SAVITRI DEVI AGARWAL, Kishangarh V. ITO, Kishangarh

ITA 783/JPR/2015

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 5212 (ITAT-JAIPUR)
• Duration Of Justice: 7 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-06-2016
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: Not Allotted
• Assessment Year: 2001-2002
• Appeal Filed On: 05-11-2015
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: G R PARIKH JCIT DR DHK
• Keywords: Gift; Principle of natural justice; Opportunity of cross examination
• Section: 147; 148; 68

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES (SMC), JAIPUR JH HKKXPUN] YS[KK LNL; DS LE{K BEFORE: SHRI BHAGCHAND, ACCOUNTANT MEMBER VK;DJ VIHY LA-@ ITA NO. 783/JP/2015 FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2001-02 SMT. SAVITRI DEVI AGARWAL PROP. M/S. SAVITRI TEXTILES AZAD NAGAR, MADANGANJ, KISHANGARH CUKE VS. THE ITO KISHANGARH LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO .: AANPA 8940 Q VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY : SHRI MANISH AGARWAL, CA JKTLO DH VKSJ LS@ REVENUE BY :SHRI G.R. PARIKH, JCIT-. DR LQUOKBZ DH RKJH[K@ DATE OF HEARING : 23/05/2016 ?KKS'K .KK DH RKJH[K@ DATE OF PRONOUNCEMENT : 13/06/2016 VKNS'K@ ORDER PER BHAGCHAND, AM THE ASSESSEE HAS FILED AN APPEAL AGAINST THE ORDER OF THE LD. CIT(A), AJMER DATED 13-08-2015 FOR THE ASSESSMENT YEAR 2001-02 RAISING THEREIN FOLLOWING GROUNDS:- 1.1 ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE THE LD. CIT(A) HAS GROSSLY ERRED IN UPHOLDING THE PENAL TY OF RS. 2,92,439/- LEVIED BY THE AO ON THE ADDITION OF RS. 7,76,000/- MADE ON THE ALLEGATION OF UNVERIFIABLE GIFTS, UNSEC URED LOAN AND SUNDRY CREDITORS WITHOUT ESTABLISHING THE CONCE ALMENT OF INCOME OR FURNISHING INACCURATE PARTICULARS OF INCO ME IN THE FACTS AND CIRCUMSTANCES OF THE CASE. THUS THE PENAL TY SO LEVIED DESERVES TO BE DELETED. ITA NO. 783/JP/2015 SMT. SAVITRI DEVI AGARWAL VS. ITO, KISHANGARH . 2 1.1 THAT THE LD. CIT(A) HAS FURTHER ERRED IN IGNORI NG THE EVIDENCES SUBMITTED BY THE ASSESSEE IN ORDER TO ESTABLISH THE GENUINENESS OF THE GIFTS, LOANS AND CREDITORS A LLEGED AS UNVERIFIABLE BY THE AO WITHOUT ANY BASIS. THEREFORE , THERE BEING NO CONCEALMENT OF INCOME, THE PENALTY OF RS. 2,92,429/- DESERVES TO BE DELETED. 2.1 BRIEF FACTS ARE THAT ASSESSEE IS AN INDIVIDUAL AND HAS FILED RETURN OF INCOME ON 23.11.2001 DECLARING TOTAL INCOME AT RS. 92,480/- WHICH WAS ASSESSED U/S 143(1) (A) OF THE I.T. ACT AND THE PR OCEEDINGS U/S 147 WERE INITIATED FOR THE RE-ASSESSMENT BY ISSUING NOTICE U /S 148 ON 28/01/2008. THE AO COMPLETED THE RE-ASSESSMENT BY DETERMINING T OTAL INCOME OF THE ASSESSEE AT RS. 9,44,850/- BY MAKING FOLLOWING ADDI TIONS: (I) RS. 2 LACS U/S 68 OF THE ACT, ON ACCOUNT OF GIFTS RECEIVED. (II) RS.4.73 LACS U/S 68 OF THE ACT ON ACCOUNT OF LOANS RECEIVED (III) RS.1.03 LACS U/S 41(1) OF THE ACT ON ACCOUNT OF UNEXPLAINED LIABILITY UNDER THE HEAD SUNDRY CREDITO RS (IV) RS.75,367/- U/S 36 OF THE ACT OUT OF INTEREST PAID (V) RS.1000/- AS COMMISSION PAID FOR ARRANGING ACCOMMODATION ENTRY IN SHAPE OF GIFTS. IT IS NOTICED THAT SUBSEQUENTLY, PENALTY OF RS.2,92 ,439/- WAS LEVIED U/S 271(1)(C) BY THE AO IN RESPECT OF ADDITIONS MADE A T SERIAL NO. (I) TO (III) ABOVE. ITA NO. 783/JP/2015 SMT. SAVITRI DEVI AGARWAL VS. ITO, KISHANGARH . 