Smt. Shaik Haseena Faruq, Vijayawada V. The ITO, Vijayawada

ITA 66/VIZ/2017

• Counselvise Citation: [2019] 115 COUNSELVISE.COM (IT) 9172 (ITAT-VISAKHAPATNAM)
• Duration Of Justice: 2 year(s) 7 month(s) 14 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-09-2019
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: DB
• Assessment Year: 2011-2012
• Appeal Filed On: 14-02-2017
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: SUMAN MALIK
• Assessee Lawyers: M MADHUSUDANA RAO
• Keywords: Additional evidence
• Section: 142(1); 133A; 201; 143(2); 147; 131; 148; 144

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL, VISAKHAPATNAM BENCH, VISAKHAPATNAM . , . . , BEFORE SHRI V. DURGA RAO, JUDICIAL MEMBER& SHRI D.S. SUNDER SINGH, ACCOUNTANT MEMBER ./ I.T. A.NO. 66 /VIZ/201 7 ( / A SSESSMENT Y EAR : 20 11 - 12 ) SMT.SHAIK HASEENA FARUQ FLAT NO.104, SAI BALAJI ENCLAVE H.NO.39 - 2 - 22, LABBIPET VIJAYAWADA [PAN : CIPPS3763R ] VS. INCOME TAX OFFICER WARD - 2 ( 2 ) VI JAYAWADA ( / APPELLANT) ( / RESPONDENT) / APPELLANT BY : S HRI M.MADHUSUDANA RAO, AR / RESPONDENT BY : S MT SUMAN MALIK, DR / DATE OF HEARING : 2 3 . 0 8 . 201 9 / DATE OF PRONOUNCEMENT : 30 .09. 201 9 / O R D E R P ER SHRI D.S.SUNDER SINGH, ACCOUNTANT MEMBER : TH IS APPEAL IS FILED BY THE ASSESSEE AGAINST THE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS) [CIT(A)] , VIJAYAWADA VIDE ITA NO. 75/CIT(A)/VJA/15 - 16 DATED 28 . 10 .201 6 FOR THE ASSESSMENT YEAR (A.Y.) 20 11 - 12. 2 I.T.A. NO .66/VIZ/2017, A.Y.2011 - 12 SMT. SHAIK HASEENA FARUQ, VIJAYAWADA 2. IN THIS CASE, THE ASSESSING OFFICER (AO) WAS HAVING INFORMATION IN POSSESSION WITH REGA RD TO PURCHASE OF IMMOVABLE PROPERTY TRANSACTION EXCEEDING RS.30 LAKHS. ON VERIFICATION, THE AO FOUND THAT THE ASSESSEE DID NOT DISCLOSE THE PROPERTY TRANSACTIONS IN THE RETURN OF INCOME ALREADY FILED. THEREFORE, INITIATED PROCEEDINGS U/S 147 BY ISSUE OF NOTICE U/S 148 OF THE INCOME TAX ACT, 1961 (IN SHORT ACT). IN RESPONSE TO THE NOTICE ISSUED, THE ASSESSEE FILED THE RETURN OF INCOME ADMITTING TOTAL INCOME OF RS.2,34,130/ - IN ADDITION TO AGRICULTURAL INCOME OF RS.1,25,000/ - . THE AO HAS TAKEN UP THE C ASE FOR SCRUTINY AND ISSUED THE NOTICES U/S 143(2) AND 142(1) AND CALLED FOR VARIOUS DETAILS BY ISSUE NOTICES. EVEN THOUGH THE NOTICES WERE SERVED , THERE WAS NO RESPONSE FROM THE ASSESSEE. TIME AND AGAIN, THE AO MADE ALL OUT EFFORTS AND GIVEN SUFFICIENT OPPORTUNITIES TO THE ASSESSEE TO COLLECT THE NECESSARY INFORMATION, BUT THE ASSESSEE DID NOT FURNISH THE DETAILS CALLED FOR BY THE AO. AS PER THE BALANCE SHEET FILED BY THE ASSESSEE , THE AO FOUND THAT THERE WERE SUNDRY CREDITORS OUTSTANDING AS