B.S.Tomar, Gwalior V. A.C.I.T., Circle-1, Gwalior

ITA 26/AGR/2012

• Counselvise Citation: [2012] 119 COUNSELVISE.COM (IT) 7372 (ITAT-AGRA)
• Duration Of Justice: 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 24-01-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 23-01-2012
• Assessment Year: 2002-2003
• Appeal Filed On: 18-01-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: A K SHARMA
• Assessee Lawyers: NAVIN GARGH
• Section: 147

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, AGRA (SMC) BENCH, AGRA BEFORE SHRI H.S. SIDHU, JUDICIAL MEMBER ITA NO. 26/AGRA/2012 ASSTT. YEAR : 2002-03 SHRI B.S. TOMAR, VS. A.C.I.T., CIRCLE 1, BEHIND ACHRAN PRESS, GWALIOR. JINSI NALA NO. 1, GWALIOR. (PAN : AAMPT 6298 D) (APPELLANT) (RESPONDENT) FOR APPELLANT : SHRI NAVIN GARGH, ADVOCATE FOR RESPONDENT : SHRI A.K. SHARMA, JR. D.R. DATE OF HEARING : 23.01.2012 DATE OF PRONOUNCEMENT : 24.01.2012 ORDER THE ASSESSEE HAS FILED THE PRESENT APPEAL AGAINST THE IMPUGNED ORDER DATED 11.11.2011 PASSED BY THE LD. CIT(A), GWALIOR ON THE FOLLOWING GROUNDS : 1. BECAUSE IN ANY VIEW, THE ADDITION OF RS.75,76 5/- CONFIRMED BY LD. C.I.T. (A) ON SUBSTANTIVE BASIS IN THE HANDS OF T HE APPELLANT (OF INCOME SHOWN BY WIFE SMT. PUSHPA TOMAR WHO IS SEPARATELY & REGUL ARLY ASSESSED) IS WRONG, ILLEGAL AND WITHOUT ANY MATERIAL THAT SUCH INCOME B ELONGS TO THE APPELLANT. 2. BECAUSE IN ANY VIEW THE PROCEEDINGS U/S. 147 A ND THE ASSESSMENT MADE U/S. 147/143(3) IS WRONG AND ILLEGAL. 2. THE FACTS RELATING TO THE ISSUE IN DISPUTE ARE T HAT THE ASSESSEE FILED HIS RETURN OF INCOME ON 17.02.2003 DECLARING TOTAL INCOME OF RS.72,562/-. A SSESSEES WIFE NAMED SMT. PUSHPA TOMAR HAS ALSO FILED HER RETURN OF INCOME ON 17.03.2003 D ECLARING TOTAL INCOME AT RS.75,770/- FROM TUITION. THE ASSESSING OFFICER SELECTED THE CASE OF THE ASSESSEE FOR SCRUTINY AND FOUND THAT THE ITA NO. 26/AGRA/2012 ASSTT. YEAR : 2002-03 2 INCOME DECLARED BY THE ASSESSEES WIFE, SMT. PUSHPA TOMAR WAS NOT HER INCOME, BUT IT WAS THE INCOME OF THE ASSESSEE. THE ASSESSING OFFICER COMPL ETED THE ASSESSMENT IN THE HANDS OF SMT. PUSHPA TOMAR ON PROTECTIVE BASIS AND IN ORDER TO AS SESS THE INCOME DECLARED BY THE ASSESSEES WIFE IN THE HANDS OF ASSESSEE, HE COMPLETED THE ASS ESSMENT IN ASSESSEES CASE ON 18.12.2006 U/S. 147/143(3) OF THE INCOME-TAX ACT, 1961 ASSESSING TH E INCOME OF HIS WIFE IN ASSESSEES HANDS ON SUBSTANTIVE BASIS. AGGRIEVED BY THE ASSESSMENT ORDE R, THE ASSESSEE FILED APPEAL BEFORE THE LD. FIRST APPELLATE AUTHORITY, WHO VIDE IMPUGNED ORDER DATED 11.11.2011 DISMISSED THE APPEAL FILED BY THE ASSESSEE AND UPHELD THE ORDER OF THE ASSESSING OFFI CER JUSTIFYING THE ASSESSING OF INCOME OF ASSESSEES WIFE IN THE HANDS OF ASSESSEE ON SUBSTAN TIVE BASIS. NOW, THE ASSESSEE HAS FILED THE PRESENT APPEAL AGAINST THE IMPUGNED ORDER. 3. AT THE TIME OF HEARING, THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE REVENUE AUTHORITY HAS WRONGLY MADE THE ADDITION OF RS.75,76 5/- ON SUBSTANTIVE BASIS IN THE HANDS OF THE ASSESSEE WHICH HAS BEEN SHOWN BY HIS WIFE SMT. PUSH PA TOMAR AS HER INCOME IN HER RETURN OF INCOME. HE FURTHER STATED THAT THE ASSESSEE HAS FIL ED A COPY OF RETURNS, COMPUTATION OF INCOME AND INCOME AND EXPENDITURE ACCOUNT OF HER WIFE RELA TING TO THE ASSESSMENT YEARS 1989-90, 2001- 02 AND 2002-03 ESTABLISHING THAT THE INCOME TAX RET URN FILED BY HER WIFE INDEPENDENTLY SHOWING INCOME