POONAM PANDEY, GHAZIABAD V. ACIT, CIRCLE- 2, GHAZIABAD

ITA 7660/DEL/2017

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 6896 (ITAT-DELHI)
• Duration Of Justice: 6 month(s) 30 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-07-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2014-2015
• Appeal Filed On: 21-12-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ASHIMA NEB
• Assessee Lawyers: PRAVEEN KUMAR DUTT
• Keywords: Gift; Opportunity of being heard; Principle of natural justice; Corroborative evidences; Onus to prove

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: SMC NEW DELHI BEFORE SMT. DIVA SINGH, JUDICIAL MEMBER ITA NO.-7660/DEL/2017 ( ASSESSMENT YEAR: 2014-15) POONAM PANDEY VS ACIT ASSESSEE BY SH. PRAVEEN KUMAR DUTT, CA REVENUE BY MS. ASHIMA NEB, SR. DR ORDER THE PRESENT APPEAL HAS BEEN FILED BY THE ASSESSEE ASSA ILING THE CORRECTNESS OF THE ORDER DT. 29.9.2017 OF CIT(A)-GHAZIABAD PERTAINING TO 2014-15 ASSESSMENT YEAR ON THE FOLLOWING GROUNDS: 1. THAT THE LEARNED COMMISSIONER OF INCOME TAX (APPEAL S) HAS GROSSLY ERRED BOTH IN LAW AND, ON FACTS IN UPHOLDING THE ADDITION, OVERLO OKING THE FACTS THAT THE LEARNED ASSESSING OFFICER HAS FAILED TO INITIATE PROPER ENQ UIRY ON THE MATERIAL PLACED ON RECORD AND, ASSESSMENT FRAMED U/S 144/143(3) OF THE ACT, AND, THEREFORE THE ORDER DESERVE'S TO BE QUASHED AS SUCH. 2. THAT THE LEARNED COMMISSIONER OF INCOME TAX (APPEAL S) HAS FAILED TO APPRECIATE THAT, THE LEARNED ASSESSING OFFICER HAS FAILED TO PROVIDE ADEQUATE OPPORTUNITY TO THE ASSESSEE. 3. THAT THE LEARNED COMMISSIONER OF INCOME TAX (APPEAL S) HAS ALSO ERRED ON FACTS IN CONFIRMING THE ADDITION OVERLOOKING THE GIFT DEED, PRATILIPI FROM TEHSIL DEPICTING THE EXISTENCE OF 'SAGWAN TREES' AND, PHOTOGRAPHS SHOWIN G TREES HAD BEEN CUT DOWN. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) HAS FR AMED THE ORDER WITHOUT DELIBERATING ON THE FACTS AVAILABLE ON RECORD. 2. THE RELEVANT FACTS OF THE CASE ARE THAT THE ASSESSE E WHO RETURNED AN INCOME OF RS. 71,330/- FROM HOUSE PROPERTY, AGRICULTURAL INC OME AND OTHER SOURCES WAS REQUIRED BY THE AO IN THE COURSE OF THE SCRUTINY PROCEEDINGS TO JUSTIFY THE DEPOSIT OF RS. 23,17,000/- IN HE R SAVINGS BANK ACCOUNT WITH PNB. 3. THE ASSESSEE IN RESPONSE TO THE QUERY FILED COPY OF A N AFFIDAVIT STATING THAT SHE HAD BEEN GIFTED BY HER FAMILY AGRICULTUR AL LAND SITUATED AT KHUSHI NAGAR IN THE STATE OF UTTAR PRADESH. THE ASSESS EE FURTHER STATED THAT SHE HAD SOLD SAGWAN TREES FOR AN AMOUNT OF RS. 25 LAC TO SH. MUJAHIDUL ISLAM S/O IBRAHIM VILLAGE BADHARA, POST-DANDOPUR, DISTT. KUSHINAGAR (UP). THE SALE PROCEEDS WERE RECEIVED IN CASH