Smt. Sonam Sagar Ray, Bhubaneswar V. DCIT, Central Circle-1, Bhubaneswar

ITSSA 50/CTK/2016

• Counselvise Citation: [2017] 122 COUNSELVISE.COM (IT) 3465 (ITAT-CUTTACK)
• Duration Of Justice: 11 month(s) 1 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 23-11-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2012-2013
• Appeal Filed On: 22-12-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S K DASH
• Assessee Lawyers: MANOJ KUMAR PATRAAR
• Keywords: Unexplained investment; Principle of natural justice; Corroborative evidences
• Section: 10

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL CUTTACK BENCH CUTTACK BEFORE SHRI N.S.SAINI, AM & SHRI PAV AN KUMAR GADALE, JM IT (SS) A NO. 48 TO 51 / CTK /20 1 7 ( / ASSESSMENT YEAR S : 20 10 - 201 1 TO 201 3 - 201 4 ) SMT. SONAM S AGAR RAY, PLOT NO.MIG - 19, STAGE - II, LAXMI SAGAR, BHUBANSAR - 751006 VS. DCIT, CC - 1, BHUBANESWAR ./ ./ PAN/GIR NO. : A HDPR 4898 P ( / APPELLANT ) .. ( / RESPONDENT ) /AS SESSEE BY : SHRI MANOJ KUM AR PATRA,AR /REVENUE BY : SHRI S.K.DASH , CITDR / DATE OF HEARING : 22 / 11 /201 7 / DATE OF PRONOUNCEMENT 23 / 11 /201 7 / O R D E R PER SHRI PAV AN KUMAR GADALE, JM : TH E SE ARE THE APPEALS FILED BY TH E ASSESSEE AGAINST THE DIFFERENT ORDER S OF CIT(A) - 3 , BHUBANESWAR, PASSED U/S. 153A/14 4 OF THE I.T. ACT . 2. SINCE THE ISSUE INVOLVED IN ALL THE APPEALS ARE CONNECTED AND COMMON, HENCE, THE APPEALS ARE HEARD AL TOGETHER AND DISPOSED OFF BY THIS CONSOLIDATED OR DER. WE SHALL TAKE UP ASSESSEES APPEAL I.E. IT (SS) A NO. 48 /CTK/201 7 (AY : 20 10 - 201 1 ) AND THE FACTS NARRATED THEREIN . 3. BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE IS AN INDIVIDUAL AND HAS INCOME FROM BUSINESS AND PROFESSION. THERE WAS A SEARCH AND SEIZ URE OPERATION U/S.132 OF THE ACT CONDUCTED IN THE OFFICE PREMISES AND RESIDENTIAL PREMISES OF THE ORISONS GROUP OF COMPANIES ON 11.4.2012. ASSESSEE IS ONE OF THE PRINCIPAL ASSESSEE OF THE GROUP. DURING THE COURSE OF SEARCH OPERATION INCRIMINATING DOCUMENTS , BOOKS OF ACCOUNT ETC. WERE IT (SS) A NO S . 