Smt. Anita Damodar Sarangla, GANDHIDHAM V. The Income Tax Officer, Ward-2, GANDHIDHAM

ITA 987/RJT/2009

• Counselvise Citation: 98724914 RSA 2009
• Duration Of Justice: 1 year(s) 7 month(s) 14 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-04-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2005-2006
• Appeal Filed On: 15-09-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: JAI RAJ KUMAR
• Assessee Lawyers: M P SARDA
• Keywords: Additional evidence; Onus to prove

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL RAJKOT BENCH, RAJKOT. BEFORE SHRI A. L. GEHLOT (AM )AND SHRI N.R.S. GANE SAN(JM) I.T.A. NO.987/RJT/09 (ASSESSMENT YEAR 2005-06) SMT. ANITA SARANGLA, VS ITO WD..2 PLOT NO.40, WD.N.10/A GANDHIDHAM GANDHIDHAM PAN: ABMPD7930A; (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI MP SARDA RESPONDENT BY: SHRI JAI RAJ KUMAR. O R D E R A.L. GEHLOT (AM) THIS APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER DATED 19 TH AUGUST,2009 OF C.I.T. (A)-II, RAJKOT FOR THE ASSES SMENT YEAR 2005-06. 2. THE GROUNDS RAISED BY THE ASSESSEE IN HER APPEAL ARE REPRODUCED BELOW :- 1. THE ASSESSMENT ORDER IS BAD IN LAW. 2. THE LD. ASSESSING OFFICER HAS ERRED IN LAW AND ON FACTS IN MAKING ADDITION OF RS.7,37,000/- U/S 69 FOR UNEXPLA INED INVESTMENT. THE LD.CIT(A) HAS ERRED IN LAW AND ON FACTS IN CONFIRMING THE ACTION OF THE AO. 3. THE BRIEF FACTS OF THE CASE ARE THAT THE A SSESSEE IS AN EMPLOYEE OF MODERN SCHOOL, GANDHIDHAM AND SHOWN INCOME FROM SAL ARY. DURING THE ASSESSMENT PROCEEDING THE ASSESSING OFFICER NOTICED THAT SHE MADE INVESTMENT OF RS.8,77,000/- IN ONE TDR DURING THE Y EAR UNDER CONSIDERATION. ITA NO. 987/RJT/2009 A.Y. 2005-06 2 THE A.O. HAS ASKED THE SOURCE OF THE SAID INVESTMEN T. THE A.O. HAS NOTED THAT THE ASSESSEE HAS ABLE TO ESTABLISH ONLY RS. 1, 40,000/- FOR THE PURPOSE OF THAT INVESTMENT. HE FURTHER NOTED THAT THE PRIMAR Y ONUS IS ALWAYS LIES ON THE ASSESSEE TO PROVE SOURCE OF ANY INVESTMENT MADE BY HER. SINCE THE ASSESSEE COULD NOT DISCHARGE THE PRIMARY ONUS LIES ON HER BY WAY OF PRODUCING THE COGENT EVIDENCE, THE A.O. HELD THAT THE ASSESSEE CO ULD NOT DISCHARGE THE PRIMARY ONUS TO PROVE THE GENUINENESS OF THE SOURCE OF REMAINING INVESTMENT OF RS.7,37,000/-, HE ACCORDINGLY MADE TH E ADDITION OF RS.7,37,000/- U/S. 69 OF THE ACT. THE C.I.T. (A) D ID NOT ADMIT THE SOME ADDITIONAL EVIDENCE FILED BY THE ASSESSEE OBSERVING AS UNDER :- THE FACTS OF THE CASE AND THE RIVAL CONTENTIONS W ERE CONSIDERED. BEFORE GIVING MY CONCLUSION, I FOUND THAT THE APPEL LANT FILED CERTAIN NEW EVIDENCES WHICH WERE NOT PRODUCED BEFORE THE A.O. T HERE WAS NO PROPER REQUEST FROM THE APPELLANT ASKING ME TO ADMIT THESE ADDITIONAL EVIDENCES. NOT ONLY THAT, THE EVIDENCES WHICH WERE PRODUCED BE FORE ME, COULD HAVE BEEN EASILY SUBMITTED FOR A.OS PERUSAL. I COULD NOT FORESEE ANY PRESSING CIRCUMSTANCES WHICH COULD HAVE PREVENTED THE APPELL ANT IN SUBMITTING THESE ADDITIONAL EVIDENCES BEFORE THE A.O. FOR HIS PERUSA L AND DECISION. AS THERE IS NO STRONG GROUND AND SATISFACTORY EXPLANATION FO R FILING THESE ADDITIONAL NEW EVIDENCES BEFORE ME, I AM NOT INCLINED TO ADMIT THE SAME. 4. THE C.I.T.