Sh. Harbans Singh Cheema, Amritsar. V. The Income Tax Officer, Amritsar.

ITA 85/ASR/2015

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 5601 (ITAT-AMRITSAR)
• Duration Of Justice: 2 year(s) 2 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-05-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 18-04-2017
• Assessment Year: 2006-2007
• Appeal Filed On: 11-02-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Opportunity of being heard
• Section: 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH : AMRITSAR (SMC) BEFORE SMT. DIVA SINGH, JUDICIAL MEMBER I.T.A. NO. 85 (ASR)/2015 ASSESSMENT YEAR: 2006-07 PAN: ABXPC9614J HARBANS SINGH CHEEMA S/O RAM SINGH, H. NO. 104, BASANT AVENUE, AMRITSAR. VS. INCOME TAX OFFICER, WARD 5 (2), AMRITSAR. (APPELLANT) (RESPONDENT) APPELLANT BY: NONE RESPONDENT BY: SH. RAHUL DHAWAN, (D. R.) DATE OF HEARING: 18.04.2017 DATE OF PRONOUNCEMENT: .05.2017 ORDER PER DIVA SINGH,JM: THE PRESENT APPEAL HAS BEEN FILED BY THE ASSESSEE ASSAILIN G THE CORRECTNESS OF THE ORDER DATED 11.12.2014 OF CIT (A) AMR ITSAR, PERTAINING TO ASST. YEAR 2006-07 ON VARIOUS GROUNDS. 2. HOWEVER, AT THE TIME OF HEARING AN ADJOURNMENT APPLICA TION WAS PLACED ON RECORD ON BEHALF OF THE LD. AR CITING MEDICAL REAS ONS IN HIS FAMILY AS A GROUND IN SUPPORT OF HIS NON-APPEARANCE. HOW EVER IN VIEW OF THE FACT THAT SINCE THE APPEAL COULD BE DECIDED ON TH E BASIS OF MATERIAL AVAILABLE ON RECORD AFTER HEARING THE LD. SENIOR DR THE ADJOURNMENT APPLICATION WAS REJECTED. 3. THE RECORD SHOWS THAT THE ASSESSEE STATED TO BE A SENIOR CITIZEN OF 78 YEARS AS PER THE IMPUGNED ORDER BELONGING TO MUKTSA R LIVES IN AMRITSAR HE RETIRED FROM GOVT. SCHOOL, AS PRINCIPAL WAS REC EIVING PENSION INCOME ALONG WITH HIS WIFE TOO WHO WAS ALSO RECEIVING PENSION HAVING RETIRED FROM A GOVT. JOB. SINCE A CERTAIN CASH DEPO SITS, WERE FOUND DEPOSITED IN PUNJAB & SIND BANK, LAND SAHIB, DISTT. FAR IDKOT THE ASSESSEES CASE WAS PICKED UP FOR SCRUTINY. IT WAS HELD BY THE ASSESSING OFFICER THAT SINCE DESPITE SUFFICIENT OPPORTUNITY THE ASSESSE E FAILED TO APPEAR THE ASSESSMENT WAS CONCLUDED U/S 144 BY MAKING ADDITION OF THE DEPOSITS. 4. IN APPEAL BEFORE THE CIT (A), THE ASSESSEE CLAIMED THA T PART OF THE CASH DEPOSIT WAS OUT OF INCOME FROM SALE OF AGRICULTURAL PR ODUCE FROM 44 ACRES OF AGRICULTURAL LAND AND PART FROM ADVANCE MON EY RECEIVED ON - 2 - ACCOUNT OF SALE OF AGRICULTURAL LAND TO MR. GURCHARAN SINGH S/O SARDAR MOHINDER SINGH AND ALSO HIS OWN SAVINGS AND WITHDRAWALS. TH E CIT (A) REMANDED FRESH EVIDENCE TO THE ASSESSING OFFICER WHO OBJE CTED TO THE SAME. THE TAX AUTHORITIES FAULTED THE ASSESSEE ON THE GR OUND THAT NO SALE AGREEMENT FOR SALE OF LAND WAS FILED. THE AFFIDAVIT OF THE P URCHASER SHRI GURUCHARAN SINGH WAS STATED TO BE SELF SERVING. QU A AGRICULTURAL INCOME IT WAS DOUBTED ON THE GROUNDS THAT THE ASSESSE E BEING SENIOR CITIZEN COULD NOT BE PRESUMED TO HAVE CARRIED OUT AGRICU LTURAL OPERATIONS OR EVEN SUPERVISE AGRICULTURAL ACTIVITIES. IT W AS ALSO CONCLUDED THAT THE LAND WAS NOT EXCLUSIVELY ALSO OWNED B Y HIM SINCE IT WAS BELONGING TO HIS FAMILY 5. THE SENIOR DR RELIED UPON THE IMPUGNED ORDER AND SUB MITTED THAT THE EVIDENCES HAVE BEEN RIGHTLY REJECTED. 