48 - 51 /CTK/201 6 2 FOUND AND SEIZED. THE AO ISSUED NOTICE U/S.153A (1)(A) OF THE ACT ON 12.06.2014 TO FILE RETURN OF INCOME FOR THE SAID ASSESSMENT YEAR. THE AO ALSO ISSUED NOTICE U/S.142(1) OF THE ACT ALONG WITH DETAILED QUESTIONNAIRE. SUBSEQUENT LY, THE LD. AR OF THE ASSESSEE APPEARED AND ASSESSEE HAS FILED RETURN OF INCOME U/S.153A(1)(A) OF THE ACT ON 19.03.2015 SHOWING TOTAL INCOME OF RS.9,40,690/ - . THE AO FOUND THAT THE ASSESSEE COULD NOT PRODUCE PROPER DETAILS AND, THEREFORE, MADE BEST JUDGMEN T ASSESSMENT U/S.144 OF THE ACT BY MAKING ADDITIONS IN RESPECT OF DISALLOWANCE UNDER CHAPTER - VIA OF THE ACT OF RS.1 LAKH, UNEXPLAINED INVESTMENT U/S.69 OF THE ACT OF RS.8 LAKHS AND UNEXPLAINED MONEY U/S.69A OF THE ACT OF RS.7 LAKHS AND ASSESSED THE TOTAL INCOME OF RS.24,40,690/ - AND PASSED THE ORDER U/S.153A/144 OF THEACT DATED 31.03.2015. 4. AGAINST THE ORDER OF AO, THE ASSESSEE HAS PREFERRED AN APPEAL BEFORE THE CIT(A) AND THE CIT(A) HAVING CONSIDERED THE GROUNDS, SUBMISSIONS OF LD. AR AND FINDINGS OF AO , GRANTED PARTIAL RELIEF AND SUSTAINED THE ADDITION OF RS.8 LAKHS IN RESPECT OF INVESTME NT WITH UTKAL REALTORS PVT. LTD U/S.69 OF THE ACT. 5. AGGRIEVED FURTHER, THE ASSESSEE IS IN APPEAL BEFORE THE TRIBUNAL. 6. BEFORE GOING INTO THE MERITS OF THE CASE, THE LD. AR SUBMITTED THAT THE ASSESSEE S HUSBAND WAS IN JUDICIAL CUSTODY WHEN THE ASSESSMENT PROCEEDINGS ARE BEING CONDUCTED BY THE AO. THE LD. AR FILED WRITTEN SUBMISSIONS ALONG WITH PAPER BOOK AND SUPPORTING EVIDENCE IN RESPECT OF MEDICAL SUPERVISION THAT THE ASSESSEE IS IN ADVAN CE STAGE OF PREGNANCY AND WAS CONFIRMED BY THE CERTIFICATE FROM HOSPITAL DATED 30.12.2014 AND IT (SS) A NO S . 48 - 51 /CTK/201 6 3 AFFIDAVIT OF THE HUSBAND IN RESPECT OF THE JUDICIAL CUSTODY AND BANK DETAILS AND CONFIRMATION SUPPORTING THE CASE AND, THEREFORE, PRAYED FOR AN OPPORTUNI TY BEFORE THE LOWER AUTHORITIES TO SUBSTANTIATE HER CLAIM . 7 . CONTRA, LD. DR VEHEMENTLY OPPOSED THAT THE CIT(A) ALREADY CONSIDERED THE MERIT S OF THE CASE AND GRANTED PARTIAL RELIEF AND , THEREFORE, APPEAL BE DISMISSED. 8 . WE HAVE HEARD THE R IVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECORD. PRIMA FACIE, THE L D. AR PRAYED FOR AN OPPORTUNITY BE PROVIDED TO THE ASSESSEE TO SUBSTANTIATE HER CLAIM AND ALSO FILED WRITTEN SUBMISSIONS ALONG WITH EVIDENCE . THE CONTENTION OF THE LD. AR THAT THE ADDIT ION ON ACCOUNT OF UNEXPLAINED INVESTMENT U/S.69 OF THE ACT WITH RESPECT OF PAYMENTS MADE TO M/S UTKAL REALTORS PVT. LTD. BY THE ASSESSING OFFICER IS NOT CORRECT. T HE ASSESSEE HAS SUBSTANTIAL SOURCE S WHO ALONG WITH HER HUSBAND HAS ADVANCED MONEY FOR THE PUR POSE OF PURCHASE OF FLAT IN THE JOINT NAME AND THE ASSESSEES HUSBAND HAS COMPLETE KNOWLEDGE OF TRANSACTION BUT DURING THE ASSESSMENT