SMT. POONAM PANDEY, JHUNJHUNU V. ITO, JHUNJHUNU

ITA 542/JPR/2013

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 5389 (ITAT-JAIPUR)
• Duration Of Justice: 2 year(s) 11 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-04-2016
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: B
• Assessment Year: 2007-2008
• Appeal Filed On: 20-05-2013
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: RAJ MEHRA J DHK
• Assessee Lawyers: K L MOOLCHANDAN I
• Keywords: Opportunity of being heard; Principle of natural justice; Additional evidence
• Section: 148

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES (SMC), JAIPUR JH VKJ-IH-RKSYKUH] U;KF;D LNL; DS LE{K BEFORE: SHRI R.P. TOLANI, JUDICIAL MEMBER VK;DJ VIHY LA-@ ITA NO. 542/JP/2013 FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2007-08 SMT. POONAM PANDEY L/H OF LATE SHRI MANOJ KUMAR PANDEY NEAR SHEETLA MATA MANDIR, CHIRAWAL, JHUNJHUNU CUKE VS. THE ITO WARD-2 JHUNJHUNU LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO .: AHCPP 3622 Q VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT JKTLO DH VKSJ LS@ ASSESSEE BY : SHRI K.L. MOOLCHANDANI FU/KZKFJRH DH VKSJ LS@ REVENUE BY : SHRI RAJ MEHRA, JCIT-DR LQUOKBZ DH RKJH[K@ DATE OF HEARING : 18/02/2016 ?KKS'K .KK DH RKJH[K@ DATE OF PRONOUNCEMENT : 26 /04/2016 VKNS'K@ ORDER PER R.P. TOLANI, JM THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER OF THE LD. CIT(A)-III, JAIPUR DATED 28-03-2013 FOR THE ASSESS MENT YEAR 2007-08 WHEREIN THE ASSESSEE IS AGGRIEVED THAT THE LD. CIT( A) HAS ERRED IN:- (I) NOT ADMITTING THE ADDITIONAL EVIDENCE UNDER RUL E46A OF INCOME-TAX RULES, 1962 BY CITING PROPER REASONS FOR ADMISSION. ITA NO.542/JP/2013 SMT. POONAM PANDEY VS. ITO, WARD- 2, JHUNJHUNU . 2 (II) CONFIRMING THE ORDER OF THE AO FOR NOT GRANTIN G THE CROSS EXAMINATION OF MAIN WITNESSES SHRI JAGDISH CH AND SHARMA AND SHRI GOPI KISHAN KUMAWAT DESPITE SPECIFIC REQUE ST. (III) ORDER OF THE LD. CIT(A) SUFFERS FROM VIOLATIO N OF PRINCIPLES OF NATURAL JUSTICE. (IV) CONFIRMING THE ADDITION OF RS. 9.25 LACS MADE BY THE AO ON FLIMSY GROUND. 2.1 BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE I S LEGAL HEIR OF LATE SHRI MANOJ KUMAR PANDEY WHO WAS CIVIL LAWYER BY PROFESSI ON. AT THE TIME OF ASSESSMENT PROCEEDINGS, SHRI MANOJ KUMAR PANDEY WAS ALIVE AND FOR A LAND DEAL WITH LD. DR. MOHAN LAL PIRAMAL TRUST OF C HIRAWA AT MUMBAI, HE COLLECTED AN AMOUNT OF RS.21.01 LACS. THE DEAL COUL D NOT BE MATERIALIZED AND THE AMOUNT SO ARRANGED BY HIM WAS RE-DEPOSITED IN TWO BANKS ACCOUNTS OF OBC AND ICICI BANKS AT MUMBAI ON 21-04- 2006 AND 22-04- 2006 RESPECTIVELY FOR SAFE PASSAGE TO CHIRAWA. THER EAFTER SURVEY PROCEEDINGS WERE CARRIED OUT ON 28-04-2006 AT THE B USINESS PREMISES OF M/S. CHINAI RANADIVE ASSOCIATES (P) LTD., WHERE INF ORMATION ABOUT ABOVE BANK ACCOUNTS WAS FOUND AND NOTICE U/S 148 WAS ISSU ED ON THE ASSESSEE. THE ASSESSEE FILED THE DETAILED SUBMISSION BEFORE T HE AO WHO ULTIMATELY MADE AN ADDITION OF RS. 9.25 LACS WHICH WERE AGITAT ED BY THE ASSESSEE IN ITA NO.542/JP/2013 SMT. POONAM PANDEY VS. ITO, WARD- 2, JHUNJHUNU . 