6. I HAVE HEARD THE RIVAL SUBMISSION AND PERUSED THE MA TERIAL AVAILABLE ON RECORD. I FIND THAT IN THE FACTS AND CIRCUMSTA NCES OF THE PRESENT CASE JUSTICE HAS NOT BEEN DONE. IT MAY BE A CASE THAT THE SENIOR CITIZEN DEPENDENT UPON THE ADVICE MADE AVAILABLE WAS PRES UMABLY NOT PROPERLY REPRESENTED. THE REASONS FOR THE ABOVE CONCLU SION ARE BASED ON THE FACT THAT THE TAX AUTHORITIES HAVE NOT CARED TO DETERMINE THE SPECIFIC AGRICULTURAL LAND HOLDING SHARE OF THE TAX PAYER. EVEN IF FORM J WAS NOT MADE AVAILABLE THE ASSESSEE COULD HAVE BEEN DIR ECTED TO PRODUCE EVIDENCES WHERE REFERENCE OF AGRICULTURAL ACTIVITY, IF ANY AS PER THE LAND REVENUE RECORDS FOR THE SPECIFIC PERIOD WOULD HAVE BEEN M ADE. ONCE AGRICULTURAL ACTIVITY ON THE JOINT LAND HOLDING IT ESTAB LISHED, THEN AS PER CROPS SOWED AND REASONABLE ESTIMATE OF HIS INCOME FROM THE SAID ACTIVITY COULD HAVE BEEN MADE. AS PER RECORDS THE ASSE SSEE IS FOUND TO HAVE DEPOSITED RS. 2 LACS AND 4 LACS ON 17 TH JANUARY, 2006 AND 24 TH JANUARY, 2006 STATED TO BE FROM AGRICULTURAL INCOME/PAST SAVINGS AND WITHDRAWALS FROM HIS AND HIS WIFES BANK ACCOUNT WHEREIN BO TH WERE RECEIVING PENSION FROM THE GOVERNMENT OF INDIA. QUA THE C LAIM OF ADVANCE ON ACCOUNT OF SALE OF LAND IT IS SEEN FROM THE REC ORD THAT IT HAS NOT BEEN DETERMINED WHETHER THE TAX PAYERS OWNERSHIP OF PIECE OF LAND ULTIMATELY CHANGED AS A RESULT OF SALE OF THE SAID LAND. THE FACTS ARE CAPABLE OF BEING DEMONSTRATED FROM THE LAND REVENUE REC ORDS ITSELF AND THE EVIDENCE IS NOT INCAPABLE OF BEING FILED. ACCORDINGLY IN THE INTERESTS OF SUBSTANTIAL JUSTICE THE IMPUGNED ORDER IS SE T ASIDE BACK TO THE FILE OF THE CIT (A) WITH THE DIRECTION TO PASS A SPEAK ING ORDER IN - 3 - ACCORDANCE WITH LAW AFTER GIVING THE ASSESSEE A REASONAB LE OPPORTUNITY OF BEING HEARD. LIBERTY IS GIVEN TO THE ASSESSEE TO PLACE FRESH EVIDENCES IN SUPPORT OF HIS CLAIM. IT IS HOPED THAT THE OPPORTUNITY S O PROVIDED IN GOOD FAITH IS UTILIZED BY MAKING FULL AND PROPER COMPLIANCE BE FORE THE COMMISSIONER APPEALS. IN THE EVENT OF ABUSE IT IS MADE CLEA R THAT THE LD. COMMISSIONER SHALL BE AT LIBERTY TO DECIDE THE SAME ON THE BASIS OF MATERIAL AVAILABLE ON RECORD. 7. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWE D FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 09.05.2017. SD/- (DIVA SINGH) JUDICIAL MEMBER /GP/SR.PS/POONAM(CHD) COPY OF THE ORDER FORWARDED TO: 1. THE ASSESSEE: 2. THE ACIT, 3. THE CIT(A), 4. THE CIT, 5. THE SR DR, I.T.A.T., TRUE COPY BY ORDER