Smt. Kamla Devi W/o Mehram Jat, JODHPUR V. ITO, NAGAUR

ITA 55/JODH/2013

• Counselvise Citation: 5523314 RSA 2013
• Duration Of Justice: 8 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-10-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 07-10-2013
• Assessment Year: 2008-2009
• Appeal Filed On: 07-02-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: N A JOSHI
• Assessee Lawyers: U C JAIN
• Keywords: Unexplained investment; Salary income; Non compliance
• Section: 142(1); 234B; 144; 2

Judgement Text

IN THE INCOME TAX APPELALTE TRIBUNAL : JODHPUR BENC H : JODHPUR BEFORE SHRI HARI OM MARATHA, JUDICIAL MEMBER AND SHRI N.K. SAINI, ACCOUNTANT MEMBER. ITA NO. 55/JODH/2013 (A.Y. 2008-09) SMT. KAMLA DEVI, W/O MEHRAM JAT, VS. ITO, WARD 3, C/O SHRI U.C. JAIN, ADVOCATE, NAGAUR. SHATRUNJAY HARI SINGH NAGAR, PALI ROAD, JODHPUR. PAN NO. AHFPN 2214 F (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI U.C. JAIN & SHRI RAJENDRA JAIN DEPARTMENT BY : SHRI N.A. JOSHI- D.R. DATE OF HEARING : 07/10/2013. DATE OF PRONOUNCEMENT : 07/10/2013. O R D E R PER N.K.SAINI, A.M THIS IS AN APPEAL BY THE ASSESSEE AGAINST THE ORDE R DATED 31/12/2012 OF LD. CIT (A), JODHPUR. THE FOLLOWING GROUNDS HAVE BEEN RAISED IN THIS APPEAL: 1) THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF TH E CASE THE LD. CIT (A) ERRED IN UPHOLDING THE VALIDITY OF THE ASSESSMENT O RDER PASSED U/S 144 2 ON THE BASIS OF ALLEGED NON COMPLIANCE OF NOTICE U/ S 142(1) WHICH ITSELF WAS BAD IN LAW AND BAD IN FACTS. 2) THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF TH E CASE THE LD. CIT (A) ERRED IN: - A] SUSTAINING AN ADDITION OF RS. 3,57,690/- ON ACC OUNT OF UNEXPLAINED INVESTMENT IN PURCHASE OF AGRICULTURAL LAND IN LIGHT OF DOCUMENTARY EVIDENCES PRODUCED BEFORE HIM IN RES PECT OF SOURCES OF INVESTMENT. B] SUSTAINING AN ADDITION OF RS. 24,000/- IN RESPE CT OF HOUSE HOLD EXPENSES PARTICULARLY WHEN THE EXPENSES WERE MET OU T OF THE SALARY INCOME OF THE HUSBAND, INCOME FROM AGRICULTU RAL AND DAIRY. 3) THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF T HE CASE THE LD. CIT (A) ERRED IN UPHOLDING THE LEVY OF INTEREST CHARGED U/S 234A &.234B. 4) THAT THE PETITIONER MAY KINDLY BE PERMITTED TO RAISE ANY ADDITIONAL OR ALTERNATIVE GROUND AT OR BEFORE THE TIME OF HEARING . 5) THE PETITIONER PRAYS FOR JUSTICE & RELIEF. 2 THE FIRST ISSUE AGITATED BY THE ASSESSEE RELATES T O THE SUSTENANCE OF ADDITION OF RS. 3,57,690/-. 3. THE FACTS RELATED TO THIS ISSUE IN BRIEF ARE THAT THE ASSESSING OFFICER WHILE PASSING THE ASSESSMENT ORDER DATED 29/12/2010 UNDER SECTION 144 OF THE I.T. ACT, 1961 (HEREINAFTER REFERRED TO AS ACT, FOR SHORT), OBSERVED THAT THE ASSESSEE THROUGH SALE DEED DATED 06/02/2008 HAD PURCHASED LAND KHASRA NO. 613 RAKBA 38 BIGHA 5 BISW A ALONG WITH SMT. NASEEM W/O MOHD. ASGAR, SMT. RAMESHWARI W/O SHRI KR IPA RAM FOR A 3 TOTAL CONSIDERATION OF RS. 19,00,000/-. THE ASSESS ING OFFICER ISSUED A NOTICE DATED 11/11/2008 DIRECTING THE ASSESSEE TO F URNISH THE RETURN OF INCOME AND THE DETAILS OF THE PROPERTY PURCHASED. BUT, NO COMPLIANCE WAS MADE BY THE ASSESSEE. THE ASSESSING OFFICER IS SUED NOTICE UNDER SECTION 142(1) OF THE ACT ON 23/03/2009 DIRECTING T HE ASSESSEE TO FILE RETURN OF INCOME AND