Smt. Manju Khatri, JODHPUR V. ITO, JODHPUR

ITA 433/JODH/2012

• Counselvise Citation: [2013] 140 COUNSELVISE.COM (IT) 70145 (ITAT-JODHPUR)
• Duration Of Justice: 7 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-08-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 22-07-2013
• Assessment Year: 2008-2009
• Appeal Filed On: 21-12-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: G R KOKANI
• Assessee Lawyers: DINESH BUB
• Keywords: Gift; Principle of natural justice; Bonafide belief; Reasonable cause; Condonation of delay; Ignorance of law

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL JODHPUR BENCH, JODHPUR BEFORE SHRI HARI OM MARATHA, JUDICIAL MEMBER AND SHRI N. K. SAINI, ACCOUNTANT MEMBER I.T.A. NO. 433/JODH/2012 ASSESSMENT YEAR:2008-09 PAN NO. ATEPK8676P SMT. MANJU KHATRI, VS. THE I.T.O. 11/944, CHOPASNI HOUSING WARD 3(4), JODHPUR. BOARD, JODHPUR. (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI DINESH BUB RESPONDENT BY : SHRI G.R. KOKANI DATE OF HEARING : 22/07/2013 DATE OF PRONOUNCEMENT : 07/08/2013 ORDER PER N. K. SAINI: THIS IS AN APPEAL BY THE ASSESSEE AGAINST THE ORDE R DATED 17/8/2012 OF LD. CIT(APPEALS)-JODHPUR. THE REGISTRY HAS POINTED OUT THAT THE APPEAL IS BARRED BY LIMITATION BY 27 DAYS. THE ASSESSEE MOVED AN APPLIC ATION FOR CONDONATION OF DELAY SUPPORTED BY AFFIDAVIT DATED 10/06/2013 BY ST ATING THEREIN AS UNDER:- THAT DUE TO WRONG ADVICE OF MY REGULAR COUNSEL REG ARDING APPEAL FILING LIMIT I.E. 90 DAYS, DUE TO IGNORANCE OF LAW , WE HAVE TO FAITH ON HIM. I WAS UNDER BONAFIDE BELIEF THAT MY REGULAR CO UNSEL WILL MANAGE TO FILE THE APPEAL AND CONVEY US PROCEDURE F OR FILING THE APPEAL AS PER LAW. MY HUSBAND IS WORKING IN BHAVNAG AR, GUJARAT AND I AM LIVING IN JODHPUR AND MY ALL TAX MATTERS A RE ALSO HANDLED BY MY HUSBAND. AS SOON AS MY HUSBAND CAME TO JODHPU R ON 19/12/2012 AND ASK ME ABOUT THE FILING OF APPEAL PA PER SIGNING BUT I FAIL TO ANSWER ANYTHING AS MY REGULAR COUNSEL HAS N OT YET INFORM ME FOR SIGNING THE APPEAL DOCUMENTS. HE APPROACHES HIM AND ASKS REGARDING FILING OF APPEAL BEFORE TRIBUNAL AND HE R EPEATS THE SAME TIME LIMIT AND ALSO SHOWS HIS INABILITY TO DO THE W ORK OF I.T. TRIBUNAL. 2 MY HUSBAND SEE THE APPEAL ORDER AND APPROACH TO SAM E ADVOCATE FROM WHOM, HE HAS ASSIGNED THE APPEAL BEFORE CIT(A ), JODHPUR, HE SAID THAT APPEAL IS DELAYED. I AM UNDER BONAFIDE BE LIEF THAT MY HUSBAND TAKES CARE OF FILING THE APPEAL AND CONSULT THE ADVOCATE ON TIME BUT HE ALSO DONE THE WORK KEEPING IN MIND THE SAME TIME LIMIT OF 90 DAYS DUE TO IGNORANCE OF LAW AND WRONG ADVICE OF MY COUNSEL. THAT I WAS UNDER BONAFIDE BELIEF THAT MY REGULAR C OUNSEL GIVES ME RIGHT ADVICE BUT HE FAILS TO DO SO AND AFTERWARD WE CAME TO KNOW THAT HE IS NOT DOING THE APPEAL WORK AND I WAS FULL Y DEPENDENT ON HIM, DELAY WAS ONLY DUE TO WRONG ADVICE AND IGNORAN CE OF LAW. IT IS MY FIRST TIME IN LIFE TO FILE APPEAL BEFORE HON'BLE TRIBUNAL, HENCE I WAS ALSO IGNORANT OF THE TIME LIMIT. 