Shiv Kumar L/H of Burfo Devi, Gurgaon V. ITO, Gurgaon

ITA 6561/DEL/2013

• Counselvise Citation: [2018] 126 COUNSELVISE.COM (IT) 3626 (ITAT-DELHI)
• Duration Of Justice: 4 year(s) 1 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-01-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Next Hearing Date: 04-11-2015
• Assessment Year: 1998-1999
• Appeal Filed On: 09-12-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: AMIT JAIN SENIOR
• Assessee Lawyers: REENA NE HRU

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH D : NEW DELHI) BEFORE SHRI R.S. SYAL, VICE PRESIDENT AND SHRI KULDIP SINGH, JUDICIAL MEMBER ITA NO.6560/DEL./2013 (ASSESSMENT YEAR : 1997-98) ITA NO.6561/DEL./2013 (ASSESSMENT YEAR : 1998-99) SHRI SHIV KUMAR VS. ITO, WARD 2, L/H OF SMT. BURFO DEVI, GURGAON. C/O YPS RANA & ASSOCIATES, 205 208, DEEP PLAZA, NEAR CIVIL COURT, GURGAON (HARYANA) (PAN : ARJPK5280L) (APPELLANT) (RESPONDENT) ASSESSEE BY : SMT. REENA NEHRU, ADVOCATE REVENUE BY : SHRI AMIT JAIN, SENIOR DR DATE OF HEARING : 24.01.2018 DATE OF ORDER : 31.01.2018 O R D E R PER KULDIP SINGH, JUDICIAL MEMBER : SINCE COMMON QUESTIONS OF FACTS AND LAW HAVE BEEN R AISED IN BOTH THE AFORESAID APPEALS, THE SAME ARE BEING D ISPOSED OFF BY WAY OF CONSOLIDATED ORDER TO AVOID REPETITION OF DI SCUSSION. 2. THE APPELLANT, SHRI SHIV KUMAR, L/H OF SMT. BURF O DEVI (HEREINAFTER REFERRED TO AS THE ASSESSEE) BY FILI NG THE PRESENT ITA NOS.6560 & 6561/DEL/2013 2 APPEALS SOUGHT TO SET ASIDE THE IMPUGNED ORDER DATE D 22.01.2008 PASSED BY THE COMMISSIONER OF INCOME-TAX (APPEALS), PANCHKULA QUA THE ASSESSMENT YEARS 1997-98 & 1998-99 ON THE G ROUNDS INTER ALIA THAT :- ITA NO.6560/DEL/2013 (AY 1997-98) 1. THE ASSESSMENT ORDER OF THE LD ASSESSING OFFICER IS BAD IN LAW AND AGAINST THE FACTS & CIRCUMSTANCES OF THE CASE. 2. THAT LD. ASSESSING OFFICER ERRORED IN LAW AND AL SO ON FACTS BY FAILING IN PROPER SERVICE OF NOTICE UPON THE APPELLANT U/S 282 (I) OF THE INCOME TAX ACT 1961. 3. THAT LD ASSESSING OFFICER ERROR IN LAW AND ALSO ON FACTS BY NOT PROVIDING REASONABLE OPPORTUNITY OF BEING HE ARD TO APPELLANT AND HENCE VIOLATED THE LAW OF NATURAL JUS TICE 4. THAT LD ASSESSING OFFICER ERRORED IN LAW AND ALS O ON FACTS BY MAKING ADDITION OF RS.11,57,526/- IN THE I NCOME OF THE APPELLANT AS UNEXPLAINED DEPOSITS IN SPITE OF THE F ACTS THAT THE SAID MONEY PERTAINS TO HUF OF LT SH. CHARAN SINGH. THE SAID CHARAN SINGH HAD RECEIVED COMPENSATION FOR COMPULSO RY ACQUISITION OF LAND AMOUNTING TO RS.24,68,224/- ON 26.04.1993 AND NOT UNEXPLAINED DEPOSIT AS ALLEGED BY THE LD AS SESSING OFFICER. 