Narender Kaur, Saharanpur V. ITO, Ward-3(3), Saharanpur

ITA 7000/DEL/2017

• Counselvise Citation: [2018] 121 COUNSELVISE.COM (IT) 5756 (ITAT-DELHI)
• Duration Of Justice: 7 month(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-06-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2009-2010
• Appeal Filed On: 22-11-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ASHIMA NEB
• Keywords: Opportunity of being heard
• Section: 131

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: SMC NEW DELHI BEFORE SMT. DIVA SINGH, JUDICIAL M EMBER ITA NO.-7000/DEL/2017 ( ASSESSMENT YEAR: 2009-10) NARENDER KAUR, W/O LT. SH. JASPAL SINGH, SOUTH CITY COLONY, DELHI ROAD, SAHARANPUR. ADLPK2779G VS ITO WARD 3(3) SAHARANPUR. ASSESSEE BY NONE REVENUE BY MS. ASHIMA NEB, SR. DR ORDER THE PRESENT APPEAL HAS BEEN FILED BY THE ASSESSEE, ASSA ILING THE CORRECTNESS OF THE ORDER DATED 29.08.2017 OF CIT(A)-MUZ AFFARNAGAR PERTAINING TO 2009-10 AY ON THE FOLLOWING GROUND: THAT THE ASSESSEE HAS TAKEN THE LOAN OF RS. 2,50,0 00/- FROM SMT. AJIT KAUR AND THE CONFIRMATION HAS ALREADY FILED. THE AFFIDAVIT OF AJIT KAUR IS ENCLOSED. SHE IS AN OLD LADY AGED MORE THAN 80 YEARS. SHE HAS SOLD THE GOLD AND DEPOSIT THE MONEY IN THE BANK ACCOUNT AND GIVEN THE CHEQUE TO N ARINDER KAUR. THE COPY OF BANK ACCOUNT HAS ALREADY FILED. NO NOTICE U/S 131 WAS GIVEN TO SMT. AJIT KAUR. THE ADDITIONS OF RS. 2,00,000/- IS ALSO CONFIRMED B Y THE CIT(APPEAL) IS ALSO NOT JUSTIFIED. IT IS, THEREFORE, REQUESTED TO KINDLY CONSIDER THE ABOVE FACTS AND ALLOW THE APPEAL OR IN THE ALTERNATIVE ANY OTHER SUITABLE RELIEF WHI CH YOUR HONOUR MAY DEEM FIT AND THE SAME MAY BE GRANTED. 2. AT THE TIME OF HEARING, NO ONE WAS PRESENT ON BEHALF OF THE ASSESSEE. THE APPEAL WAS PASSED OVER. IN THE SECOND ROUND ALSO, NO ONE WAS PRESENT, HOWEVER, ON CONSIDERING THE MATERIAL AVA ILABLE ON RECORD, IT WAS CONSIDERED APPROPRIATE TO PROCEED WITH TH E PRESENT APPEAL EX-PARTE QUA THE ASSESSEE APPELLANT ON MERITS AFT ER HEARING THE LD. SR. DR. 3. THE RELEVANT FACTS OF THE CASE ARE THAT THE ASSESSE E IN THE YEAR UNDER CONSIDERATION, AS PER PARA 2.1 WAS AN INDIVIDUAL DERIV ING INCOME FROM TUITIONS AND INTEREST ETC. A SPECIFIC PROPERTY, IT WAS N OTICED, HAD BEEN PURCHASED IN CO-OWNERSHIP WITH SMT. KULWANT KAUR A ND SMT. MANJEET KAUR. THE ASSESSEES SHARE OF INVESTMENT WAS EXPLAINED AS SOURCED FROM PAST SAVINGS TO THE EXTENT OF RS. 1,90,000/ -, RS. 2 LACS FROM LOAN RECEIVED BY CHEQUE FROM SMT. SARLA RANI AND A LOA N OF RS. DATE OF HEARING 18.04.2018 DATE OF PRONOUNCEMENT 27.06.2018 ITA-7000/DEL/2017 PAGE 2 OF 4 2.50 LAKH BY CHEQUE FROM SMT. AJIT KAUR. THE AO BROUGHT TO TAX AN AMOUNT OF RS. 2 LACS FROM THE STATED LOAN OF RS. 2.50 LACS A DVANCED BY SMT. AJIT KAUR ON THE