2. DURING THE COURSE OF HEARING, LEARNED COUNSEL FO R THE ASSESSEE REITERATED THE CONTENTS OF THE AFFIDAVIT AND PRAYED TO CONDONE THE DELAY. 3. IN HIS RIVAL SUBMISSIONS, THE LEARNED D.R. STATE D THAT THERE WAS NO REASONABLE CAUSE IN FILING THE APPEAL BELATED, THER EFORE, THE DELAY SHOULD NOT BE CONDONED. 4. AFTER CONSIDERING THE SUBMISSIONS OF BOTH THE PA RTIES, WE ARE OF THE OPINION THAT THERE WAS A REASONABLE CAUSE IN FILING THE APP EAL BELATED, WHICH WAS DUE TO WRONG ADVICE BY THE ADVOCATE WHO ADVISED THE ASSESS EE THAT TIME LIMIT WAS 90 DAYS IN FILING THE APPEAL INSTEAD OF 60 DAYS AFTER RECEIVING THE ORDER OF THE LEARNED CIT(A). SECONDLY, THE ASSESSEE BEING THE LADY WAS D EPENDENT UPON HER HUSBAND IN TAXATION MATTERS AND WAS NOT HAVING KNOWLEDGE OF THE RELEVANT PROVISIONS OF LAW. WE, THEREFORE, WHILE TAKING THE LIBERAL VIEW A ND KEEPING IN VIEW THE PRINCIPLES OF NATURAL JUSTICE, CONDONED THE DELAY OF 27 DAYS A ND APPEAL IS ADMITTED. 3 5. THE ONLY GRIEVANCE OF THE ASSESSEE IN THIS APPEA L RELATES TO THE CONFIRMATION OF ADDITION OF RS. 8,00,000/-, WHICH W AS RECEIVED BY THE ASSESSEE AS A GIFT FROM HER MOTHER IN LAW. 6. THE FACTS OF THE CASE IN BRIEF ARE THAT THE ASSE SSEE FILED HER RETURN OF INCOME ON 26/3/2010 DECLARING AN INCOME OF RS. 1,43 ,400/-. THE CASE WAS SELECTED FOR SCRUTINY. THE ASSESSEE IN RESPONSE TO THE NOTICE AND QUARRY LETTER ISSUED BY THE ASSESSING OFFICER STATED THAT THE ASS ESSEE HAD NO MOVABLE PROPERTIES AND HAD NOT RECEIVED ANY GIFT DURING THE YEAR AND THEIR HAD NO INVESTMENT IN PLOT, LAND AND BUILDING. THE ASSESSEE ALSO FURNISHED COPIES OF THE RETURNS OF INCOME FOR THE LAST THREE YEARS ALONGWIT H COPIES OF REGISTRY OF AGRICULTURAL LAND AND OTHER DETAILS. THE ASSESSEE A LSO FURNISHED COPIES OF JAMABANDI, GIRDAVARI OF HER AGRICULTURAL LAND AND T HE PHOTO COPY OF LETTER SHOWING/CONFIRMING THE GIFT BY SMT. SHANTI DEVI. TH E ASSESSING OFFICER, HOWEVER, OBSERVED THAT THE ASSESSEE HAD NEITHER SHOWN ANY AG RICULTURAL LAND IN HER FIXED ASSETS BY FILING THE RETURN OF INCOME NOR SHOWN ANY INVESTMENT IN PURCHASE OF FIXED ASSETS AND THAT THE ASSESSEE ALSO DENIED EARL IER IN RESPECT OF INVESTMENT IN FIXED ASSETS AND HAVING RECEIVED ANY GIFT. THE ASSE SSEE VIDE LETTER DATED 27/9/2010 SUBMITTED TO THE ASSESSING OFFICER THAT I NVESTMENT IN PURCHASE OF LAND ALONGWITH SMT. KALAWATI FOR TOTAL CONSIDERATION OF RS. 59.60 LACS WAS MADE. THE ASSESSING OFFICER POINTED OUT THAT THOSE DETAILS WE RE NOT IN THE RETURN OF INCOME AND THAT THE ASSESSEE CLAIMED TO HAVE RECEIVED GIFT FROM SMT. SHANTI DEVI ON 11/10/2007 OF RS. 8,00,000/-IN CASH, WHICH WAS CLAI MED TO HAVE BEEN INVESTED IN THE PURCHASE OF AGRICULTURAL LAND. THE ASSESSING OF FICER TREATED THE SAID GIFT AS INCOME OF THE ASSESSEE FROM UNDISCLOSED SOURCES AND MADE THE ADDITION. 