Smt. Archana Gupta, Meerut V. ITO, Meerut

ITA 6821/DEL/2014

• Counselvise Citation: 682120114 RSA 2014
• Duration Of Justice: 11 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-12-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC 1
• Next Hearing Date: 14-10-2015
• Assessment Year: 2009-2010
• Appeal Filed On: 18-12-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: P DAM KANUNJNA
• Assessee Lawyers: VINOD KUMAR GOYAL
• Keywords: Opportunity of being heard; Corroborative evidences

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: SMC - I NEW DELHI BEFORE SMT DIVA SINGH, JUDICIAL MEMBER I.T.A .NO. - 6821/ DEL/201 4 (ASSESSMENT YEAR - 200 9 - 10 ) ARCHANA GUPTA, C/O - SH.R.K.VERMA (ADVOCATE), 47/2, JAGANNATH PURI, SHIVAJI ROAD, MEERUT PAN - AANPG3113F (APPELLANT ) VS ITO, WARD - 1(1), MEERUT (RESPONDENT ) APPELLANT BY SH. VINOD KUMAR GOYAL, ADV. RESPONDENT BY SH.P.DAM KANUNJNA, SR. DR ORDER THE PRESENT APPEAL HAS BEEN FILED BY THE ASSESSEE ASSAILING THE CORRECTNESS OF THE ORDER DATED 24.11.2014 OF CIT(A), MEERUT PERTAINING TO 2009 - 10 ASSESSMENT YEAR WHEREIN THE PENALTY IMPOSED U/S 271(1)(C) BY THE ASSESSING OFFICER HAD BEEN UPHELD IN APPEAL. 2. THE RELEVANT FACTS OF THE CASE ARE THAT THE ASSESSEE IN THE YEAR UNDER CONSIDERATION WAS REQUIRED TO EXPLAIN THE CREDIT OF RS.4,50,000/ - IN HER BANK ACCOUNT. IN THE EXPLANATION OFFERED, THE ASSESSE E CLAIMED THAT IT WAS A LOAN ADVANCED BY SMT. MANI JAIN. ADDITION OF THE SAID AMOUNT WAS ACCEPTED BY THE ASSESSEE STATING THAT DESPITE HER BEST EFFORTS SHE COULD NOT CONTACT THE SAID LADY AND ALSO COULD NOT FILE SUPPORTING DOCUMENTS . THE ADDITION IT WAS STATED WAS ACCEPTED IN ORDER TO AVOID LITIGATION. 2. 1 . THE ASSESSEE WAS FURTHER REQUIRED TO EXPLAIN HER CLAIM OF HAVING SOLD GOLD RING AMOUNTING TO RS.25,000/ - AND SILVER UTENSILS OF RS.18,000/ - . SINCE THE RELEVANT BILLS AND RECEIPTS WERE CLAIMED TO BE MISPLACED DURING SHIFTING OF RESIDENCE ACCORDINGLY F OR WANT OF DOCUMENTARY EVIDENCE IT WAS ALSO STATED THAT THE AMOUNT IS OFFERED FOR TAXATION. DATE OF HEARING 14.10 .2015 DATE OF PRONOUNCEMENT 11 .12 .2015 I.T.A .NO. - 6821/ DEL/201 4 PAGE 2 OF 3 2. 2 . A PART FROM THESE TWO ADDITIONS THE ASSESSEE ALSO FAILED TO EXPLAIN THE CASH LOAN OF RS.10,000 / - AND PERSONAL EXPENSES OF RS. 20,000/ - . 3. ACCORDINGLY IN VIEW OF THE ADDITIONS MADE, PENALTY PROCEEDINGS WERE INITIATED U/S 271(1)(C) AND CONSIDERING THE SUBMISSIONS OF THE ASSESSEE , PENALTY OF RS.2,00,000/ - WAS IMPOSED. 4 . AGGRIEVED BY THIS, THE ASSESSEE CAME IN APPEAL BEFORE THE CIT(A WHEREIN THE SUBMISSIONS ADVANCED IN THE PENALTY PROCEEDINGS WERE REITERATED ON BEHALF OF THE ASSESSEE. HOWEVER, NOT CONVINCED WITH THE SAME THE PENALTY ORDER WAS UPHELD. 