SHRI MUFTI MOHAMMAD SHUJA-UD-DIN, SRINAGAR V. INCOME TAX OFFICER, WARD -3(2), JAMMU & KASHMIR

ITA 720/ASR/2017

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 1433 (ITAT-AMRITSAR)
• Duration Of Justice: 9 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-09-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 28-08-2018
• Assessment Year: 2008-2009
• Appeal Filed On: 28-11-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: GAUTAM DE B LD
• Keywords: Income from undisclosed sources

Judgement Text

IN THE INCOME TAX APPELLATE T RIBUNAL AMRITSAR BENCH, AMRITSAR BEFORE SH. SANJAY ARORA, ACCOUNTANT MEMBER AND SH. N.K.CHOUDHRY, JUDICIAL MEMBER ITA NO.720(ASR)/2017 ASSESSMENT YEAR:2008-09 SH. MUFTI MOHAMMAD SHUJA-UD-DIN, S/O. LATE RASHID-UD-DIN, R/O. HYDERPORA, SRINAGAR (J&K) [PAN:ALAPM 8916E] VS. INCOME TAX OFFICER, WARD-3(2), SRINAGAR, (J&K) (APPELLANT) (RESPONDENT) APPELLANT BY: WRITTEN SUBMISSION RESPONDENT BY: SH. GAUTAM DEB (LD. DR) DATE OF HEARING: 28.08.2018 DATE OF PRONOUNCEMENT: 07.09.2018 ORDER PER N.K.CHOUDHRY, JM: THE INSTANT APPEAL HAS BEEN PREFERRED BY THE ASSESSEE/APPELLANT, ON FEELING AGGRIEVED AGAINST THE OR DER DATED 20.09.2017 PASSED BY THE LD. CIT(A)-2, JALANDHAR, U/S. 250(6) OF THE I.T. ACT, 1961 (HEREINAFTER CALLED AS THE ACT). 2 . THE FOLLOWING GROUNDS OF APPEAL RAISED BY THE ASSESSE E. 1. THAT THE ORDER PASSED BY THE C.I.T (APPEALS) O N 20-09- 2017, WAS RECEIVED BY THE APPELLANT ON 11-10-2017, FOR DIE ASSESSMENT YEAR 2008-09. THE APPELLANT DISPATCHED D IE APPEAL ON 24.11.2017, HENCE TO BE SAID THAT DIE APPEAL HAS BEEN FILED WITHIN THE TIME ALLOWED UNDER LAW. 2. THAT THE ASSESSING OFFICER AND LD. C.I.T (APPE ALS), WERE UNJUSTIFIED TO THE APPELLANT BY PASSING DIE ORDER A PPELLATE ORDER IN HASTE, WITHOUT PROVIDING THE REQUISITE OPPORTUNI TY OF BEING ITA NO.720/ASR/2017 MUFTI MOH AMMAD SHUJA-UD-DIN V. ITO 2 HEARD TO DIE APPELLANT AND SUBMIT HIS RESPONSE, FOR THE ASSESSMENT YEAR 2008-09. 3. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, BOTH THE ASSESSING OFFICER AND LD. C.I.T (APPEALS) WERE NOT JUSTIFIED IN MAKING /CONFIRMING THE ADDITION OF RS.8,29,769/-, B Y TREATING THE DEPOSITS IN SAVING ACCOUNT AT RS.8,00,000/-, AS INC OME FROM UNDISCLOSED SOURCES AND RS.29,769/- AS UNDISCLOSED INTEREST INCOME, AND ADDED BACK THE SAME TO THE RETURNED INC OME OF RS.46,648/-, HENCE ASSESSED DIE INCOME OF THE APPEL LANT AT RS.8,79,417/-. IT IS THEREFORE PRAYED TO YOUR HONOU R, THAT THE ADDITION MADE BY DIE ASSESSING OFFICER AND CONFIRME D BY DIE LD. C.I.T (APPEALS) AT RS.8,00,000/-, IS UNJUSTIFIED AN D UNWARRANTED BY LAW, MAY KINDLY BE DELETED /QUASHED. 4. DURING THE APPEAL PROCEEDINGS, DUE TO TURMO IL IN KASHMIR VALLEY AND APPELLANT BEING A SUPER SENIOR CITIZEN ( SPENDS MOST OF THE TIME IN HOSPITAL BECAUSE OF HIS MENTAL ILLNE SS) COULDN'T ATTEND THE HEARING BEFORE THE APPELLATE AUTHORITY A ND THE C.I.T (APPEALS) WAS HARSH ON THE APPELLANT BY NOT PROVIDI NG DIE ADEQUATE OPPORTUNITIES OF BEING HEARD. IT IS THEREF ORE PRAYED TO YOUR HONOUR TO KINDLY REFER THE CASE BACK TO C.I.T (APPEALS) OR JURISDICTIONAL ASSESSING OFFICER SO THAT REQUISITE DOCUMENTARY EVIDENCE COULD BE PRODUCED. 