RADHA AGARWAL, Jaipur V. ITO, Jaipur

ITA 830/JPR/2013

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 99539 (ITAT-JAIPUR)
• Duration Of Justice: 2 year(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-11-2015
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: B
• Assessment Year: 2008-2009
• Appeal Filed On: 01-11-2013
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: RAJ MEHRA JCIT DR DHK
• Assessee Lawyers: RAJIV PANDEY; DAKSHYANI PANDEY
• Section: 144

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 VKJ-IH-RKSYKUH] U;KF;D LNL; DS LE{K BEFORE: SHRI R.P. TOLANI, JUDICIAL MEMBER VK;DJ VIHY LA-@ ITA NO. 830/JP/2013 FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2008-09 SMT. RADHA AGARWAL 18, SIWAR COMPOUND, AMER ROAD JAIPUR CUKE VS. THE ITO WARD- 5 (1) JAIPUR LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO.: ADRPA 4432 G VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY : SHRI RAJIV PANDEY, CA AND MS. DAKSHYANI PANDEY, ADVOCATE JKTLO DH VKSJ LS@ REVENUE BY :SHRI RAJ MEHRA, JCIT-. DR LQUOKBZ DH RKJH[K@ DATE OF HEARING : 17/11/2015 ?KKS'K .KK DH RKJH[K@ DATE OF PRONOUNCEMENT : 30 /11/2015 VKNS'K@ ORDER PER R.P. TOLANI, JM THE ASSESSEE HAS FILED AN APPEAL AGAINST THE ORDER OF THE LD. CIT(A)II, JAIPUR DATED 20-09-2013 FOR THE ASSESSME NT YEAR 2008-09 RAISING THEREIN FOLLOWING GROUNDS:- ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE L D. CIT(A) HAS ERRED:- ITA NO. 830//JP/2013 SMT. RADHA AGARWAL VS. ITO, WARD- 5 (1), JAIPUR . 2 (I) IN UPHOLDING THE ASSESSMENT ORDER PASSED U/S 14 4 OF THE ACT AND IN NOT HOLDING THE SAME TO BE UNJUST, B AD IN LAW AND NO FOLLOWING PROVISION OF LAW. (II) IN CONFIRMING ADDITION ON ACCOUNT OF LOAN FRO M HUSBAND SHRI NAGARMAL AGARWAL (PAN : ABEPA 9349 P) AMOUNTING TO RS. 2.50 LACS BY CHEQUE AND OWN SAVING S AND CURRENT INCOME AMOUNTING TO RS. 1.45,250/- I.E. TOT AL RS. 3,95,250/- WHICH WAS TOWARDS CONTRIBUTION OF PURCHA SE OF HOUSE. 2.1 LD. COUNSEL FOR THE ASSESSEE CONTENDS THAT IMPU GNED ASSESSMENT WAS UNJUSTIFIABLY FRAMED U/S 144 BY THE LD. AO IGNO RING THE FACT THAT SUBSTANTIAL COMPLIANCE WAS MADE AND TOWARDS THE END OF ASSESSMENT PROCEEDINGS COUNSEL BECAME SICK AND WAS UNABLE TO A TTEND THE LAST HEARING. THIS FACTS IS OBSERVED BY LD. CIT(A) IN HI S ORDER AS UNDER: DURING THE COURSE OF APPEAL HEARING THE A.R. OF T HE APPELLANT SUBMITTED THAT THE AO HAS NOT ALLOWED PRO PER OPPORTUNITY IN SPITE OF ASSESSEE FILING DETAILS AND REPLYING TO QUERIES RAISED FROM TIME TO TIME. LD AO HAS NOTED T HAT NONE ATTENDED ON 26-11-2010 AND THEREFORE, HE HAS PASSED ASSESSMENT ORDER BASED ON MATERIAL ON RECORD. ASSES SEE HUMBLY SUBMIT THAT AUTHORIZED REPRESENTATIVE HANDLI NG THE CASE WAS TAKEN ILL ON ACCOUNT OF VIRAL FEVER ON OR ABOUT 22- 11-2010 TOWARDS FOR APPROX. 