5. AGGRIEVED THE ASSESSEE IS IN APPEAL BEFORE THE TRIBUNA L. 6 . THE LD. AR INVITING ATTENTION TO THE IMPUGNED ORDER SUBMITTED THAT THE CIT(A) HAS BASED HIS FINDING ON THE REASON THAT THE ADDITION S HAVE BEEN ACCEPTED BY THE ASSESSEE. ASSAILING THE STAND IT WAS SUBMITTED THAT THE ARGUMENTS OF THE ASSESSEE THAT TH E LOAN TO SMT. MANI JAIN WAS RETURNED BACK BY WAY OF CHEQUE NO.567889 DATED 17.08.2008 SUPPORTED BY A COPY OF BANK STATEMENT ETC. MADE BY THE ASSESSEE BEFORE THE AO IN RESPONSE TO THE SHO W CAUSE NOTICE DATED 04.04.2012, IT WAS SUBMITTED HAS NEITHER BEEN CO NSIDERED BY THE AO NOR BY THE CIT(A). THE CIRCUMSTANCES IT WAS CANVASSED THE OCCASION TO STAY IN LOUD OR KNOW THE WHEREABOUTS OF THE SAID LADY WAS NOT NECESSARY. COPY OF THE RELEVANT BANK ACCOUNT DEMONSTRATING THAT AN AMOUNT OF RS.4,50,000/ - WAS CREDITED ON 15.10.2008 AND 17.11.2008 HAS NOT BEEN CONSIDERED. ACCORDINGLY IT WAS HIS PRAYER THAT IN THE FACTS OF THE PRESENT CASE THE ASSESSEE HAS NOT BEEN MET WITH JUSTICE AND INFACT INJUSTICE HAS OCCURRED NOT ONLY ON THE PART OF THE AO BUT ALSO THE CIT(A). SIM ILAR WAS THE POSITION IT WAS SUBMITTED QUA THE REMAINING ISSUES ALSO. IT WAS CONCLUDED THAT EVEN THE COUNSEL REPRESENTING THE ASSESSEE NO DOUBT DID NOT CARE T O ADDRESS THE FACTS THAT THE OTHER SUPPORTING EVIDENCES IN SUPPORT OF THE SALE OF GOLD RING AND SILVER UTENSILS AND PERSONAL EXPENSES COULD HAVE BEEN OBTAINED. A CCORDINGLY IN THE INTERESTS OF JUSTICE, IT WAS HIS PRAYER THAT THE ISSUE MAY BE RESTORED TO THE AO. 6 .1. LD. SR. DR, MR. P.DAM KANUNJNA ADDRESSING THE PAPER BOOK FILED INCLUDING THE LETTER ADDRESSED TO THE AO SUPPORTED BY THE COPY OF BANK ACCOUNT EVIDENCING T HE REPAYMENT TO SMT. MANI JAIN OF RS .4,50,000/ - COULD NOT REBUT THE ARGUMENT THAT THESE FACTS HAVE BEEN CONSIDERED IN THE ORDER OF THE TAX AUTHORITIES . ACCORDINGLY HE HAD NO OBJECTION IF THE ISSUE IS RESTORED BACK TO THE AO . I.T.A .NO. - 6821/ DEL/201 4 PAGE 3 OF 3 6 .2. ACCORDINGLY HAVING HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD, I AM OF THE VIEW THAT IN THE PECULIAR FACTS AND CIRCUMSTANCES OF THE CASE AND IN THE INTERESTS OF SUBSTANTIAL JUSTIC E, IT IS APPROPRIATE TO SET ASIDE THE IMPUGNED ORDER AND RESTORE THE ISSUE BACK TO THE FILE O F THE AO TO CONSIDER THE EVIDENCE IN SUPPORT OF THE CLAIM MADE THAT THE LOAN WAS RE TURNED BACK TO SMT. MANI JAIN. KEEPING IN MIND THE FACT THAT THE ASSESSEE ADMITTEDLY WAS NOT IN A POSITION TO PRODUCE THE SAID LADY. SIMILARLY THE ASSESSEE IS ALSO GRANTED LIBERTY TO FILE EVIDENCE S IN SUPPORT OF ITS CLAIM OF SALE OF ITEMS WHICH WERE NOT PLACED ON RECORD BY THE COUNSEL REPRESENTING THE ASSESSEE IN T HE PENALTY PROCEEDINGS . SIMILARLY ANY OTHER EVIDENCE IN SUPPORT OF THE ADDITION FOR CASH LOAN AND PERSONAL EXPENSES ETC. NOT ATTRACTING PENAL ACTION THE ASSESSEE WOULD BE AT LIBERTY TO PLACE THESE EVIDENCES. AS THE ASSESSEE CANNOT BE ALLOWED TO SUFFER FO R THE FAULTS OF THE COUNSEL. THE AO ACCORDINGLY IS DIRECTED TO PASS A SPEAKING ORDER IN ACCORDANCE WITH LAW AFTER GIVING THE ASSESSEE A REASONABLE OPPORTUNITY OF BEING HEARD IN TERMS OF THE ABOVE ORDER . THE SAID ORDER WAS PRONOUNCED ON THE DATE OF HEARING ITSELF IN THE OPEN COURT. 7 . IN THE RESULT, THE APPE AL OF THE ASSESSEE IS ALLOWED. THE ORDER IS PRONOUNCED IN THE OPEN COURT ON 1 1 T H OF DECEMBER, 2015. S D / - (DIVA SINGH) JUDICIAL MEMBER DATED: 1 1 /12 /2015 * AMIT KUMAR * COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR ITAT NEW DELHI