INFORMATION AS CALLED FOR. BU T, THE ASSESSEE DID NOT FILE THE RETURN OF INCOME, HOWEVER, VIDE REPLY DATE D 07/12/2010, THE ASSESSEE STATED THAT SHE HAD ONLY SHARE OF 1/3 RD IN THE ABOVE LAND AND ONLY INVESTED RS. 6,50,000/-, THE SOURCE OF WHICH W AS SAVING OUT OF AGRICULTURAL INCOME, FDR AND DAIRY BUSINESS. THE A SSESSING OFFICER ESTIMATED THE SALE CONSIDERATION OF THE LAND AT RS. 21,46,140/- BY ADDING RS. 85,000/- ON ACCOUNT OF STAMP DUTY, RS. 1,60,000 /- BEING THE AMOUNT CHARGED BY THE SUB-REGISTRAR AND RS. 1,000/- AS FEE S OF TYPIST. THE ASSESSING OFFICER WORKED OUT INVESTMENT BY THE ASSE SSEE AT RS. 7,15,380/- BEING 1/3 RD SHARE OF THE ABOVE SAID AMOUNT OF RS. 21,46,140/- AND MADE THE ADDITION. 4. THE ASSESSEE CARRIED THE MATTER TO THE LEARNED CI T(A) AND SUBMITTED THAT THE ASSESSEE HAD NO INCOME OTHER THA N THE AGRICULTURAL INCOME, DAIRY INCOME AND INCOME FROM INTEREST ON FD R, AS SUCH THERE WAS NO QUESTION OF HAVING ANY INCOME, WHICH WAS UNDISCL OSED. IT WAS FURTHER 4 SUBMITTED THAT THE INVESTMENT WAS MADE OUT OF THE I NCOME OF ENTIRE FAMILY POOLED WITH HER, WHICH CONSISTED OF THE ASSE SSEE, HER HUSBAND AND HUF OF HER HUSBAND, THE SAID INCOME WAS ENTIRELY FR OM AGRICULTURAL AND WAS NOT LIABLE TO BE TAXED AS NEITHER THE HUF NOR T HE ASSESSEE HAD ANY OTHER INCOME, WHICH WAS TAXABLE UNDER THE PROVISION S OF ACT. IT WAS CONTENDED THAT THE ASSESSEES HUSBAND IS A GOVERNME NT EMPLOYEE AND A TEACHER IN THE SENIOR SECONDARY SCHOOL AT NAGAUR, T HEREFORE, THE LAND WAS PURCHASED BY THE ASSESSEE FROM ALL THE SOURCES WITH HER AND THE TOTAL SOURCE OF INCOME PER ANNUM OF THE FAMILY WAS RS. 5, 87,000/- WHICH CONSISTED OF RS. 71,000/- (ASSESSEES OWN INCOME FR OM AGRICULTURE, FDR INTEREST AND DAIRY), RS. 3,12,000/- (SALARY INCOME OF HUSBAND AFTER ALL DEDUCTIONS) AND RS.2,04,000/- (AGRICULTURAL INCOME OF HUF OF ASSESSEES HUSBAND). IT WAS FURTHER STATED THAT OUT OF THE TO TAL GROSS INCOME OF RS. 5,87,000/- PER ANNUM, THE ASSESSEE USED TO SAVE A S UBSTANTIAL AMOUNT, SO THE PAST SAVING AND HAVING INCOME OF RS.5,87,000/- WAS INVESTED IN PURCHASE OF SUCH AGRICULTURAL LAND, AS SUCH THERE W AS NO JUSTIFICATION TO TREAT THE INVESTMENT AS UNEXPLAINED AND WAS OUT OF UNDISCLOSED SOURCE. THE ASSESSEE ALSO FURNISHED GIRDAVRI REPORT, SALARY CERTIFICATE OF HER HUSBAND, AFFIDAVIT OF THE ASSESSEES HUSBAND, LAND HOLDING CERTIFICATE 5 ISSUED FROM LOCAL AUTHORITIES ETC. AND REQUESTED TO ACCEPT UNDER RULE 46A OF THE I.T. RULES, 1962 (HEREINAFTER REFERRED TO AS RULES, FOR SHORT). 5. LEARNED CIT(A) FORWARDED THOSE DOCUMENTS FILED UN DER RULE 46A OF THE RULES TO THE ASSESSING OFFICER, WHO STATED THAT DURING THE ASSESSMENT PROCEEDINGS, SUFFICIENT OPPORTUNITY WAS PROVIDED, B UT NO SUCH DETAILS WERE PRODUCED AS SUCH ADDITION SO MADE WAS JUSTIFIA BLE. THE SAID REPORT OF THE ASSESSING OFFICER WAS SENT TO THE ASSESSEE F OR HER COMMENT. IN RESPONSE, THE ASSESSEE STATED THAT THE ASSESSING OF FICER HAD NOT GIVEN ANY ADVERSE COMMENT ON THE DETAILS FURNISHED BY HER UND ER RULE 46A OF THE RULES. 6. LEARNED CIT(A) AFTER CONSIDERING THE SUBMISSIONS O F THE ASSESSEE REDUCED THE ADDITION TO 50% OF THE ADDITION MADE BY THE ASSESSING OFFICER. ACCORDINGLY, ADDITION OF RS. 3,57,690/- W AS SUSTAINED. NOW, THE ASSESSEE IS IN APPEAL. 