4 7. BEING AGGRIEVED, THE ASSESSEE CARRIED THE MATTER TO THE LEARNED CIT(A) AND SUBMITTED THAT THE ASSESSING OFFICER HAD ADDED THE GIFT AMOUNT OF RS. 8,00,000/- ON HIS OWN ESTIMATION AND SURMISES WITHO UT ANY BASIS AND HAD NOT GIVEN A SINGLE REASON THAT THE GIFT DEED WAS NOT GE NUINE AND THE ASSESSEE HAD NOT RECEIVED THE GIFT OR THE DONOR HAD NO CAPACITY TO GIVE THE GIFT. IT WAS FURTHER STATED THAT THE DONOR AND DONEE BOTH ARE GENUINE AN D ASSESSEE HAD PROVED THAT DONOR HAD CAPACITY TO GIVE THE GIFT AND ALSO SUBMIT TED THAT THE GIFT DEED AND CONFIRMATION ALONGWITH COPIES OF RETURNS OF INCOME OF THE DONOR. IT WAS ALSO STATED THAT ADDRESS, PAN OF THE DONOR, COPY OF CAPI TAL ACCOUNT AND BALANCE SHEET, IN WHICH DETAILS OF GIFT AND INVESTMENT IN T HE AGRICULTURAL LAND WERE REFLECTED, WERE BEFORE THE ASSESSING OFFICER. IT WA S FURTHER STATED THAT WITHOUT APPROVING THE DEFECT IN THE GIFT DEED OR CAPACITY O F THE DONOR, IT WAS UNJUSTIFIABLE TO MAKE THE ADDITION OF THE GIFTED AMOUNT. THE LEAR NED CIT(A) FORWARDED THE SUBMISSIONS OF THE ASSESSEE TO THE ASSESSING OFFICE R FOR HIS COMMENTS. THE ASSESSING OFFICER VIDE LETTER DATED 24/7/2012 CONTE NDED THAT THE ASSESSEE HAD ASSISTED BY A WELL QUALIFIED AND PROFESSIONAL ADVOC ATE TO ARGUE THAT SHE WAS NOT AWARE ABOUT THE REQUIREMENT IN HER FIRST INSTANCE O F SCRUTINY ASSESSMENT AND THAT THE ASSESSING OFFICER CAME TO KNOW ABOUT THE PURCHA SE OF LAND FROM THE INFORMATION AVAILABLE ON AST DATA. THE ASSESSING OF FICER FURTHER STATED THAT THE ASSESSEE IN HER SUBMISSIONS DATED 23/9/2010 STATED THAT SHE HAD NOT RECEIVED ANY GIFT AND HAD NOT PURCHASED ANY LAND, SO THE DEC LARATION OF THE SAME WAS AN AFTER THOUGHT, AS SUCH, THE ADDITION MADE WAS JUSTI FIED. THE LEARNED CIT(A) SENT THE REMAND REPORT OF THE ASSESSING OFFICER TO THE A SSESSEE. IN HER REPLY THE ASSESSEE CONTENDED THAT SHE HAD IGNORANTLY WITHOUT GOING INTO THE DETAILS, EXPLAINED BEFORE THE ASSESSING OFFICER THAT SHE HAD NOT RECEIVED ANY GIFT AND NOT 5 PURCHASED ANY LAND, IN CONFUSION OF THE ASSESSMENT YEAR AND FINANCIAL YEAR BUT THERE WAS NO MALAFIDE INTENTION. IT WAS FURTHER STA TED THAT THE PURCHASE OF LAND WAS REFLECTED IN THE CAPITAL ACCOUNT AND THE SAME W AS FILED BEFORE THE ASSESSING OFFICER, WHO HAD NOT EXAMINED THE GENUINENESS OF TH E GIFT DEED AND CREDITWORTHINESS OF THE DONOR. 