Niranjan Singh, Muzaffarnagar V. ITO, Roorkee

ITA 4881/DEL/2015

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 7067 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 1 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-09-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC 2
• Next Hearing Date: 03-08-2016
• Assessment Year: 2010-2011
• Appeal Filed On: 28-07-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ANIMA BA RANWAL
• Assessee Lawyers: PREM PRAKASH
• Section: 131; 154

Judgement Text

PAGE 1 OF 5 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: SMC-II NEW DELHI BEFORE SMT DIVA SINGH, JUDICIAL MEMBER I.T.A .NO.-488 1/DEL/2015 (ASSESSMENT YEAR- 2010-11) NIRANJAN SINGH, C/O-PREM PRAKASH, ADVOCATE, 183/2, NORTH CIVIL LINES, MUZAFFARNAGAR. PAN-AGZPS8125M (APPELLANT) VS ITO, WARD-2, ROORKEE. (RESPONDENT) APPELLANT BY SH. PREM PRAKASH, ADV. RESPONDENT BY MS. ANIMA BAR A NWAL, SR.DR ORDER IN THE PRESENT APPEAL FILED BY THE ASSESSEE ASSAILI NG THE CORRECTNESS OF THE ORDER DATED 20.03.2015 OF CIT(A), DEHRADUN PERTAINING TO 2010-11 ASSESSMENT YEAR, THE REGISTRY HAS POINTED OUT A DELAY OF 44 DAYS. 2. THE LD.AR ADDRESSING THE DELAY SUBMITTED THAT TH E ASSESSEE REMAINED AILING DURING 10.06.2015 TO 24.07.2015 ON ACCOUNT OF VIRAL HEPATITIS AND WAS ADVISED BED REST AS SUCH THE DELAY HAS OCCURRED FOR REASONS BEYOND H IS CONTROL. RELIANCE WAS PLACED UPON MEDICAL CERTIFICATE OF DR. SATISH CHANDRA GUPTA SUP PORTED BY AN AFFIDAVIT OF THE ASSESSEE FILED IN SUPPORT OF THE PETITION PRAYING FOR CONDON ATION OF DELAY. THE LD. SR.DR CONSIDERING THE MATERIAL AVAILABLE ON RECORD AND TH E PETITION SUBMITTED THAT SHE HAS NO OBJECTION IF THE DELAY IS CONDONED AND THE ISSUE IS DECIDED ON THE BASIS OF MATERIAL ON RECORD. DATE OF HEARING 0 3 .08.2016 DATE OF PRONOUNCEMENT 2 1 .09.2016 I.T.A .NO.-4881/DEL/2015 PAGE 2 OF 5 2.1. ACCORDINGLY IN THE LIGHT OF THE SUBMISSIONS OF THE PARTIES BEFORE THE BENCH AND CONSIDERING THE MATERIAL ON RECORD THE DELAY IS CON DONED. ORDERED ACCORDINGLY. 3. ADDRESSING THE GROUNDS RAISED, THE LD. AR SUBMIT TED THAT HE WOULD NOT BE ARGUING GROUND NO. 3 RAISED IN THE PRESENT APPEAL. THE SA ID GROUND IS DISMISSED AS NOT PRESSED. NOTING TO THIS EFFECT HAS BEEN GIVEN BY THE LD.AR O N THE GROUNDS FILED. THE REMAINING TWO GROUNDS READ AS UNDER:- 1. LD.CIT(A) WAS WRONG IN CONFIRMING ADDITION OF RS.1 4,10,300.00 WITHOUT ANY BASE. 2. LD.CIT(A) WAS WRING IN CONFIRMING ADDITION OF RS.11 ,27,400.00 WITHOUT ANY BASE. 