Asha Verma , Lucknow V. Income Tax Officer, Lucknow

ITA 42/LKW/2013

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 78561 (ITAT-LUCKNOW)
• Duration Of Justice: 1 year(s) 4 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-06-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 28-05-2014
• Assessment Year: 2008-2009
• Appeal Filed On: 24-01-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ALOK MITRA
• Assessee Lawyers: DHARMENDRA KUMAR
• Keywords: Opportunity of being heard

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH A, LUCKNOW BEFORE SHRI SUNIL KUMAR YADAV, JUDICIAL MEMBER AND SHRI A.K. GARODIA, ACCOUNTANT MEMBER ITA NO.42/LKW/2013 ASSESSMENT YEAR:2008 - 09 ASHA VERMA, W/4, SECTOR - A, OLD MAHANAGAR, LUCKNOW. PAN:ACDPV8331Q VS. INCOME TAX OFFICER, RANGE - II(1), LUCKNOW. (APPELLANT) (RESPONDENT) APPELLANT BY SHRI DHARMENDRA KUMAR, C.A. RESPONDENT BY SHRI ALOK MITRA, D. R. DATE OF HEARING 28/05/2014 DATE OF PRONOUNCEMENT 1 3 /06/2014 O R D E R PER A. K. GARODIA, A.M. THIS IS AN ASSESSEES APPEAL DIRECTED AGAINST THE ORDER PASSED BY LEARNED CIT (A) - I, LUCKNOW DATED 06/09/2012 FOR ASSESSMENT YEAR 2008 - 2009. 2. THE GROUNDS RAISED BY THE ASSESSEE ARE AS UNDER: 1. THAT LD. COMMISSIONER (APPEALS) FAILED TO CONSIDER THE FACT THAT APPELLANT HAD RECEIVED UNSECURED LOANS FROM HER HUSBAND AND HER CLOSE RELATIVES AMOUNTING TO RS.14,43,439.00 AND SAME WAS REPAID IN SAME ACCOUNTING YEAR TO THE TUNE OF RS.10,84,000/ - , RESULTING THE BA LANCE TO REPAY OF RS.3,59,439.00. 2. THAT APPELLANT HAD DEPOSITED RS.17,85,500/ - IN CASH IN HER BANK ACCOUNT IN DIFFERENT DATES IN YEAR UNDER QUESTION OUT OF WHICH RS.14,43,439/ - WAS MADE OUT OF UNSECURED LOANS RECEIVED FROM HER HUSBAND AND HER CLOSE RELA TIVES AND BALANCE RS.3,42,061/ - WAS MADE OUT OF HER INCOME AND 2 CASH IN HAND, LD. COMMISSIONER (APPEALS) ARBITRARILY IGNORED THE ABOVE FACTS AND UPHELD THE ADDITION OF RS.17,85,500/ - MADE BY LD. AO. 3. THAT LD. COMMISSIONER (APPEALS) FAILED TO CONSIDER THE VARIOUS DOCUMENTS INCLUDING THE INCOME TAX RETURNS AND AFFIDAVITS OF CLOSE RELATIVES IN RIGHT PERSPECTIVE. 4. THAT APPELLANT PROVED THE IDENTITY AND CREDITWORTHINESS OF THE DEPOSITORS AND GENUINENESS OF TRANSACTIONS. HENCE, ADDITION OF RS.17,85,500/ - SHO ULD HAVE BEEN DELETED BY LD. COMMISSIONER (APPEALS). 5. THAT LD. COMMISSIONER (APPEALS) FAILED TO CONSIDER VARIOUS DOCUMENTS AND REPLIES FILED BY APPELLANT BEFORE LD. AO, WHILE UPHOLDING ADDITION OF RS.80,849/ - . 6. THAT LD. AO ARBITRARILY IGNORED THE VAR IOUS DOCUMENTS INCLUDING BOOKS OF ACCOUNTS, FILED BY APPELLANT BEFORE HIM. HENCE, ADDITION OF RS.80,849/ - SHOULD HAVE BEEN DELETED BY LD. COMMISSIONER (APPEALS). 7. THAT THE APPELLANT SEEKS PERMISSION TO MODIFY AND/OR ADD ANY OTHER GROUND OR GROUNDS OF AP PEAL AS THE CIRCUMSTANCES OF THE CASE MIGHT REQUIRE OR JUSTIFY. 3. IT WAS SUBMITTED BY LEARNED A.R. OF THE ASSESSEE THAT ON PAGE 73 IS A CERTIFICATE ISSUED BY HERBAL BEAUTY WORLD AS PER WHICH THE ASSESSEE HAS COMPLETED ADVANCED TRAINING COURSE FROM THAT INSTITUTION AND THEREFORE, IT SHOULD BE ACCEPTED THAT THE ASSESSEE WAS RUNNING A BEAUTY PARLOUR. HE ALSO SUBMITTED THAT THE ASSESSING OFFICER HAS RECORDED THE ASSESSEES STATEMENT ON OATH ALSO ON 21/12/2010 AND SOME ANSWERS ARE REPRODUCED BY THE ASSESSING OFFICER IN THE ASSESSMENT ORDER. HE SUBMITTED THAT THE ANSWER TO QUESTION NO. 1 & 8 STATES