SUSHILA DEVI, Jaipur V. ITO, Jaipur

ITA 526/JPR/2013

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 74820 (ITAT-JAIPUR)
• Duration Of Justice: 8 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-01-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2008-2009
• Appeal Filed On: 14-05-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: D C SHARMA
• Keywords: Gift; Opportunity of being heard; Additional evidence
• Section: 142(1); 69; 144

Judgement Text

IN THE INCOME TAX APPELALTE TRIBUNAL : JAIPUR BENCH JAIPUR BEFORE SHRI HARI OM MARATHA, JUDICIAL MEMBER AND SHRI N.K. SAINI, ACCOUNTANT MEMBER. ITA NO. 526/JP/2013 (A.Y. 2008-09) SUSHILA DEVI, VS. ITO, WARD-7(2), W/O SHRI LALA RAM BAIRWA, JAIPUR. VILLAGE NEVTA, TEHSIL SANGANER, DISTT. JAIPUR (RAJASTHAN). (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI S.L. JAIN & DEPARTMENT BY : SHRI D.C. SHARMA - D.R. DATE OF HEARING : 30/01/2014. DATE OF PRONOUNCEMENT : 31/01/2014. O R D E R PER N.K.SAINI, A.M THIS IS AN APPEAL BY THE ASSESSEE AGAINST THE ORDE R DATED 19/02/2013 OF LD. CIT(A)-III, JAIPUR. THE FOLLOWIN G GROUNDS HAVE BEEN RAISED IN THIS APPEAL: 1. THAT THE LEARNED AUTHORITIES BELOW HAVE GROSSLY ERRED IN LAW AND FACTS INVOKING OF PROVISION OF SECTION 142(1) W ITHOUT JURISDICTION AND THERE FOR THE TOTAL ASSESSMENT PRO CEEDING IS VOID AB-INITIO. 2 2. THAT THE LEARNED AUTHORITIES BELOW HAVE GROSSLY ERRED IN LAW AND FACTS IN NOT PROVIDING PROPER AND SUFFICIENT OP PORTUNITY BEFORE PASSING THE EX-PARTE ASSESSMENT ORDER U/S 14 4. 3. THAT THE LEARNED AUTHORITIES BELOW HAVE GROSSLY ERRED IN LAW AND FACTS IS NOT SERVING SHOW CAUSE NOTICE BEFORE M AKING BEST JUDGMENT ASSESSMENT. 4. THAT THE LEARNED AUTHORITIES BELOW HAVE GROSSLY ERRED IN LAW AND FACTS IN NOT ACCEPTING SATISFACTORY EXPLANATION IN RELATION TO INVESTMENT MADE IN PURCHASES OF AGRICULTURAL LAN D THE APPLICANT HAS FURNISHED ALL EVIDENCE IN RELATION TO NATURE AND SOURCES OF INVESTMENT MADE IN AGRICULTURAL LAND. 5. (A) THAT THE LEARNED AUTHORITIES BELOW HAVE GRO SSLY ERRED IN LAW AND FACTS IN MAKING OF ADDITION OF RS. 55850 0/- WITHOUT ANY BASIS AND ON PRESUMPTION CONJECTURE. (B) THE CONDITIONS PRECEDENT FOR INVOKING SECTION 69 IS INVESTMENT CONCLUSIVELY PROVED BY REVENUE, IF REVEN UE FAILS, THE SUBJECT CANNOT BE TAXED. 6. THAT THE LEARNED AUTHORITIES BELOW HAVE GROSSLY ERRED IN LAW AND FACTS IN TAXING THE SUBJECT WITHOUT ANY PROOF, THE PRIMARY ONUS IN ALL THESE CASES IS ON REVENUE [94 ITR 616 ( BOMBAY)]. 7. THAT THE APPLICANT RESERVES HIS RIGHTS TO ADD AM END OR ALTER THE GROUNDS OF APPEAL ON OR BEFORE DATE OF APPEAL H EARING. 2 THE GRIEVANCE OF THE ASSESSEE IN THIS APPEAL RELAT ES TO THE SUSTENANCE OF ADDITION OF RS. 5,58,500/- MADE BY TH E AO AND SUSTAINED BY THE LD. CIT(A) WITHOUT PROVIDING PROPE R AND SUFFICIENT OPPORTUNITY OF BEING HEARD. 