Smt. Amarjit Kaur, Bathinda V. The Income tax Officer, Bathinda

ITA 538/ASR/2013

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 73182 (ITAT-AMRITSAR)
• Duration Of Justice: 5 month(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-01-2014
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: DB
• Next Hearing Date: 07-01-2014
• Assessment Year: 2006-2007
• Appeal Filed On: 16-08-2013
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: AMRIK CHAND
• Assessee Lawyers: AMRINDER SINGH
• Keywords: Difference of opinion; Reason to believe; Change of opinion; Reassessment proceedings
• Section: 143(3); 147; 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH; AMRITSAR. BEFORE SH. H.S. SIDHU, JUDICIAL MEMBER AND SH. B.P. JAIN, ACCOUNTANT MEMBER I.T.A. NO. 538 (ASR)/2013 ASSESSMENT YEAR: 2006-07 PAN: BEXPK9010E SMT. AMARJIT KAUR, 164-C VS. INCOME TAX OFFICER, HOUSEFED COLONY, OPP. MILK WARD -1(2), BATHINDA PLANT, BATHINDA (APPELLANT) (RESPONDENT) APPELLANT BY: SH. AMRINDER SINGH, ADVOCATE RESPONDENT BY: SH. AMRIK CHAND, DR DATE OF HEARING: 07.01.2014 DATE OF PRONOUNCEMENT: 21.01.2014 ORDER PER BENCH 1. THE ASSESSEE FILED THE PRESENT APPEAL AGAINST THE ORDER DATED 22.05.2013 PASSED BY LEARNED CIT(A), BATHINDA, FOR THE ASSESSMENT YEAR 2006-07 ON THE FOLLOWING GROUNDS: I. THAT THE ORDER PASSED UNDER SECTION 250(6) BY THE L EARNED COMMISSIONER OF INCOME TAX(APPEALS), BATHINDA IN AP PEAL NO. 240-IT/CIT(A)/BTI/09-10 DATED 22.05.2013 IS CONTRAR Y TO LAW AND FACTS OF THE CASE. II. THAT IN THE FACTS AND CIRCUMSTANCES OF THE CASE, TH E LEARNED COMMISSIONER OF INCOME TAX(APPEALS) GRAVELY ERRED I N UPHOLDING THE INITIATION OF RE-ASSESSMENT PROCEEDINGS BY THE LEARNED 2 I.T.A. NO. 538 (ASR)/2013 ASSESSMENT YEAR: 2006-07 ASSESSING OFFICER UNDER SECTION 148 OF THE INCOME T AX ACT, 1961 AS VALID. III. THAT IN THE FACTS AND CIRCUMSTANCES OF THE CASE, TH E LEARNED COMMISSIONER OF INCOME TAX (APPEALS) GRAVELY ERRED IN UPHOLDING THE ADDITION OF RS. 2,55,250/- MADE BY TH E LEARNED ASSESSING OFFICER BY TREATING THE SAME AS UNEXPLAIN ED. IV. THAT IN THE FACTS AND CIRCUMSTANCES OF THE CASE, TH E LEARNED COMMISSIONER OF INCOME TAX(APPEALS) GRAVELY ERRED I N SUSTAINING THE ADDITION OF RS. 1,68,000/- MADE BY THE LEARNED ASSESSING OFFICER BY TREATING THE SAME AS UNDISCLOSED INCOME. V. THAT THE APPELLANT CRAVES TO ADD, AMEND OR ALTER AN Y GROUND OF APPEAL BEFORE OR AT THE TIME OF HEARING OF APPEAL, WITH THE PERMISSION OF THE HON'BLE INCOME TAX APPELLATE TRIB UNAL, CHANDIGARH. 2. THE FACTS NARRATED BY THE REVENUE AUTHORITY ARE NOT DISPUTED BY BOTH THE PARTIES; THEREFORE, THERE IS NO NEED TO RE PEAT THE SAME, FOR THE SAKE OF CONVENIENCE. 