Sh. Rattan Dhir, Jammu V. The Income-tax Officer, Jammu

ITA 740/ASR/2014

• Counselvise Citation: 74020914 RSA 2014
• Duration Of Justice: 1 year(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-12-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2005-2006
• Appeal Filed On: 11-12-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: K V K SINGH
• Assessee Lawyers: M K KAUL
• Keywords: Opportunity of being heard
• Section: 148; 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH, AMRITSAR (JAMMU CAMP; JAMMU ) BEFORE SH. A.D.JAIN, HONBLE JUDICIAL MEMBER AND SH. T.S.KAPOOR, HONBLE ACCOUNTANT MEMBER I.T.A NO.740(ASR)/2014 ASSESSMENT YEARS: 2005-06 SMT. RATTAN DHAR FLAT NO.8B, DREAMLAND COOP. HOUSE BUILDING SOCIETY, SECTOR 1A, TRIKUTA NAGAR, JAMMU. PAN: BBAPD006TJ VS. THE INCOME TAX OFFICER, WARD 1(3), JAMMU. (APPELLANT) (RESPONDENT) APPELLANT BY: SH. M.K. KAUL (CA) RESPONDENT BY: SH. K.V.K. SINGH (DR.) DATE OF HEARING: 03.12.2015 DATE OF PRONOUNCEM ENT: 22.12.2015 ORDER PER T.S.KAPOOR (A.M): THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER OF LEARNED CIT(A), JAMMU, DATED 17.09.2014. THE ASSESSEE IN IT S ORIGINAL APPEAL HAD TAKEN FIFTEEN GROUNDS OF APPEAL AND WERE IN DESCRIP TIVE FORM, THEREFORE, ASSESSEE WAS ADVISED TO FILE CONCISE GROUNDS OF APP EAL WHICH HE HAD FILED AND HAS TAKEN TEN GROUNDS OF APPEAL. 2. THE BRIEF FACTS AS NOTED IN ASSESSMENT ORDER ARE THAT ASSESSING OFFICER RECEIVED INFORMATION FROM ADIT JAMMU THAT THE ASSES SEE HAD PURCHASED A FLAT 2. ITA NO.74 0(ASR)/2014 ASST. YEAR 200 5-06 IN DREAMLAND COOPERATIVE HOUSING BUILDING SOCIETY, JAMMU FOR RS.20,50,000/- THEREFORE, THE CASE OF THE ASSESSEE WAS REOPENED U/S 148 AND NOTICE WAS SERVED UPON THE ASSESSEE THROUGH AFFIXTU RE, AS THE NOTICE COULD NOT BE SERVED IN ORDINARY COURSE DESPITE REPEATED EFFOR TS AS THE FLAT WAS FOUND LOCKED. THE ASSESSEE DID NOT APPEAR BEFORE ASSESSIN G OFFICER THEREFORE, THE ASSESSMENT ORDER WAS COMPLETED UNDER THE PROVISIONS OF SECTION 144 AND ADDITION OF RS.20,50,000/- BEING THE PAYMENT MADE B Y ASSESSEE FOR PURCHASE OF FLAT WAS MADE. AGAINST THE ASSESSMENT ORDER THE ASSESSEE FILED APPEAL BEFORE THE CIT(A), HOWEVER, BEFORE THE LEARNED CIT(A) ALSO DESPITE VARIOUS NOTICES, THE ASSESSEE OR HER COUNSEL DID NOT APPEAR. THE LEARNED COUNSEL HAS UPHELD THE ACTION OF ASSESSING OFFICER BY HOLDING AS UNDER: THE APPELLANT HAS SUBMITTED THAT THE FLAT WAS PUR CHASED FOR RS. 11.75 LAKH ONLY I.E. ITS REGISTERED VALUE AND THE PAYMENT OF R S. 9.75 LAKH WAS MADE BY CHEQUE IN THE ASSESSMENT YEAR 2005-06 AND RS 20.50 LAKHS WAS PAID BY CHEQUE IN 2006-07. THE APPELLANT HAS SUBMITTED THAT THE IN VESTMENT WAS MADE OUT OF HER SAVINGS AND