5. THE APPELLANT PRAYS FOR SET ASIDE OF ASSESS MENT ORDER. 3. ALTHOUGH, THE FACTS OF THE CASE ARE ALREADY ON RECORD, H OWEVER, RELEVANT FACTS FOR THE DISPOSAL OF THIS APPEAL AS STATED BY THE ASSESSEE ARE THAT THE APPELLANT IS A SUPER SENIOR CITIZEN, AND W AS A DOCTOR BY PROFESSION AND HAD WORKED ABROAD FOR TWO DECADES, IN UN ITED KINGDOM & SAUDHI ARABIA (KSA) AND RETURNED TO INDIA IN THE YEAR 2002-03 BECAUSE THE APPELLANT HAD MET WITH A MAJOR ACCIDENT AND LOST HIS MENTAL AND PHYSICAL CONSCIOUS SEVERELY, FURTHERMORE THE A PPELLANT HAS NO SOURCE OF INCOME IN INDIA BECAUSE HE HAS NOT RENDERED ANY SERVICES FROM THE TIME WHEN HE RETURNED TO INDIA. DURING THE COURSE OF THE ASSESSMENT PROCEEDINGS, THE NOTICES SERVED BY THE ASSESSING OFFICER WERE RECEIVED LATE DUE TO THE TURMOIL IN THE KASHMIR AND IN THE SAME YEAR, THE APPELLANT HA S MET ANOTHER ACCIDENT DUE TO WHICH HE WAS UNCONSCIOUS FOR MANY MONTHS, T HEREFORE, THE APPELLANT WAS NOT ABLE TO MAKE COMPLIANCE TO THE NOTICES SERVED ITA NO.720/ASR/2017 MUFTI MOH AMMAD SHUJA-UD-DIN V. ITO 3 BY THE ASSESSING OFFICER. ALSO DUE TO THE APPELLANTS HEAL TH PROBLEMS, HE COULDNT CONSULT ANY COUNSEL TO DISCUSS THE CASE, THEREFOR E, THIS WAS ALSO A REASON FOR NON-COMPLIANCE TO THE NOTICES ISSUED BY THE ASSESSING OFFICER. ALTHOUGH, THESE FACTS HAVE BEEN BROUGHT TO THE ASSESSING OFFICER, HOWEVER, THE ASSESSING OFFICER DID NOT CONSIDER T HE HEALTH CONDITION OF THE APPELLANT AND ALSO DID NOT PROVIDE SUFFICIENT OPPORTUNITIES AND COMPLETED THE ASSESSMENT U/S 143(3)/147 ON DATED 23.03.2016 AND ASSESSED THE INCOME OF THE APPELLANT AT RS.8,79,417/- BY TREATING THE DEPOSIT OF RS. 8,00,000/- ONLY DEPOSIT ED DURING THE ALL YEAR IN THE BANK ACCOUNT AS INCOME FROM UNDISCLOSED SOURCES F OR THE ASST. YEAR: 2008-09. 4. AGGRIEVED BY THE ASSESSMENT ORDER, THE ASSESSEE PREFERRE D THE APPEAL BEFORE THE LD. CIT(A)-2, JALANDHAR, AND THE LD. CIT(A) UPHELD THE ORDER OF THE ASSESSING OFFICER BY OBSERVING AS UNDER: 4.3 I HAVE GONE THROUGH THE ORDER PASSED BY THE AO, SUBMISSIONS MADE BY THE APPELLANT AND FIND THAT AN ADDITION OF RS.8,00,000 HAS BEEN MADE BY THE AO ON ACCOUNT O F CASH DEPOSITS MADE IN THE SAVINGS BANK ACCOUNT. THE APPE LLANT HAS EXPLAINED THAT THIS AMOUNT WAS RECEIVED FROM HIS SI STER AS HIS SHARE IN THE ANCESTRAL PROPERTY. THE APPELLANT HAS ALSO FILED AN AFFIDAVIT TO THIS EFFECT WHICH IS SIGNED BY HIS SISTER MS. MAHMOODA LAIQ STATING THAT AN AMOUNT OF RS.8,00,000 WAS GIVEN TO THE APPELLANT AS HIS SHARE IN THE PROPERTY . 4.4. THE APPELLANT HAS SUBMITTED SAME ARGUMENTS IN THE COURSE OF PRESENT PROCEEDINGS AND RELIED UPON THE C ONTENTION MADE BEFORE THE AO. IT IS STATED THAT AFFIDAVIT COU LD NOT BE FILED BEFORE THE AO AND IS NOW SUBMITTED. 