Ashok Sood, Noida V. ITO, Noida

ITA 4732/DEL/2010

• Counselvise Citation: [2011] 134 COUNSELVISE.COM (IT) 4165 (ITAT-DELHI)
• Duration Of Justice: 6 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-04-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 20-04-2011
• Assessment Year: 2005-2006
• Appeal Filed On: 29-10-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ANUSHA KHURANA
• Keywords: Gift

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH A NEW DELHI) BEFORE G.E. VEERABHADRAPPA, HON'BLE VICE-PRESIDENT AND SHRI RAJPAL YADAV: HONBLE JUDICIAL MEMBER ITA NO. 4732/DEL/2010 ASSESSMENT YEAR: 2005-06 ASHOK SOOD, VS. INCOME-TAX OFFICER, 247-GF, SECTOR 37, WARD NOIDA NOIDA (PAN: ACFPS6937F) (APPELLANT) (RESPONDENT) APPELLANT BY: NONE RESPONDENT BY: SHRI ANUSHA KHURAN A, SR.DR ORDER PER RAJPAL YADAV: JUDICIAL MEMBER PER RAJPAL YADAV: JUDICIAL MEMBER PER RAJPAL YADAV: JUDICIAL MEMBER PER RAJPAL YADAV: JUDICIAL MEMBER THE ASSESSEE IS IN APPEAL BEFORE US AGAINST THE OR DER OF THE LEARNED CIT(APPEALS) DATED 3 RD SEPTEMBER 2010 PASSED FOR ASSESSMENT YEAR 2005- 06. 2. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSE E IS AN INDIVIDUAL. HE DERIVES SALARY AND PENSION INCOME. HE FILED HIS RET URN ON 30.07.2005 DECLARING AN INCOME OF RS.2,90,850. THE CASE OF THE ASSESSEE WAS SELECTED FOR SCRUTINY ASSESSMENT AND A NOTICE UNDER SEC. 143 (2) WAS SERVED UPON THE ASSESSEE. IN RESPONSE TO THE NOTICE, SHRI KK AGGARW AL, ADVOCATE, APPEARED ON BEHALF OF THE ASSESSEE. IT REVEALED TO THE ASSES SING OFFICER THAT ASSESSEE HAS SOLD HIS FLAT BEARING NO. EC 166, 2 ND FLOOR, MAYA ENCLAVE, DELHI FOR A 2 SUM OF RS.10 LACS. HE HAS PURCHASED A NEW FLAT BEAR ING NO. 247, GROUND FLOOR, SECTOR 37, NOIDA FOR A CONSIDERATION OF RS.2 9,67,000. ASSESSING OFFICER DIRECTED THE ASSESSEE TO EXPLAIN THE SOURCE OF INVESTMENT IN THE NEW FLAT. ACCORDING TO THE ASSESSING OFFICER, IT WAS SU BMITTED BY THE ASSESSEE THAT RS. 10 LACS IS THE SALES CONSIDERATION OF AN O LD FLAT. RS. 15 LACS WERE CONTRIBUTED BY HIS SON AND A GIFT OF RS.4,67,000 WA S RECEIVED BY HIM IN FINANCIAL YEAR 2003-04. ON SCRUTINY OF THE ACCOUNTS , ASSESSING OFFICER FOUND A CREDIT ENTRY IN THE BANK FOR A SUM OF RS. 2 LACS ON 5.4.2004. HE CONFRONTED THE ASSESSEE TO EXPLAIN SOURCE OF THIS AMOUNT. THE ASSESSEE SUBMITTED THAT GIFT OF RS.2.67 LACS WAS RECEIVED IN FINANCIAL YEAR 2003-04 AND NOT FOR A SUM OF RS. 4.67 LACS. THE SUM OF RS. 2 LACS WAS RECEIVE D AS A SALES CONSIDERATION TOWARDS FITTING AND FIXTURES AVAILABLE IN THE OLD F LAT. ACCORDING TO THE ASSESSING OFFICER, ASSESSEE FAILED TO SUBSTANTIATE THIS PLEA HENCE HE TREATED THE SUM OF RS. 2 LACS AS UNEXPLAINED INCOME AND MAD E THE ADDITION. 