W HICH HAD BEEN DEPOSITED IN HER ACCOUNT. SALE DEED EXECUTED ON 27.8.201 2 WAS RELIED UPON. DATE OF HEARING 24.04.2018 DATE OF PRONOUNCEMENT 20.07 .2018 ITA NO. 7660/DEL/2017 PAGE 2 OF 7 4. THE AO DISBELIEVED THE EVIDENCE NOTING THE FACT THAT THE SALE DEED WAS EXECUTED AT GHAZIABAD AND HAD ONLY BEEN SIGNED BY THE ASSESSEE, WHEREAS THE SAGWAN TREES WERE STATED TO BE SITUATED IN KHUSHI NAGAR. THUS, HE REQUIRED THE ASSESSEE TO BE PRESENT. THE ASS ESSEE AS PARA 3.1 OF THE ASSESSMENT ORDER REQUESTED FOR TIME ON 6.12.2016 ST ATING THAT DUE TO ILLNESS SHE WAS ON A BED REST AS PER DOCTORS ADVISE. T HE REQUEST WAS SUPPORTED BY A MEDICAL CERTIFICATE. SIMILARLY, ON THE NEXT DATE ON I.E. 9.12.2016 THE ASSESSEE AGAIN MADE A SIMILAR PRAYER. THE AO INTERPRETED THE REQUESTS AS A FAILURE OF THE ASSESSEE TO PROVE GENUINENESS. THE SPECIFIC REASONS OF THE AO ARE EXTRACTED HEREUNDER: 3.1 FURTHER, BEFORE FINALIZING THE ASSESSMENT ORDER, A FINAL SHOW CAUSE NOTICE U/S 144/143(2) OF THE I.T. ACT, 1961 WAS ISSUED TO THE ASSESSEE ON 06/12/2O16 AND THE DATE FOR COMPLIANCE WAS FIXED FOR 09/12/2016 , THE A.R, SHRI SUDHIR JAIN APPEARED AND STATED THAT THE ASSESSEE COULD NOT BE PRODUCED FOR FURTHER EXAMINATION. THE A.R. EXPRESSED HIS INCAPABILITY TO PROVE THE GENUIN ENESS OF THE INCOME OF RS. 23,17,000/- AND FURTHER HE HAS REQUESTED TO COMPLETE THE CASE VIDE ORDER SHEET ENTRY DATED 08.12.2016 . HENCE, THE ADDITION OF RS. 23,17,000/- IS BEING M ADE UNDER THE HEAD 'INCOME FROM OTHER SOURCES' ON THIS INACCURATE PAR TICULARS PENALTY PROCEEDINGS U/S 271(1)(C) IS BEING INITITED SEPARATELY. ADDITION OF RS. 23,17,000/-) (EMPHASIS SUPPLIED) 5. WHEN THE ABOVE REASONING IS CONSIDERED IN THE CONTEXT OF WHAT IS PLEADED, IT IS EVIDENT THAT THE PROCEEDINGS ADMITTEDLY WER E BECOMING TIME BARRED, THE ORDER U/S 144/143(3), IT IS NOTICED IS DATED 08 .12.2016 WHICH IS SURPRISING AS THE AO HAD FIXED THE DATE FOR COMPLIANCE AS 09.12.2016 CURIOUSLY THE JUSTIFICATION FOR FLOUTING THE PROCEDURES GIVE N IS THE A.R. EXPRESSED HIS INCAPABILITY TO PROVE THE GENUINENESS OF THE INCOME OF RS. 23,17,000/- AND FURTHER HE HAS REQUESTED TO COMPLETE THE CASE VIDE ORDER SHEET ENTRY DATED 08.12.2016 . THE FACT THAT THE ORDER IS PASSED ON A DATE PRIOR TO THE DATE OF COMPLIANCE IN VIOLATION OF THE TENET S OF NATURAL JUSTICE IS NOT ADDRESSED BY THE CIT(A). 