LATE SMT. SEEMA MUKHERJEE, Jaipur V. ITO, Jaipur

ITA 693/JPR/2016

• Counselvise Citation: [2018] 126 COUNSELVISE.COM (IT) 2066 (ITAT-JAIPUR)
• Duration Of Justice: 1 year(s) 8 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-03-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: Not Allotted
• Assessment Year: 2006-2007
• Appeal Filed On: 27-06-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SHANMUGA PRIYA
• Assessee Lawyers: PRAVIN SARASWAT
• Keywords: Period of limitation; Additional evidence; Condonation of delay

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHE S, JAIPUR JH FOT; IKY JKO] U;KF;D LNL; ,OA JH HKKXPAN] YS[KK L NL; DS LE{K BEFORE: SHRI VIJAY PAL RAO, JM & SHRI BHAGCHAND, A M VK;DJ VIHY LA- @ ITA NO. 693/JP/2016 FU/KZKJ.K O'K Z @ ASSESSMENT YEAR : 2006-07 LATE SMT. SEEMA MUKHERJEE LEGAL HEIR ALOK MUKHERJEE & AROOP MUKHERJEE HATHI BABU KA BAGH, STATION ROAD, JAIPUR. CUKE VS. THE ITO, WARD-3(2), JAIPUR. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO.: ACTPM 0161 H VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ L S@ ASSESSEE BY : SHRI PRAVIN SARASWAT (C.A.) JKTLO DH VKSJ LS @ REVENUE BY : SRI SHANMUGA PRIYA (JCIT) LQUOKBZ DH RKJH[ K@ DATE OF HEARING : 28/02/2018 MN?KKS'K.KK DH RKJH[ K@ DATE OF PRONOUNCEMENT: 06/03/2018 VKNS'K@ ORDER PER: VIJAY PAL RAO, J.M. THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST TH E ORDER DATED 08.02.2016 OF CIT (A), JAIPUR FOR THE ASSESSMENT YE AR 2006-07. THERE IS A DELAY OF 39 DAYS IN FILING THE PRESENT APPEAL. TH E ASSESSEE HAS FILED AN APPLICATION FOR CONDONATION OF DELAY WHICH IS SU PPORTED BY AN AFFIDAVIT. ITA NO.693/JP/2016 LATE SEEMA MUKHERJEE VS. ITO 2 2. WE HEARD LD. AR AS WELL AS LD DR ON CONDONATION OF DELAY IN FILING THE APPEAL. THE LD. AR OF THE ASSESSEE HAS SUBMITTE D THAT THE ASSESSEE WAS SUFFERING FROM SERIOUS ILLNESS DURING THE MONTH OF MAY AND JUNE, 2016 AND THEREFORE, THE PRESENT APPEAL COULD NOT BE FILED WITHIN THE PERIOD OF LIMITATION WHICH HAD EXPIRED ON 19.05.201 6. HE HAS THUS PLEADED THE DELAY IN FILING THE PRESENT APPEAL MAY BE CONDONED. ON THE OTHER HAND LD. DR VEHEMENTLY OPPOSED TO THE CONDONA TION OF DELAY AND SUBMITTED THAT THE ASSESSEE HAS NOT PRODUCE THE SUP PORTING EVIDENCE ABOUT THE ILLNESS OF THE ASSESSEE. IN REJOINDER THE LD. AR OF THE ASSESSEE HAS SUBMITTED THAT THE ASSESSEE ISSTILL HOSPITALIZE D IN THE ICU AND IF THE BENCH PERMITS HE CAN FILE THE MEDICAL RECORD OF THE ASSESSEE. 