3. AT THE TIME OF HEARING, LEARNED COUNSEL FOR THE ASSESSEE STATED THAT THE ISSUE INVOLVED IN THE PRESENT APPEAL HAS A LREADY BEEN ADJUDICATED AND DECIDED PARTLY IN FAVOUR OF THE ASSESSEE BY THI S BENCH IN THE ASSESSEES OWN CASE I.E. I.T.A. NO. 539(ASR)/2013 F OR A.Y. 2007-08, SMT. AMARJIT KAUR VS. INCOME TAX OFFICER, DATED 30.09.20 13 AND HE REQUESTED THAT THE PRESENT APPEAL FILED BY THE ASSESSEE MAY A LSO BE PARTLY ALLOWED IN FAVOUR OF THE ASSESSEE ON THE SAME TERMS AS PER ORD ER THE AFORESAID DATED 30.09.2013. 3 I.T.A. NO. 538 (ASR)/2013 ASSESSMENT YEAR: 2006-07 4. WE HAVE HEARD BOTH THE PARTIES AND HAVE PERUSED THE RELEVANT RECORDS AVAILABLE WITH US, ESPECIALLY THE ORDERS PA SSED BY THE REVENUE AUTHORITY, WRITTEN SUBMISSION FILED BY LEARNED DR A ND THE SMALL PAPER BOOK FILED BY THE ASSESSEE CONTAINING PAGES FROM 1 TO 35, IN WHICH THE ASSESSEE HAS ATTACHED COPY OF ORDER PASSED BY HON'B LE INCOME TAX APPELLATE TRIBUNAL, AMRITSAR BENCH, IN I.T.A. NO. 5 39/2013 FOR THE A.Y. 2007-08; COPY OF ASSESSMENT ORDER PASSED BY ITO WAR D 1(2), BATHINDA IN THE CASE OF ASSESSEE ITSELF FOR THE A.Y. 2005-06 ; COPY OF ASSESSMENT ORDER IN THE CASE OF MR. INDERJIT SINGH BUTTER FOR THE A.Y. 2005-06; COPIES OF THE CERTIFICATE ISSUED BY M/S GEE KAY IND USTRIES REGARDING SALARY PAID TO MRS. SUMANDEEP KAUR FOR THE F.Y.S 2 004-05 TO 2006-07; COPY OF CASH BOOK FOR THE PERIOD 01.04.2005 TO 31.0 3.2006; AND COPY OF WRITTEN SUBMISSIONS FILED BEFORE THE HON'BLE CIT(AP PEALS), BATHINDA ON 23.03.2010 AND WE ARE OF THE VIEW THAT THE ISSUE IN VOLVED IN THE PRESENT APPEAL HAS ALREADY BEEN ADJUDICATED AND DECIDED BY THIS BENCH IN THE ASSESSEES OWN CASE I.E. I.T.A. NO. 539(ASR)/2013 FOR A.Y. 2007-08, SMT. AMARJIT KAUR VS. INCOME TAX OFFICER, DATED 30. 09.2013. FOR THE SAKE OF CONVENIENCE, THE FINDINGS GIVEN BY THIS BEN CH IN THE AFORESAID ORDER IN PARA NOS. 10 TO 15 (PAGE NOS. 8 TO 11) ARE REPRODUCED AS UNDER: 4 I.T.A. NO. 538 (ASR)/2013 ASSESSMENT YEAR: 2006-07 10. AS REGARDS TO THE LEGAL GROUND RAISED BY T HE ASSESSEE, I AM OF THE CONSIDERED VIEW THAT THE ASSESSING OFFICER HAS VALIDLY INITIATED THE PROCEEDINGS UNDER SECTION 147 OF THE ACT AFTER CARR YING OUT THE PRELIMINARY INQUIRIES AND RECORDING VARIOUS STATEME NTS. IN VIEW OF THE PROVISIONS OF SECTION 147 OF THE ACT AMENDED W.E.F. 01.04.1989, THE ONLY CONDITION FOR RE-OPENING THE ASSESSMENT IS THA T THE ASSESSING OFFICER SHOULD HAVE REASONS TO BELIEF THAT THE INCO ME HAS ESCAPED ASSESSMENT. ISSUE REGARDING THE RE-OPENING OF ASSES SMENT HAS ELABORATELY BEEN ADJUDICATED BY THE HON'BLE SUPREME COURT AND DECIDED IN FAVOUR OF THE REVENUE IN THE CASE OF M/S RAKESH JHAVERI STOCK BROKERS VS. CIT, 291 ITR 500 (SC), WHEREIN TH E HON'BLE SUPREME COURT HELD AS UNDER: RE-ASSESSMENT-VALIDITY-ASSESSMENT UNDER SECTION 14 3(1)- U/S 147, AS SUBSTITUTED W.E.F. 1 ST APRIL, 1989, IF THE A.O., FOR WHATEVER REASON, HAS REASON TO BELIEVE THAT THE INC OME HAS ESCAPED ASSESSMENT, IT CONFERS JURISDICTION TO RE-O PEN THE ASSESSMENT WHERE THE CASE IS NOT COVERED BY PROVISO TO SECTION 147- FAILURE TO TAKE STEPS U/S 143(3) WILL NOT REND ER THE A.O. POWERLESS TO INITIATE THE REASSESSMENT PROCEEDINGS EVEN WHEN INTIMATION U/S 143(1) HAD BEEN ISSUED- INTIMATION U /S 143(1)(A) CANNOT BE TREATED TO BE AN ORDER OF ASSESSMENT AND THERE BEING NO ASSESSMENT U/S 143(1)(A), THE QUESTION OF CHANGE OF OPINION DOES NOT ARISE. 