6. THE ASSESSEE BEFORE THE CIT(A) HAS ALSO ASSAILED THE L ACK OF OPPORTUNITY BEFORE THE AO AS WOULD BE EVIDENT FROM THE FO LLOWING SUBMISSIONS EXTRACTED IN THE ORDER BY THE CIT(A) AT PAGE 13 OF HIS ORD ER : 3.2 ..IT IS ALSO SUBMITTED THAT THE TIME PROVIDED IN THE SHO W CAUSE NOTICE WAS ONLY 3 DAYS. FURTHER THE ORDER OF ASSESSMENT FRAMED BY THE LD. ASSESSING OFFICER ON THE SAME DATE I.E. 08.12.2016 WITHOUT CO NSIDERING THE GENUINENESS OF TRANSACSTION OR ANY INQUIRY.. ( EMPHASIS SUPPLIED) 7. THE LD. AR REITERATES THE SUBMISSIONS ADVANCED BEFORE THE TAX AUTHORITIES AND THE LD. SR. DR RELIES UPON THE IMPUGNED ORDER. ITA NO. 7660/DEL/2017 PAGE 3 OF 7 8. IN THE LIGHT OF THE AFOREMENTIONED PECULIAR FACTS AND C IRCUMSTANCES AS HAVE BEEN SET OUT HEREINABOVE, I AM OF THE VIEW THA T IN THE PECULIAR FACTS & CIRCUMSTANCES OF THE PRESENT CASE THE ORDERS H AVE BEEN PASSED IGNORING THE GLARING VIOLATIONS OF PROCEDURES AND PRINCIPLES O F NATURAL JUSTICE APPARENTLY ON THE FACE OF THE RECORD ITSELF. THE CONCLUSIONS DRAWN BY THE CIT(A) IGNORING THE FACTS CANNOT BE UPHELD. AS HAS BEEN BROUGHT OUT FROM THE RELEVANT EXTRACTS OF THE RESPECTIVE ORDERS , THE IMPUGNED ORDER NOT ONLY PATENTLY IGNORES THE GLARING LACK OF OPPO RTUNITY BEFORE THE AO WHICH STANDS OUT ON THE FACE OF THE ORDER ITSELF. ADMITTEDLY THE EVIDENCE RELIED UPON BEFORE THE AO WAS NOT FOUND TO BE S UFFICIENT AND COMPLETE AND THE LACK OF OPPORTUNITY TO ADDRESS THE SAM E IS EVIDENT ON RECORD. HOWEVER, THE CONCLUSION DRAWN BY THE AO THAT TH E ASSESSEE WAS UNABLE TO PROVE GENUINENESS AND THE CONCESSION OF THE C OUNSEL TO COMPLETE THE ASSESSMENT PRIOR TO THE DATE OF COMPLIANCE WERE PATENTLY UNWARRANTED AND IN VIOLATION OF THE BASIC PRINCIPLES OF NATU RALJUSTICE. ADMITTEDLY THE ONLY REQUIREMENT OF THE AO WAS TO REQUIR E THE ASSESSEE THEN ON BED REST, TO BE PRESENT. THIS OMISSION COULD HAVE BEEN ADDRESSED BY THE FIRST APPELLATE AUTHORITY. THE INCOME TAX ACT,196 1 HAS SUFFICIENTLY AND ADEQUATELY EMPOWERED THE COMMISSIONER(APP EALS) TO PASS SUCH ORDERS IN THE APPEALS AS HE THINKS FIT U/S 251 (1)(C) AND WHEN THIS SECTION IS READ ALONGWITH THE PROCEDURE TO BE FOLLOWED ARTICULATED BY THE STATUTE IN SECTION 250 SPECIFICALLY SUB-SECTIONS (4) AN D (5), THERE CAN BE NO DOUBT ON THE POWERS OF CIT(A) TO RENDER JUSTICE FO R WHICH PURPOSES, THE SAID AUTHOIRITY HAS MORE THAN ADEQUATE POWERS TO C ALL FOR FRESH EVIDENCES. SECTION 250 PROCEDURE IN APPEAL : (1). THE COMMISSIONER (APPEALS) SHALL .. (2) (3) (4) THE COMMISSIONER (APPEALS)MAY BEFORE DISPOSING O F ANY APPEAL, MAKE SUCH FURTHER INQUIRY AS HE THINKS FIT, OR MAY DIRECT THE 5 ASSESSING OFFICER TO MAKE FURTHER INQUIRY AND REPORT THE RESULT OF THE SAME TO THE COMMISSION ER (APPEALS) OR, AS THE CASE MAY BE, THE COMMISSIONER (APPEALS)]. (5) THECOMMISSIONER (APPEALS) MAY, AT THE HEARING OF A N APPEAL, ALLOW THE APPELLANT TO GO INTO ANY GROUND OF APPEAL NOT SPECIFIED IN THE G ROUNDS OF APPEAL, IF THE COMMISSIONER (APPEALS) IS SATISFIED THAT THE OMISSION OF THAT GR OUND FROM THE FORM OF APPEAL WAS NOT WILFUL OR UNREASONABLE. 