THAT THE ASSESSEE HAS STATED THAT SHE RUNS A BEAUTY PARLOUR IN THE NAME OF ASHA BEAUTY PARLOUR/VERMA BEAUTY PARLOUR. HE FURTHER POINTED OUT THAT ON THE BASIS OF T HESE TWO DIFFERENT REPLIE S , THE ASSESSING OFFICER CAME TO THE CONCLUSION THAT EVEN THE NAME OF BEAUTY PARLOUR IS NOT REMEMBER ED BY THE ASSESSEE AND THEREFORE, IT IS NOT ACCEPTABLE THAT SHE WAS 3 RUNNING A BEAUTY PARLOUR. HE ALSO POINTED OUT THAT THE SECOND BASIS OF THE ASSESSING OFFICER IN REJECTING THE CLAIM OF THE ASSESSEE IS THAT THE ASSESSEE COULD NOT PRODUCE BILLS AND VOUCHERS RELATED TO PURCHASES AND ADMITTED THAT SHE DID NOT PAY ANY AMOUNT FOR ELECTRICITY. IN THIS REGARD , HE SUBMITTED THAT IT WAS EXP LAINED BEFORE THE ASSESSING OFFICER THAT ELECTRICITY IS DRAWN FROM THE HOUSE CONNECT ION AND NO SEPARATE PAYMENT IS MADE FOR THE BEAUTY PARLOUR. REGARDING THE DIFFERENCE IN THE NAME OF THE BEAUTY PARLOUR IN REPLY TO QUESTION NO. 1 & 8, HE SUBMITTED THAT TH E ASSESSEE WAS NOT IN PROPER STATE OF MIND AND THEREFORE, SHE MIXED UP HER NAME ASHA VERMA WITH THE NAME OF BEAUTY PARLOUR WHILE REPLYING TO QUESTION NO. 1. HE SUBMITTED THAT IN THE INTEREST OF JUSTICE , THE MATTER MAY BE RESTORED TO THE ASSESSING OFFICER FOR FRESH DECISION AND IF THE ASSESSEE IS ALLOWED ONE MORE OPPORTUNITY, THE ASSESSEE WILL PROPERLY EXPLAIN THE CASE BEFORE THE ASSESSING OFFICER. 4. LEARNED D.R. OF THE REVENUE SUPPORTED THE ORDERS OF THE AUTHORITIES BELOW. HE ALSO SUBMITTED THAT SUFFICIENT OPPORTUNITY WAS PROVIDED BY THE AUTHORITIES BELOW AND THEREFORE, THE ASSESSEE DOES NOT DESERVE ANY FURTHER OPPORTUNITY. 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. REGARDING THE MIXING UP IN THE REPLY TO QUESTION NO. 1 & 8 IN REPLY OF THE NAM E OF THE BEAUTY PARLOUR CLAIMED TO BE RUN BY THE ASSESSEE, WE FIND FORCE IN THE SUBMISSIONS OF LEARNED A.R. OF THE ASSESSEE THAT THE ASSESSEE BEING A LADY AND MAKING DEPOSITION IN THE OFFICE OF THE A.O. , MAY COMMIT SUCH MISTAKE AND NO ADVERSE INFERENCE CAN BE DRAWN FROM THIS ONE MISTAKE ALONE. WHE THER THE ASSESSEE WAS RUNNING A BEAUTY PARLOUR OR NOT, THIS ASPECT CAN BE EXAMINED FROM INDEPENDENT SOURCES ALSO. THE ASSESSEE MAY BE ASKED TO FURNISH SOME NAMES AND ADDRESSE S OF THE CUSTOMERS AND FROM THE ENQUIR Y FROM SUCH CUSTOMERS OR FROM THE LOCALITY WHERE IT IS CLAIMED THAT BEAUTY PARLOUR WAS BEING RUN, THIS ASPECT CAN BE EXAMINED. CONSIDERING ALL THESE FACTS, WE FEEL 4 THAT IN THE INTEREST OF JUSTICE, NO PREJUDICE WILL BE CAUSED TO THE REVENUE IF ONE MORE OPP ORTUNITY IS PROVIDED TO THE ASSESSEE . WE, THEREFORE, RESTORE THE MATTER TO THE FILE OF THE ASSESSING OFFICER FOR FRESH DECISION. SINCE THE MATTER REGARDING THE BASIC ASPECT AS TO WHETHER THE ASSESSEE WAS RUNNING A BEAUTY PARLOUR OR NOT IS TO BE DECIDED A FRESH , WE FEEL IT PROPER THAT ALL THE ISSUES SHOULD BE DECIDED BY THE ASSESSING OFFICER AFRESH AFTER PROVIDING ADEQUATE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. WE ORDER ACCORDINGLY. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE STANDS ALLOWED FOR STAT ISTICAL PURPOSES. (ORDER WAS PRONOUNCED IN THE OPEN COURT ON THE DATE MENTIONED ON THE CAPTION PAGE) SD/. SD/. (SUNIL KUMAR YADAV) ( A. K. GARODIA ) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 1 3 /06/2014. *C.L.SINGH COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT. 3. CONCERNED CIT 4. THE CIT(A) 5. D.R., I.T.A.T., LUCKNOW ASSTT. REGISTRAR