3 FIRST APPEAL. IN THE MEANTIME, SHRI MANOJ KUMPAR PA NDEY DEMISED AND THE APPEAL WAS REPRESENTED BY THE LEGAL HEIR. CONSE QUENT TO DEATH OF THE ASSESSEE, THE LEGAL HEIR HAS TO RE-ARRANGE ENTIRE E VIDENCES TO DEFEND THE TAX LIABILITY. IN THE WAKE THEREOF, THE LEGAL HEIR FILE D ADDITIONAL EVIDENCE UNDER RULE 46A OF INCOME TAX RULES, 1962 BY CITING PROPER REASONS. BESIDES, THE DECEASED ASSESSEE HAD ASKED FOR CROSS EXAMINATION OF MAIN WITNESSES ALLEGED BY THE DEPARTMENT I.E. SHRI JAGDI SH CHAND SHARM AND SHRI GOPI KISHAN KUMAWAT, WHICH WAS DENIED IN THE A SSESSMENT NOT ALLOWED TO LEGAL REPRESENTATIVE ALSO IN THE APPELLA TE PROCEEDINGS. 2.2 THE LEGAL HEIR BEING A WIDOW LADY COULD NOT MAK E OUT THE CASE PROPERLY TO DEFEND THE TAX LIABILITY OF HER DECEASE D HUSBAND, THE ADDITIONAL EVIDENCES WERE DENIED TO BE ADMITTED AND CROSS EXAMINATIONS OF THE MAIN WITNESSES WAS ALSO NOT ACCORDED AND THE APPEAL WAS DISMISED. ACCORDING TO LD. COUNSEL THESE FACTS AND CIRCUMSTAN CES HAVE LED TO VIOLATION OF FUNDAMENTAL PRINCIPLES OF NATURAL JUST ICE AND DENIAL OF ADEQUATE OPPORTUNITY OF BEING HEARD WHICH HAS RESUL TED INTO A CONFIRMATION OF ADDITION. 2.3 THE LD. COUNSEL FOR THE ASSESSEE FURTHER CONTEN DS THAT THE ADDITION BEING IN GROSS VIOLATION OF PRINCIPLES OF NATURAL J USTICE IS UNTENABLE. IT ITA NO.542/JP/2013 SMT. POONAM PANDEY VS. ITO, WARD- 2, JHUNJHUNU . 4 MAY ALSO BE DELETED OR IN THE ALTERNATE THE ADDITIO NAL EVIDENCE MAY BE ADMITTED AND THE CROSS EXAMINATIONS OF TWO WITNESSE S MAY BE PROVIDED. 2.4 THE LD. DR SUPPORTED THE ORDERS OF THE LOWER AU THORITIES. 2.5 I HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIALS AVAILABLE ON RECORD. THERE IS CONSIDERABLE MERIT IN THE CONTENTIONS OF THE LD. AR. THE ASSESSEE/ LEGAL REPRESENTATIVE BEFORE I TAT IS A WIDOW AND HER IN THE GIVEN FACTS AND CIRCUMSTANCES THE DIFFIC ULTIES FACED IN DEFENDING THE CASE ARE DISCERNIBLE. IN THESE PECULI AR CIRCUMSTANCES, IT IS DESIRABLE THAT LEGAL HEIR IS GIVEN AN ADEQUATE OPPO RTUNITY OF BEING HEARD AND ADDUCING THE NECESSARY DOCUMENTS. IN VIEW THERE OF, THE ADDITIONAL EVIDENCE FILED BY THE ASSESSEE IS ADMITTED, BESIDE THE ASSESSEE HAS A RIGHT TO CROSS EXAMINE THE ABOVE TWO WITNESSES WHOSE STAT EMENT IS BEING RELIED UPON AGAINST THE ASSESSEE. CONSEQUENTLY, IN THE ENT IRETY OF THE FACTS AND CIRCUMSTANCES OF THE CASE, THE ENDS OF JUSTICE SHOU LD BE GIVEN TO THE ASSESSEE AND THE ISSUE IN QUESTION IS RESTORED BACK TO THE FILE OF THE AO TO DECIDE THE SAME AFRESH BY GIVING ADEQUATE OPPORTUNI TIES OF BEING HEARD TO THE LEGAL HEIR AND PRODUCING THE NECESSARY DOCUMENT S CONCERNING THE CASE. THUS THE APPEAL OF THE ASSESSEE IS ALLOWED F OR STATISTICAL PURPOSES. ITA NO.542/JP/2013 SMT. POONAM PANDEY VS. ITO, WARD- 2, JHUNJHUNU . 5 3.0 IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWE D FOR STATISTICAL PURPOSES.. ORDER PRONOUNCED IN THE OPEN COURT ON 26 /04/2016. SD/- VKJ-IH-RKSYKUH (R.P.TOLANI) U;KF;D LNL;@ JUDICIAL MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 26/04/ 2016 *MISHRA VKNS'K DH IZFRFYFI VXZSF'KR@ COPY OF THE ORDER FORWARDED TO:- 1. VIHYKFKHZ@ THE APPELLANT- SMT. POONAM PANDEY, JHUNJHUNU 2. IZR;FKHZ@ THE RESPONDENT- THE ITO, WARD- 2, JHUNJHUNU 3. VK;DJ VK;QDRVIHY@ CIT(A). 4. VK;DJ VK;QDR@ CIT, 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ@ DR, ITAT, JAIPUR 6. XKMZ QKBZY@ GUARD FILE (ITA NO. 542/JP/2013 ) VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASSISTANT. REGISTRAR