CONTRIBUTION FROM DAUGHTER AND HUSB AND. I HAVE GONE THROUGH THE STATEMENT OF FACTS SUBMITTED BEFORE ME BY THE A PPELLANT, ASSESSMENT ORDER AND OTHER RECORDS. IT IS OBSERVED THAT ASSESSMENT W AS FAUNA IN THE COURSE OF SEARCH IN WHICH THE DETAILS OF PAYMENTS MADE BY VAR IOUS PERSON WHO HAVE PURCHASED FLATS IN THE DREAMLAND HOUSING SOCIETY AT TRIKUTA NAGAR IS GIVEN. FROM THE SAID DOCUMENT, IT IS FOUND THAT,46 PERSONS HAVE INVESTED IN DREAMLAND COOPERATIVE HOUSING BUILDING SOCIETY AND BOOKED FLA TS OF VARIOUS SIZES FOR WHICH PAYMENTS AT VARIES WERE RECEIVED FROM THE INVESTORS . THIS STATEMENT CLEARLY SHOWS THE BLOCK NO, FLOOR, DATE OF ACQUISITION, DUE DATE OF PAYMENTS, CONSIDERATION AMOUNT, AMOUNT RECEIVED IN CHEQUE AND AMOUNT RECEIVED IN CASH AND BALANCE IF ANY. THE DOCUMENTS CANNOT BE BRUSHED ASIDE BECAUSE IT HAS BEEN DRAWN VERY METICULOUSLY WITH MINUTEST DETAILS. THE APPELLANT IN AGREEING TO HAVE MADE PAYMENTS APPEARING IN THE CHEQUE PAYMENTS RECE IVED COLUMN OF SALE DEED 3. ITA NO.74 0(ASR)/2014 ASST. YEAR 200 5-06 (WHICH TALLIES) AND THEREFORE, I FIND NO REASON TO DISREGARD THE CASH RECEIVED OR THE RECEIVABLE PAYMENTS IN THE SAID PAPER. EVEN THE FLA T NO MENTIONED ON THE SAID DOCUMENT BELONGS TO THE APPELLANT. IF HALF CONTENTS OF THE PAPER IS CORRECT THEN THE ANOTHER HALF CANNOT BE QUESTIONED TO THE FABRICATED . IT IS TO MENTION THAT IN THIS SEARCH OPERATION ONE, SH. RAKESH KUMAR WHO WAS HAND LING THIS DREAMLAND COOPERATIVE HOUSING BUILDING LTD HAS SURRENDERED AN AMOUNT 20 RS. 50 LACS IN FINANCIAL YEAR 2006-07 & RS. 75 LACS IN HIS PERSONA L HAND FOR ASSESSMENT YEAR 2007-08. IT IS ALSO NOTICED THAT IN THE APPEAL OF O NE MR. SUNIL BHATT WHOSE NAME IS ALSO APPEARING IN THE SAID DOCUMENT, DURING THE COURSE OF APPELLATE PROCEEDINGS HAS CONFIRMED TO HAVE MADE BOTH CASH A ND CHEQUE PAYMENTS MENTIONED IN THE SAID DOCUMENT TO THE SOCIETY AS PE R THE REQUIREMENT OF THE SOCIETY. IT HAS PRODUCED RECEIPTS ISSUED BY THE SOC IETY IN THE SOCIETY IN RESPECT OF BOTH CASH & CHEQUE PAYMENTS WEARING RECEIPT NOS. 97,98,172,173.184,186,190,212,218 & 219 TOTALLING T O RS.17,25,000/- WHEREAS SALE DEED SHOWS A CONSIDERATION OF RS.11.70 LAKHS O NLY. IT ESTABLISHES THAT THE CONSIDERATION ACCOUNT IN SALE DEEDS EXECUTED BETWEE N THE SOCIETY AND PERSONS PURCHASING THE FLATS WERE UNDERSTATED. IT IS COMMON KNOWLEDGE THE INVESTMENT IN REAL ESTATE ARE ALWAYS UNDERSTATED AND THE CASH POR TION IS NOT DECLARED FOR THE INVESTMENT FOR INCOME TAX PURPOSE. IT IS TRUE THAT THESE PAPERS HAVE NOT BEEN RECOVERED FROM THE APPELLANT IN THE SEARCH OPERATIO NS BUT THE VERACITY OF THE SAME CANNOT BE QUESTIONED. THEREFORE, IT IS CLEARLY EVID ENT THAT THE APPELLANT HAS MADE AN INVESTMENT OF RS.20.50 LAKHS FOR PURCHASE OF FLA T IN THE DREAMLAND SOCIETY. 