ON 31.03.2 012 TO THE EXTENT OF RS.1,24,00,000/ - FOR WHICH THE ASSESSEE DID NOT FURNISH THE CONFIRMATION LETTERS. SOURCE OF PURCHASE OF THE PROPERTIES MENTIONED IN THE BALANCE SHEET WERE STATED TO BE OUT OF THE UNSECURED ADVANCES / LOANS TAKEN FROM SUNDRY CREDITORS. SINCE, THE ASSESSEE FAILED TO FURNISH THE CONFIRMATION LETTERS ESTABLISHING THE IDENTITY, GENUINE NE SS AND 3 I.T.A. NO .66/VIZ/2017, A.Y.2011 - 12 SMT. SHAIK HASEENA FARUQ, VIJAYAWADA CREDIT WORTHINESS OF THE CREDITORS, THE AO TREATED THE OUTSTANDING BALANCES OF SUNDRY CREDITORS AS UNEXPLAINED , BROUGHT TO TAX AND ACCORDINGLY MADE T HE ADDITION OF RS.1,24,00,000/ - TO THE RETURN OF INCOME. THE AO ALSO MADE THE ADDITION OF RS.1,25,000/ - WHICH WAS DECLARED AS AGRICULTURAL INCOME AND INCOME FROM OTHER SOURCES FOR WANT OF PROOF. THUS, THE ASSESSMENT WAS COMPLETED U/S 144 R.W.S. 147 OF THE ACT. 3. AGGRIEVED BY THE ORDER OF THE AO, THE ASSESSEE WENT ON APPEAL BEFORE THE CIT(A) AND THE LD.CIT(A) POSTED THE CASE FOR HEARING ON THREE OCCASIONS. SINCE THERE WAS NO RESPONSE FROM THE ASSESSEE, THE LD.CIT(A) COMPLETED THE PROCEEDINGS EX - PARTE AND ACCORDINGLY CONFIRMED THE ADDITION MADE BY THE AO AND DISMISSED THE APPEAL OF THE ASSESSEE. 4. AGGRIEVED BY THE ORDER OF THE LD.CIT(A), THE ASSESSEE IS IN APPEAL BEFORE THIS TRIBUNAL. DURING THE APPEAL HEARING, THE LD.AR ARGUED THAT THE ASSESSEE IS AN ILLITERATE LADY AND ALL THE BUSINESS AFFAIRS, TRANSACTIONS WERE HANDLED BY HER HUSBAND AND SHE WAS NOT AWARE OF THE TRANSACTIONS MADE BY HER HUSBAND IN HER NAME. SHE WAS HAVING STRAINED RELATIONS WITH HER HUSBAND AND SHE WAS IN HAPLESS CONDITION WITH REG ARD TO INFORMATION OF THE SUNDRY CREDITORS AND THE SOURCES FOR ACQUISITION OF THE PROPERTIES. SHE FURTHER STATED THAT HER HUSBAND HAS RAISED THE FUNDS FOR ACQUIRING THE 4 I.T.A. NO .66/VIZ/2017, A.Y.2011 - 12 SMT. SHAIK HASEENA FARUQ, VIJAYAWADA PROPERTIES AND THE LANDS WERE REGISTERED IN HER NAME. REFERRING TO PAGE NO.35 OF THE P APER BOOK, THE LD.AR ARGUED THAT HER HUSBAND, SHAIK MOHAMMED FARUQ HAD ENTERED INTO SALE AGREEMENT CUM GPA FOR PURCHASE OF PROPERTY AT KUNDAVARI KANDRIKA FOR A SUM OF RS.60,27,000/ - AS EVIDENCED FROM THE SALE CUM GPA AGREEMENT. THE SAID AMOUNT WAS PAID BY HER HUSBAND FOR THE PROPERTY, WHICH WAS LATER REGISTERED IN HER NAME. THE SOURCES FOR ACQUIRING THE PROPERTY WERE KNOWN TO HER HUSBAND, BUT NOT TO THE ASSESSEE. DUE TO THE STRAINED RELATIONSHIP, HER HUSBAND IS NOT COOPERATING WITH THE ASSESSEE AND NOT FU RNISHING ANY INFORMATION. DUE TO NON COOPERATION OF HER HUSBAND, SHE WAS UNABLE TO COLLECT INFORMATION FROM HER HUSBAND TO SUBMIT THE SAME TO THE AO OR TO THE LD.CIT(A). THEREFORE, THE