3.1. THE RELEVANT FACTS OF THE CASE ARE THAT THE AS SESSEE DECLARED AN INCOME OF RS.1,79,104/-. THE SAID RETURN WAS SELECTED FOR SCR UTINY THROUGH CASS AND THE ASSESSEE WAS REQUIRED TO EXPLAIN THE CASH DEPOSITS IN HIS SB I, IIT ROORKEE BRANCH TOTALING RS.14,10,300/- AND CASH DEPOSITS IN SBI, IDO BRANC H TOTALING RS.11,27,400/-. THE ASSESSEE SUBMITTED IN REGARD TO THE DEPOSITS IN SBI , IIT ROORKEE BRANCH THAT THESE REPRESENTED SALE PROCEEDS OF POPLAR TREES SUPPORTED BY COPY OF KHASRA AND KHATOUNI. THE AO REQUIRED THE ASSESSEE TO PRODUCE THE PERSONS WHO PURCHASED THE POPLAR TREES FOR VERIFICATION. SUMMONS WERE ALSO ISSUED TO THE SAID PERSONS UNDER SECTION 131 OF I.T.ACT, 1961, HOWEVER RECEIVED BACK WITH THE POSTAL REMARK THAT TALASH KARNE PAR NAHI MILA. THE ISSUE TRAVELLED IN APPEAL BEFORE THE FIRST APPE LLATE AUTHORITY. A PERUSAL OF THE ARGUMENTS RECORDED IN PARA 8 SHOWS THAT THE ASSESSE E HAS SOUGHT PERMISSION TO PRODUCE FRESH EVIDENCE OF THE CONTRACTORS WHO PURCHASED THE POPLAR TREES. THE CIT(A) CONSIDERS THAT SINCE THESE WERE NOT FILED BEFORE THE AO THEY COULD NOT NOW BE ACCEPTED. FOR READY- REFERENCE, THE ARGUMENTS OF THE ASSESSEE BEFORE THE CIT(A) ARE EXTRACTED HEREUNDER:- I.T.A .NO.-4881/DEL/2015 PAGE 3 OF 5 6. THE ASSESSEE PRODUCED COPY OF THE RECEIPT OF THE TRANSACTION ALONGWITH ID PROOF, AFFIDAVIT FROM THE CONTRACTORS AND COPY O F CERTIFIED LEDGERS IN CONFIRMATION OF THE CLAIM OF THE ASSESSEE. HE ALS O SUBMITTED THAT HE WAS READY TO PRODUCE ALL THE THREE CONTRACTORS FOR THEI R STATEMENTS BEFORE THE UNDERSIGNED FOR CONFIRMATION OF THE AFFIDAVITS. T HE ASSESSEE HAD DEPOSITED RS.13,39,570/ IN THE SB A/C OUT OF SALE PROCEEDS OF TRESS WHICH WERE OWNED BY ALL THE FAMILY MEMBERS AND THE ASSESSEE DID NOT HAVE ANY MALAFIDE INTENTION TO DEPOSIT THE SAME. THE ASSESSEE ALSO PRODUCED THE COPY OF THE KHASRAS & KHATAUNIS OF THE FAMILY'S AGRICULTURAL LA ND IN SUPPORT OF HIS TREES. WITH REGARD TO THE ADDITION OF RS.1,40,455/-, IT WA S SUBMITTED THAT THERE WAS NO SUCH DIFFERENCE IN FORM 26AS. THE DIFFERENCE WAS AS BELOW:- A) FIGURE AS PER FORM 26AS RS.4,19,555/- B) FIGURE AS PER FORM 16 RS.2,38,861/- DIFFERENCE RS.90,694/- 7. A COPY OF THE FORM 16 WAS SUBMITTED AND IT WAS S UBMITTED THAT THE DIFFERENCE ON ACCOUNT OF INTEREST RECEIVED ON DEPOS ITS WITH BANK OF BARODA AND STATE BANK OF INDIA U/S J 194A. IT WAS FURTHER SUBMITTED THAT TAX OF RS.10,814/- HAD BEEN DEDUCTED ON THIS BASIS ALREADY . WITH REGARD TO THE INTEREST OF RS.18,804/-, IT WAS SUBMITTED