5. THAT LD ASSESSING OFFICER ERRORED IN LAW AND ALS O ON FACTS BY FRAMING ASSESSMENT OF BARFO DEVI AS INDIVIDUAL W HILE IT SHOULD BE ASSESSED AS HUF. 6. THAT THE ORDER OF THE ASSESSING OFFICER IS LIABL E TO BE SET ASIDE ON OTHER GROUNDS TOO WHICH THE APPELLANT CRAV ES LEAVES TO TAKE AT THE TIME OF HEARING OF THIS APPEAL. ITA NO.6561/DEL/2013 (AY 1998-99) 1. THE ASSESSMENT ORDER OF THE LD ASSESSING OFFICER IS BAD IN LAW AND AGAINST THE FACTS & CIRCUMSTANCES OF THE CASE. 2. THAT LD. ASSESSING OFFICER ERRORED IN LAW AND AL SO ON FACTS BY FAILING IN PROPER SERVICE OF NOTICE UPON T HE APPELLANT U/S 282(I) OF THE INCOME TAX ACT 1961. ITA NOS.6560 & 6561/DEL/2013 3 3. THAT LD ASSESSING OFFICER ERROR IN LAW AND ALSO ON FACTS BY NOT PROVIDING REASONABLE OPPORTUNITY OF BEING HE ARD TO APPELLANT AND HENCE VIOLATED THE LAW OF NATURAL JUS TICE 4. THAT LD ASSESSING OFFICER ERRORED IN LAW AND ALS O ON FACTS BY MAKING ADDITION OF RS.18,64,0266/- IN THE INCOME OF THE APPELLANT AS UNEXPLAINED DEPOSITS IN SPITE OF THE F ACTS THAT THE SAID MONEY PERTAINS TO HUF OF LT SH. CHARAN SINGH. THE SAID CHARAN SINGH HAD RECEIVED COMPENSATION FOR COMPULSO RY ACQUISITION OF LAND AMOUNTING TO RS.24,68,224/- ON 26.04.1993 AND NOT UNEXPLAINED DEPOSIT AS ALLEGED BY THE LD AS SESSING OFFICER. 5. THAT LD ASSESSING OFFICER ERRORED IN LAW AND ALS O ON FACTS BY FRAMING ASSESSMENT OF BARFO DEVI AS INDIVIDUAL W HILE IT SHOULD BE ASSESSED AS HUF. 6. THAT THE ORDER OF THE ASSESSING OFFICER IS LIABL E TO BE SET ASIDE ON OTHER GROUNDS TOO WHICH THE APPELLANT CRAV ES LEAVES TO TAKE AT THE TIME OF HEARING OF THIS APPEAL. 3. BRIEFLY STATED THE FACTS NECESSARY FOR ADJUDICATION OF THE CONTROVERSY AT HAND ARE : DURING THE SCRUTINY PROCEEDINGS, ASSESSING OFFICER NOTICED THAT THE ASSESSEE COMPANY HAS FAILED TO FILE THE DOCUMENTARY EVIDENCE REGARDING SOURCE OF D EPOSIT OF RS.11,26,470/- AND CONSEQUENTLY MADE ADDITION OF RS .11,57,526/- (RS.30,530/- AS INCOME FROM BANK INTEREST + RS.11,2 6,470 AS UNEXPLAINED DEPOSITS + RS.526/- AS INTEREST ON SAVI NG BANK ACCOUNT = RS.11,57,526/-) FOR AY 1997-98. FOR AY 1998-99, AO ALSO NOTICED THAT ASSESSEE HAS FAILED TO EXPLAIN THE SOU RCE OF DEPOSIT OF RS.17,00,000/- AND THEREBY MADE ADDITION OF RS.18,6 4,026/- (RS.1,62,530/- AS INCOME FROM BANK INTEREST + RS.17 ,00,000/- AS ITA NOS.6560 & 6561/DEL/2013 4 UNEXPLAINED DEPOSITS + RS.1,496/- AS INTEREST ON SA VING BANK ACCOUNT = RS.18,64,026/-). 