Smt. Nitika Lalani, Bhubaneswar V. DCIT, Central Circle-1, Bhubaneswar

ITSSA 28/CTK/2017

• Counselvise Citation: [2018] 124 COUNSELVISE.COM (IT) 7166 (ITAT-CUTTACK)
• Duration Of Justice: 1 year(s) 5 month(s) 18 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 28-09-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 27-09-2018
• Assessment Year: 2011-2012
• Appeal Filed On: 10-04-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: PIYUSH KOLHE
• Assessee Lawyers: MANOJ KUMAR PATRA
• Keywords: Search and seizure; Additional evidence
• Section: 142(1); 144

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL CUTTACK BENCH CUTTACK BEFORE SHRI N.S.SAINI, AM & SHRI PA V AN KUMAR GADALE, JM IT (S) A NO S . 26 TO 30 /CTK/201 7 ( [ [ / ASSESSMENT YEAR S : 20 0 9 - 2010 TO 2013 - 2014 ) SMT. NIKITA L ALANI, PLOT NO.3433, B - 29, JAYADURGA NAGAR, BHUBANESWAR - 751006 VS. DCIT, CENTRAL CIRCLE - 1, BHUBANESWAR ./ PAN NO. A BEPL 7181 N ( / APPELLANT ) .. ( / RESPONDENT ) [ /AS SESSEE BY : SHRI MANOJ KUMAR PATRA , AR /REVENUE BY : SHRI PIYUSH KOLHE , CITDR / DATE OF HEARING : 27 / 0 9 /201 8 / DATE OF PRONOUNCEMENT 28 / 0 9 /201 8 / O R D E R PER SHRI PA V AN KUMAR GADALE, JM : THESE ARE THE APPEALS FILED BY THE ASSESSEE AGAINST THE ORDER OF CIT(A) - 3, BHUBANESWAR , ALL DATED 06.12.2016 IN I.T.APPEAL NOS.0162 TO 0166/2015 - 16 FOR THE ASSESSMENT YEARS 200 9 - 2010 TO 2013 - 2014 . 2. SINCE THE ISSUES IN ALL THE APPEALS ARE COMMON, THEY ARE CLUBBED AND HEARD TOGETHER AND DISPOSED OFF BY THIS COMMON ORDER. FOR THE SAKE OF CONVENIENCE, WE SHALL TAKE UP APPEAL OF THE ASSESSEE IN IT (SS) A NO. 26 /CTK/201 7 FOR ASSESSMENT YEAR 2009 - 2010 AND THE FACTS NARRATED THEREIN. 3 . THE GROUNDS OF APPEAL RAISED BY THE ASSESSEE IN IT (SS) A NO . 26 /CTK/201 7 FOR THE ASSESSMENT YEAR 200 9 - 2010 ARE AS UNDER : - 1. DISALLOWANCES OF DEDUCTION AMOUNTING TO RS 1,00,000/ - UNDER CHAPTER IV - A OF THE ACT ON THE GROUND OF GENUINENESS OF THE CLAIM IS NOT ASCERTAINABLE IS INCORRECT AND BAD IN LAW AS THE DOCUM ENTARY EVIDENCE IS AVAILABLE WITH THE APPELLANT AND HENCE GENUINE IT (SS) A NO. 26 TO 30/CTK/2017 2 2. THE LD. CIT (APPEAL) HAD. ; RESTRICTED THE DISALLOWANCES OF EXPENDITURE BY 10% ON ESTIMATED BASIS AMOUNTING TO RS. 8083/ - IS INCORRECT AND BAD IN LAW AS THE EXPENDITURE WAS PURELY INCUR RED FOR THE PURPOSE OF BUSINESS AND HENCE GENUINE. 3. THAT THE APPELLANT CRAVES LEAVE TO ADD OR TO AMEND THE ABOVE GROUNDS OF APPEAL BEFORE OR AT THE TIME OF HEARING OF THE APPEAL. 