3. HAVING CONSIDERED THE RIVAL SUBMISSIONS AS WELL AS RELEVANT MATERIAL ON RECORD WE ARE SATISFIED WITH THE EXPLAN ATION AS THE ASSESSEE THAT THE CAUSE OF DELAY AS STATED BY THE ASSESSEE I N THE AFFIDAVIT CANNOT BE DISBELIEVED WHEN THE ASSESSEE IS STILL HOSPITALI ZED. ACCORDINGLY, IN THE INTEREST OF JUSTICE WE CONDONE THE DELAY OF 39 DAYS IN FILING THE PRESENT APPEAL. 4. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS:- 1. THAT THE ORDER OF THE LEARNED CIT(A) IS AGAINST THE FACTS & LAW OF THE CASE. ITA NO.693/JP/2016 LATE SEEMA MUKHERJEE VS. ITO 3 2. THAT THE LEARNED CIT(A) HAS NOT PROVIDED PROPER OPPORTUNITY FOR HEARING AS THE ALLEGED NOTICES ISSUED ON 14.08. 2015, 12.10.2015 AND 20.01.2016 HAS NOT BEEN PROPERLY SER VED TO LEGAL HEIRS OF DECEASED ASSESSEE. 3. THAT THE LEARNED CIT(A)/A.O. HAS ERRED FOR NOT C ONSIDERING THE FACT THAT ISSUANCE OF NOTICE WAS ILLEGAL AND NOT JU STIFIED AS THERE WAS NO ESCAPEMENT OF INCOME ON PART OF DECEASED ASS ESSEE, THE OPINION OF A.O. WAS BASED ON OF SURMISES AND CONJEC TURES. 4. THAT THE LEARNED CIT(A) HAS WRONGLY MADE DETERM INATION AND GIVEN HIS CONCURRENCE ON THE FINDINGS OF A.O. THAT DECEASED ASSESSEE IS LIABLE FOR PAYMENT OF CAPITAL GAIN TAX FOR THE PROPERTIES 53 & 53A OF SHUBRA ROY SOLD BY DECEASED ASSESSEE AS A POWER OF ATTORNEY HOLDER, MERELY ON BASIS OF IT T HAT LEGAL HEIRS HAS NOT PROVIDED ANY EVIDENCE FOR TRANSFER OF MONEY TO SAID SHUBRA ROY. THE LEARNED A.O. HAS TAKEN STATEMENT OF BUYER IN AB SENCE OF ASSESSEE AND COPY OF SAME HAS NOT BEEN PROVIDED, HE NCE HIS STATEMENT HAS NO COGNIZANCE. THE D.D. OF RS.5 LAC & 10 LAC WERE GIVEN IN NAME OF SHUBRA ROY AND PAYMENT OF RS.70 LA C (35+35) RECEIVED BY DECEASED ASSESSEE ON BEHALF OF OWNER OF PLOTS, SUBSEQUENTLY ON INSTRUCTIONS OF SHUBRA ROY AMOUNT W AS SENT TO HER AND OTHER PERSONS, WHICH IS EVIDENT FROM THE BA NK STATEMENT NOW AVAILABLE TO LEGAL HEIR FROM ICICI BANK (COPY E NCLOSED) THE A.O. HAS NOT ASKED ANY-THING FROM SHUBRA ROY ON THE ADDRESS PROVIDED BY LEGAL HEIR. NO DOUBT SUBHRA ROY IS DAUGHTER OF DECEASED AND HER LEGAL HEIR, BUT SHE HAS NOT PROVIDED ANY DETAILS IN-SPITE OF VA RIOUS REQUEST OF APPELLANT DUE TO UN-HAPPY RELATIONS. THUS DECEASED ASSESSEE IS NOT LIABLE FOR PAYMENT OF CAPITAL GAIN TAX ON ALLEGED PLOTS OF SHUBRA ROY. ITA NO.693/JP/2016 LATE SEEMA MUKHERJEE VS. ITO 4 5. THE LEARNED CIT(A) HAS NOT CONSIDERED THE GROUND THAT ASSESSMENT MADE IS ILLEGAL AS NOTICES TO ALL LEGAL HEIRS HAS NOT BEEN GIVEN INSTEAD OF EVIDENCE ON RECORD. THE LEARNED CIT(A) HAS WRONGLY STATED THAT ADDRESS OF SUBHRA ROY HAS NOT BEEN PROVIDED, WHILE IT WAS MENTIONED I N ASSESSMENT ORDER ITSELF, SEC. 2G2 BB IS NOT APPLICABLE. HENCE DISMISSAL OF GROUND IS NOT JUSTIFIED. 