Mrs. Mehrun Nisha Ansari, Ghaziabad V. ITO, Ghaziabad

ITA 5896/DEL/2014

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 8265 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 5 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-04-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC 1
• Next Hearing Date: 23-02-2016
• Assessment Year: 2005-2006
• Appeal Filed On: 31-10-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: P DAM KANUNJNA
• Assessee Lawyers: ASHISH GOEL; ASHISH CHADHA
• Keywords: Gift

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: SMC-1 NEW DELHI BEFORE SMT DIVA SINGH, JUDICIAL MEMBER AND SH. O.P.KANT, ACCOUNTANT MEMBER I.T.A .NO.-5896 & 5897/DEL/2014 (ASSESSMENT YEAR-2005-06 & 2006-07) MEHRUN NISHA ANSARI, A-84, SHALIMAR GARDEN, MAIN SAHIBABAD, GHAZIABAD. PAN-AGWPA2115J (APPELLANT) VS ITO, WARD-1(4), GHAZIABAD (RESPONDENT) ASSESSEE BY SH.ASHISH GOEL, CA & SH. ASHISH CHADHA, CA R EVENUE BY SH. P.DAM. KANUNJNA, SR. DR ORDER PER DIVA SINGH, JM THESE TWO APPEALS HAVE BEEN FILED BY THE ASSESSEE A SSAILING THE CORRECTNESS OF THE ORDER DATED 04.07.2014 OF CIT(A) , GHAZIABAD PERTAINING TO 2005-06 & 2006-07 ASSESSMENT YEARS WHEREIN THE ASS ESSEE HAS ASSAILED THE ADDITIONS OF RS.11,09,732/- AND RS.3,90,278/- SUSTA INED BY THE CIT(A) IN THE RESPECTIVE YEARS UNDER CONSIDERATION. 2. BOTH THE PARTIES HAVE BEEN HEARD WHO STATE THAT FACTS AND ARGUMENTS ADVANCED IN ITA NO.5896/DEL/2014 SHALL APPLY TO ITA NO.5897/DEL/2014. 3. THE RECORD SHOWS THAT THE ASSESSEE WHO IS STATED TO BE ENGAGED IN EMBROIDERY WORK RETURNED THE INCOME OF RS.96,370/- AND RS.1,15,670/- IN THE TWO YEARS UNDER CONSIDERATION. ON THE BASIS OF AIR INFORMATION, THE CASE WAS RE-OPENED AS THE ASSESSEE WAS FOUND TO HAVE SOLD A PROPERTY FOR RS. 32 LACS IN 2009-10 AY. IN THE COURSE OF THE ASSESSMENT PROCEE DINGS THE ASSESSEE WAS REQUIRED TO EXPLAIN THE SOURCE OF INVESTMENT. THE ASSESSEE EXPLAINED THAT THE DATE OF HEARING 25.02.2016 DATE OF PRONOUNCEMENT 08.04.2016 I.T.A .NO.-5896 & 5897/DEL/2014 PAGE 2 OF 4 PROPERTY HAD BEEN PURCHASED ON 23.04.2005 FOR A CON SIDERATION OF RS.15 LACS AND THE SOURCE WAS EXPLAINED FROM SALE PROCEEDS OF GOLD & SILVER ORNAMENTS OF RS.11,09,732/- AND PLUS PAST SAVINGS. RECEIPT OF M/ S VERMA JEWELLERS, G-BLOCK NEAR JAIPAL CHOWK, SHAHEED NAGAR, GHAZIABAD ON 20.0 3.2005 WAS RELIED UPON. ON ENQUIRY THE FIRM WAS FOUND TO BE NON-EXISTENT. ACCORDINGLY AN ADDITION OF RS.11,09,732/- WAS MADE IN THE HANDS OF THE ASSESSE E. THE REMAINING AMOUNT RS.3,90,268/- SOUGHT TO BE EXPLAINED AS PAST SAVING S WAS ALSO NOT ACCEPTED LEADING TO THE ADDITION IN 2006-07 AY. 4. THE ISSUE WAS CARRIED IN APPEAL BEFORE THE FIRST APPELLATE AUTHORITY. THE CIT(A) DISMISSED THE APPEALS HOLDING THAT THE ADDIT IONS HAVE CORRECTLY BEEN MADE. 5. WE FIND THAT THE EXPLANATION OFFERED DURING THE ASSESSMENT PROCEEDINGS WAS RETRACTED BY THE ASSESSEE STATING THAT BEING AN ILLITERATE LADY, SHE DID NOT KNOW WHAT HAD BEEN SAID. THE CORRECT POSITION ACCO RDING TO HER EXPLANATION WAS THAT THE SAID PROPERTY WAS TRANSFERRED IN HER N AME