10 TO 12 DAYS AND THIS FACT WAS CONVEYED TO LD. AO ON 26-11-2010 BY APPLICATION FOR ADJOURNMENT WHICH WAS NOT TAKEN ON RECORD. UNDERSIG NED VERBALLY ALSO SPOKE TO THE AO ON TELEPHONE EXPLAINI NG THE PREDICAMENT. LD AO HAS PASSED AN ORDER WITHOUT CONSIDERING THE MATERIAL ON RECORD AND HAS MADE ADD ITIONS WHICH ARE UNJUST AND WHICH APPEAR HEREUNDER ON RESP ECTIVE GROUNDS OF APPEAL. ASSESSEE HUMBLY SUBMITS THAT THE ORDER BEING UNJUST DESERVES TO BE ANNULLED AND MAY PLEASE BE ANNULLED. ITA NO. 830//JP/2013 SMT. RADHA AGARWAL VS. ITO, WARD- 5 (1), JAIPUR . 3 2.2 BEFORE LD. CIT(A) ASSESSEE FURNISHED FOLLOWING DOCUMENTS AND EVIDENCE:- (I) STATEMENT OF PURCHASE OF PLOT NO. D-44, AMBA BARI, JAIPUR FOR A SUM OF RS. 34,85,250/- AND DETAIL OF W ITHDRAWAL MADE FROM M/S. SHIVA INDUSTRIES WHERE ASSESSEE IS PARTNE R, SHOWING AMOUNT OF RS. 30,90,000/- (PB 13). FURTHER CONTRIB UTION MADE BY SHRI NAGARMAL AGARWAL BY CHEQUE NO. 178968 OF SBBJ, JHOTWARA ENCASHED ON 31-08-2007 AMOUNTING TO RS. 2,50,000/- (PB-15). THIS PAYMENT HAS BEEN MADE BY SHRI NAGARMAL AGARWAL FROM BOOKS OF ACCOUNT OF M/S. AGARWAL ENGINEERING WORKS WERE SHRI NAGARMAL AGARWAL IS PARTNER. SHRI NAGARMAL AGARWAL IS HAVING PAN ABEPA 9349P AND HIS REGULAR INCOME TAX ASSESSEE SINCE LAS T MORE THAN 25 YEARS (PB 13, 14 & 16). (II) BANK STATEMENT OF M/S. AGARWAL ENGINEERING WOR KS (SBBJ) SHOWING ENCASHMENT OF CHEQUE REFERRED TO IN SERIAL NO. 1 ABOVE (PB 15). (III) COPY OF ACCOUNT OF SHRI NAGARMAL AGARWAL IN B OOKS OF AGARWAL ENGINEERING WORKS FROM WHERE PAYMENT OF RS. 2,50,000/- HAS BE MADE TO SELLER I.E. MRS. NEELAM H ANSARIYA. THE DETAILS OF CHEQUE APPEARS AT PAGE 8 OF THE PURCHASE DEDUCTION DATED 06-09-2007 (PB-14). (IV) PROOF OF AGRICULTURE LAND BEING PURCHASE DEED NO. 19- 07-1995 OF APPROX. 2.6 BIGHA SITUATED AT VILLAGE NI VAROO. ASSESSEE HAS PLANTS OF ANOLA ETC. WHICH ARE GIVEN ON CONTRAC T AND ASSESSEE DERIVED RS. 1.00 LAC FROM SUCH CONTRACT DURING THE PREVIOUS YEAR RELEVANT TO ASSESSMENT YEAR UNDER REVIEW. ASSESSEE IS CONSISTENTLY DECLARING AGRICULTURE INCOME AND SUBMITS COPY OF HE R ACKNOWLEDGEMENT AND COMPUTATION FOR THE ASSESSMENT YEAR UNDER REVIEW AND IMMEDIATE PAST TWO ASSESSMENT YEARS FOR VERIFICATION AND PERUSAL. ITA NO. 830//JP/2013 SMT. RADHA AGARWAL VS. ITO, WARD- 5 (1), JAIPUR . 