GROUNDS THAT BEFORE THE DISBURSEM ENT OF THE SPECIFIC AMOUNT BY CHEQUE THERE WAS A CASH DEPOSIT OF RS. 2 LACS BY T HE SAID LADY FEW DAYS PRIOR TO THE ISSUANCE OF CHEQUE. THE A SSESSEE RELIED UPON THE AFFIDAVIT OF SMT. AJIT KAUR TO STATE THAT THE PRO POSED ADDITION WAS NOT WARRANTED ON FACTS. THE SPECIFIC NARRATION ON REC ORD, REPRODUCED BY THE ASSESSING OFFICER IS EXTRACTED HEREUNDER: THE ASSESSEE HAS TAKEN LOAN OF RS. 2,50,000/- FROM AJIT KAUR AND CONFIRMATION HAS ALREADY FILED. THE AFFIDAVIT OF AJIT KAUR IS ENCLOSED. SHE IS OLD LADY AGED MORE THAN 80 YEARS. SHE HAS SOLD THE GOLD AND DEPOSIT THE MONEY IN THE BANK ACCOUNT AND GIVEN THE CHEQUE TO N ARINDER KAUR. (EMPHASIS SUPPLIED) 4. ACCORDINGLY, IN VIEW THEREOF, ADDITION WAS MADE BY THE A O. THE ASSESSEE CARRIED THE ISSUE IN APPEAL BEFORE THE CIT(A) RE ITERATING THE SUBMISSIONS. IN THE ABSENCE OF DOCUMENTARY EVIDENCE SUP PORTING THE SALE OF GOLD, THE ADDITION MADE BY THE AO WAS AFFIRMED. 5. THE ASSESSEE IS IN APPEAL AGGRIEVED BY THE SAID ORDER. 6. THE LD. SR. DR RELIES UPON THE ORDERS OF THE AUTHORITIE S BELOW. HOWEVER, ON QUERY, WAS UNABLE TO STATE THE RELATIONSHIP O F THE ASSESSEE WITH THE THEN 80 YRS. OLD LADY SMT. AJIT KAUR. CONSIDERING THE PECULIAR FACTS & CIRCUMSTANCES OF THE CASE, I AM OF THE VIEW THAT IN THE INTEREST OF THE SUBSTANTIAL JUSTICE, IT WOULD BE APPROPRIATE TO SET ASIDE THE IMPUGNED ORDER AS THERE IS NO RELEVANT DISCUSSION ABOUT THE RELATIONSHIP AND THE FINANCIAL STATUS OF SMT. AJIT KAUR. THE LD. SR. DR HAS SUBMITTED THAT IT IS THE RESPONSIBILITY OF THE ASSESSE E TO PLACE THE NECESSARY FACTS AND EVIDENCES ON RECORD AND IN THE FACT S OF THE PRESENT CASE THE ASSESSEE HAS NOT EVEN CARED TO PUT IN AN AP PEARANCE BEFORE THE ITAT, ACCORDINGLY IT HAS BEEN HER PRAYER THAT THE APPEAL MAY N OT BE REMANDED AND IN CASE IT HAS TO BE REMANDED, IT MAY BE R EMANDED TO THE ASSESSING OFFICER AS FACTS WOULD NEED TO BE VERIFIED. TH E OBJECTION OF THE LD. SR. DR THAT REMAND MAY NOT BE DIRECTED HAS N OT BEEN ACCEPTED TAKING NOTE OF THE FACT THAT ADMITTEDLY THE TA X PAYER WIDOW OF LATE SH. JASPAAL SINGH AS PER THE ASSESSMENT ORDER ITSELF RELYING UPON TUITION INCOME ETC. MAY NOT HAVE HAD THE BENEFIT OF APPROP RIATE ADVISE. CONSIDERING THE FACT THAT ON 19.01.2009 SMT. AJIT KAUR WHO WAS DESCRIBED AS 80 YR. OLD AT THE RELEVANT POINT OF TIME HAS CLAIMED THAT ITA-7000/DEL/2017 PAGE 3 OF 4 SHE HAS SOLD JEWELLERY AND FILES AN AFFIDAVIT IN SUPPORT THE REOF. THIS EXPLANATION CANNOT BE DISCARDED PURELY ON SUSPICIONS. AT BEST THE TAX AUTHORITIES COULD HAVE SOUGHT TO VERIFY THE FINANCIAL STATU S OF THE SAID LADY AND THE RELATIONSHIP OF THE PRESENT TAX PAYER WITH T HE SAID LADY. I AM DOUBTFUL WHETHER SMT. AJIT KAUR WOULD HAVE HAD THE FOR ESIGHT TO RETAIN