8.1 IT MAY NOT BE OUT OF PLACE TO ALSO REFER TO THE SPE CIFIC POWERS VESTED IN THE COMMISSIONER (APPEALS) TO CALL FOR NECESSARY EVIDENC ES AND DOCUMENTS UNDER SUB-RULE (4) OF RULE 46A : RULE 46A : (1) . ITA NO. 7660/DEL/2017 PAGE 4 OF 7 (2) . (3) . (4) NOTHING CONTAINED IN THIS RULE SHALL AFFECT THE PO WER OF THE [DEPUTY COMMIS- SIONER (APPEALS)] [OR, AS THE CASE MAY BE, THE COMM ISSIONER (APPEALS)] TO DIRECT THE PRODUCTION OF ANY DOCUMENT, OR THE EXAMINATION OF A NY WITNESS, TO ENABLE HIM TO DISPOSE OF THE APPEAL, OR FOR ANY OTHER SUBSTANTIAL CAUSE INCLUDING THE ENHANCEMENT OF THE ASSESSMENT OR PENALTY (WHETHER ON HIS OWN MOTIO N OR ON THE REQUEST OF THE [ASSESSING OFFICER]) UNDER CLAUSE (A) OF SUB-SECTIO N (1) OF SECTION 251 OR THE IMPOSITION OF PENALTY UNDER SECTION 271.] 8.2 AS PER RECORD, THE STATED CLAIM IS THAT A CERTAIN A GRICULTURAL LAND WAS GIFTED TO THE ASSESSEE BY HER FAMILY AND THIS CONSISTENT CLAIM ON RECORD HAS NOT BEEN UPSET BY THE TAX AUTHORITIES. THEREFORE, THE NEXT QUESTION WHICH COMES UP FOR CONSIDERATION IS WHETHER THE ASSESSE E AS OWNER OF THE AGRICULTURAL LAND HAD ANY SAGWAAN TREES GROWING ON THE S PECIFIC LAND AT THE RELEVANT POINT OF TIME. THE SAID CLAIM CAN BE EASILY ASC ERTAINED ON THE BASIS OF LAND REVENUE RECORDS FOR THE RELEVANT PERIOD. SIM ILARLY, THE FACTUM OF THE TREES HAVING BEEN CUT CAN ALSO BE DEMONST RATED FROM THE LAND REVENUE RECORDS. AS PER THE ASSESSEES CLAIM THE TREES WERE CUT BY ONE SH. MUJAHIDUL ISLAM AND PAYMENTS WERE RECEIVED IN CAS H. THERE IS NO LEGAL IMPEDIMENT TO THE SAID CLAIM BEING CONSIDERED. IT IS SEEN THAT NO ATTEMPT HAS BEEN MADE BY THE TAX AUTHORITIES TO EITHER DISCHARGE THEIR RESPONSIBILITIES OF BRINGING TO TAX THE CORRECT INCOME TO TA X. THE TAX AUTHORITIES ACTING AS PUBLIC SERVANTS FOR THE GOVERNMENT OF INDIA ARE PRESUMED TO BE WELL CONVERSANT WITH THE LEGAL REQUIREMENT S AND IN ALL FAIRNESS WHEN INTERACTING WITH THE TAX PAYING CITIZENS OUGH T TO HAVE ADVISED/GUIDED THE TAXPAYER TO BRING WHATEVER FURTHER N ECESSARY SUPPORTING EVIDENCES THEY DEEMED NECESSARY TO BE BROU GHT ON RECORD. TO PRESUME THAT A MARGINAL TAXPAYER WOULD BE MORE AWARE A ND BETTER INFORMED ABOUT THE NITTY-GRITTIES OF THE LEGAL REQUIREMENTS AND THE QUALITY OF EVIDENCES NECESSARY WHICH WOULD BE ACCEPTED AND CLINCH INGLY DEMONSTRATE ITS STATED CLAIMS, IS HIGHLY MISPLACED. IT WOULD BE IN THE INTERESTS OF THE REVENUE OFFICERS TO ENSURE THAT TAX COM PLIANCE IS ACTIVELY ASSISTED AND ENCOURAGED BY INFORMING, ASSISTING AND ADVISIN G THE TAXPAYERS IN ALL FAIRNESS. THE UNFORTUNATE