LD.AR REQUESTED FOR GIVING ONE MORE OPPORTUNITY TO PRESENT THE CASE BEFORE THE AO TO FURNISH THE DETAILS. THE ASSESSEE ALSO FILED ADDITIONAL EVIDENCE IN THE FORM OF CONFIRMATION LETTERS FROM SMT.NURTAIN SHAIK, SMT.SYED ZABEENA, VIJAYAWADA, SRI SHAIK NOOR AHMED, SRI B.VISHNU VARDHAN HAVING GIVEN THE LOANS AND REQUESTED TO ADMIT THE ADDITIONAL EVIDENCE OF CONFIRMATIONS AS WELL AS THE GPA IN THE PAPER BOOK AND REQUESTED TO REMIT THE MATTER BACK TO THE FILE OF THE AO. 5 I.T.A. NO .66/VIZ/2017, A.Y.2011 - 12 SMT. SHAIK HASEENA FARUQ, VIJAYAWADA 5. ON THE OTHER HAND, THE LD.DR VEHEMENTLY OPPOSED FOR ADMISSION OF ADDITIONAL EVIDENCES AND ARGUED THAT IN SPITE OF GIVING REPEATED OPPORTUNITIES BY THE AO AS WELL AS THE LD.CIT(A), THE ASSESSEE DID NOT FURNISH ANY INFORMATION BEFORE THE AO OR THE CIT(A). REFERRING TO PAPER BOOK SL.NO.2 TO 21, SHE SUBMITTED THAT THE ASSESSEE HAS CERTIFIED THAT THE DOCUMENTS AT SL.2 TO 21 ARE WITHIN THE KNOWLEDGE OF THE LD.AO OR THE LD.CIT(A) WHICH IS FALSE. SHE FURTHER STATED THAT THE LD.CIT(A) IN PARA NO.6 OF LD.CIT(A)S ORDER STATED THAT THE ASSESSEE HAS NOT FURNISHED THE DETAILS. THEREFORE, SHE ARGUED THAT THE ASSESSEE HAS FURNISHED THE FALSE PAPER BOOK WITH WRONG CERTIFICATION AND THERE WAS NO MENTION IN THE ASSESSMENT ORDER WITH REGARD TO SUBMISSION OF THE SAID DOCUMENTS. THEREFORE, THE LD.DR ARGUED THAT THE ASSESSEE HAS NO CASE FOR ADMISSION OF ADDITIONAL EVIDENCE, HENCE, REQUESTED TO REJECT THE ASSESSEES PETITION FOR ADMISSION OF ADDITIONAL EVIDENCE AND THERE IS NO CASE FOR REMITTING THE MATTER BACK TO THE FILE OF THE AO . 5.1. RESPONDING TO THE ARGUMENT OF THE LD.DR, THE LD.AR SUBMITTED THAT SL.2 TO 21 ARE WITHIN THE KNOWLEDGE OF THE AO / CIT(A), HENCE THE SAME WAS CERTIFIED CORRECTLY. THE LD.AR FURTHER SUBMITTED THAT HE HAS EXPLAINED THE PITIABLE CONDITION OF THE W OMAN ASSESSEE, WHO IS NOT GETTING ANY COOPERATION FROM HER HUSBAND AND THE EVIDENCES PLACED IN THE PAPER BOOK 6 I.T.A. NO .66/VIZ/2017, A.Y.2011 - 12 SMT. SHAIK HASEENA FARUQ, VIJAYAWADA SUBSTANTIATE THAT HER HUSBAND HAD ARRANGED THE FUNDS. THE CASE NEED TO BE CONSIDERED WITH HUMAN APPROACH AND REQUIRED TO BE REMITTED BACK TO THE FILE OF THE AO. 6. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE MATERIAL PLACED ON RECORD. THERE IS NO DOUBT THAT THE ASSESSEE HAS NOT RESPONDED TO THE NOTICES ISSUED BY THE AO OR THE LD.CIT(A). THE ASSESSEE REQUIRED TO COMPLY WITH THE NOTICES ISSUED BY THE AO FROM TIME TO TIME. ON SOME OCCASIONS, THE AUTHORIZED REPRESENTATIVE APPEARED BEFORE THE AO AS WELL AS THE LD.CIT(A) AND SOUGHT ADJOURNMENTS. IT IS NOT A CASE OF COMPLETE NON RESPONSE. THOUGH THE AO STATED THAT THE NOTICES WERE