3. AGGRIEVED THE ASSESSEE IS IN APPEAL BEFORE US. 4. ON THE ASKING OF BENCH TO AR AS TO WHY THE ASSES SEE DID NOT APPEAR BEFORE THE ASSESSING OFFICER AND CIT(A), THE LEANED AR SUBMITTED THAT THE ASSESSEE IS AN OLD LADY OF 70 YEARS AND MOST OF THE TIME SHE REMAINS OUT OF INDIA AND IN THIS RESPECT, HE INVITED OUR ATTENTION TO PAPER BOOK PAGE 4,5 & 6 WHERE A COPY OF TICKET ISSUED IN THE NAME OF ASSESS EE FOR VISITING ABROAD WAS PLACED. THE LEARNED DR IMMEDIATELY INTERRUPTED AND SUBMITTED THAT THE ORDER 4. ITA NO.74 0(ASR)/2014 ASST. YEAR 200 5-06 OF LEARNED CIT(A) WAS DATED 17.09.2014 AND NOTICES ISSUED BY LEARNED CIT(A) TO ASSESSEE WERE BETWEEN 19.3.2014 TO 20.8.2014 WHEREA S THE TICKETS RELATE TO THE PERIOD OF 2013. THEREFORE, THE ARGUMENT OF LEARNED AR THAT THE ASSESSEE REMAINED OUTSIDE IS NOT CORRECT. THE LEARNED AR IMM EDIATELY SUBMITTED THAT HE HAD ENCLOSED A COPY OF TICKET AS ONE OF THE PROOFS THAT ASSESSEE GENERALLY REMAINED ABROAD WITH HER DAUGHTER AS SHE IS AN OLD LADY AND FURTHER INVITING OUR ATTENTION TO FACTS OF THE CASE, THE LEARNED AR SUBMITTED THAT THE ASSESSEE HAD PURCHASED THE FLAT FOR A SALE CONSIDERATION OF RS.11,75,000/- WHICH WAS MENTIONED IN THE SALE DEED AND FOR WHICH THE PAYMEN TS WERE MADE IN TWO FINANCIAL YEARS 2004-05 AND 2005-06. HE FURTHER SUB MITTED THAT A PART OF THE PAYMENTS WERE MADE BY TAKING LOAN FROM THE BANK. HO WEVER, BEFORE HEARING THE ASSESSEE ON MERITS OF THE CASE, WE WERE OF THE OPINION THAT SINCE THE ASSESSEE COULD NOT REPRESENT HER CASE BEFORE EITHER ASSESSING OFFICER OR THE LEANED CIT(A) THEREFORE, IT WOULD BE APPROPRIATE TO REMIT THE MATTER BACK TO THE OFFICE OF ASSESSING OFFICER WHO WOULD PASS NECESSAR Y ASSESSMENT ORDER AFTER HEARING THE ASSESSEE. NEEDLESS TO SAY THAT ASSESSEE WILL BE PROVIDED SUFFICIENT OPPORTUNITY OF BEING HEARD. AT THE SAME TIME, THE A SSESSEE IS DIRECTED TO COOPERATE WITH THE ASSESSING OFFICER IN A FARE AND JUST MANNER SO THAT ASSESSMENT COULD BE FRAMED IN THE LIGHT OF FACTS AN D IN ACCORDANCE WITH LAW. 5. IN VIEW OF THE ABOVE, THE APPEAL FILED BY TH E ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. 5. ITA NO.74 0(ASR)/2014 ASST. YEAR 200 5-06 ORDER PRONOUNCED IN THE OPEN COURT ON THE CO NCLUSION OF HEARING IS PRONOUNCED IN WRITING ON 22 ND DECEMBER, 2015. SD/- SD/- (A.D.JAIN) (T.S.KAPOOR) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 22.12.2015 PK/PS COPY OF THE ORDER FORWARDED TO: 1. THE ASSESSEE: 2. THE 3. THE CIT(A) 4. THE CIT 5. THE SR DR, ITAT, AMRITSAR. TRUE COPY BY ORDER (ASSISTANT REGISTRAR) INCOME TAX APPELLATE TRIBUNAL, AMRITSAR BENCH: AMRITSAR.