4. ASSESSEE COMPANY CARRIED THE MATTER BEFORE THE L D. CIT (A) BY WAY OF FILING THE APPEALS WHO HAS DISMISSED THE SAME. THEN THE ASSESSEE COMPANY APPROACHED THE TRIBUNAL WHICH HAS RESTORED THE MATTER BACK TO LD. CIT (A) AND CONSEQUENTLY, CIT (A ) AGAIN DISPOSED OF ALL THE APPEALS VIDE ORDER DATED 22.01. 2008 BUT SOMEHOW MISSED TO DISPOSE OF APPEALS PERTAINING TO AYS 1997-98 AND 1998-99. THEREAFTER, LD. CIT (A) DISPOSE OF TH E APPEALS QUA AYS 1997-98 AND 1998-99 VIDE ORDER DATED 08.10.2013 . FEELING AGGRIEVED, THE ASSESSEE HAS COME UP BEFORE THE TRIB UNAL BY CHALLENGING THE IMPUGNED ORDER PASSED BY LD. CIT (A ) . 5. WE HAVE HEARD THE LD. AUTHORIZED REPRESENTATIVES OF THE PARTIES TO THE APPEAL, GONE THROUGH THE DOCUMENTS R ELIED UPON AND ORDERS PASSED BY THE REVENUE AUTHORITIES BELOW IN T HE LIGHT OF THE FACTS AND CIRCUMSTANCES OF THE CASE. 6. THE LD. AR FOR THE ASSESSEE CHALLENGING THE IMPU GNED ORDER PASSED BY THE LD. CIT (A) CONTENDED INTER ALIA THAT THE AO HAS ERRED IN MAKING ADDITION IN AYS 1997-98 AND 1998-99 ; THAT ASSESSEES MOTHER, SMT. BURFO DEVI HAS DEPOSITED TH E AMOUNT IN QUESTION IN FDRS AND RECEIVED INTEREST OF RS.40,530 /- IN AY 1997- 98 AND RS.1,74,528/- IN AY 1998-99, FILED RETURN TH EREOF AND PAID ITA NOS.6560 & 6561/DEL/2013 5 TAXES IN SUBSEQUENT YEARS; THAT THE AMOUNT OF FIXED DEPOSITS EMANATED FROM OLD FDRS OF ASSESSEES DECEASED HUSBA ND, NAMELY, SHRI CHARAN SINGH WHO HAS RECEIVED COMPENSATION ON COMPULSORY ACQUISITION OF LAND AMOUNTING TO RS.24,68,224/- ON 26.04.1993 WHICH WAS DEPOSITED IN GURGAON GRAMIN BANK ACCOUNT NO.2463 ON 26.04.2003. THE LD. AR FOR THE ASSESSEE HAS ALSO G IVEN DETAIL OF FDR IN THE NAME OF SHRI CHARAN SINGH, HUSBAND OF TH E ASSESSEE AND TRANSFERRED TO HER ACCOUNT ON MATURITY WHICH IS REPRODUCED AS UNDER FOR READY REFERENCE :- DATE FDR NO. AMOUNT MATURITY DATE 14.03.1996 13 405293 09.03.1997 26.07.1996 77 1000000 25.07.1997 12.03.1997 133 400000 09.09.1997 20.06.1997 222 200000 20.12.1997 12.09.1997 133 400000 11.03.1998 14.10.1997 262 100000 14.04.1998 24.12.1997 262 101008 23.06.1998 24.12.1997 222 150000 20.06.1998 18.03.1998 262 103028 17.09.1998 22.04.1998 262 104132 30.08.1998 23.06.1998 262 100000 22.09.1998 06.07.1998 222 100000 20.12.1998 29.07.1998 77 1000000 28.01.1999 7. HOWEVER, ON THE OTHER HAND, THE LD. DR FOR THE R EVENUE RELIED UPON THE ORDER PASSED BY THE LD. CIT (A). 