SHRI DARPAN MANTRI, Indore V. THE ITO 3(2), Indore

ITA 29/IND/2015

• Counselvise Citation: [2015] 121 COUNSELVISE.COM (IT) 0437 (ITAT-INDORE)
• Duration Of Justice: 5 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 02-07-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2005-2006
• Appeal Filed On: 09-01-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: R A VERMA
• Assessee Lawyers: S S SOLANKI
• Keywords: Gift; Principle of natural justice
• Section: 131; 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, INDORE BENCH, INDORE (SINGLE MEMBER CASE) BEFORE SHRI D.T. GARASIA, JUDICIAL MEMBER I.T.A.NO. 29/IND/2015 A.Y. : 2005-06 SHRI DARPAN MANTRI, 5-A,KAILASH PARK, GEETA BHAWAN, INDORE. ITO 3(2), INDORE. VS APPELLANT RESPONDENT PAN NO. ANKPM7680B APPELLANT BY : SHRI S. S.SOLANKI, C. A. RESPONDENT BY : SHRI R.A.VERMA, SR. DR DATE OF HEARING : 02 . 0 7 .201 5 DATE OF PRONOUNCEMENT : 02 . 0 7 .201 5 -: 2: - 2 O R D E R THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER OF CIT(A)-I, INDORE, DATED 16.09.2014 FOR THE ASSE SSMENT YEAR 2005-06. 2. THE FOLLOWING GROUND HAS BEEN RAISED BY THE ASSESSE E :- THAT THE LD. CIT(A) ERRED IN DISALLOWING OF RS. 7. 50 LAKH BEING AMOUNT RECEIVED FROM A FRIEND BY TREATING IT AS NON GENUINE. THE ADDITION SO CONFIRMED BEING WRONG, THE SAME REQUIRE TO BE DELETED. 3. THE MATTER CARRIED TO LD. CIT(A). THE LD. CIT(A) RE JECTED THIS GROUND BY OBSERVING AS UNDER :- 9. THE GIFT OF RS 7.50 LACS FROM SHRI TEJKARAN MALVIYA ALSO REMAINED UNEXPLAINED, BECAUSE THIS PERSON IS NOT RELATED TO APPELLANT AND THEREFORE TH ERE IS NO BASIS OR GROUND FOR ANY LOVE AND AFFECTION WH EN -: 3: - 3 THEY ARE IN DIFFERENT PROFESSION, THEY LIVE AT DIFF ERENT LOCATIONS AND NO MUTUAL GIVE AND TAKE OF GIFTS IS SHOWN IN FAMILIES. BESIDES APPELLANT FAILED TO GIVE ANY EXPLANATION AS TO WHY SUCH HUGE SUM OF RS. 7.50 LACS WAS GIVEN AS GIFT IN CASH, WHEN SHRI TEJKARAN MALVIYA HOLS A BANK ACCOUNT. HIS BANK ACCOUNT SHOWED TRANSACTIONS OF SMALL AMOUNTS. EVEN SUCH DEPOSIT OF GIFT IN BANK ACCOUNT OF APPELLANT I S NOT OF RS 7.50 LACS IN ONE GO, BUT IN SMALL AMOUNTS ON DIFFERENT DATES. BESIDES THE DONOR HAS NO CREDITWORTHINESS AND NO SOURCE TO GIVE SUCH GIFT, A S HE IS NOT ASSESSED TO TAX AND EVEN HIS LAND HOLDING IS VERY SMALL AND NO PROOF OF SALE OF AGRICULTURAL PRODUCE WAS GIVEN. IN VIEW OF THIS, GIFT OF RS. 7.5 0 LACS IS CONSIDERED AS UNEXPLAINED AND ITS ADDITION U/S 68 OF INCOME-TAX ACT, 1961, IS UPHELD. 