3. FACTS OF THE CASE IN BRIEF ARE THAT THE AO RECEIV ED INFORMATION FROM THE OFFICE OF DIT (CIB) THAT THE A SSESSEE HAD 3 MADE AN INVESTMENT OF RS. 5,58,500/- IN THE AGRICUL TURAL LAND ON 20/03/2008. HE, THEREFORE, ISSUED A NOTICE UNDER S ECTION 142(1) OF THE I.T. ACT, 1961 (HEREINAFTER REFERRED TO AS ACT, IN SHORT) ON 25/11/2009 REQUIRING THE ASSESSEE TO FILE RETURN OF INCOME. THE ASSESSEE STATED THAT THE SAID INVESTMENT WAS MADE O UT OF THE PAST SAVINGS FROM AGRICULTURAL AND DAIRY ACTIVITIES OF T HE FAMILY. HOWEVER, THE AO DID NOT FIND MERIT IN THE SUBMISSIO NS OF THE ASSESSEE AND MADE IMPUGNED ADDITION. 4. BEING AGGRIEVED, THE ASSESSEE CARRIED THE MATTER T O THE LD. CIT(A) AND STATED THAT THE LAND WAS PURCHASED OUT O F CASH GIFT OF RS. 5 LAC RECEIVED FROM HER HUSBAND SHRI LALA RAM BA IRWA AND BALANCE OUT OF HER PAST PERSONAL SAVINGS. IT WAS S TATED THAT HER HUSBAND RECEIVED RS. 7 LAC ON 01/11/2006 BY CHEQUES ON ACCOUNT OF SALE OF PROPERTY BY HIS FATHER. SINCE THE AFORE SAID EVIDENCES WERE IN THE NATURE OF ADDITIONAL EVIDENCE, LD. CIT( A) FORWARDED THE SAME TO THE AO FOR NECESSARY VERIFICATION AND C OMMENTS. THE AO IN HIS REMAND REPORT DATED 10/01/2013 STATED THA T THERE WAS CONTRADICTION IN THE EXPLANATION OF THE ASSESSEE AS SUBMITTED DURING THE ASSESSMENT PROCEEDINGS AND APPEAL PROCEE DINGS. 5. THE LD. CIT(A) CONFIRMED THE ADDITION MADE BY THE AO BY OBSERVING THAT THE EXPLANATION OF THE ASSESSEE WAS THAT THE CASH 4 WITHDRAWN FROM BANK ON 22/11/2006 BY SHRI LALA RAM B AIRWA WAS INVESTED ON THE LAND ON 19/03/2008. HE WAS OF THE VIEW THAT THE SAID EXPLANATION WAS NOT SUPPORTED BY ANY EVIDENCE AND THAT NO PERSON WILL KEEP CASH LYING IDLE WITH HIM FOR ABOUT 16 MONTHS. NOW THE ASSESSEE IS IN APPEAL. 6. WE HAVE CONSIDERED THE SUBMISSIONS OF BOTH THE PAR TIES AND CAREFULLY GONE THROUGH THE MATERIAL AVAILABLE ON TH E RECORD. IN THE PRESENT CASE, IT IS AN ADMITTED FACT THAT THE ASSES SMENT ORDER PASSED BY THE AO UNDER SECTION 144 OF THE ACT WAS EXPARTE AND THE LD. CIT(A) ALSO DID NOT ACCEPT THE CONTENTION O F THE ASSESSEE BUT WITHOUT BRINGING ANY MATERIAL ON RECORD THAT TH E AMOUNT WITHDRAWN ON 22/11/2006 WAS UTILIZED ELSEWHERE AND NOT IN PURCHASING THE AGRICULTURAL LAND IN QUESTION AND AT THE SAME TIME, THE ASSESSEE ALSO FAILED TO BRING EVIDENCE ON RECOR D IN SUPPORT OF HER CLAIM THAT THE CASH WITHDRAWN BY HER HUSBAND WA S UTILIZED TO PURCHASE THE AGRICULTURAL LAND. IN OUR OPINION, TH IS ISSUE REQUIRES FRESH ADJUDICATION AT THE LEVEL OF AO. ACCORDINGLY , WE SET ASIDE THE IMPUGNED ORDER AND REMAND THE MATTER BACK TO TH E FILE OF AO FOR FRESH ADJUDICATION IN ACCORDANCE WITH LAW AFTER PROVIDING DUE AND REASONABLE OPPORTUNITY OF BEING HEARD TO THE AS SESSEE. 5 7 . IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLO WED FOR STATISTICAL PURPOSES. (ORDER PRONOUNCED IN THE COURT ON 31 ST JANUARY, 2014). SD/- SD/- (HARI OM MARATHA) (N.K.SAINI) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED : 31 ST JANUARY, 2014. VR/- COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE LD.CIT 4. THE CIT(A) 5. THE D.R BY ORDER ASSISTANT REGISTRAR, ITAT, JAIPUR.