FROM TUITION HAS BEEN ACCEPTED BY THE DEPART MENT. HE FURTHER STATED THAT THE REVENUE AUTHORITY HAS NOT APPRECIATED THE DOCUMENTARY EVIDE NCE FILED BY THE ASSESSEE AND WRONGLY ASSESSED THE INCOME OF HIS WIFE IN THE HANDS OF ASS ESSEE ON SUBSTANTIVE BASIS. THE LD. COUNSEL FOR THE ASSESSEE ALSO RELIED UPON A DECISION OF HONBLE ALLAHABAD HIGH COURT IN THE CASE OF CIT VS. DAYA CHAND JAIN VAIDYA, 98 ITR 280 (ALL.) STATING T HAT THE ISSUE IN DISPUTE IS SQUARELY COVERED ITA NO. 26/AGRA/2012 ASSTT. YEAR : 2002-03 3 BY THE THIS DECISION OF HONBLE JURISDICTIONAL HIGH COURT. HE REQUESTED THAT THE ADDITION IN DISPUTE MAY BE DELETED BY ACCEPTING THE APPEAL FILE D BY THE ASSESSEE. 4. ON THE CONTRARY, THE LD. DR RELIED UPON THE ORD ER PASSED BY THE REVENUE AUTHORITIES AND STATED THAT THE ASSESSEE HAS FAILED TO ESTABLISH THE SOURCE OF INCOME DECLARED BY HIS WIFE. THEREFORE, THE REVENUE AUTHORITIES HAVE R IGHTLY ADDED THE INCOME OF ASSESSEES WIFE IN THE HANDS OF THE ASSESSEE ON SUBSTANTIVE BASIS. 5. I HAVE HEARD THE BOTH PARTIES AND PERUSED THE RE LEVANT RECORD AVAILABLE WITH ME, ESPECIALLY THE IMPUGNED ORDERS BY THE REVENUE AUTHO RTIES ALONGWITH SMALL PAPER BOOK FILED BY THE LD. COUNSEL FOR THE ASSESSEE CONTAINING PAGES 1 TO 15, IN WHICH HE HAS ATTACHED COPY OF WRITTEN SUBMISSION DATED 31.07.2007 FILED BEFORE THE LD. CI T(A), COPY OF INCOME TAX RETURN, COMPUTATION AND INCOME AND EXPENDITURE ACCOUNT OF T HE ASSESSMENT YEARS 1989-90, 2001-02 AND 2002-03 AND THE COPIES OR ORDER DATED 11.07.2006 OF LD. CIT(A) AND DATED 06.09.2007 OF ITAT, AGRA BENCH. I AM OF THE CONSIDERED OPINION THAT THE ASSESSEES WIFE HAD BEEN FILING HER INDEPENDENT RETURN TO THE DEPARTMENT ALONGWITH COMP UTATION OF INCOME AND INCOME & EXPENDITURE ACCOUNTS FOR THE ASSESSMENT YEARS 1989- 90, 2001-02 AND 2002-03, IN WHICH SHE HAS SHOWN HER INCOME FROM TUITION AND THE DEPARTMENT HA S NOT RAISED ANY OBJECTION ON THE GENUINENESS OF THE SAME. THE REVENUE AUTHORITIES HA VE ALSO NOT CALLED FOR ANY EXPLANATION FROM THE ASSESSEES WIFE ON HER RETURN OF INCOME AND ACC EPTED THE SAME. THEREFORE, IN MY CONSIDERED OPINION, IT IS NOT JUSTIFIED TO ADD THE INCOME OF A SSESSEES WIFE IN THE HANDS OF HER HUSBAND SHRI B.S. TOMAR (ASSESSEE). AS PER RECORD THE DEPARTMENT HAS NOT REOPENED ANY ASSESSMENT RELATING TO SMT. PUSHPA TOMAR, THE WIFE OF THE ASSESSEE, BUT ADDED HER INCOME IN THE HANDS OF ASSESSEE, ITA NO. 26/AGRA/2012 ASSTT. YEAR : 2002-03 4 WHICH IS CONTRARY TO LAW AND FACTS ON THE FILE. I H AVE ALSO GONE THROUGH THE DECISION OF HONBLE JURISDICTIONAL HIGH COURT RELIED BY THE ASSESSEE IN THE CASE OF CIT VS. DAYA CHAND JAIN VAIDYA (SUPRA) AND I FIND THAT THE ISSUE IN DISPUTE IS COV ERED BY THE SAID DECISION OF HONBLE JURISDICTIONAL HIGH COURT. THEREFORE, IN MY CONSIDE RED OPINION, THE REVENUE AUTHORITIES HAVE NOT PROPERLY APPRECIATED THE EVIDENCES FILED BY THE ASS ESSEE AND WRONGLY MADE THE ADDITION IN DISPUTE IN THE HANDS OF THE ASSESSEE ON SUBSTANTIVE BASIS, WHICH DESERVES TO BE DELETED. I DELETE THE ADDITION IN DISPUTE BY ACCEPTING THE APPEAL OF THE ASSESSEE. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED. ORDER PRONOUNCED IN THE OPEN COURT ON 24.01.2012. SD.- (H.S. SIDHU) JUDICIAL MEMBER DATED: 24 TH JANUARY, 2012 *AKS/- COPY OF THE ORDER FORWARDED TO : 1. APPELLANT 2. RESPONDENT 3. CIT(A) BY ORDER 4. CIT, CONCERNED 5. DR, ITAT, AGRA 6. GUARD FILE ASSISTANT REGISTRAR TRUE COPY