SERVED ON THE A SSESSEE, THE AO DID NOT MENTION TO WHOM THE NOTICES WERE SERVED, EITHER TO THE ASSESSEE OR TO ANY OF HER FAMILY MEMBERS. THE AO MADE THE ADDITION OF RS.1,24,00,000/ - IN RESPECT OF SUNDRY CREDITORS WHICH WERE OUTSTANDING AS ON 31.03.2012, IGNORING THE FACT THAT THERE WAS OPENING BALANCE OF RS.30,45,203/ - AS PER THE BALANCE SHEET FILED BEFORE THE AO WHICH REQUIRED TO BE BROUGHT TO TAX IN THE PRECEDING ASSESSMENT YEAR, BUT NOT IN THE YEAR UNDER CONSIDERATION. THOUGH THE LD.DR ARGUED THAT THE DOCUMENTS PLACED IN THE PAPER BOOK SL.2 TO 21 ARE FALSE, SHE DID NOT FURNISH ANY EVIDENCE OR CONFIRMATION FROM THE AO WITH REGARD TO CORRECTNESS OF THE CONTENTS OF THE 7 I.T.A. NO .66/VIZ/2017, A.Y.2011 - 12 SMT. SHAIK HASEENA FARUQ, VIJAYAWADA PAPER BOOK. THEREFORE WE ARE UNABLE ACCEPT THE CONTENTION OF THE LD. DR THAT THE MATERIAL IN THE PAPER BOOK WAS NOT WITH IN THE KNOWLEDGE OF THE DEPARTMENT. WHEN THERE IS A DOUBT REGARDING CORRECTNESS OF THE CONTENTS OF THE PAPER BOOK, IT IS OBLIGATOR Y ON THE PART OF THE LD.DR TO SEND THE PAPER BOOK TO THE AO AND ASCERTAIN THE CORRECTNESS OF THE DOCUMENT S PLACED IN PAPER BOOK. THOUGH TWO YEARS WERE LAPSED AFTER SUBMISSION OF THE PAPER BOOK, NO SUCH EXERCISE WAS MADE BY THE DEPARTMENT AND NO EVIDENCE WAS PLACED BEFORE US. THEREFORE, WE ARE UNABLE TO ACCEPT THE ALLEGATION THAT THE DOCUMENTS FROM SL. 2 TO 2 1 ARE FALSE. THE LD.DR SHOULD MAKE ALLEGATION ONLY WITH PROPER EVIDENCE, BUT NOT ON ASSUMPTIONS OR PRESUMPTIONS. THOUGH IT IS MENTIONED IN THE ASSESSMENT ORDER OR CIT(A) ORDERS THAT THE ASSESSEE HAS NOT FURNISHED ANY DETAILS, SHE CANNOT SIMPLY ALLEGE THAT THE DOCUMENTS ARE NOT WITHIN THE KNOWLEDGE OF AO OR CIT(A) SINCE THE DOCUMENTS IN S L .NO.2 TO 7 ARE NOTHING BUT THE ORDERS OF THE DEPARTMENT OR THE APPEALS PAPERS FILED BY THE ASSESSEE. THEREFORE, IT IS CLEAR THAT THE LD.DR HAS MADE ARGUMENT WITHOUT ANY BASIS OR WITHOUT ANY VERIFICATION. THEREFORE, WE REJECT THE CONTENTION OF THE LD.DR. IN ADDITION TO THE ABOVE THE LD.AR HAS ARGUED THAT THE ASSESSEE IS A HOUSE WIFE CARRYING ON SMALL TIME BUSINESS OF SAREES AND COMPLETELY DEPENDENT ON HER HUSBAND. THOUGH THE AO COMPLETED THE ASSESSMENT EX - PARTE U/S 144 BY 8 I.T.A. NO .66/VIZ/2017, A.Y.2011 - 12 SMT. SHAIK HASEENA FARUQ, VIJAYAWADA ISSUE OF NOTICES, IN SPITE OF THE FACT THAT THE ASSESSEE IS CARRYING ON THE BUSINESS AND THE AO IS VESTED WITH POWERS U/S 133A, NO SUCH EXERCISE WAS DONE BY THE AO. THOUGH THE ASSESSEE DID NOT RESPOND T O THE NOTICES ISSUED BY THE AO, THE AO ALSO DID NOT TAKE ANY ACTION FOR SUCH NON RESPONSE WHICH SHOWS THAT THE AO WAS ALSO VERY CONSIDERATE FOR THE HAPLESS POSITION OF THE ASSESSEE. DURING