7. LEARNED COUNSEL FOR THE ASSESSEE REITERATED THE SU BMISSIONS MADE BEFORE THE AUTHORITIES BELOW AND SUBMITTED THAT WHE N THE LEARNED CIT(A) AS WELL AS ASSESSING OFFICER HAS ACCEPTED THE CONTE NTS OF THE DOCUMENTS FURNISHED BY THE ASSESSEE UNDER RULE 46A OF THE RUL ES, THEN THERE WAS NO 6 JUSTIFICATION IN SUSTAINING THE 50% OF THE ADDITION MADE BY THE ASSESSING OFFICER. 8. IN HIS RIVAL SUBMISSIONS, LEARNED D.R. SUPPORTED T HE ORDERS OF THE AUTHORITIES BELOW. 9. WE HAVE CONSIDERED THE SUBMISSIONS OF BOTH THE PAR TIES AND CAREFULLY GONE THROUGH THE MATERIAL AVAILABLE ON RE CORD. IN THE PRESENT CASE, IT IS NOTICED THAT THE LEARNED CIT(A) HIMSELF ADMITTED THAT THE ASSESSEE WAS HAVING 13 BIGHA OF AGRICULTURAL LAND A ND THE HUF OF HER HUSBAND OWNED 102 BIGHAS OF THE AGRICULTURAL LAND, WHERE CROP LIKE GWAR, MOONG, MOTH, BAJARA WERE GROWN. HE ALSO ACCEPTED T HAT THE ASSESSEES HUSBAND WAS IN GOVERNMENT SERVICE AND USED TO GIVE SALARY TO HIS WIFE. LEARNED CIT(A) ALSO ACCEPTED THE INCOME OF THE ASSE SSEE FROM DAIRY FARMING AND INTEREST ON FDR. IN THE PRESENT CASE, THE ASSESSING OFFICER ALSO DID NOT GIVE ANY ADVERSE COMMENTS ON THE SUBMI SSIONS MADE BY THE ASSESSEE AND THE DOCUMENTS FURNISHED UNDER RULE 46A OF THE RULES. THEREFORE, IN OUR OPINION, LEARNED CIT(A) WAS NOT J USTIFIED IN SUSTAINING THE 50% OF THE ADDITION MADE BY THE ASSESSING OFFIC ER ON ESTIMATE BASIS, PARTICULARLY WHEN NOTHING CONTRARY TO THE SOURCE OF INVESTMENT EXPLAINED BY THE ASSESSEE WAS BROUGHT ON RECORD. WE, THEREFOR E, DELETE THE ADDITION SUSTAINED BY THE LEARNED CIT(A). 7 10. THE NEXT ISSUE RELATES TO THE SUSTENANCE OF ADDITI ON OF RS. 24,000/- IN RESPECT OF HOUSEHOLD EXPENSES. 11. THE ASSESSING OFFICER MADE THE ADDITION BY STATIN G THAT THE HOUSEHOLD EXPENSES OF THE ASSESSEE ARE ESTIMATED AT RS. 24,000/- AND IT IS CONSIDERED TO BE OUT OF UNDISCLOSED INCOME. LEA RNED CIT(A) SUSTAINED THE ADDITION MADE BY THE ASSESSING OFFICER. 12. AFTER CONSIDERING THE SUBMISSIONS OF BOTH THE PART IES, WE ARE OF THE VIEW THAT WHEN THE SOURCE OF INCOME FROM AGRICULTUR AL ACTIVITIES ON THE LAND IN THE NAME OF ASSESSEE AND HUF OF THE ASSESSE ES HUSBAND, INCOME FROM DAIRY FARMING OF THE ASSESSEE, SALARY INCOME O F THE HUSBAND OF THE ASSESSEE AND THE INTEREST INCOME ON FDR OF THE ASSE SSEE WAS ACCEPTED, WHICH WAS SUFFICIENT FOR THE HOUSEHOLD EXPENSES. S O, THERE WAS NO JUSTIFICATION ON THE PART OF THE ASSESSING OFFICER AND THE LEARNED CIT(A) TO PRESUME THAT THE HOUSEHOLD EXPENSES WERE INCURRED F ROM THE UNDISCLOSED INCOME, WE THEREFORE, DELETE THIS ADDITION MADE BY THE ASSESSING OFFICER AND SUSTAINED BY THE LEARNED CIT(A). 13. THE ANOTHER ISSUE AGITATED BY THE ASSESSEE RELATES TO THE INTEREST CHARGED UNDER SECTION 234A & 234B OF THE ACT. REGA RDING THIS ISSUE, IT 8 WAS THE COMMON CONTENTION OF BOTH THE PARTIES THAT IT IS A CONSEQUENTIAL IN NATURE. WE ORDER ACCORDINGLY. 14. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED. (ORDER PRONOUNCED IN THE COURT ON 07 TH OCTOBER, 2013). SD/- SD/- (HARI OM MARATHA) (N.K.SAINI) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED : 07 TH OCTOBER , 2013. VR/- COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE LD.CIT 4. THE CIT(A) 5. THE D.R ASSISTANT REGISTRAR, ITAT, JODHPUR.