THE NECESSARY EVIDENCES IN SUPPORT OF THE CLAIM OF SALE OF THE JEWELLERY. THE OBSERVATION IS MADE KEEPING IN MIND THE REA LITY OF THE MARGINAL TAX PAYERS AND THEIR LACK OF AWARENESS OFTEN NO TICED IN SUCH SIMILAR TYPE OF CASES. THE TAX AUTHORITIES NEED TO CARRY OUT A CONCERTED CAMPAIGN TO EDUCATE THE TAXPAYERS TO RETAIN PRIMARY DO CUMENTS OF FINANCIAL TRANSACTIONS WHICH ON BEING QUESTIONED WOULD NEED TO BE SUPPORTED BY DOCUMENTARY EVIDENCES. I HAVE NOTICED TH AT THE SOCIAL MILEU WHICH THE TAXPAYER REPRESENTS, OFTEN IS GROSSLY IGNO RANT OF THE NITTY GRITTIES OF LAW AND IS UNAWARE OF THE IMPORTANCE AND NEED FOR HAVING AND RETAINING DOCUMENTARY EVIDENCE AS OFTEN THEY ARE NOT A WARE ABOUT THE SANCTITY OF DOCUMENTARY EVIDENCES TO BE RETA INED FOR SUPPORTING THEIR GENUINE LEGITIMATE CLAIMS. I HAVE NOTICED THAT DUE TO THESE IGNORANCES, THEIR EXPERIENCE WITH LAW AND ADMINISTRA TIVE FUNCTIONARIES IS UNFORTUNATELY BITTER AND SUSPICIOUS. ADEQUA TE STEPS NEED TO BE TAKEN ADMINISTRATIVELY TO EDUCATE THE ASPIRA TIONAL INDIA TO BECOME SAVVY AND ALIVE TO THE NEEDS THAT EVERY FINANCIAL TRANSACTION IF QUESTIONED, NEEDS TO BE SUPPORTED BY DOCUMENTARY EVIDENCES AN D MERE STATEMENTS OF TRUTHFUL EVENTS BY ITSELF BECOMES MEANINGLE SS IN THE ABSENCE OF SUPPORTING DOCUMENTS. THE IGNORANT AND INNOC ENT MARGINAL TAX PAYERS AS YET HAVE NOT BEEN EXPOSED TO T HE CYNICISM OF DISTRUST WHICH PERVADES THE ADMINISTRATIVE AND QUASI JUDIC IAL AUTHORITIES. 6.1 ACCORDINGLY, KEEPING THE REALITIES OF THE TIME IN MIND AN D THE REALITIES OF THE TAX PAYERS VIZ-A-VIZ THE LEGAL REQUIREMENTS , I DEEM IT APPROPRIATE IN THE PECULIAR FACTS OF THE PRESENT CASE TO SET ASIDE THE IMPUGNED ORDER BACK TO THE FILE OF THE AO WITH A DIRECTION TO ADDRESS THE FINANCIAL STATUS OF SMT. AJIT KAUR AT THE RELEVANT POINT OF TIME AND HER RELATIONSHIP WITH THE TAXPAYER AND NOT NECESSARILY T O INSIST ON SUPPORTING DOCUMENTARY EVIDENCES WHICH THE LADY, IF ALIVE, MAY NOT HAVE RETAINED. THE AO SHALL, ACCORDINGLY, IN THE LIGHT OF THE ABOVE DIRECTIONS VERIFY THE ASSERTIONS IN THE AFFIDAVIT AND PASS A SPEAKING ORDER IN ACCORDANCE WITH LAW AFTER GIVING THE ASSESSEE A REASONABLE ITA-7000/DEL/2017 PAGE 4 OF 4 OPPORTUNITY OF BEING HEARD. IT IS HOPED THAT THE OPPOR TUNITY SO PROVIDED IS NOT ABUSED BY THE ASSESSEE AND FULL AND COMP LETE FACTS ARE PLACED ON RECORD IN SUPPORT OF ITS CLAIM. PERMISSION TO P LACE ANY EVIDENCE, THE ASSESSEE MAY HAVE IN HER POSSESSION, IS GRA NTED WHICH THE AO IS DUTY BOUND TO CONSIDER BEFORE PASSING OF THE ORDER. 7. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 27.06.2018. SD/- (DIVA SINGH) JUDICIAL MEMBER *KAVITA ARORA/POONAM(CHD) COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT 6. TRUE COPY ASSISTANT REGISTRAR ITAT NEW DELHI