4. DURING THE COURSE OF HEARING THE LD. COUNSEL FOR TH E ASSESSEE SUBMITTED THAT THE STATEMENT OF TAJ KARAN WAS RECORDED U/S 131 ON OATH BY THE ASSESSING OFFICER U /S 131 THE AO WAS HAVING SOME POWERS AS ARE VESTED IN ACCO UNT -: 4: - 4 UNDER CPC. TEJ KARAN STOOD FIRM AND CONFIRMED THE TRANSACTION. THERE IS, THUS, NO REASON TO DISBELIEV E HIS STATEMENTS. THE AO HAS DISBELIEVED THE STATEMENT O F TEJ KARAN WITHOUT EXAMINING THE SAME. THE PURPOSE OF TA KING STATEMENT, THEREFORE, SEEMS TO BE THAT IF TEJ KARAN COULD HAVE DENIED THE TRANSACTION, THIS STATEMENT THAN WOULD H AVE BEEN BE MOST IMPORTANT PIECE OF PAPER OTHERWISE THE SAME CAN BE DISBELIEVED WITHOUT EVEN EXAMINING THE FACTS NARRAT ED. THE LD. COUNSEL FOR THE ASSESSEE HAS PRAYED THIS BENCH TO RESTORE BACK THE APPEAL TO THE AO. 5. THE LD. SENIOR D.R. RELIED ON THE ORDERS OF THE LOW ER AUTHORITIES. 6. I HAVE HEARD THE RIVAL CONTENTIONS OF BOTH THE PART IES. I HAVE ALSO PERUSED THE DOCUMENTS FILED ON RECORD. I FIND THAT THE AO HAS NOT EXAMINED THE STATEMENT OF SHRI TEJKA RAN. THE PRINCIPLE OF AUDI ALTERAM PARTEM IS THE BASIC CONCEPT OF NATURAL JUSTICE. THE EXPRESSION AUDI ALTERAM PARTEM IMPLIES THAT A PERSON MUST BE GIVEN OPPORTUNITY TO DEFEND H IMSELF. THIS PRINCIPLE IS SINE QUA NON OF EVERY CIVILIZED SOCIETY. THE -: 5: - 5 RIGHT TO NOTICE, RIGHT TO PRESENT CASE AND EVIDENCE , RIGHT TO REBUT ADVERSE EVIDENCE, RIGHT TO CROSS EXAMINATION, RIGHT TO LEGAL REPRESENTATION , DISCLOSURE OF EVIDENCE TO PA RTY, REPORT OF ENQUIRY TO BE SHOWN TO THE OTHER PARTY AND REASONED DECISIONS OR SPEAKING ORDERS. I FIND THAT THE RIGHT OF HEARIN G IS DECIDED BY THE HON'BLE SUPREME COURT IN THE CASE OF MANEKA GANDHI VS. UNION OF INDIA, WHEREIN HON'BLE SUPREME COURT H AS HELD THAT RULE OF FAIR HEARING IS NECESSARY BEFORE PASSI NG ANY ORDER. I FIND THAT IT IS PRE-DECISION HEARING STANDARD OF NORM OF RULE OF AUDI ALTERM PARTEM. I FIND THAT IN THIS INSTANT CASE, THE ASSESSEE WAS NOT GIVEN PROPER HEARING. THEREFORE, I AM OF THE VIEW THAT THE ASSESSEE MUST BE GIVEN ONE MORE OPPOR TUNITY OF HEARING AND TO REPRESENT HIS CASE. THEREFORE, I ALL OW THIS APPEAL. THE ASSESSEE IS DIRECTED TO REMAIN PRESENT BEFORE THE A.O. WITHIN 2 MONTHS AFTER THE RECEIPT OF THIS ORDE R. THE LD. LD. AO SHOULD DECIDE THE APPEAL AND MUST CONSIDER THE S TATEMENT GIVEN BY SHRI TEJKARAN AND ANY OTHER EVIDENCES PROD UCED AT THE TIME OF HEARING. HE SHALL ALSO GIVE DUE OPPORTU NITY OF HEARING TO THE ASSESSEE AS PER LAW. -: 6: - 6 7. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWE D FOR STATISTICAL PURPOSES. THIS ORDER HAS BEEN PRONOUNCED IN THE OPEN COURT ON 2 ND JULY, 2015. SD/- ( D.T.GARASIA) JUDICIAL MEMBER DATED : 2 ND JULY, 2015. CPU* 2.7