Karuna Sharda, New Delhi V. ITO, New Delhi

ITA 2564/DEL/2016

• Counselvise Citation: [2017] 130 COUNSELVISE.COM (IT) 7138 (ITAT-DELHI)
• Duration Of Justice: 8 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-01-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC 2
• Next Hearing Date: 08-11-2016
• Assessment Year: 2007-2008
• Appeal Filed On: 06-05-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: F R MEENA
• Assessee Lawyers: V K SHARMA IN PERSON
• Keywords: Gift; Opportunity of being heard; Cost of acquisition

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH SMC-II, NEW DELHI BEFORE SMT. DIVA SINGH, JUDICIAL MEMBER ITA NO.2564/DEL/2016 ASSESSMENT YEAR : 2007-08 KARUNA SHARDA, C-168, LOWER GROUND FLOOR, SARVODAYA ENCLAVE, NEW DELHI. VS. ITO, WARD- 23(4), NEW DELHI PAN : BHMPS 2661 B (APPELLANT) (RESPONDENT) APPELLANT BY SHRI V. K. SHARMA (ASSESSEE IN PERSON) RESPONDENT BY SHRI F.R. MEENA, SR.DR DATE OF HEARING 08-11-2016 DATE OF PRONOUNCEMENT 06-01-2017 O R D E R PER DIVA SINGH, J.M. THE PRESENT APPEAL HAS BEEN FILED BY THE ASSESSEE A SSAILING THE CORRECTNESS OF THE ORDER DATED 16.12.2014 OF THE CIT(A)-11, NEW DELHI PERTAINING TO 2007-08 ASSESSMENT YEAR WHEREIN THE ADDITIONS OF RS.1,55,700/- AND RS. 3,61,450/- HAVE BEEN SUSTAINED IN APPEAL BY THE CIT(A). 2. THE ASSESSEE REPRESENTED THROUGH HER HUSBAND ADD RESSING THE SECOND ADDITION FIRST SUBMITTED THAT THE CASH DEPOSITS OF RS.1,76,450/- A ND CHEQUES OF RS.1,85,000/- WHICH WERE RECEIVED BY THE ASSESSEE FROM HER HUSBAND AND OTHER FAMILY MEMBERS COULD NOT BE FILED AS THE BANK STATEMENTS OF THE HUSBANDS ACCOU NTS COULD NOT BE OBTAINED. INVITING ATTENTION TO THE IMPUGNED ORDER IT WAS SUBMITTED TH AT IT HAS BEEN ARGUED BEFORE THE CIT(A) THAT THE ASSESSEES HUSBAND WAS WORKING AS A SSISTANT COMMANDANT OF CISF (PARA-MILITARY FORCE, MINISTRY OF HOME AFFAIRS) AND FROM HIS SAVINGS OF VARIOUS DATES, HE HAS GIFTED THESE AMOUNTS TO HIS WIFE. THE SAID CLA IM IT WAS SUBMITTED HAS BEEN SUPPORTED BY AFFIDAVITS FILED BEFORE THE AO BY THE ASSESSEE A ND ALSO HER HUSBAND I.E. HIMSELF. IT WAS SUBMITTED THAT WITHOUT ADDRESSING THESE AFFIDAVITS THEY HAVE BEEN DISCARDED AS SELF- SERVING DOCUMENTS. THE REVENUE IT WAS SUBMITTED HA S INSISTED THAT THE ASSESSEE PRODUCES EVIDENCES TO CONFIRM THE TRANSACTIONS FROM CANARA B ANK, GREEN PARK, DELHI FOR THE SPECIFIC PERIOD OF THE ASSESSEES HUSBAND I.E. SHRI VINOD SHARDA. IT WAS SUBMITTED THAT THE BANK BRANCH STATED THAT SINCE OLD RECORDS WERE MAINTAINED MANUALLY THEY WERE NOT READILY AVAILABLE FOR THE SPECIFIC PERIOD. IT WAS SUBMITTED THAT THE ASSESSEE HAD REQUESTED 2 ITA NO.2564/DEL/2016 THE TAX AUTHORITIES TO DIRECTLY CALL FOR THE DOCUME NTS FROM THE BANK BY ISSUING NOTICE U/S 133(6). IT WAS HIS SUBMISSIONS THAT IN THE CIRCUMS TANCES, THE ISSUE MAY BE RESTORED TO THE CIT(A) FOR CONSIDERING THE FACTS AND ADDRESSING THE EVIDENCES. 