BY HER HUSBAND, MR. MD. TAHIR ANSARI ON 23..04.2005 BY WAY OF GIFT. AC CORDINGLY FOR THE SAID PROPERTY, NO CONSIDERATION WAS PAID BY HER AND ONLY STAMP DUTY OF RS.1.35 LACS FOR TRANSFER OF PROPERTY IN HER NAME WAS PAID. IT WAS FURTHER CLAIMED THAT THE PROPERTY WAS PURCHASED BY HER HUSBAND, MD. ANSARI F OR RS.7 LACS ON 27.08.2001 AND THAT IT WAS SUPPORTED BY THE RELEVAN T DOCUMENTS. THE EXPLANATION OFFERED IN THE ASSESSMENT PROCEEDINGS W AS ADDRESSED IN THE FOLLOWING MANNER AS PER THE RELEVANT EXTRACT FROM T HE IMPUGNED ORDER:- THE EXPLANATION OF SOURCE OF MONEY FRO THE PURCHA SE OF SAID PROPERTY SUBMITTED BY THE COUNSEL OF THE ASSESSEE IN ASSESSM ENT PROCEEDINGS WERE NOT CORRECT. ASSESSEE IS A ILLITERATE PERSON & DID NOT HAD ANY KNOWLEDGE ABOUT THE SUBMISSIONS MADE BY THE COUNSEL ON HER BEHALF. I.T.A .NO.-5896 & 5897/DEL/2014 PAGE 3 OF 4 6. BOTH THE PARTIES WERE ACCORDINGLY REQUIRED TO AD DRESS THE EXTRACT OF THE AGREEMENT REPRODUCED BY THE CIT(A) IN HIS ORDER. T HE LD.AR STATED THAT FULL FACTS HAVE NOT BEEN EXTRACTED. MR..P.KANUNJNA, LD. SR.DR STATED THAT IT IS PROBABLY A PORTION OF SALE DEED AND NOT A COMPLETE EXTRACT OF THE SALE DEED AS THE NAMES OF THE PARTIES I.E. THE SELLER AND THE PU RCHASE ARE NOT EXTRACTED. ACCORDINGLY AFTER HEARING BOTH THE PARTIES BEFORE T HE BENCH, WE ARE OF THE VIEW THAT IT WOULD BE APPROPRIATE TO SET ASIDE THE IMPU GNED ORDER AS EVIDENTLY FULL FACTS HAVE NOT BEEN CONSIDERED. 6.1. WHILE SO HOLDING, WE HAVE TAKEN INTO CONSIDERA TION THE FACT THAT DURING THE ASSESSMENT PROCEEDINGS, THE ASSESSEE IS FOUND T O HAVE EXPLAINED THAT THE PROPERTY WAS PROCURED FROM THE SALE PROCEEDS OF ORN AMENTS AND OWN SAVINGS. WE FIND THAT THE EXPLANATION OFFERED IN THE LIGHT O F THE FACTUAL POSITION AS CANVASSED BEFORE THE CIT(A) THAT THE ASSESSEE BEING ILLITERATE WAS NOT AWARE OF WHAT WAS SAID ON HER BEHALF DESERVES TO BE CONSIDER ED. ACCORDINGLY, WE FIND NO GOOD REASON WHY BENEFIT OF DOUBT SHOULD NOT BE GIVE N TO HER AND WE DIRECT THAT NECESSARY EVIDENCES IN SUPPORT OF THE CLAIM BE CONS IDERED INDEPENDENTLY AND THE ISSUE BE DECIDED DE NOVO. 6.2. ACCORDINGLY, BOTH THE PARTIES WERE REQUIRED TO ADDRESS AS TO WHICH WAS THE CORRECT FORUM FOR RESTORING THE ISSUES. CONSID ERING THE SUBMISSIONS OF THE LD. SR. DR AND THE LD. AR, IT IS DEEMED APPROPRIATE TO RESTORE THE ISSUE BACK TO THE FILE OF THE AO. LIBERTY IS GIVEN TO THE ASSESS EE TO FILE FRESH EVIDENCES IN SUPPORT OF ITS CLAIM. THE OPPORTUNITY SO PROVIDED SHOULD NOT BE ABUSED AS FAILING WHICH THE AO SHALL BE AT LIBERTY TO PASS A SPEAKING ORDER IN ACCORDANCE WITH LAW. THE LD. AR UNDERTAKES THAT THE ASSESSEE SHALL UTILIZE THE OPPORTUNITY SO PROVIDED IN GOOD FAITH. I.T.A .NO.-5896 & 5897/DEL/2014 PAGE 4 OF 4 7. IN THE RESULT, THE APPEALS OF THE ASSESSEE ARE A LLOWED FOR STATISTICAL PURPOSES. THE ORDER IS PRONOUNCED IN THE OPEN COURT ON 08 TH OF APRIL, 2016. SD/- SD/- (O.P.KANT) (DIVA SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED:08/04/2016 *AMIT KUMAR* COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTA NT REGISTRAR ITAT NEW DELHI