3. DISSATISFIED WITH THE ACTION OF THE ASSESSING OF FICER, ASSESSEE CARRIED THE MATTER IN APPEAL BEFORE THE LEARNED CIT(APPEALS). HE SUBMITTED THAT LIST OF FURNITURE AND FIXTURE WAS BROUGHT TO THE NOTICE OF THE ASSESSING OFFICER. ASSESSEE SOUGHT TO FILE THE AFFIDAVIT OF SMT. REKHA VIJAYAVARGIA WHO HAS DEPOSED THAT SHE PAID A SUM OF RS. 2 LACS THROUGH A CCOUNT PAYEE CHEQUE 3 BEARING NO. 65863 TO THE ASSESSEE TOWARDS PURCHASE OF FITTING, FIXTURES AND FURNITURE IN THE FLAT. LEARNED CIT(APPEALS) DID NOT ENTERTAIN THIS EVIDENCE OF THE ASSESSEE ON THE GROUND THAT SUFFICIENT OPPORTUN ITY WAS GRANTED TO THE ASSESSEE BY THE ASSESSING OFFICER. THE ITEMS IDENTIF IED IN THE LIST OF FIXTURE AND FURNITURE ARE INTEGRAL PART OF THE HOUSE AND A SEPA RATE SALES OF THESE ITEMS IS HIGHLY IMPROBABLE. 4. THIS APPEAL WAS PRESENTED BEFORE THE ITAT ON 29.10.20 11 IN THE ACKNOWLEDGEMENT-CUM-NOTICE, A DATE OF HEARING WAS I NFORMED TO THE ASSESSEE AS 30 TH DECEMBER 2010 AT THE TIME OF FILING OF APPEAL, AND ON 30 TH DECEMBER 2010, NO ONE APPEARED ON BEHALF OF THE ASS ESSEE. HEARING WAS ADJOURNED TO 20.4.2011. A FRESH NOTICE WAS SERVED. AG AIN NO ONE APPEARED ON BEHALF OF THE ASSESSEE. 5. WITH THE ASSISTANCE OF LEARNED DEPARTMENTAL REPR ESENTATIVE, WE HAVE GONE THROUGH THE RECORD CAREFULLY AND RESERVE THE J UDGMENT. ON 21.4.2011, A TELEGRAM FOR ADJOURNMENT WAS RECEIVED BUT WE HAVE A LREADY CONCLUDED THE HEARING ON 20.4.2011. THERE IS NO JUSTIFICATION TO G RANT AN ADJOURNMENT TO THE ASSESSEE. 4 6. ON DUE CONSIDERATION OF THE FACTS AND CIRCUMSTAN CES, WE ARE OF THE OPINION THAT IT IS NOT DISCERNIBLE FROM THE RECORD, WHETHER ASSESSEE HAS RECEIVED A SUM OF RS.10 LACS ONLY TOWARDS SALE OF TH E FLAT OR HE HAS RECEIVED RS. 10 LACS PLUS RS. 2 LACS REPRESENTING THE VALUE O F FLAT AS WELL AS VALUE OF FURNITURE AND FIXTURES SEPARATELY. THE PURCHASER HAS GIVEN AN AFFIDAVIT THAT A SUM OF RS. 2 LACS WAS PAID BY HER THROUGH ACCOUNT P AYEE CHEQUES. THERE COULD NOT BE ANY OCCASION FOR THE PURCHASER TO GIVE SUCH TYPE OF AFFIDAVIT. LEARNED CIT(APPEALS) OUGHT TO HAVE CONSIDERED THIS E VIDENCE BECAUSE THE QUASI-JUDICIAL AUTHORITIES ARE BEING RESPECTED NOT ON ACCOUNT OF THEIR POWERS TO LEGALIZE THE INJUSTICE ON TECHNICAL GROUND BUT B ECAUSE THEY ARE CAPABLE OF REMOVING INJUSTICE AND IS EXPECTED TO DO SO. WE TAK E THIS AFFIDAVIT ON RECORD AND RESTORE THIS ISSUE TO THE FILE OF THE ASSESSING OFFICER FOR FRESH EXAMINATION AND READJUDICATION. 7. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLO WED FOR STATISTICAL PURPOSES. DECISION PRONOUNCED IN THE OPEN COURT ON 29.04.2011 (G.E. VEERABHADRAPPA ) ( RAJPAL YADAV ) VICE-PRESIDENT JUDICIAL MEMBER DATED: 29/04/2011 5 MOHAN LAL COPY FORWARDED TO: 1) APPELLANT 2) RESPONDENT 3) CIT 4) CIT(APPEALS) 5) DR:ITAT ASSISTANT REGISTRAR