3 2.2 AGGRIEVED, THE ASSESSEE CARRIED THE MATTER BEFO RE THE LD. CIT(A) WHO DISMISSED THE APPEAL OF THE ASSESSEE. 2.3 NOW THE ASSESSEE HAS PREFERRED THIS APPEAL BEF ORE ME. THE LD. AR OF THE ASSESSEE THROUGH HIS WRITTEN SUBMISSION HAS SUBMITTED AS UNDER:- IN THIS REGARD, YOUR KIND ATTENTION IS INVITED TO THE ORDER PASSED HONBLE ITAT DATED 29-02-2016 IN RESPECT OF QUANTUM PROCEEDINGS WHEREIN HONBLE BENCH HAS DELETED ADDITIONS AT SERI AL NO.(II) & (III) ABOVE. FURTHER, SO FAR AS ADDITION AT SL NO.(I), I.E. RS.2 LACS IN RESPECT OF GIFTS RECEIVED IS CONCERNED, THE SAID ISSUE WAS SET ASIDE BY HONBLE BENCH (PAGE 7 PARA 9 OF ORDER) HOLDING THAT OPPORTUNITY OF CROSS EXAMINATION WAS NOT GIVEN TO THE ASSESSEE, WHICH IS AGAINST THE PRINCIPLES OF NATURAL JUSTICE. IN VIEW OF ABOVE ORDER, ALL THE ADDITIONS, ON THE B ASIS OF WHICH PENALTY WAS IMPOSED WERE DELETED. IN OTHER WORDS, T HE BASIS OF PENALTY IS NO MORE IN EXISTENCE. THUS, IT IS PRAYED BEFORE YOUR HONOUR THAT PENALTY OF RS.2,92,439/- LEVIED MAY PLE ASE BE DELETED. 2.4 THE LD. DR RELIED ON THE ORDER OF THE AUTHORITI ES BELOW. 2.5 I HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIALS AVAILABLE ON RECORD. I FIND THAT THE ISSUES IN QUAN TUM APPEAL HAVE BEEN DECIDED BY THIS BENCH VIDE ITS ORDER DATED 29-02-20 16 IN ITA NO. 628/JP/2011. THE ADDITIONS MADE OF RS. 4.73 LACS U/ S 68 OF THE ACT FOR LOANS AND ADDITION OF RS. 1.03 LACS U/S 41(1) OF TH E ACT HAVE BEEN DELETED. THE ADDITION OF RS. 2.00 LACS ON ACCOUNT OF GIFT RE CEIVED HAS BEEN RESTORED ITA NO. 783/JP/2015 SMT. SAVITRI DEVI AGARWAL VS. ITO, KISHANGARH . 4 TO THE FILE OF THE AO. IT IS OBSERVED THAT WHEN IN THE QUANTUM APPEAL TWO ISSUES WERE ALLOWED IN FAVOUR OF THE ASSESSEE AND O NE ISSUE HAD BEEN RESTORED TO THE AO THEN THERE IS NO SCOPE FOR IMPOS ITION OF PENALTY. HENCE RESPECTFULLY FOLLOWING THE DECISION OF THIS BENCH O F ITAT, THE PENALTY IMPOSED BY THE AO AND CONFIRMED BY THE LD. CIT(A) I S DELETED ON TWO ISSUES AND RESTORED TO THE FILE OF THE AO ON THE IS SUE OF RS. 2.00 LACS. 3.0 IN THE RESULT, THE APPEAL OF THE ASSESSEE IS PA RTLY ALLOWED IN THE ABOVE TERMS. ORDER PRONOUNCED IN THE OPEN COURT ON 13/06/2016 SD/ HKKXPUN ( BHAGCHAND) YS[KK LNL;@ ACCOUNTANT MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 13 /06/ 2016 *MISHRA VKNS'K DH IZFRFYFI VXZSF'KR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT- SMT. SAVITRI DEVI AGARWAL, AJMER 2. IZR;FKHZ@ THE RESPONDENT- THE ITO, WARD- KISHANGARH 3. VK;DJ VK;QDRVIHY@ CIT(A). 4. VK;DJ VK;QDR@ CIT, 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ@ DR, ITAT, JAIPUR 6. XKMZ QKBZY@ GUARD FILE (ITA NO. 783/JP/2015) VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ @ ASSISTANT. REGISTRAR