(A) CONFIRMED THE ACTION OF A.O. FOR M AKING ADDITION OF RS.7,37,000/- U/S.69 OF THE ACT. 5. AT THE OUTSET, LD. A.R. SUBMITTED THAT ON IDENTI CAL SET OF FACTS, THE ITAT. IN THE CASE OF DAMODAR V. SARANGLA IN I.T.A.NO.188/RJT/2009(ASSESSMENT YEAR 2005-06) THE ITAT. HAS SENT BACK MATTER TO THE FILE OF THE A.O. VIDE ORDER DTD.31 ST DECEMBER,2010. THE RELEVANT FINDING POINTED OUT BY THE LD. A.R. FROM T HAT ORDER ARE REPRODUCED AS BELOW :- ITA NO. 987/RJT/2009 A.Y. 2005-06 3 WE HAVE HEARD THE LEARNED REPRESENTATIVES OF THE P ARTIES, RECORD PERUSED. THE LD. A.R. SUBMITTED THAT THE FOLLOWING DOCUMENTS ARE BEING SUBMITTED FOR THE FIRST TIME WHICH ARE ADDITI ONAL EVIDENCES AND WHICH GO TO THE ROOT OF THE ISSUE: 1. COPY OF PASSBOOK OF MIS AUTO ACCOUNT PB 4-5 2. COPY OF CERTIFICATE FROM THE REGISTERED AGENT OF NATIONAL SAVINGS CERTIFICATE PB 6 3. COPY OF APPLICATION TO THE POST MATTER AND HI S CERTIFICATE PB 7 4. COPY OF DECLARATION GIVEN TO EMPLOYER IN RESPE CT OF NSC PB 8 THE LD. A.R. ACCORDINGLY REQUESTED THAT THESE ADDIT IONAL EVIDENCES MAY BE ADMITTED AND THE ISSUES MAY BE DECIDED ACCOR DINGLY. THE LD.DR SUBMITTED THAT THE ASSESSEE FILED THE ADDITIO NAL EVIDENCE AND THE REVENUE AUTHORITIES DID NOT GET OPPORTUNITY TO EXAMINE THESE EVIDENCES. THEREFORE, MATTER MAY BE SENT BACK TO T HE FILE OF THE ASSESSING OFFICER. AFTER CONSIDERING THE FACTS OF THE CASE WE FIND THAT THE ADDITIONAL EVIDENCES GO TO THE ROOT OF THE ISSU ES RAISED IN THE GROUNDS OF APPEAL BY THE ASSESSEE. WE, THEREFORE, IN THE INTEREST OF JUSTICE ADMIT THESE ADDITIONAL EVIDENCES. SINCE TH ESE ADDITIONAL EVIDENCES ARE SUBJECT TO VERIFICATION OF THE REVENU E AUTHORITIES, WHO ID NOT GET OPPORTUNITY TO APPLY THEIR MIND ON THESE ADDITIONAL EVIDENCE, WE THINK IT PROPER TO SENT BACK THESE ISS UES RAISED IN THE GROUNDS OF APPEAL OF THE ASSESSEE TO THE FILE OF TH E ASSESSING OFFICER WITH DIRECTION TO DECIDE THE SAME IN ACCORDANCE WIT H LAW AFTER CONSIDERING THE ADDITIONAL EVIDENCES AND OTHER EVID ENCES, IF ANY FILED BY THE ASSESSEE IS RESTORED TO THE FILE OF THE A SSESSING OFFICER WITH ABOVE DIRECTION. 6. THE LD. D.R. ON THE OTHER HAND, RELIED UPON THE ORDER OF C.I.T.(A). 7. I HAVE HEARD THE LEARNED REPRESENTATIVES OF THE PARTIES, RECORD PERUSED. THE SUBMISSION OF THE ASSESSEE THAT THE FOLLOWING P APERS AND DOCUMENTS AT SR.NO. 2 TO 4 OF THE PAPER BOOK DID NOT CONSIDER TH E SAME ON THE GROUND THAT THESE ARE ADDITIONAL EVIDENCES NOT FURNISHED BEFORE THE A.O.:- 2. COPY OF STATEMENT OF SALARY RECEIVED FROM MODERN SCHOOL IN VARIOUS YEARS PAGE NOS 3 & 4 3. COPY OF POST OFFICE TERM DEPOSIT PASS BOOK- PAGE NOS 5 TO 8 4. COPY OF BANK STATEMENT OF SYNDICATE BANK.- PAGE NOS. 9-10 ITA NO. 987/RJT/2009 A.Y. 2005-06 4 8. THE LD. A.R. SUBMITTED THAT DOCUMENTS AT SR.NO. 5 AND 6 OF THE PAPER BOOK ARE THE ADDITIONAL EVIDENCES SUBMITTED BEFOR E THE ITAT. 5. COPY OF CERTIFICATE FROM THE REGISTERED AGENT OF NATIONAL SAVINGS CERTIFICATE. PAGE NO 11 6. COPY OF APPLICATION TO THE POST MASTER AND HIS C ERTIFICATE PAGE NO. 12 9. WE FIND THAT ON THE IDENTICAL FACT, THE ITAT. HA S ADMITTED THE ADDITIONAL EVIDENCES AND SENT BACK THE MATTER TO TH E FILE OF A.O. IN ABOVE CASE. WE FOLLOW THE SAID ORDER OF ITAT AND IN THE LIGHT OF THAT, WE ALSO SENT BACK THE MATTER TO THE FILE OF A.O. WITH IDENTICAL DIRECTION. 10. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS TREATED AS ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT ON 29 -04-2 011. SD/- SD/- (N.R.S.GANESAN) (A.L.GEHLOT) JUDICIAL MEMBER ACCOUNTANT MEMBER RAJKOT,DT. 29-04-2011. COPY TO: 1. SMT. ANITA DAMODAR SARANGLA, GANDHIDHAM 2. THE INCOME TAX OFFICER, WARD-2, GANDHIDHAM 3. THE C.I.T.-1, RAJKOT. 4. THE C.I.T.(A)-II, RAJKOT 5. THE D.R., I.T.A.T., RAJKOT TRUE COPY BY ORDER ASSTT. REGISTRAR. ITAT, RAJKOT.