THE DEPARTMENT APPROACHED THE ITAT AND THE ITAT RES TORED THE ISSUE TO THE FILE OF THE LD. CIT (APPEALS) WITH A D IRECTION TO RE-DECIDE THE APPEAL AFTER FOLLOWING THE PROCEDURE LAID DOWN UNDER RULE 46A OF THE INCOME TAX RULES, 1963. THE APPEAL OF THE ASSES SEE WAS AGAIN DECIDED BY THE LD. CIT (APPEALS) IN FAVOUR OF THE A SSESSEE AND NOW THE DEPARTMENT HAS AGAIN APPROACHED THE ITAT AND HA S CHALLENGED THE ADJUDICATION BY THE LD. FIRST APPELLATE AUTHORI TY. THE FOLLOWING GROUNDS HAVE BEEN RAISED IN THIS APPEAL:- ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN L AW CIT(A) HAS ERRED IN:- 1. DELETING THE ADDITION OF RS. 1,68,00,000/- MADE BY THE ASSESSING OFFICER ON ACCOUNT OF UNEXPLAINED INVESTM ENT. ITA NO. 1068/DEL/2017 ASSESSMENT YEAR 2013-14 3 | P A G E 2. ADMITTING THE ADDITIONAL EVIDENCE AS THE SAME WER E NOT PRODUCED BEFORE THE ASSESSING OFFICER IN SPITE OF G IVING SUFFICIENT OPPORTUNITY UNDER RULE 46A. 3. THE APPELLANT CRAVES THE RIGHT TO ADD, ALTER OR DEM AND ANY GROUND OF APPEAL. 3. NONE WAS PRESENT FOR THE ASSESSEE. HOWEVER, LOOK ING INTO THE FACTS OF THE CASE, WE ARE PROCEEDING TO HEAR THE AP PEAL OF THE DEPARTMENT EX- PARTE QUA THE ASSESSEE. 4. THE LD. DEPARTMENTAL REPRESENTATIVE ASSAILED THE ORDER OF THE LD. CIT (APPEALS) AND SUBMITTED THAT THE ASSESSEE H AD ENTERED INTO A TRANSACTION OF PURCHASE OF PROPERTY FOR A TOTAL CON SIDERATION OF RS. 1.68 CRORES AND BASED ON AIR INFORMATION, THE AO HA D ISSUED NOTICE TO THE ASSESSEE WHICH WAS NOT RESPONDED TO BY THE A SSESSEE AND, THEREFORE, THE AO WAS RIGHT IN ADDING BACK THE SAME TO THE INCOME OF THE ASSESSEE. THE LD. DEPARTMENTAL REPRESENTATIVE A LSO SUBMITTED THAT THE LD. CIT (APPEALS) HAD DECIDED THE ISSUE IN FAVO UR OF THE ASSESSEE WITHOUT DULY CONSIDERING THE OBSERVATIONS OF THE AO AND WITHOUT FOLLOWING THE PROCEDURE LAID DOWN UNDER RULE 46A OF THE INCOME TAX RULES. ITA NO. 1068/DEL/2017 ASSESSMENT YEAR 2013-14 4 | P A G E 5. WE HAVE HEARD THE LD. DEPARTMENTAL REPRESENTATIV E AND HAVE ALSO PERUSED THE MATERIAL ON RECORD AS WELL AS THE IMPUGNED ORDERS. IT IS SEEN THAT THE ITAT DELHI BENCH, IN ITS EARLIER O RDER, HAD RESTORED THE ISSUE TO THE FILE OF THE LD. CIT (APPEALS) WITH A DIRECTION TO RE- DECIDE THE APPEAL AFTER EXAMINING ALL THE EVIDENCES PRODUCED BY THE ASSESSEE AND ALSO AFTER FOLLOWING THE PROCEDURE LAI D DOWN UNDER RULE 46A. THEREAFTER, THE ASSESSEE FILED WRITTEN SUBMISS IONS ALONG WITH DOCUMENTARY EVIDENCES BEFORE THE LD. CIT (APPEALS) WHICH WERE FORWARDED TO THE AO FOR HIS COMMENTS BY THE LD. CIT (APPEALS), VIDE LETTER DATED 05/03/2012, AND THE SAME WAS RESPONDED TO BY THE AO VIDE REMAND REPORT DATED 16/07/2012. THEREAFTER, TH E ASSESSEE ALSO FILED A REJOINDER TO THE REMAND REPORT VIDE LETTER DATED 28/08/2012. THUS, IT IS VERY MUCH EVIDENT FROM THE SEQUENCE OF EVENTS THAT THE LD. CIT (APPEALS) HAS FOLLOWED THE DIRECTIONS OF THE IT AT AND HAS DULY FOLLOWED THE PROCEDURE LAID DOWN UNDER RULE 46A OF THE INCOME TAX RULES. IT IS SETTLED LAW THAT THE POWER OF THE FIRS T APPELLATE AUTHORITY IS CO-TERMINUS WITH THE AUTHORITY OF THE AO AND, TH EREFORE, HE HAS THE POWER TO DECIDE THE ISSUE IF THE AO FAILS TO DO SO. IT IS SEEN THAT THE ASSESSEE HAD SUBMITTED DETAILS OF PURCHASE OF PROPE RTY AND THE MODE ITA NO. 1068/DEL/2017 ASSESSMENT YEAR 2013-14 5 | P A G E OF PAYMENT TOWARDS HER SHARE IN THE SAID PROPERTY B EFORE THE LD. CIT (APPEALS) AND HAD ALSO EXPLAINED THE SOURCE OF SUCH PAYMENTS MADE. THE SAME HAS DULY BEEN NOTED BY THE LD. CIT (APPEAL S) IN PAGE 3 OF THE IMPUGNED ORDER. IT IS SEEN THAT THE ADDITIONAL EVIDENCES SUBMITTED WERE IN THE FORM OF THE LEDGER ACCOUNT OF THE ASSESSEE IN THE BOOKS OF M/S SURINDER LAL SUSHIL KUMAR (A FIRM OWNED BY THE HUSBAND OF THE ASSESSEE AND FROM WHOSE ACCOUNT PART PAYMENT OF THE PROPERTY WAS MADE), COPY OF ITR OF SH. VIJAY KUMAR- THE HUSBAND OF THE ASSESSEE, DETAILS OF BANK ACCOUNT DEPOSITS OF T HE ASSESSEE FOR THE YEAR UNDER CONSIDERATION, ETC. THESE DOCUMENTS WERE SENT TO THE AO FOR HIS COMMENTS BUT THE AO DID NOT POINT OUT ANY I NACCURACY OR DEFECT IN THE DOCUMENTS AND SIMPLY STATED THAT THE ASSESSEE HAD NOT RESPONDED TO THE NOTICE ISSUED UNDER SECTION 142(1) OF THE ACT AT THE TIME OF ASSESSMENT PROCEEDINGS. THE LD. CIT (APPEAL S) HAS FURTHER OBSERVED THAT AS PER RECORDS, IT WAS VERY MUCH EVID ENT THAT THE ASSESSEE HAD RESPONDED TO THE FIRST NOTICE ISSUED B Y THE AO AND THE REPLY WAS ALSO COUNTER-SIGNED BY THE AO BUT THE AO HAD CHOSEN NOT TO COMMENT ON IT. THE LD. CIT (APPEALS) HAS ALSO NO TED THAT THE ASSESSEE HAD ALSO FILED THE RETURN OF INCOME WITH W ARD 25 (4) WHICH ITA NO. 1068/DEL/2017 ASSESSMENT YEAR 2013-14 6 | P A G E WAS NOT CONSIDERED BY THE AO. THE LD. CIT (APPEALS) HAS FURTHER NOTED THAT IN THE REMAND PROCEEDINGS THE AO NEVER I SSUED ANY NOTICE NOR REQUIRED THE ASSESSEE TO SUBMIT ANY EVIDENCES B EFORE HIM AND FURTHER THAT IF THE AO WANTED TO SEE AND EXAMINE SO ME FURTHER EVIDENCES, HE SHOULD HAVE GIVEN AN OPPORTUNITY TO T HE ASSESSEE BY ISSUING A FRESH NOTICE BEFORE SUBMITTING THE REMAND REPORT AS NOTHING PREVENTED HIM TO CALL FOR SUCH PARTICULARS. THEREAF TER, THE LD. CIT (APPEALS) HAS DULY NOTED THAT IT WAS EVIDENT FROM T HE PURCHASE DEED DATED 20/10/2004 THAT THE ASSESSEE HAD ONLY A PART SHARE IN THE ENTIRE PROPERTY WHICH WAS JOINTLY PURCHASED IN THE NAME OF THREE PERSONS AND FURTHER THAT THE ASSESSEE DID NOT INVEST THE EN TIRE AMOUNT OF RS. 1.68 CRORES AND THE ACTUAL QUANTUM OF INVESTMENT BY HER WAS ONLY RS. 41,42,102/- WHICH WAS MADE THROUGH WITHDRAWALS/ADVA NCES TAKEN BY HER FROM HUSBANDS FIRM. THE LD. CIT (APPEALS) HAS FURTHER NOTED THAT THE WITHDRAWALS/ADVANCES FROM THE HUSBANDS FI RM, THE CREDITS IN HER BANK ACCOUNTS AND THE PAYMENTS FROM THE BANK AC COUNT WERE ALL IN AGREEMENT WITH THE LEDGER ACCOUNT, AUDITED FINAN CIALS OF THE HUSBANDS FIRM AND THE BANK STATEMENTS OF THE ASSES SEE. THE LD. CIT (APPEALS), THEREAFTER, PROCEEDED TO DELETE THE ADDI TION. THUS, IT IS ITA NO. 1068/DEL/2017 ASSESSMENT YEAR 2013-14 7 | P A G E VERY MUCH EVIDENT THAT THE LD. CIT (APPEALS) HAS DU LY CONSIDERED THE EVIDENCES AND HAS GIVEN THE BENEFIT OF THE SAME AFT ER GIVING DUE OPPORTUNITY TO THE AO TO REBUT THE SAME. HOWEVER, T HE SAME WAS NOT DONE BY THE AO. THEREFORE, IN VIEW OF THE FACTS OF THE CASE, WE FIND NO REASON TO INTERFERE WITH THE FINDINGS OF THE LD. CI T (APPEALS) AND WE DISMISS THE GROUNDS RAISED BY THE DEPARTMENT. 6. IN THE FINAL RESULT THE APPEAL OF THE DEPARTMENT STANDS DISMISSED. ORDER IS PRONOUNCED IN THE OPEN COURT ON 27 TH DECEMBER, 2017. SD/- SD/- (B.P. JAIN ) (SUDHANSHU SRIVASTAVA) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 27 TH DECEMBER, 2017 DRAGON COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR, ITAT TRUE COPY BY ORDER ASSISTANT REGI STRAR