BUREAUCRATIC AD MINISTRATIVE CYNICISM DUE TO THEIR OWN UNFORTUNATE AND FREQUENT EXPOS URES TO THE SCAMSTERS AND THE MANIPULATORS OF THE SYSTEM SHOULD NOT BE ALLOWED TO MAKE THE TAX AUTHORITIES IMMUNE TO THE REALITIES OF THE HO NEST TAXPAYERS. THE TAX AUTHORITIES MUST CONTINUOUSLY AND ZEALOUSLY SHE LTER THE HONEST LAW ABIDERS AND HELP THEM TO BE TAX COMPLIANT INSTEAD OF PENALIZING THEM FOR PROCEDURAL OMISSIONS AND COMPLIANCES. TO MY MIND, IT IS HIGH TIME THAT POSITIVE AND ACTIVE STEPS ARE TAKEN AT THE EARLIEST FOR ENSURING THEIR ITA NO. 7660/DEL/2017 PAGE 5 OF 7 INCLUSION AS HONEST TAX PAYERS INSTEAD OF ALIENATING THEM WITH HARSH MECHANICAL OBDURATE EFFORTS AND THUS INADVERTENTLY ENCOU RAGING THEIR EXCLUSIONS FROM THE TAX COMPLIANT CITIZENS. UNDOUBTEDLY, IN THE FIRST INSTANCE, IT IS FOR THE ASSESSEE TO PROVE THAT A CERTAIN INCOME IS NOT AMENABLE TO TAX. CLAIMS ARE MADE IN SUPPORT OF THE SAME. THE CLAIMS ADMITTEDLY WERE REQUIRED TO BE JUSTIFIED. IT MAY NOT BE OUT OF PLACE TO STATE THAT ORDINARILY THE ISSUE OF BURDEN OF PROOF ITSELF CO ULD BE AVOIDED IN MOST CASES IF THERE ARE SUFFICIENT FACTS TO WARRANT THE CO NCLUSION EITHER WAY. THE ISSUE OF BURDEN OF PROOF ORDINARILY ARISES AS A LEG AL REQUIREMENT ONLY IN CASES WHERE THERE IS NO EVIDENCE ON EITHER SIDE OR WHERE THE EVIDENCE AVAILABLE ARE SO BALANCED, THAT IT IS NOT POSSIBLE T O ARRIVE AT A DEFINITE CONCLUSION EITHER WAY. IT IS IN SUCH A CASE, THAT TH E ISSUE AS TO ON WHOM THE BURDEN LIES, ARISES. UNDISPUTEDLY, IN AN ISSUE BETW EEN THE TAXPAYER AND THE REVENUE, IT IS THE TAXPAYER ON WHOM T HE BURDEN OF FACT LIES WHILE THAT OF LAW LIES ON THE REVENUE. THE LAW IS ONLY APPLICABLE IN THE TAX MATTERS IN THE PECULIAR FACTS OF THE CASE SINCE THE A PPLICATION OF LAW IS WITH REFERENCE TO THE RELEVANT FACTS OF THE PARTICULAR CAS E. HOWEVER, AS HELD IN UDHAVADAS KEWALRAM V CIT (1967) 66 ITR 462, 464 (SC), BY THE APEX COURT , IT IS FOR THE INCOME TAX AUTHORITIES TO PROVE THAT A PARTICULAR RECEIPT IS TAXABLE. IT WAS POINTED OUT THAT IN DECIDING WHE THER AN ITEM OF RECEIPT IS TAXABLE AS INCOME, THE TRIBUNAL MAY CONSIDER THE EVIDENCE IN THE LIGHT OF THE STATEMENTS MADE BY THE ASSESSEE, HIS CO NDUCT AND THE PROBABILITIES, BUT IN ARRIVING AT ITS CONCLUSION THERE MUST BE A FAIR AND REASONABLE FULL REVIEW OF THE EVIDENCE. THE BURDEN HAS ALSO BEEN HELD TO BE ON THE REVENUE TO PROVE THAT INCOME ACCRUED OR AR OSE IN A PARTICULAR PLACE. HENCE, THOUGH THE PRINCIPLES OF LAW OF EVIDENCE ARE NOT TO BE IGNORED BY THE AUTHORITIES, BUT AT THE SAME TIME HUMAN P ROBABILITY HAS TO BE THE GUIDING PRINCIPLE, SINCE IN INCOME TAX CASES, THE ASS ESSING OFFICER IS NOT FETTERED BY THE TECHNICAL RULES OF EVIDENCE. 