4. FOR THESE AND AMONG OTHER GROUNDS TO BE URGED AT THE TIME OF HEARING, ADEQUATE RELIEF AS MAY BE DEEMED FIT BE GRANTED IN THE MATTER 4. BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE IS AN INDIVIDUAL AND DERIVING INCOME FROM BUSINESS AND PROFESSION. A SEARCH AND SEIZURE OPERATION U/S.132 OF THE ACT WAS CONDUCTED I N THE OFFICE PREMISES AND RESIDENTIAL PREMISES OF THE ORISSONS GROUP OF COMPANIES ON 11.04.2012. THE ASSESSEE BEING ONE OF THE PRINCIPAL ASSESSEE OF THE GROUP, SEARCH AND SEIZURE OPERATION WAS ALSO CONDUCTED IN HER RESIDENTIAL PREMISES. ACCORDINGLY, THE AO ISSUED NOTICE U/S.153A OF THE ACT ON 12.06.2014. IN RESPONSE, THE ASSESSEE FILED THE RETURN ON 16.01.2015 DECLARING TOTAL INCOME AT RS.12,12,241/ - . IN THE MEANTIME THE AO ISSUED NOTICE U/S.142(1) OF THE ACT ON 19.08.2014, BUT THE ASSESSEE DID NOT RESPOND TO THE NOTICE. AFTER FILING OF RETURN ON 16.01.2015, THE AO ISSUED NOTICE U/S.143(2) & 142(1) OF THE ACT ALONG WITH QUESTIONNAIRE ON 18.02.2015. THE ASSESSEE DID NOT RESPOND TO THE NOTICES AND NO REPLY OR DOCUMENT WAS FILED AGAINST THE QUERIES RAISED BY T HE AO. THEREFORE, THE AO COMPLETED THE ASSESSMENT U/S.153A OF THE ACT AT RS.14,95,950/ - BY INVOKING PROVISIONS OF SECTION 144 /153A OF THE ACT, DATED 31.03.2015. 5 . AGAINST THE ORDER PASSED BY THE AO, THE ASSESSEE PREFERRED APPEAL BEFORE THE CIT(A). IN THE APPELLATE PROCEEDINGS, THE ASSESSEE REITERATED IT (SS) A NO. 26 TO 30/CTK/2017 3 THE SUBMISSION MADE BEFORE THE AO WHEREAS LD. CIT(A) HAS CONFIRMED THE ACTION OF AO AND DISMISSED THE APPEAL. 6 . AGGRIEVED WITH THE ORDER OF CIT(A), THE ASSESSEE FILED APPEAL BEFORE THE TRIBUNAL. 7 . BEFORE U S, LD. AR SUBMITTED THAT THE ASSESSEE HAS FILED PETITION FOR ADMISSION OF ADDITIONAL EVIDENCE AND ALSO THIS ADDITIONAL EVIDENCE IS AN INTEGRAL PART OF THE ASSESSMENT WHICH IS VERY MUCH REQUIRED FOR DECISION MAKING. DURING THE ASSESSMENT PROCEEDINGS AND THE APPELLATE PROCEEDINGS THE HUSBAND OF THE ASSESSEE WAS IN JUDICIAL CUSTODY, THEREFORE, THE INFORMATION COULD NOT BE SUBMITTED BEFORE BOTH THE LOWER AUTHORITIES AND PRAYED FOR ADMISSION OF ADDITIONAL EVIDENCE AND OPPORTUNITY TO REPRESENT ITS CASE BEFORE L OW ER AUTHORITIES. 8 . CONTRA, LD. DR OBJECTED TO THE PETITION OF ADDITIONAL EVIDENCE AND SUBMITTED THAT THIS ADDITIONAL EVIDENCE WAS NOT AVAILABLE WITH THE AO OR BEFORE THE CIT(A), THEREFORE, THE SAME CANNOT BE CONSIDERED WITHOUT VERIFICATION AND EXAMINATION AND PRAYED FOR DISMISSAL OF ASSESSEES APPEAL. 