3. LD. SR. DR STATED THAT ONUS WAS UPON THE ASSESSE E TO FILE THE RELEVANT EVIDENCES. 4. I HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED T HE MATERIAL AVAILABLE ON RECORD. I FIND THAT NO DOUBT THE RECORDS OF THE SPECIFIC PERI OD IN THE BRANCH MAY HAVE BEEN MAINTAINED MANUALLY BUT THAT IS NO REASON TO ACCEPT THAT A DUPLICATE COPY OF THE PASSBOOK CANNOT BE OBTAINED. THE ASSESSEE IDEALLY OUGHT TO HAVE FILED AN APPLICATION TO THE BANK AND ON MAKING A TOKEN PAYMENT AS PER FIXED CHARGES OF THE SPECIFIC BANK TOWARDS LABOUR INVOLVED IN PROVIDING A DUPLICATE PASS BOOK SHOULD HAVE FILED IT BEFORE THE TAX AUTHORITIES. THE SUBMISSION THAT THE BANK REFUSES TO PROVIDE A D UPLICATE PASS BOOK AS RECORDS WERE NOT READILY AVAILABLE CANNOT BE UNDERSTOOD AS A BLANKET REFUSAL BY THE BANK FOR ALL TIMES TO COME. THE EVIDENCE IS CAPABLE OF BEING OBTAINED AND CAN BE FILED AS FRESH EVIDENCE. THE BANKS UNDER THE LAWS OF THE LA ND CANNOT REFUSE THE WRITTEN REQUEST TO PROVIDE DUPLICATE PASS BOOK TO AN ACCOUN T HOLDER OR AN ERSTWHILE ACCOUNT HOLDER ON A TOKEN PAYMENT FOR CHARGES TOWARDS LABOU R INVOLVED AND IF THEY DO SO THEY BECOME ANSWERABLE TO THE CHARGE OF OBSTRUCTION IN JUSTICE DELIVERY. THE TAX AUTHORITIES TOO IF SO DEEMED NECESSARY CAN REQUISIT ION THE SAID INFORMATION FROM THE RESPECTIVE BANK IN ORDER TO REBUT THE AFFIDAVITS ON RECORD. HOWEVER, FOR THAT FIRST THE CONTENTS OF THE AFFIDAVIT NEED TO BE ADDRESSED. IT IS SEEN THAT THE AFFIDAVITS HAVE BEEN SUMMARILY DISCARDED AS SELF SERVING EVIDENCES WITH OUT ANY IOTA OF DISCUSSION. WHEN A TAXPAYER IS REQUIRED TO SUPPORT A CLAIM PUT FORTH BY WAY OF AN AFFIDAVIT, THE AFFIDAVIT IS BOUND TO BE SELF-SERVING AND THIS SHOR TCOMING PER SE CANNOT BE SAID TO DETRACT FROM THE CORRECTNESS OF THE CLAIM. IT IS A LSO SEEN THAT THE EVIDENCE DEEMED NECESSARY IS CAPABLE OF BEING PRODUCED. ACCORDINGLY, CONSIDERING THE OVERALL FACTUAL MATRIX, THE IMPUGNED ORDER IS SET-ASIDE AND THE ISS UE IS RESTORED BACK TO THE FILE OF THE CIT(A) WITH A DIRECTION TO PASS A SPEAKING ORDER IN ACCORDANCE WITH LAW. NEEDLESS TO SAY THAT AN OPPORTUNITY OF BEING HEARD BE PROVIDED TO T HE ASSESSEE. 