4 2.3 THESE DOCUMENTS WERE FORWARDED BY LD. CIT(A) TO LD. AO. ASSESSEE COOPERATED IN REMAND PROCEEDINGS AND EXPLA INED THE TRANSACTIONS. LD. AO HOWEVER DID NOT AGREE AND ACCO RDINGLY SUBMITTED THE REMAND REPORT. LD. CIT(A) CONFIRMED THE ORDER O F LD. AO ON THESE ISSUES. 2.4 LD. COUNSEL REFERRED TO SUBMISSIONS DATED 28-10 -2010 AND CONTENDS THAT STATEMENT OF PURCHASE OF PLOT NO. D-4 4, AMBA BARI, JAIPUR AND COPY OF ACCOUNT OF SHRI NAGARMAL AGARWAL APPEAR ING IN BOOKS OF AGARWAL ENGINEERING WORKS AND COPY OF BANK ACCOUNT OF AGARWAL ENGINEERING WORKS SHOWING PAYMENT OF CHEQUE OF RS. 2.50 LACS BY DEBIT TO SHRI NAGARMAL AGARWAL IN BOOKS OF AGARWAL ENGIN EERING (PB 11 TO 13,14,15 AND 16). THE ONUS CAST ON ASSESSEE HAS BEE N DISREGARDED AS SHRI NAGARMAL AGARWAL HAS CATEGORICALLY PROVED THAT THE AMOUNT OF RS. 2.50 LACS GIVEN TO MRS. RADHA AGARWAL (HIS WIFE) WAS OUT OF HIS CAPITAL ACCOUNT IN FIRM AGARWAL ENGINEERING WORKS. ASSESSEE SUBMITS THAT AO HAS DISREGARDED THE THREE INGREDIENTS OF THE CASH C REDIT WHICH ARE :- (I) THAT HE IS IDENTIFIABLE PERSON. (II) HE HAS CAPACITY FOR GIVING THE AMOUNT. (III) THE TRANSACTION IS GENUINE AS THE AMOUNT HAS BEEN PAID BY CHEQUE TO SPOUSE FOR PURCHASE OF PROPERTY. ITA NO. 830//JP/2013 SMT. RADHA AGARWAL VS. ITO, WARD- 5 (1), JAIPUR . 5 SHRI NAGARMAL AGARWAL HAS CONTRIBUTED RS. 2,50,000/ - BY CHEQUE WHICH HAS BEEN DEPOSITED IN ASSESSEE'S BANK ACCOUNT ON 29 -12-2007 TOWARDS PURCHASE OF THE PROPERTY DETAILS OF WHICH APPEAR IN OUR LETTER DATED 28-10- 2010 AND COPY OF WHICH IS AGAIN ENCLOSED FOR READY REFERENCE (PBP 13,14,14 & 16). SHRI NAGARMAL AGARWAL IS REGULAR IN COME TAX ASSESSEE HAVING PAN ABEPA 9349 AND WE ENCLOSE COPY OF HIS CA PITAL ACCOUNT IN M/S. AGARWAL ENGINEERING WORKS TO SHOW PAYMENT TO M RS. RADHA AGARWAL, THE ASSESSEE AND HIS WIFE. HE IS PARTNER OF M/S. AGARWAL ENGINEERING WORKS. BEING REGULAR INCOME TAX ASSESSE E, HE HAS PROVED THE CASH CREDIT AND THE ADDITION MADE BY LD AO AMOUNTIN G TO RS. 2.50 LACS MAY BE DELETED. WITH REFERENCE TO HER PAST SAVINGS AMOUNTING TO RS. 1,45,250/-, ASSESSEE SUBMITS THAT SHE IS AGED APPRO X 49 YEARS AND THE AMOUNT OF RS. 1,45,250/- WHICH SHE HAS PAID TOWARDS PURCHASE OF HOUSE IF OUT OF HER SAVINGS AND INCOME. SHE IS REGULAR INCOM E TAX SINCE APPROX. TWO