8. THE LEARNED CIT(A) AFTER CONSIDERING THE SUBMISS IONS OF THE ASSESSEE AND REMAND REPORT OF THE ASSESSING OFFICER, OBSERVED TH AT THE ASSESSEE ON 23/9/2010 BEFORE THE ASSESSING OFFICER THROUGH AUTHORISED REP RESENTATIVE STATED THAT SHE HAD NOT RECEIVED ANY GIFT DURING THE YEAR AND SHE H AD NO INVESTMENT IN PLOT, LAND AND BUILDING. HOWEVER, ON 27/9/2010 AND 25/10/2010, SHE CLAIMED BEFORE THE ASSESSING OFFICER TO HAVE RECEIVED GIFT OF RS. 8,00 ,000/- IN CASH FROM SMT. SHANTI DEVI (MOTHER IN LAW) AND FURTHER CLAIMED TO HAVE IN VESTED IN PURCHASE OF AGRICULTURAL LAND. THE LEARNED CIT(A) OBSERVED THAT THE ASSESSEE HERSELF DENIED TO HAVE MADE ANY INVESTMENT OR RECEIVING OF ANY GIF T. THEREFORE, THERE WAS NO FORCE IN THIS CONTENTION OF THE ASSESSEE THAT BEING ONLY MATRICULATE, SHE WAS NOT AWARE OF THE REQUIREMENTS, PARTICULARLY WHEN AN ADV OCATE WAS ASSISTING HER FOR FILING/SUBMITTING THE REPLY/DETAILS BEFORE THE ASSE SSING OFFICER. HE FURTHER OBSERVED THAT IT WAS NOT POSSIBLE THAT ANY ONE, WHO PURCHASED THE LAND OR RECEIVED ANY GIFT OF SUCH AN AMOUNT EVEN DID NOT KN OW ABOUT IT AND THAT EVEN IF IT WAS ASSUMED THAT THE GIFT WAS GIVEN IN ACTUAL THEN QUESTION REMAINED UNANSWERED THAT WHY THE DONOR HAD NOT CHOSEN TO GIV E GIFT THROUGH CHEQUE OR BY PROPER BANKING CHANNEL, THIS QUESTION STILL REMAINE D UNANSWERED. THE LEARNED CIT(A) ALSO OBSERVED THAT NO DOUBT, THE ASSESSEE HA D PURCHASED AGRICULTURAL LAND BUT TO EVADE TAX SHE DID NOT EVEN INITIALLY AC CEPT THE FACT THAT SHE PURCHASED THE LAND, SO, IT WAS AN AFTERTHOUGHT TO STAY AWAY F ROM TAX LIABILITY. THE LEARNED 6 CIT(A WAS OF THE VIEW THAT MERE ASSESSABILITY TO TA X OR CONFIRMATIONS BY THE DONORS WERE NOT SUFFICIENT ENOUGH FOR CONSIDERING T HE GIFTS AS GENUINE. ACCORDINGLY, THE ADDITION MADE BY THE ASSESSING OFF ICER WAS CONFIRMED. NOW THE ASSESSEE IS IN APPEAL. 9. THE LEARNED COUNSEL FOR THE ASSESSEE REITERATED THE SUBMISSIONS MADE BEFORE THE AUTHORITIES BELOW AND FURTHER SUBMITTED THAT THE ASSESSEE PROVED THAT DONOR HAD CAPACITY TO GIVE THE GIFT AND ALSO SUBMIT TED BEFORE THE ASSESSING OFFICER, THE GIFT DEED, CONFIRMATION AND COPIES OF THE RETURNS OF INCOME OF THE DONOR REFLECTING THE GIFT GIVEN TO THE ASSESSEE ALO NGWITH ADDRESS AND PAN OF THE DONOR AND THE ASSESSING OFFICER HAD NOT PROVED ANY CONTRARY FACTS REGARDING GIFT AND THE DONOR. IT WAS FURTHER STATED THAT THE ASSES SEE FURNISHED COPY OF THE FINAL ACCOUNTS VIDE LETTER DATED 23/9/2010 BEFORE THE ASS ESSING OFFICER I.E. THE COPY OF CAPITAL ACCOUNT, BALANCE SHEET IN WHICH DETAILS OF GIFTS AND INVESTMENT IN AGRICULTURAL LAND WAS REFLECTED, WHICH PROVED THAT THE ASSESSEE HAD NOT CONCEALED ANY FACT AND SHE HAD MADE INVESTMENT IN A GRICULTURAL LAND AND THE SOURCES OF THE SAME WAS SELF EXPLANATORY. THEREFORE , THE ADDITION MADE BY THE ASSESSING OFFICER AND SUSTAINED BY THE LEARNED CIT( A) WAS NOT JUSTIFIED. RELIANCE WAS PLACED ON THE FOLLOWING CASES:- 1. NEK KUMAR VS. ASST. CIT, (2005) 274 ITR 5 (RA JASTHAN HIGH COURT) 2. CIT DELHI VS. M.S. MAYAWATI (2011) 338 ITR 563 (DELHI). 