11. IN VIEW THE PROVISIONS OF LAW AND VARIOUS DECISIONS CITED BY LEARNED DR AS WELL AS THE LEARNED FIRST APPELLANT A UTHORITY IN THE IMPUGNED ORDER, I AM OF THE CONSIDERED VIEW THAT TH E LEARNED FIRST APPELLATE AUTHORITY HAS RIGHTLY UPHELD THE ACTION O F THE ASSESSING OFFICER TAKEN UNDER SECTION 147 OF THE ACT. THEREFO RE, I DISMISS THE ISSUE INVOLVED IN GROUND NO. 2 BY UPHOLDING THE IMP UGNED ORDER ON LEGAL GROUND. 12. AS REGARDS TO THE ADDITION OF RS. 2,50,000 /- MADE BY THE ASSESSING OFFICER BY TREATING THE SAME AS UNEXPLAIN ED AND UPHELD BY THE LEARNED FIRST APPELLATE AUTHORITY, AFTER GOING THROUGH THE WRITTEN SUBMISSION FILED BY LEARNED DR ALONG WITH THE RELEV ANT RECORDS AVAILABLE WITH ME AS WELL AS THE ORDERS PASSED BY T HE REVENUE 5 I.T.A. NO. 538 (ASR)/2013 ASSESSMENT YEAR: 2006-07 AUTHORITIES, I AM OF THE CONSIDERED VIEW THAT THE C ASE IN HAND IS DIFFERENT FROM THE CASE WHICH COMES FOR HEARING BEF ORE THE BENCH IN A ROUTINE MANNER. AS PER RECORD, THE ASSESSEES MAIN SOURCE OF INCOME DURING THE YEAR UNDER CONSIDERATION WAS INCOME FROM HOUSE PROPERTY, FAMILY PENSION AND AGRICULTURAL. THE ASSE SSEE IS AN OLD AND WIDOW LADY, WHO IS BEING LOOKED AFTER BY HER MARRIE D DAUGHTER AND SON-IN-LAW FOR MORE THAN 10 YEARS BECAUSE HER ONE S ON IS LIVING IN USA FOR THE LAST MANY YEARS AND THE OTHER CHILDREN WERE MARRIED MORE THAN 10 YEARS BACK AND THEY ARE NOT LOOKING AF TER HER IN THESE OLD DAYS. AFTER DEATH OF HER HUSBAND IN SEPTEMBER, 1984, SHE HAS BEEN GETTING FAMILY PENSION, WHICH IS BEING CREDITED TO HER S.B. ACCOUNT MAINTAINED WITH PUNJAB NATIONAL BANK AND SHE WITHDR AWS THE SAME IMMEDIATELY FOR HER PERSONAL EXPENSES. SHE IS HAVIN G ABOUT 6 ACRES AGRICULTURAL LAND WHICH HAS BEEN GIVEN ON LEASE AND THE INCOME FROM THIS RANGES BETWEEN RS. 1,10,000/- TO RS. 1,30,000/ - PER ANNUM. SHE DID NOT DEPOSIT THE CASH REGULARLY IN THE BANK ACCO UNT BECAUSE SHE WAS SCARED THAT HER ANOTHER MARRIED SON WHO IS LIVI NG SEPARATELY AND NOT LOOKING AFTER HER IN THESE OLD DAYS, COULD DEMA ND MONEY FROM HER. ON THE OTHER HAND, HER YOUNGER SON ALWAYS DEMANDS M ONEY FROM HER AND KEEPS AN EAGLE EYE ON HER BANK BALANCE, THUS, I N ORDER TO ESCAPE FROM UNPLEASANT SITUATIONS, SHE NORMALLY KEEPS HER INCOME AT HOME AND A PART OF IT, ON CERTAIN OCCASIONS, IS KEPT UND ER THE CUSTODY OF HER SON-IN-LAW SH. INDERJIT SINGH BUTTER WITH WHOM SHE IS LIVING FOR THE LAST MANY YEARS. IN THESE SITUATIONS, THE ASSESSEE KEPT THE MONEY WITH HER AND DID NOT DEPOSIT REGULARLY IN THE BANKS. 