5. ADDRESSING THE FIRST ISSUE RAISED IN GROUND NO.1 , THE ASSESSEES HUSBAND SUBMITTED THAT IT PERTAINS TO AN OLD PROPERTY INHERITED BY TH E ASSESSEE FROM HER FATHER ABOUT 50 TO 60 YEARS BACK ON WHICH CONSTRUCTION WAS CARRIED OUT AT THE COST OF RS.1,30,000/- BEFORE 1980 3 ITA NO.2564/DEL/2016 BY THE ASSESSEES FATHER. THE ASSESSEE INHERITED P ART OF THE RESIDENTIAL PROPERTY AND SOLD HER SHARE TREATING THE PROPORTIONATE COST OF CONSTR UCTION OF RS.30,000/- AS HER COST OF ACQUISITION AND AFTER INDEXATION IT WAS SUBMITTED T HE COST OF ACQUISITION COMES TO RS.1,55,700/-. IT WAS SUBMITTED THAT THE INDEXATIO N CLAIM WAS DISALLOWED BY THE ASSESSING OFFICER ON THE GROUND THAT NO DOCUMENTARY EVIDENCE WAS FILED. REFERRING TO THE IMPUGNED ORDER IT WAS SUBMITTED THAT THE CIT(A) HAS TAKEN COGNIZANCE OF COLLABORATION AGREEMENT DATED 16.05.2006 ENTERED IN TO BY THE ASSESSEE ALONG WITH FOUR OTHER CO-OWNERS IN RESPECT OF LAND AT P-7A, GREEN P ARK EXTN., NEW DELHI WITH M/S SABHARWAL DEVELOPERS AND PROMOTERS LTD. FOR THE DEV ELOPMENT ON THE VACANT PLOT AFTER DEMOLISHING THE EXISTING STRUCTURE. THE CLAIM OF I NVESTMENT IN PROPERTY OF RS.16,96,000/- U/S 54 HAS BEEN ACCEPTED BY THE ASSESSING OFFICER. THE CIT(A HELD THAT THE CONSIDERATION WAS FOR DEVELOPMENT/SALE OF LAND AND NOT FOR TWO AND A HALF STOREYED BUILDING. ON A QUERY, BOTH THE ASSESSEES HUSBAND AS WELL A S THE LD. SR.DR WERE UNABLE TO STATE AS TO THE TREATMENT GIVEN BY THE TAX AUTHO RITIES TO THE ISSUE IN THE HANDS OF THE REMAINING FOUR CO-OWNERS. IT IS NOTICED EVEN OTHER WISE THAT THE TAX AUTHORITIES AGREE THAT THERE WAS A TWO AND A HALF STOREY BUILDING ON THE S PECIFIC PLOT FOR WHICH CONSTRUCTION COST NECESSARILY WOULD HAVE BEEN THERE AND WHICH WAS DEM OLISHED AS ONLY AFTER THAT THE LAND COULD HAVE BEEN DEVELOPED. THUS SINCE AS PER THE V IEW TAKEN IF ONLY LAND WAS TRANSFERRED THEN SOMEONE BORE THE COST OF DEMOLISHING THE STAND ING BUILDING AND ON FACTS PER SE THE CLAIM CANNOT BE OUTRIGHTLY DISALLOWED. ACCORDINGLY FOR WANT OF RELEVANT DISCUSSION IN THE IMPUGNED ORDER AS WELL AS THE ASSESSMENT ORDER, ACC EPTING THE COMMON PRAYER OF THE PARTIES THAT THE ISSUE MAY BE RESTORED TO THE FILE OF THE CIT(A), THE ISSUE RAISED IN GROUND NO.1 IS ALSO RESTORED BACK TO THE FILE OF THE CIT(A ) WITH A DIRECTION TO PASS A SPEAKING ORDER IN ACCORDANCE WITH LAW AFTER GIVING THE ASSES SEE A REASONABLE OPPORTUNITY OF BEING HEARD. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSES. THE ORDER IS PRONOUNCED IN THE OPEN COURT ON 06 TH JANUARY, 2017. SD/- (A. N. MISHRA) (DIVA SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER *SUJEET/AMIT* 4 ITA NO.2564/DEL/2016 COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTR AR, ITAT NEW DELHI