THAT A SU M OF RS.8,000/- HAD ALREADY BEEN SHOWN AS INTEREST IN HIS FORM 16, HENCE ONLY T HE BALANCE SHOULD BE ADDED BACK. 3.2. CONSIDERING THESE THE ADDITIONS WERE SUSTAINED HOLDING AS UNDER:- 8. I HAVE PERUSED THE DOCUMENTS SUBMITTED BY THE A SSESSEE. IT IS SEEN THAT ALL THE AFFIDAVITS HAVE BEEN RECENTLY SWORN AND ALL THE RECEIPTS BEEN PREPARED FOR THE LUMP SUM AMOUNT I.E. THESE RECEIPTS ARE NOT FOR ACTUAL PAYMENT OF MONEY TREE WISE BUT DOCUMENTS PREPARED WELL AFTERWA RDS, TESTIFYING THE LUMP SUM AMOUNT. MORE OVER, AS THE A.O. HAD NO OCCASION TO SEE THEM, THEY CANNOT BE ADMITTED AS EVIDENCE AT THIS STAGE. IT IS SEEN THAT THE ASSESSEE HAD FILED KHASRA & KHATAUNI BEFORE THE A.O. WHICH REVEA LED THAT HE WAS A JOINT OWNER OF 4.25 HECTARES OF LAND IN VILLAGE MISHRI, T EHSIL MAUR, DISTT. MATHURA WHICH WAS GROWING WHEAT, MANGOES AND OTHER TREES. I T WAS ALSO OBSERVED THAT HE HAD SUBMITTED THAT HE HAD AN EQUAL PART IN THAT KHASRA ALONGWITH THE OTHER 10 CO-OWNERS. THE ASSESSEE HAD ALSO SUBMITTED BEFORE THE A.O. THAT HE HAD 5 BIGHAS OF AGRICULTURAL LAND AND 5 BIGHAS WERE THERE IN THE NAME OF HIS MOTHER. HIS MOTHER HAS ALSO SUBMITTED AN AFFIDAVIT THAT HER SON LOOKED AFTER HER LAND. HOWEVER, BY THEMSELVES THESE DO NOT CON STITUTE EVIDENCE THAT THE ASSESSEE HAD DERIVED THE INCOME THAT HE CLAIMS TO H AVE DERIVED FROM THE SALE OF POPLAR TREES. HAD THE ASSESSEE PRODUCED A CONTEM PORARY KHASRA WHERE THE TREES WERE FOUND TO BE ABSENT, IT COULD HAVE BEEN A SSUMED THAT THE MONEY IN THE BANK ACCOUNT CAME FROM THEIR SALE. HOWEVER, SIN CE NO SUCH DOCUMENT HAS BEEN PRODUCED, IT CANNOT BE ASSUMED THAT KHASRA OF FASLI VARSH 1419 (CALENDAR YEAR 2004 AD) CAN PROVE THE DEPOSITS OF M ONEY INTO THE ACCOUNTS OF THE ASSESSEE IN 2009. IT HAD BEEN SUBMITTED THA T THE ASSESSEE HAD SOLD 1260 POPLAR TREES AND OTHER TREES WITH CASH CROP AN D RECEIVED IN TOTAL RS.13.5 LAKHS IN THIS REGARD. HOWEVER, NO EVIDENCE HAS BEEN PRODUCED BEFORE THE UNDERSIGNED OR THE A.O. THAT COULD ACTUALLY PROVE T HE FACT THAT THE ASSESSEE I.T.A .NO.-4881/DEL/2015 PAGE 4 OF 5 HAD EARNED THE INCOME FROM THE SALE OF TREES. IT IS OBSERVED THAT THE BANK PASS BOOKS OR ITRS OF THE CONTRACTORS WHICH COULD H AVE PROVED THEIR CAPACITY TO MAKE PAYMENTS TO HIM HAVE NOT BEEN PRODUCED IN T HE CIRCUMSTANCES, THIS GROUND OF THE ASSESSEE IS DISALLOWED AND THE ADDITI ON CONFIRMED. 