6. THE ASSESSEE CAN ADD, ALTER OR AMEND ANY GROUND OF APPEAR BEFORE HEARING. 5. THE ASSESSEE HAS ALSO FILED A PETITION FOR ADMIS SION OF ADDITIONAL EVIDENCE UNDER RULE 29 OF THE INCOME TAX APPELLATE TRIBUNAL RULES, 1963 WHEREBY THE ASSESSEE IS SEEKING FILING OF ADDI TIONAL EVIDENCE IN THE SHAPE OF BANK STATEMENT OF THE ASSESSEE AS WELL AS LATE SMT. SEEMA MUKHERJEE. 6. WE HAVE HEARD LD. AR AS WELL AS LD. DR AND CONS IDERED THE RELEVANT MATERIAL ON RECORD. THE ISSUE IN THE APPEA L OF THE ASSESSEE IS REGARDING ASSESSMENT OF CAPITAL GAIN, IN THE HAND O F THE DECEASED ASSESSEE WHO IS NOW REPRESENTED BY THE LEGAL HEIR, ARISING FROM SALE OF LAND IN THE CAPACITY AS A POWER OF ATTORNEY HOLDER. THE LD. AR HAS SUBMITTED THAT THE LAND BELONGS TO THE DAUGHTER OF THE ASSESSEE WHO IS RESIDING IN CALCUTTA AND THE ASSESSEE HAD POINTED OUT THIS FACT OF POWER OF ATTORNEY BEFORE THE AO AS WELL AS LD. CIT(A) HO WEVER, THE AUTHORITIES BELOW HAVE NOT ACCEPTED THE CONTENTION OF THE ASSES SEE AND ASSESSED ITA NO.693/JP/2016 LATE SEEMA MUKHERJEE VS. ITO 5 THE CAPITAL GAIN IN THE HAND OF THE ASSESSEE. THUS, THE LD. AR HAS SUBMITTED THAT THE ADDITIONAL EVIDENCE IS RELEVANT FOR ADJUDICATION OF THE ISSUE IN QUESTION. THE BANK STATEMENT REFLECTS THE AMOUNT OF CONSIDERATION WAS FINALLY TRANSFERRED IN THE ACCOUN T OF THE DAUGHTER OF THE ASSESSEE AND THEREFORE WHEN THE ASSESSEE WAS ON LY A POWER OF ATTORNEY AND ACTED ON BEHALF OF MISS SUBHRA ROY THE DAUGHTER OF THE DECEASED ASSESSEE THEN, THE CAPITAL GAIN IF ANY IS CHARGEABLE TO TAX THE SAME HAS TO BE ASSESSED IN THE HAND OF MISS SUBHRA ROY THE DAUGHTER OF THE DECEASED ASSESSEE. 7. ON THE OTHER HAND, LD. DR HAS OBJECTED TO THE AD MISSION OF EVIDENCE AND SUBMITTED THAT THE ASSESSEE DESPITE TH E SUFFICIENT OPPORTUNITIES GIVEN BY THE AUTHORITIES BELOW THE AS SESSEE HAS NOT PRODUCED THESE EVIDENCE BEFORE THE AO AS WELL AS LD . CIT(A). 