THE APPEAL HEARING, THE LD.DR ARGUED THAT IF AT ALL THE CASE IS TO BE REMITTED BACK TO THE FILE OF THE AO, THE BENCH MUST CONSIDER FOR IMPOSING SOME COSTS AGAINST THE ASSESSEE FOR HER IRRESPONSIBLE ATTITUDE. FROM THE ORDER OF THE AO, WE HAVE NOTICED THAT THE AO DID NOT TAKE ANY SUCH RECOURSE FOR NON RESPONSE, THOUGH THE AO IS VESTED WITH THE POWERS U/S 271(1)(B) OF THE A CT FOR LEVY OF PENALTY. THE AO ALSO DID NOT TAKE ANY ACTION U/S 133A / 131 TO ELICIT INFORMATION FROM THE ASSESSEE. THEREFORE, WE FIND NO MERIT IN THE ARGUMENT OF THE LD.DR TO IMPOSE THE COSTS. WE ARE OF THE CONSIDERED OPINION THAT THIS CASE NEEDS TO BE CONSIDERED ON HUMAN APPROACH AND WE FIND MERIT IN THE ARGUMENT OF THE LD.AR THAT WITH STRAINED RELATIONS FROM HER HUSBAND, THERE IS GENUINE REASON FOR NOT COLLECTING INFORMATION DUE TO NON COOPERATIVE ATTITUDE OF HER HUSBAND. FROM PAGE NO.35 OF THE PAPER BOOK, IT IS EVIDENT THAT HER HUSBAND HAS MADE THE PAYMENTS AND THE LANDS WERE REGISTERED IN THE NAME OF HIS WIFE. THIS ALSO SUPPORTS THE SUBMISSION OF THE ASSESSEE THAT THE FUNDS WERE ARRANGED BY 9 I.T.A. NO .66/VIZ/2017, A.Y.2011 - 12 SMT. SHAIK HASEENA FARUQ, VIJAYAWADA HER HUSBAND FOR ACQUIRING THE PROPERTIES. THEREFORE, IN THE INTEREST OF JUSTICE, WE ADMIT THE ADDITIONAL EVIDENCE AND WE ARE OF THE CONSIDERED OPINION THAT IN THE FACTS AND CIRCUMSTANCES OF THE CASE, THE CASE REQUIRED TO BE REMITTED BACK TO THE FILE OF THE A O TO REDO THE ASSESSMENT DENOVO. ACCORDINGLY, THE APPEAL IS REMITTED BACK TO THE FILE OF THE AO WITH A DIRECTION TO REDO THE ASSESSMENT DENOVO AFTER GIVING SUFFICIENT OPPORTUNITY TO THE ASSESSEE. 6.1. IN THE OPEN COURT, THE LD.AR HAS ASSURED THAT THE AS SESSEE W OULD COOPERATE WITH THE AO BY SUBMITTING THE REQUIRED INFORMATION FOR COMPLETION OF THE ASSESSMENT EARLY. ACCORDINGLY, WE DIRECT THE LD.AR TO COOPERATE WITH THE DEPARTMENT AND NOT TO GIVE ANY ROOM FOR NON COOPERATION. 7 . IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT ON 30 TH SEPTEMBER, 2019 S D/ - S D/ - ( . ) ( . . ) (V. DURGA RAO) ( D.S. SUNDER SINGH ) /JUDICIAL MEMBER /ACCOUNTANT MEMBER /VISAKHAPATNAM /DATED : 30 .09.2019 L.RAMA, SPS 10 I.T.A. NO .66/VIZ/2017, A.Y.2011 - 12 SMT. SHAIK HASEENA FARUQ, VIJAYAWADA / COPY OF THE ORDER FORWARDED TO: - 1. / THE ASSESSEE - SMT.SHAIK HASEENA FARUQ, FLAT NO.104, SAI BALAJI ENCLAVE, H.NO.39 - 2 - 22, LABBIPET, VIJAYAWADA 2 . / THE REVENUE - INCOME TAX OFFICER, WARD - 2(2), VIJAYAWADA 3. THE PR. COMMISSIONER OF INCOME TAX , VIJAYAWADA 4. THE COMMISSIONER OF INCOME TAX (APPEALS) , VIJAYAWADA 5. , , / DR, ITAT, VISAKHAPATNAM 6 . / GUARD FILE / BY ORDER // TRUE COPY // SR. PRIVATE SECRETARY ITAT, VISAKHAPATNAM