9 . WE HAVE HEARD RIVAL SUBMISSIONS AND PERUSED THE MATERIALS AVAILABLE ON RECORD . BEFORE GOING INTO THE MERITS OF THE CASE, LD. AR FILED A PETITION FOR ADMISSION OF ADDITIONAL EVIDENCE . W E FOUND THE SUBMISSION IN RESPECT OF CUSTODY OF ASSESSEES HUSBAND AND THE INCOME TAX ASSESSMENT DETAILS AND THE ASSESSEE HUSBAND S PARTICULARS WHICH ARE NECESSARY FOR DETERMINING THE TOTAL INCOME OF THE ASSESSEE IN THE ASSESSMENT PROCEEDIN GS. THE L D. AR FURTHER EMPHASIZED THAT THE IT (SS) A NO. 26 TO 30/CTK/2017 4 ASSESSEE BEING A LADY AND HER INCOME TAX FILE IS MANAGED BY HER HUSBAND WHEREAS THE HUSBAND WAS IN THE JUDICIAL CUSTODY AND LD. AR REFERRED TO THE ADDITIONAL EVIDENCE IN RESPECT OF THE AFFIDAVIT FILED BY ASSESSEES HUSBAND AND CU STODY CERTIFICATE ISSUED BY THE SUPERINTENDENT OF JAIL AUTHORITIES. P RIMA FACIE, THE ASSESSEE WAS PREVENTED FROM SUBMITTING THE INFORMATION BEFORE THE LOWER AUTHORITIES . B EFORE US THE ASSESSE E HAS FILED THESE DOCUMENTS WHICH HAS CAUSED GENUINE HARDSHIP TO THE ASSESSEE DUE TO NON - AVAILABILITY IN THE ASSESSMENT PROCEEDINGS . THEREFORE, IN THE INTEREST OF SUBSTANTIAL JUSTICE, WE ACCEPT THE ADDITIONAL EVIDENCE AND DIRECT THE AO TO EXAMINE AND VERIFY THE SAME AND ACCORDINGLY RESTORE THE MATTER TO THE FILE OF AO AND THE ASSESSEE SHALL COOPERATE IN SUBMITTING THE INFORMATION FOR EARLY DISPOSAL OF THE CASE. ACCORDINGLY, WE ALLOW THIS GROUND OF APPEAL OF THE ASSESSEE FOR STATISTICAL PURPOSES FOR THE ASSESSMENT YEAR 2009 - 2010 . 10 . SIMILARLY, FOR THE ASSESSMENT YEAR 2010 - 2011 TO 2013 - 2014 (IT(SS)A NOS.27 TO 30/CTK/2017) , THE ASSESSEE HAS ALSO MOVED A PETITION FOR ACCEPTING ADDITIONAL EVIDENCE. SINCE WE HAVE DECIDED THE SIMILAR ISSUE WHILE CONSIDERING THE APPEAL OF THE ASSESSEE FOR THE ASSESSMENT YEAR 2009 - 2010 , ACCORDINGLY, WE ACCEPT THE ADDITIONAL EVIDENCE FILED IN THE APPEALS FOR ASSESSMENT YEARS 2010 - 2011 TO 2013 - 2014 RESTORE THE DISPUTED ISSUE TO THE FILE OF AO AND DIRECT THE AO TO EXAMINE AND VERIFY THE SAME , THE ASSESSEE SHALL COOPERATE IN SUBMITTING THE INFORMATION FOR EARLY DISPOSAL OF THE CASE. ACCORDINGLY, WE ALLOW THE IT (SS) A NO. 26 TO 30/CTK/2017 5 GROUND OF APPEAL OF THE ASSESSEE FOR STATISTICAL PURPOSES FOR THE ASSESSMENT YEAR S 2010 - 2011 TO 2013 - 2014 . 11 . IN THE RESULT, ALL THE APPEAL S OF THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES. O RDER PRONOUNCED IN TH E OPEN COURT ON THIS 28 / 09 / 201 8 . SD/ - ( N.S.SAINI ) SD/ - ( PAVAN KUMAR GADALE ) / ACCOUNTANT MEMBER / JUDICIAL MEMBER CUTTACK ; DATED 28 / 09 /201 8 . . / PKM , SENIOR PRIVATE SECRETARY / COPY OF THE ORDER FORWARDED TO : / BY ORDER, ( SENIOR PRIVATE SECRETARY ) , / ITAT, CUTTACK 1. / THE APPELLANT - SMT. NIKITA L ALANI, PLOT NO.3433, B - 29, JAYADURGA NAGAR, BHUBANESWAR - 751006 2. / THE RESPONDENT - DCIT, CENTRAL CIRCLE - 1, BHUBANESWAR 3. ( ) / THE CIT(A), 4. / CIT 5. , , / DR, ITAT, CUTTACK 6. [ / GUARD FILE. //TRUE COPY//