4. ADDRESSING THE SAME, THE LD. AR SUBMITTED THAT H E WOULD SEEK PERMISSION TO FILE FRESH EVIDENCE AS FOR WANT OF CONTEMPORANEOUS EVID ENCE THE ADDITION HAS BEEN SUSTAINED AS FAR AS GROUND NO.1 IS CONCERNED. ADDRESSING GRO UND NO.2 IT WAS SUBMITTED MISCELLANEOUS PETITION U/S 154 IS PENDING BEFORE TH E CIT(A) ON ACCOUNT OF THE FACT THAT THE ARGUMENTS IN REGARD TO THE SAID GROUND HAVE NOT BEEN RECORDED IN THE ORDER ITSELF WHEREIN THE ASSESSEE HAS STATED ON THE BASIS OF DOC UMENTS PLACED AT SERIAL NO. 17 WHICH IS REPLY OF THE BANK AT PAGES 22 TO 26 OF THE PAPER BOOK SUPPORTED BY A COPY OF THE BANK STATEMENT AT SERIAL NO. 18 THAT INFACT IN THE SAID BANK ACCOUNT OF SBI IDO BRANCH THERE WERE INFACT NO DEPOSITS AT ALL. 5. THE LD.SR.DR RELIES UPON THE ORDERS OF THE TAX A UTHORITIES. 6. I HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED T HE MATERIAL AVAILABLE ON RECORD. CONSIDERING THE SAME, I AM OF THE VIEW THAT IN THE PECULIAR FACTS AND CIRCUMSTANCES OF THE CASE AND CONSIDERING THE ARGUMENTS OF THE PARTIES B EFORE THE BENCH, IT IS CONSIDERED APPROPRIATE TO SET ASIDE THESE ISSUES BACK TO THE F ILE OF THE ASSESSING OFFICER PERMITTING THE ASSESSEE TO FILE FRESH EVIDENCE IN SUPPORT OF I TS CLAIM. THE CONTEMPORANEOUS EVIDENCE IN SUPPORT OF OWNERSHIP OF POPLAR TREES ON THE LAND S OF THE ASSESSEE IS DIRECTED TO BE FILED. THE GENERAL ARGUMENTS OF OWNERSHIP AND CO-OWNERSHIP OF LANDS HAVING MANGO TREES ETC. DOES NOT ADDRESS THE CLAIM PUT FORTH NAMELY SALE OF POPLAR TREES OWNED BY THE ASSESSEE. QUA THE ISSUE ADDRESSED IN GROUND NO.2 THE ASSESSI NG OFFICER IS DIRECTED TO VERIFY WHETHER THERE WERE ANY DEPOSITS IN THE YEAR UNDER C ONSIDERATION IN THE SPECIFIC SAID BANK I.T.A .NO.-4881/DEL/2015 PAGE 5 OF 5 ACCOUNT IN SBI IDO BRANCH. THE ASSESSEE STATES THA T THE BANK ACCOUNT IS HIS HOWEVER CASH DEPOSITS THEREIN IS DISPUTED. 6.1. ACCORDINGLY THE IMPUGNED ORDER IS SET ASIDE AN D THE ISSUE IS RESTORED BACK TO THE FILE OF THE ASSESSING OFFICER WITH A DIRECTION TO P ASS A SPEAKING ORDER IN ACCORDANCE WITH LAW AFTER GIVING THE ASSESSEE A REASONABLE OPPORTUN ITY OF BEING HEARD. IT IS MADE CLEAR THAT THE OPPORTUNITY SO PROVIDED IN GOOD FAITH, IT IS HOPED IS NOT ABUSED BY THE ASSESSEE AS FAILING WHICH THE AO WOULD BE AT LIBERTY TO PASS A SPEAKING ORDER ON THE BASIS OF MATERIAL AVAILABLE ON RECORD. 7. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS AL LOWED FOR STATISTICAL PURPOSES. THE ORDER IS PRONOUNCED IN THE OPEN COURT ON 21 ST SEPTEMBER, 2016. SD/- (DIVA SINGH) JUDICIAL MEMBER *AMIT KUMAR* COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSIS TANT REGISTRAR ITAT NEW DELHI