YEARS AND BEING HOUSE WIFE FOR LAST MORE THAN 3 0 YEARS. SHE HAS SAVINGS OF HER OWN. 2.5 APROPOS THE GROUND ABOUT AGRICULTURE INCOME IT IS CONTENDED THAT THERE IS NO DISPUTE THAT ASSESSEE IS OWNER OF AGRIC ULTURAL LAND. IN EARLIER YEARS ASSESSES AGRICULTURE INCOME OF ABOUT 1 LAC F ROM THE SAME LAND ITA NO. 830//JP/2013 SMT. RADHA AGARWAL VS. ITO, WARD- 5 (1), JAIPUR . 6 HOLDING HAS BEEN ACCEPTED U/S 143(1). IT IS CONTEND ED THAT A REASONABLE ESTIMATE ABOUT AGRICULTURE INCOME MAY BE MADE. 2.6 LD. DR RELIED ON THE ORDERS OF AUTHORITIES BELO W. 2.7 I HAVE CONSIDERED THE RIVAL CONTENTIONS AND PER USED THE MATERIAL AVAILABLE ON RECORD. ASSESSEE HAS DEMONSTRATED THAT HER HUSBAND SHRI NAGARMAL AGARWAL WITHDREW AN AMOUNT OF RS. 2.50 WHI CH IS APPEARING IN BOOKS OF AGARWAL ENGINEERING WORKS AND COPY OF BANK ACCOUNT. THUS THE PRIMARY ONUS CAST ON ASSESSEE FOR IDENTIFICATIO N STANDING DISCHARGED AS THE CREDITOR IS HUSBAND OF THE ASSESSEE, CREDITW ORTHINESS IS PROVED BT COPY OF A/C FROM AGARWAL ENGINEERING AND THERE IS N O ISSUE ABOUT THE GENUINENESS OF THE TRANSACTION. APROPOS THE CLAIM O F RS. 1,45,250/- BEING STRIDHAN AND PAST SAVINGS OF THE ASSESSEE PAID TOWA RDS PURCHASE OF HER HOUSE CANNOT BE CONSIDERED AS UNACCEPTABLE. ASSESSE E AT THE RELEVANT TIME WAS AGED ABOUT 49 YEARS AND LOOKING AT THE STATUS T HE LADY ASSESSEE CAN HAVE SAVED THIS AMOUNT AS STRIDHAN AND PAST SAVINGS . ASSESSEE HAS DISCHARGED HER PRIMARY ONUS BY GIVING HER REPLY WHI CH HAS BEEN BRUSHED ASIDE ON ASSUMPTIONS. THE ADDITIONS IN THIS BEHALF DESERVE TO BE DELETED. 2.7 (1) APROPOS THE ADDITION QUA AGRICULTURAL INCOM E, ASSESSES CLAIM OF OWNING AGRICULTURAL LAND AND ACCEPTAN CE OF AGRICULTURE ITA NO. 830//JP/2013 SMT. RADHA AGARWAL VS. ITO, WARD- 5 (1), JAIPUR . 7 INCOME IN EARLIER YEARS HAS NOT BEEN DISPUTED. INTE REST OF JUSTICE WILL BE SERVED IF THE ADDITION IS RESTRICTED TO RS. 50,000/ -. 3.0 IN THE RESULT, ASSESSEE'S APPEAL IS PARTLY ALLO WED. ORDER PRONOUNCED IN THE OPEN COURT ON 30 /11/20 15 SD/- VKJ-IH-RKSYKUH (R.P.TOLANI) U;KF;D LNL;@ JUDICIAL MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 30 /11/ 2015 *MISHRA VKNS'K DH IZFRFYFI VXZSF'KR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT- SMT. RADHA AGARWAL, JAIPUR 2. IZR;FKHZ@ THE RESPONDENT- THE ITO, WARD- 5 (1), JAIPUR 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. 830/JP/2013) VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASSISTANT. REGISTRAR