8. UNDISPUTEDLY, ASSESSEE SMT. BURFO DEVIS HUSBAND , NAMELY, SHRI CHARAN SINGH DIED IN 1995 AND AFTER HIS DEATH, ASSESSEE, SMT. ITA NOS.6560 & 6561/DEL/2013 6 BARFO DEVI DIED IN 28.02.2008. FROM THE DOCUMENTS, AVAILABLE AT PAGES 51 & 52 OF THE PAPER BOOK, IT IS PROVED ON RE CORD THAT HUSBAND OF THE ASSESSEE, SHRI CHARAN SINGH RECEIVED COMPENSATION OF RS.24,68,224/- IN 1993. IT IS ALSO PROVED FROM THE COPY OF THE PASSBOOK, AVAILABLE AT PAGE 54 OF THE PAPER BOOK TH AT SHRI CHARAN SINGH, HUSBAND OF THE ASSESSEE DEPOSITED THE AMOUNT OF RS.24,68,224/- IN THE BANK AND MADE FDR THEREOF IN 1993 ITSELF. FROM PAGES 39 & 40 OF THE PAPER BOOK, IT IS PROVED THAT SMT. BARFO DEVI, ASSESSEE, WIFE OF SHRI CHARAN SINGH RECEIVED THE AMOUNT OF FDR IN 1996-97 AFTER THE DEATH OF HER HUSBAND IN 19 95. 9. PERUSAL OF THE RETURN OF INCOME OF SMT. BURFO DE VI IN 1997- 98, AVAILABLE AT PAGE 36 OF THE PAPER BOOK, SHOWS T HAT SHE HAS SHOWN THE AMOUNT OF RS.40,530/- AS INCOME FROM THE INTEREST FROM FDR. SIMILARLY, IN RETURN OF INCOME FILED FOR 1998 -99, SHE HAS SHOWN INCOME FROM OTHER SOURCES TO THE TUNE OF RS.1 ,74,528/- AND PAID INTEREST THEREON IN THE SUBSEQUENT YEARS. 10. WHEN IT IS PROVED THAT THE ASSESSEE HAS RECEIVE D THE AMOUNT OF RS.4,05,293/- IN AY 1997-98 AND RS.1,74,528/- IN AY 1998-99 FROM THE FDR INHERITED FROM HER HUSBAND AFTER HIS D EATH IN 1995, INTEREST ON FDR AND HER BANK ACCOUNTS ARE ALSO AVAI LABLE ON RECORD FROM PAGE 42 TO 49 OF THE PAPER BOOK AND THE SOURCE OF THE INCOME OF HER HUSBAND, SHRI CHARAN SINGH IS DULY PROVED, T HERE IS NO ITA NOS.6560 & 6561/DEL/2013 7 QUESTION OF MAKING ADDITION THEREOF. LD. CIT (A) P ASSED THE IMPUGNED ORDER IN THE ABSENCE OF ASSESSEE OR LD. AU THORIZED REPRESENTATIVE. SO, FROM THE DETAILS OF FDR GIVEN BY THE ASSESSEE AND REPRODUCED IN THE PRECEDING PARAS FURTHER PROVE D FROM THE EVIDENCE BROUGHT ON RECORD, IT IS APPARENTLY CLEAR THAT ALL THE FDRS HAVE BEEN INHERITED BY THE ASSESSEE, SMT. BURFO DEV I FROM HER HUSBAND, SHRI CHARAN SINGH, WHO HAS DEPOSITED THE A MOUNT IN THE BANK AFTER RECEIVING COMPENSATION FROM COMPULSORY A CQUISITION OF HIS LAND. 11. IN VIEW OF WHAT HAS BEEN DISCUSSED ABOVE, ADDIT ION MADE BY THE AO WITHOUT PERUSING THE RECORD AND CONFIRMED BY LD. CIT (A) EX PARTE, IS NOT SUSTAINABLE, HENCE ORDERED TO BE D ELETED AND CONSEQUENTLY BOTH THE APPEALS FILED BY THE ASSESSEE ARE ALLOWED. ORDER PRONOUNCED IN OPEN COURT ON THIS 31 ST DAY OF JANUARY, 2018. SD/- SD/- (R.S. SYAL) (KULDIP SINGH) VICE PRESIDENT JUDICIAL MEMBER DATED THE 31 ST DAY OF JANUARY, 2018/TS COPY FORWARDED TO: 1.APPELLANT 2.RESPONDENT 3.CIT 4.CIT(A), PANCHKULA. 5.CIT(ITAT), NEW DELHI. AR, ITAT NEW DELHI.