8.3. APPLYING THE TESTS OF HUMAN PROBABILITY AS LAID DOWN B Y THE APEX COURT IN CIT V DURGA PRASAD MORE (1971) 82 ITR 540 (SC ), IN THE PRESENT CASE, INCOME FROM SALE OF SAGWAN TREES SUPPORTED BY THE GIF T DEED, PRATILIPI FROM TEHSIL DEPICTING THE EXISTENCE OF 'SAGWAN TREES ' AND, PHOTOGRAPHS SHOWING TREES HAD BEEN CUT DOWN ARE EVIDENCES ON REC ORD AS PER GROUND NO. 3 IN THE PRESENT PROCEEDINGS. IT IS A FACT THAT AT THE FAG END OF THE PROCEEDINGS BY THE AO SHE WAS REQUIRED TO BE PRESENT. THE LADY HAS EXPLAINED AS PER RECORD THAT SHE HAD SOLD SAGWAN TREE S FOR AN AMOUNT OF ITA NO. 7660/DEL/2017 PAGE 6 OF 7 RS. 25 LAC TO ONE SH. MUJAHIDUL ISLAM S/O IBRAHIM VILLAGE BAD HARA, POST- DANDOPUR, DISTT. KUSHINAGAR (UP) AND THAT THE SALE PROCEED S WERE RECEIVED IN CASH WHICH HAD BEEN DEPOSITED IN HER ACCOUNT , AND RELIES UPON A SALE DEED EXECUTED ON 27.8.2012. IN THE CIRCUMSTA NCES, IT APPEARS IMPRUDENT TO DISBELIEVE SUCH EVIDENCE MERELY BECAUSE THE SALE DEED WAS EXECUTED AT GHAZIABAD AND HAD ONLY BEEN SIGNED BY THE SELLER /ASSESSEE, WHEREAS THE SAGWAN TREES WERE SITUATED ALLEGEDLY IN KHU SHI NAGAR. IT IS SEEN THAT BEFORE THE CIT(A) REFERENCES ARE MADE TO KHA SRA & KHATAUNI IN PARA 5.3.1 BY HIM IN HIS ORDER, BUT HE FAILS TO ADDRESS FOR WHAT PERIOD, THE SPECIFIC LAND REVENUE RECORDS WERE BEING REFERRED TO. IT IS SEEN THAT THE LADY HAS ALSO PLACED ON RECORD CERTAIN PHOTOGRAPHS TO S HOW THAT SOME TREES HAVE BEEN CUT. NO DOUBT, SUCH PHOOGRPHS AS AN E VIDENCE BY ITSELF CANNOT CONCLUSIVELY ESTABLISH THAT THE TREES WERE GROWIN G ON THE SPECIFIC PIECE OF LAND OWNED BY THE ASSESSEE BUT WHEN THE PHOTO GRAPHS ARE CONSIDERED ALONGWITH RELEVANT LAND REVENUE RECORDS EVIDEN CING GROWTH OF TREES WHICH ULTIMATELY STOOD CUT, THE PHOTOGRAPHS AS A CORROBORATIVE PIECE OF EVIDENCE CANNOT BE DISCARDED AS A MEANINGLESS EFFORT. H ENCE, ANY SHORTCOMING NOTICED BY THE AO/CIT(A) SHOULD HAVE BEEN CO MMUNICATED TO THE ASSESSEE IN ALL FAIRNESS IN ORDER TO PROVIDE THE ASSESSEE AN OPPOR TUNITY TO ADDRESS THE ISSUE OF SUFFICIENCY OF EVIDENCES. LAW DOES N OT EXPECT THE IMPOSSIBLE TO BE PROVED. IT CANNOT BE EXPECTED FOR THE ASSESSEE, IN CASES OF SALE OF PRODUCE FROM LAND, AS IN THE PRESENT CASE, TO PRODUCE AN INFALLIBLE DEMONSTRATIVE PROOF OF SUCH SALE AS EVIDENCE OF THE TRANSACTION. IN SUCH CIRCUMSTANCES PRATILIPI FROM TEHSIL DEPICTING THE EXISTENCE OF 'SAGWAN TREES' AND PHOTOGRAPHS OF THE CUT TREES MAY BE THE ONLY AVAILABLE EVIDENCE AVAILABLE IN THE NATURE OF THE FACTS AND CIRCUMSTAN CES OF THE CASE SINCE BY THE TIME OF ASSESSMENT, THE OBJECT SOLD I.E. THE ' SAGWAN TREES', WOULD HAVE ALREADY