4.5. HAVING CONSIDERED THE SUBMISSIONS MADE IN THIS REGARD, I FIND THAT NO EVIDENCE HAS BEEN PLACED ON RECORD IN THE COURSE OF PRESENT PROCEEDING WITH REGARD TO THE RECEIPT OF SALE PROCEEDS SO AS TO SUBSTANTIATE THE DISPOSAL OF FAMILY PROPERTY. THERE IS NO EVIDENCE AS TO WHICH PROPERTY HAS BEEN SOLD AND ON WHAT BASIS THE AMOUNT HAS BEEN DIVIDED BY THE FAMILY MEMBERS. THE AFFIDAVIT OF THE SISTER IS FOUN D TO BE NOT ITA NO.720/ASR/2017 MUFTI MOH AMMAD SHUJA-UD-DIN V. ITO 4 CONTAINING ANY DETAILS AND IS OF NO USE TO THE APPE LLANT AS THE SOURCES OF FUNDS HAVE NOT BEEN BROUGHT OUT OR EXPLA INED WITH EVIDENCE. THUS, I HOLD THAT APPELLANT HAS NOT BEEN ABLE TO SUBSTANTIATE THE SOURCES OF DEPOSITS OF CASH IN THE BANK ACCOUNT. ACCORDINGLY, I CONFIRM THE ADDITION OF RS .8,00,000 MADE BY THE AO UNDER THIS HEAD. 5. FEELING AGGRIEVED AGAINST THE ORDER PASSED BY THE LD . CIT(A), THE ASSESSEE PREFERRED THE INSTANT APPEAL. FROM THE MED ICAL REPORT SUBMITTED BY THE APPELLANT, IT IS CLEAR THAT THE APPE LLANT WAS SUFFERING FROM VARIOUS MENTAL AND PHYSICAL ILLNESS AND THAT SEEMS T O BE GENUINE REASON FOR NOT ATTENDING THE ASSESSMENT AS WELL AS APPELLA TE PROCEEDINGS IN PROPER AND EFFECTIVE MANNER. IT IS ALSO A FACT THAT THE ASSESSEE IS AGED ABOUT 72 YEARS AND HAVING ONLY WIFE WHO IS ALSO A CANCER PATIENT AND DUE TO REGULAR ILLNESS, THE ASSESSEE IS U NABLE TO WORK AND DEPENDS UPON ONLY SOURCE OF INCOME I.E. INTERE ST INCOME. ALTHOUGH, IT WAS SUBMITTED BEFORE THE ASSESSING OFFICER A S WELL AS THE CIT(A) THAT DURING THE TIME WHEN THE ASSESSEE WAS IN ABR OAD, HIS RELATIVES SOLD THE ANCESTRAL PROPERTY IN HIS ABSENCE AND AFTER RETURNING TO INDIA, HIS RELATIVES GIVE HIM SHARE IN SMALLER CASH DE NOMINATIONS THAT TOO AFTER A LOT OF LITIGATIONS WITH THEM AND DU E TO BEDRIDDEN OF THE APPELLANT FOR SEVERAL MONTHS, HIS WIFE KEPT THE CASH WHI CH WAS RECEIVED FROM APPELLANTS SISTER NAMELY MRS. MAHMUDA LA IQ IN HER SUPERVISION AND THE APPELLANT AFTER GAINING SOME CONSCIOU SNESS, DEPOSITED THE CASH IN THE BANK ACCOUNT FOR SAFE KEEPING. ALTHOUGH THE COPY OF AFFIDAVIT OF THE APPELLANTS SISTER MRS. MAHMUD A LAIQ WAS ALSO FILED BEFORE THE LD. CIT(A), HOWEVER, NOT YIELDED A NY RESULT. CONSIDERING THE MEDICAL CONDITION OF THE APPELLANT AS G ENUINE AND ON THE AFORESAID CONSIDERATIONS AND DELIBERATIONS, WE ARE O F THE VIEW THAT THE ASSESSEE COULD NOT AVAIL THE PROPER AND REASONABLE OP PORTUNITIES TO ATTEND THE ASSESSMENT AS WELL THE APPELLATE PROCEEDIN GS DUE TO HIS HEALTH PROBLEMS AND OTHER EXTRANEOUS CIRCUMSTANCES, THER EFORE, WE FEEL IT APPROPRIATE TO SET ASIDE THE ORDERS PASSED BY T HE AUTHORITIES ITA NO.720/ASR/2017 MUFTI MOH AMMAD SHUJA-UD-DIN V. ITO 5 BELOW AND REMAND THE CASE TO THE FILE OF THE ASSESSING O FFICER TO DECIDE AFRESH WHILE GIVING REASONABLE OPPORTUNITIES OF BEING HEARD TO THE ASSESSEE/APPELLANT. 6 . IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLO WED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 07.09.2018. SD/- SD/- (SANJAY ARORA) (N.K.CHOUDHRY) ACCOUNTANT MEMBER JU DICIAL MEMBER DATED:07.09.2018 /PK/ PS. COPY OF THE ORDER FORWARDED TO: (1) SH. MUFTI MOHAMMAD SHUJA-UD-DIN, S/O. LATE RA SHID-UD-DIN, R/O. HYDERPORA, SRINAGAR (J&K) (2) THE ITO, WARD-3(2), SRINAGAR (J&K) (3) THE CIT(A)-2, JALANDHAR (4) THE CIT CONCERNED (5) THE SR DR, I.T.A.T., AMRITSAR TRUE COPY BY ORDER