3. SONIA MAGU VS. CIT (2009) 336 ITR 227 (DELHI) 4. MURLIDHAR LOHARIMAL VS CIT (2006) 280 ITR 513 (GUJ.). 10. IN HIS RIVAL SUBMISSION, THE LEARNED D.R. SUPPO RTED THE ORDERS OF THE AUTHORITIES BELOW AND FURTHER SUBMITTED THAT THE AS SESSEE HERSELF DENIED OF 7 RECEIVING ANY GIFT IN HER EARLIER SUBMISSION, THERE FORE, THE ADDITION MADE BY THE ASSESSING OFFICER WAS JUSTIFIED. 11. WE HAVE CONSIDERED THE SUBMISSIONS OF BOTH THE PARTIES AND CAREFULLY GONE THROUGH THE MATERIAL AVAILABLE ON RECORD. IN T HE PRESENT CASE, IT IS NOTICED THAT THE ASSESSEE RECEIVED A GIFT FROM HER MOTHER I N LAW VIDE GIFT DEED DATED 11/10/2007. (COPY OF WHICH IS PLACED AT PAGE NO. 1 OF THE ASSESSEES COMPILATION). THE SAID GIFT DEED IS NOTARISED ON 16 /10/2007. THE ASSESSEE ALSO FURNISHED COPIES OF THE RETURN OF SMT. SHANTI DEVI, (THE DONOR) BEFORE THE ASSESSING OFFICER WHEREIN THE SOURCE OF INCOME WERE EXPLAINED MAINLY FROM INTEREST INCOME AND AGRICULTURAL INCOME. SMT. SHANT I DEVI IN HER CAPITAL ACCOUNT, COPY OF WHICH IS PLACED AT PAGE NO. 7 IN ASSESSEES PAPER BOOK HAD SHOWN THE GIFT GIVEN TO HER SONS WIFE SMT. MANJU KHATRI I.E. THE ASSESSEE FOR A SUM OF RS. 8,00,000/-. IT WAS CLAIMED THAT THOSE DOCUMENTS WER E FURNISHED TO THE ASSESSING OFFICER VIDE LETTER DATED 25/10/2010 I.E. BEFORE FI NALISATION OF THE ASSESSMENT ON 30/11/2010. IT IS NOT THE CASE OF THE ASSESSING OFF ICER THAT THE DOCUMENTS FURNISHED BY THE ASSESSEE RELATING TO THE GIFT OR R ETURNS OF THE INCOME ALONGWITH CAPITAL ACCOUNT PERTAINING TO SMT. SHANTI DEVI I.E. THE DONOR, WERE FALSE OR NON- GENUINE. IN THE PRESENT CASE, WHEN THE ASSESSING OF FICER DID NOT DOUBT THE GENUINENESS OF THE DOCUMENTS OF DONOR AND HER CAPAC ITY TO GIVE THE GIFT, THERE WAS NO REASON OR BASIS FOR CONSIDERING THE SAID GIF T AMOUNT RECEIVED BY THE ASSESSEE FROM HER MOTHER IN LAW AS THE INCOME EARNE D FROM UNDISCLOSED SOURCES. CONSIDERING TOTALITY OF THE FACTS, WE ARE OF THE VIEW THAT THE IMPUGNED ADDITION MADE BY THE ASSESSING OFFICER AND SUSTAINE D BY THE LEARNED CIT(A) WAS NOT JUSTIFIED. IN THAT VIEW OF THE MATTER, THIS ADD ITION IS DELETED. 8 12. IN THE RESULT APPEAL OF THE ASSESSEE IS ALLOWED . (ORDER PRONOUNCED IN THE OPEN COURT ON 07/08/2013) . SD/- SD/- (HARI OM MARATHA) (N. K. SAINI) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 07/08/2013 *RANJAN COPY FORWARDED TO: 1. APPELLANT- SMT. MANJU KHATRI, JODHPUR. 2. RESPONDENT- THE INCOME TAX OFFICER, WARD 3(4), J ODHPUR 3. CIT(A) 4. CIT 5. D.R. 6. THE GUARD FILE (ITA NO. 433/JODH/2012). ASSISTANT REGISTRAR ITAT, JODHPUR.