13. THE REVENUE AUTHORITY HAS NOT APPRECIATED TH E FACTS AND CIRCUMSTANCES OF THE ASSESSEES CASE THAT UNDER WHA T CIRCUMSTANCES THE ASSESSEE HAD KEPT THE AMOUNT IN DISPUTE AS CASH -IN-HAND AND LATER ON GIVEN THE AMOUNT TO HER SON-IN-LAW, NAMED, INDER JIT SINGH BUTTER TO DEPOSIT IN HIS BANK ACCOUNT. SH. INTERJIT SINGH BUT TER HAS ALSO FILED HIS AFFIDAVIT CORROBORATING THE VERSION OF ASSESSEE, WH ICH HAS NOT BEEN APPRECIATED BY REVENUE AUTHORITIES. 14. KEEPING IN VIEW THE AFORESAID DISCUSSION, I AM OF THE VIEW THAT THE ASSESSING OFFICER HAS WRONGLY MADE THE ADD ITION IN DISPUTE AND THE LEARNED FIRST APPELLATE AUTHORITY HAS ALSO WRONGLY UPHELD THE SAME WITHOUT APPRECIATING THE SURROUNDING CIRCUMSTA NCES AND 6 I.T.A. NO. 538 (ASR)/2013 ASSESSMENT YEAR: 2006-07 SITUATION PREVAILING IN THE CASE OF THE ASSESSEE. T HEREFORE, THE IMPUGNED ORDER IS NOT SUSTAINABLE IN THE EYE OF LAW . ACCORDINGLY, I CANCEL THE IMPUGNED ORDER DATED 22.05.2013 PASSED B Y LEARNED CIT(A), BATHINDA, WITH THE DIRECTION TO THE ASSESSI NG OFFICER TO DELETE THE ADDITION OF RS. 2,50,000/- MADE IN THE CASE OF ASSESSEE ON ACCOUNT OF UNDISCLOSED SOURCES. 15. IN THE RESULT, THE APPEAL FILED BY THE ASSE SSEE IS PARTLY ALLOWED. 5. KEEPING IN VIEW THE AFORESAID ORDER DATED 30.09. 2013 PASSED BY THIS BENCH IN THE ASSESSEES OWN CASE, WE ARE OF TH E VIEW THAT THE LEGAL ISSUE RAISED BY THE ASSESSEE IN THE PRESENT APPEAL, AS AGREED BY LEARNED COUNSEL FOR THE ASSESSEE, HAS BEEN DECIDED AGAINST THE ASSESSEE, AS THIS BENCH HAS DECIDED IN I.T.A. NO. 539(ASR)/2013, ORDE R DATED 30.09.2013 (SUPRA). THEREFORE, THE LEGAL ISSUE IS DECIDED AGAI NST THE ASSESSEE IN VIEW OF THE ORDER PASSED BY THIS BENCH IN THE ASSESSEE O WN CASE I.E I.T.A. NO. 539(ASR)/2013, DATED 30.09.2013 (SUPRA). BUT AS REG ARDS TO THE ADDITIONS OF RS. 2,55,250/- AND RS. 1,68,000/- ON IDENTICAL G ROUNDS, THIS BENCH HAS ALREADY DEALT THESE ADDITIONS IN THE ORDER DATED 30 .09.2013 (SUPRA), WHICH ARE EXACTLY SIMILAR TO THE PRESENT ADDITIONS. THERE FORE, BY FOLLOWING THE ORDER OF THIS BENCH DATED 30.09.2013 PASSED IN THE ASSESSEES OWN CASE I.E. IN I.T.A. NO. 539(ASR)/2013 (SUPRA), THE ADDIT IONS OF RS. 2,55,250/- AND RS. 1,68,000/- ARE DELETED AND THE APPEAL FILED BY THE ASSESSEE IS PARTLY ALLOWED. 7 I.T.A. NO. 538 (ASR)/2013 ASSESSMENT YEAR: 2006-07 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS PAR TLY ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 21 ST JANUARY, 2014 SD/./- SD/./- (B.P. JAIN) (H.S. SIDHU) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 21 ST JANUARY, 2014 /RK/ COPY OF THE ORDER FORWARDED TO: 1. THE ASSESSEE: SMT. AMARJIT KAUR, 164-C HOUSEFED CO LONY, OPP. MILK PLANT, BATHINDA 2. ITO, WARD -1(2), BATHINDA 3. THE CIT(A), 4. THE CIT, 5. THE SR DR, I.T.A.T., TRUE COPY BY ORDER (ASSISTANT REGISTRAR) INCOME TAX APPELLATE TRIBUNAL, AMRITSAR BENCH: AMRITSAR.