PROCEEDINGS WAS IN THE JUDICIAL CUSTODY. FURTHER LD. AR SUBSTANTIATED HIS ARGUMENT S BY DRAWING OUR ATTENTION TO THE PAPER BOOK AT PAGE 4 WHERE THE CERTIFICATE WAS ISSUED BY THE HOSPITAL IN RESPECT OF ASSESSEES ADVANCE STAGE OF PREGNANCY AND WAS ADVISED TO COMPLETE BED REST FROM 30.12.2014 TILL DELIVERY AND ALSO SUBMITTED MEDICAL DISCHARGE SUMMARY . FURTHER THE ASSESSEES HUSB AND WHO IS FACING JUDICIAL CUSTODY FROM 14.11.2014 TO 25.05.2015 UNDER THE PRIZE CHITS AND MONEY CIRCULATION SCHEME (BANNING) ACT, 1978, THEREFORE, THE ASSESSEE COULD NOT PRODUCE RELEVANT DOCUMENTS IN THE IT (SS) A NO S . 48 - 51 /CTK/201 6 4 ASSESSMENT PROCEEDINGS WHICH ARE VERY MUCH VITAL TO SUPPORT HER CLAIM . THE LD. AR EMPHASISED THAT THE ASSESSEE HAS SUBSTANTIAL EVIDENCE TO SUPPORT THE SOURCE S WITH RESPECT TO PAYMENTS OF RS.8 LAKHS TOWARDS HER SHARE AND SUCH PAYMENTS ARE MADE FROM BANK ACCOUNT AND DREW OUR ATTENTION TO THE PAGE 11 OF THE P APER BOOK , WHERE THE JOINT BANK ACCOUNT COPY WAS FILED EXPLAINING THE PAYMENT OF RS.1 LAKH AND AMOUNT OF RS. 15 LAKHS WAS PAID FROM OTHER BANK ACCOUNTS TOTAL AGGREGATING TO RS.16 LAKHS OUT OF THE SAID AMOUNT THE AO MADE ADDITION OF 50% IN THE HANDS OF THE ASSESSEE I.E. RS.8 LAKHS. 9 . THE LD. AR DEMONSTRATED THE LETTERS ISSUED BY M/S UTKAL REALTORS PVT. LTD. IN RESPECT OF CANCELLATION OF THE BOOKING AND REFUND OF THE AMOUNT ALONG WITH INTEREST. WE FOUND TH ERE IS STRENGTH IN THE ARGUMENTS OF THE LD. AR THAT THE ASSESSEE DURING THE ASSESSMENT PROCEEDINGS WAS IN ADVANCE STAGE OF PREGNANCY AND THE ASSESSEES HUSBAND WAS IN THE JUDICIAL CUSTODY . THE LD. AR FILED BANK STATEMENT S BEFORE US TO SUBSTANTIATE THE CLAIM THAT THE ASSESSEE HAS SUFFICIENT SOURCE AND PRODUC ED LEDGER ACCOUNT COPIES. THE L D. DR OBJECTED AS THE DOCUMENTS ARE FILED FOR THE FIRST TIME BEFORE THE TRIBUNAL. CONSIDERING THE APPARENT FACTS AND MATERIAL ON RECORD WE FOUND THE ASSESSMENT ORDER WAS PASSED U/S.144/153A OF THE ACT DATED 31.03.2015 AND DU RING THE SAID PERIOD, AS SUBMITTED BY THE LD. AR, THE ASSESSEE WAS IN ADVANCE STAGE OF PREGNANCY AND ASSESSEES HUSBAND WAS IN JUDICIAL CUSTODY . FURTHER THE LD. AR SUPPORTED THE FACTS WITH THE DOCUMENTS IN PAPER BOOK WHICH COULD NOT CONTROVERTED BY THE LD. DR OF THE REVENUE , THEREFORE, WITHOUT GOING INTO IT (SS) A NO S . 