8. HAVING CONSIDERED THE RIVAL SUBMISSIONS AS WELL AS RELEVANT MATERIAL ON RECORD WE NOTE THAT THE ADDITIONAL EVID ENCE SOUGHT TO BE PRODUCED BY THE ASSESSEE IS THE BANK STATEMENTS OF THE ASSESSEE, AS WELL AS MISS SUBHRA ROY THE DAUGHTER OF THE ASSESSE E WHEREIN THE TRANSACTIONS OF DEPOSIT OF THE SALE CONSIDERATION A ND THEN TRANSFER IN THE ACCOUNT OF THE DAUGHTER OF THE ASSESSEE ARE RECORDE D. THEREFORE, WHEN THE BANK ACCOUNT STATEMENT IS AN INDEPENDENT DOCUME NT AND THE ITA NO.693/JP/2016 LATE SEEMA MUKHERJEE VS. ITO 6 SCOPE OF MANIPULATION IS RULED OUT THEN, IN THE FAC TS AND CIRCUMSTANCES OF THE CASE WE ADMIT THE ADDITIONAL EVIDENCE FILED BY THE ASSESSEE. 9. WE FURTHER NOTE THAT THE ASSESSEE HAS CLAIMED BE ING A POWER OF ATTORNEY HOLDER OF HER DAUGHTER AND THEREFORE, THE TRANSACTION OF SALE WAS INDEED CARRIED OUT ON BEHALF OF THE OWNER OF TH E LAND BEING THE DAUGHTER OF THE ASSESSEE MISS SUBHRA ROY. THEREFORE , IF THE POWER OF ATTORNEY IN QUESTION DOES NOT GIVE THE ASSESSEES O WNERSHIP RIGHT THEN THE SALE DEED EXECUTED BY THE ASSESSEE WOULD NOT AM OUNT TO TRANSFER OF PROPERTY BY THE ASSESSEE BUT IT WOULD BE A TRANSACT ION OF TRANSFER BY ASSESSEES DAUGHTER. THE AUTHORITIES BELOW HAVE NOT EXAMINED ALL THESE FACTS PROPERLY IN THE LIGHT OF THE SETTLED PROPOSIT ION OF LAW. FURTHER, IF THE ENTIRE SALE CONSIDERATION WAS FINALLY RECEIVED BY THE DAUGHTER OF THE ASSESSEE THEN, THE MATTER REQUIRES AFRESH CONSIDERA TION AT THE LEVEL OF THE AO TO VERIFY AND EXAMINE ALL THESE ASPECTS AND FACTS. HENCE, IN THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN THE INTE REST OF JUSTICE WE SET ASIDE THE MATTER TO THE RECORD OF THE ASSESSING OFF ICER FOR ADJUDICATION OF THE MATTER AFRESH AFTER CONSIDERING THE ADDITION AL EVIDENCE FILED BY THE ASSESSEE. WE MAY CLARIFY THAT THE LEGAL ISSUE R AISED BY THE ASSESSEE REGARDING THE NOTICE WAS NOT ISSUED TO THE OTHER LE GAL HEIRS THE AO SHALL ITA NO.693/JP/2016 LATE SEEMA MUKHERJEE VS. ITO 7 ALSO CONSIDER THE SAME. HOWEVER, WE KEEP THIS ISS UE ALIVE AND LEAVE TO THE WISDOM OF THE AO. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 06/03/2018 SD/- SD/- HKKXPAN FOT; IKY JKO (BHAGCHAND) (VIJAY PAL RAO) YS[KK LNL;@ ACCOUNTANT MEMBER U;KF;D LNL;@ JUDICIAL MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 06/03/2018. * SANTOSH. VKNS'K DH IZFRFYFI VXZSFKR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT- LATE SMT. SEEMA MUKHERJEE, JAIPUR. 2. IZR;FKHZ@ THE RESPONDENT - ITO, WARD- 3(2), JAIPUR. 3. VK;DJ VK;QDR@ CIT 4. VK;DJ VK;QDR@ CIT(A) 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ@ DR, ITAT, JAIPUR. 6. XKMZ QKBZY@ GUARD FILE {ITA NO. 693/JP/2016} VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASST. REGISTRAR