ASSUMED A DIFFERENT DIMENSION IN A FINISHED FORM AS A PIECE OF FURNITURE OR FIXTURE IN A BUILDING. CREDIBILITY OF A TRANSACTION IS THE ONLY SUBSTITUTE WHICH HAS TO BE FOLLOWED WHERE NO FURTHE R EVIDENCE IS POSSIBLE DUE TO DISTANCE OF TIME. THEREFORE IT APPEARS THAT IN VIEW OF THE EXPLANATION GIVEN BY THE ASSESSEE WHICH APPEARS TO BE CREDIBLE, AND THERE ARE SUFFICIENT FACTS ON RECORD INCLUDING AN AFFIDAVIT IN RESPECT OF FACTS AFFIRMED THEREIN, INFERENCE CAN BE DRAWN FROM THE TOTALITY OF THE CIR CUMSTANCES OF THE CASE, NOT NECESSARILY WITH REFERENCE TO BURDEN OF PROOF, THAT THE ASSESSEE HAD SUFFICIENTLY DISCHARGED HER ONUS TO PROVE THAT SUCH RECEIPT WAS GENUINE. IN SUCH SUCH CASES, THE ABSENCE OF SATISFACTION OF SOU RCE I.E., THE PURCHASER, ITA NO. 7660/DEL/2017 PAGE 7 OF 7 WHO MAY BE PERSON ASSOCIATED WITH TIMBER TRADE AS A SUPPLIER OR A CARPENTER OR AN ACTUAL USER MAY NOT ALWAYS BE AVAIL ABLE AND HENCE MAY NOT BE A GROUND FOR REJECTION OF THE EXPLANATION GIVEN BY THE ASSESSEE. IN THE LIGHT OF THE AFOREMENTIONED PECULIAR FACTS AND CIRCUMSTANCES , WHEREIN THE LD. AR REITERATES THE SUBMISSION OF THE TAX AUTHORITIES AN D THE LD. SR. DR RELIES UPON THE IMPUGNED ORDER, I AM OF THE VIEW THAT IN THE PRESENT CASE AS SET OUT HEREINABOVE, THE IMPUGNED ORDER IS PATENTLY UNJUSTIFIED, INDICATING IMPROPER EXERCISE OF DISCRETION BORDERING ON PERVERSITY. 9. HENCE, IN VIEW OF THE ABOVE FACTS IN THE BACKGROUND AND THE CREDIBLE PLEA OF THE ASSESSEE AS FOUND ABOVE, DESPITE THE APPEA L OF THE ASSESSEE PLEADING GENUINE HARDSHIP, THE CONCLUSIONS DRAWN BY THE A O AND LACK OF OPPORTUNITY GLARINGLY EVIDENT ON RECORD, THE PROCEDURAL VIOLATIONS REFERRED TO ABOVE, THE IMPUGNED ORDER PASSED BY THE CIT(A) IGNOR ING THESE FACT CANNOT BE UPHELD. IN VIEW THEREOF, THE LD. SR. DR WAS REQU IRED TO ADDRESS WHETHER THE REMAND SHOULD BE MADE TO THE CIT(A) OR THE AO. THE SR.DR HAS REQUESTED THAT THE ISSUE BE REMANDED TO THE AO. ACCEPTING THE PRAYER, THE ISSUE IS REMANDED TO THE AO WITH THE DIRECTI ON TO PASS A SPEAKING ORDER IN ACCORDANCE WITH LAW AFTER GIVING THE ASS ESSEE A REASONABLE OPPORTUNITY OF BEING HEARD. THE ASSESSEE IS D IRECTED TO ENSURE THAT FULL AND CORRECT FACTS AS MAY NOW BE AVAILABLE IN THE PECULIAR FACTS OF THE CASE AND AS DIRECTED BY THE AO ARE BROUGHT ON RE CORD AND THE OPPORTUNITY SO PROVIDED IS NOT ABUSED. SAID ORDER WAS P RONOUNCED IN THE OPEN COURT AT THE TIME OF HEARING ITSELF. 10. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 20.07. 2018. SD/- (DIVA SINGH) JUDICIAL MEMBER *KAVITA ARORA(DEL)/POONAM(CHD) COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT TRUE COPY ASSTT.REGISTRAR ITAT NEW DELHI