48 - 51 /CTK/201 6 5 MERITS OF THE CASE, ON THE PRINCIPLE OF NATURAL JUSTICE , ARE OF THE OPINION THAT THE SUBMISSIONS /DOCUMENTS FILED BY THE LD. AR HAVE TO BE VERIFIED AND EXAMINED BY THE AO AND T HE ASSESSEE SHOULD BE PROVIDED AN OPPORTUNITY TO SUBSTANTIATE HER CLAIM WITH RELEVANT DOCUMENTS AND EVIDENCE. ACCORDINGLY , WE REMIT THE ENTIRE DISPUTED ISSUE TO THE FILE OF AO FOR ADJUDICATION AFRESH WITHIN A PERIOD OF 30 DAYS FROM THE RECEIPT OF THE COPY OF THE ORDER AND THE ASSESSEE SHALL COOPERATE IN FILING THE INFORMATION BEFORE THE TAX AUTHORITY AND THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. 10 . SIMILAR ISSUES HAVE BEEN RAISED IN APPEAL S I.E. IT (SS) A NOS. 49,50&51 /CTK/201 6 (AY : 201 1 - 2012 TO 201 3 - 201 4 ). WE HAV E DISCUSSED THE BRIEF FACTS IN THE APPEAL OF THE ASSESSEE FOR THE ASSESSMENT YEAR 2010 - 2011 WHEREAS IN ABOVE ASSESSMENT YEARS THE ASSESSEE HAS NOT FILED RETURN OF INCOME IN SPITE OF RECEIPT OF NOTICE U/S.153A(1)(A) OF THE ACT. T HEREFORE, WITHOUT GOING INTO MERITS OF THE CASE AND CONSIDER ED THE SUBMISSIONS OF LD. AR THAT DURING THE COURSE OF ASSESSMENT PROCEEDINGS THE ASSESSEE WAS IN ADVANCE STAGE OF PREGNANCY AND ASSESSEES HUSBAND WAS IN JUDICIAL CUSTODY , DUE TO WHICH THE ASSESSEE COULD NOT FILE THE RETURN OF INCOME AND PRAYED FOR AN OPPORTUNITY BEFORE THE ASSESSING OFFICER TO SUBSTANTIATE THE CLAIM WITH EVIDENCE. HOWEVER, IN THE INTEREST OF SUBSTANTIAL JUSTICE, CONSIDERING THE APPARENT FACTS, WE REMIT THE ENTIRE ISSUE S TO THE FILE OF ASSESSING OFFICER FOR ADJUDICATION AFRESH AND THE ASSESSEE WITHIN A PERIOD OF 30 DAYS FROM THE D ATE OF RECEIPT OF THE COPY OF THE ORDER SHOULD FILE THE RETURN OF INCOME WITH SUPPORTING DETAILS AND IT (SS) A NO S . 48 - 51 /CTK/201 6 6 COOPERATE IN THE ASSESSMENT PROCEEDINGS AND THE ASSESSEE SHALL BE PROVIDED ADEQU ATE OPPORTUNITY OF HEARING. ACCORDINGLY, WE ALLOW THE APPEALS OF THE ASSESSEE FOR STATISTICAL PURPOSES. 11 . IN THE RESULT, APPEALS OF THE ASSESSEE IN IT (SS) A NOS. 49 TO 51 /CTK/201 6 FOR ASSESSMENT YEAR 20 10 - 201 1 TO 20 13 - 201 4 ARE ALLOWED FOR STATISTICAL PUR POSES. ORDER PRONOUNCED IN THE OPEN COURT ON 23 / 11 / 201 7 . SD/ - ( N. S. SAINI ) SD/ - ( PA V AN KUMAR GADALE ) / ACCOUNTANT MEMBER / JUDICIAL MEMBER CUTTACK ; DATED 23 / 11 /201 7 . . / PKM , SENIOR PRIVATE SECRETARY / COPY OF THE ORDER FORWARDED TO : / BY ORDER, ( SENIOR PRIVATE SECRETARY ) , / ITAT, CUTTACK 1. APPELLANT - 2. / THE RESPONDENT - 3. ( ) / THE CIT(A), 4. / CIT 5. , , / DR, ITAT, CUTTACK 6. / GUARD FILE. //TRUE COPY//