ITO, Varanasi V. SMT. DIVYA GUPTA, Varanasi

MA 29/ALLD/2016

• Counselvise Citation: [2022] 104 COUNSELVISE.COM (IT) 1159 (ITAT-VARANASI)
• Duration Of Justice: 6 year(s) 2 month(s) 2 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 10-10-2022
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 25-08-2022
• Assessment Year: 2008-2009
• Appeal Filed On: 07-08-2016
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Unexplained investment; Gift
• Section: 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL CIRCUIT BENCH, VARANASI BEFORE SHRI.VIJAY PAL RAO, JUDICIAL MEMBER AND SHRI RAMIT KOCHAR, ACCOUNTANT MEMBER M.A. No. 29/ALLD/2016 In ITA No. 158/ALLD/2015 Assessment Year: 2008-09 Income Tax Officer, Ward-2(3), Varanasi vs. Smt. Divya Gupta, Flat No. 84, Kashiraj Apartment, Kamachha, Varanasi, PAN-AMUPG5594M (Assessee) (Respondent) Assessee/Department by: Sh. A.K. Singh, Sr. DR Respondent by: None Date of hearing: 26.08.2022 Date of pronouncement: 11.10.2022 O R D E R SHRI VIJAY PAL RAO, JUDICIAL MEMBER: By way of this Misc. Application, the A.O. is seeking recalling of order dated 20 th January, 2016 of this Tribunal on the ground that there is mistake apparent from record for non-adjudication of the solitary issue in the appeal of the assessee but the final result was shown as the appeal is allowed. 2. The learned DR has submitted that the only issue before the Tribunal was regarding the addition made by the A.O. of Rs. 7,63,090/- on account of investment made in purchase of land as per the purchase deed with cost of stamp duty. He has referred to the impugned order of the Tribunal and submitted that the Tribunal has discussed the issue which was not subject matter of the appeal but the said issue was already decided by the CIT(A) in favour of the assessee. The Tribunal has not given any finding on the issue of addition of Rs. 7,63,090/- on account of unexplained investment in the property therefore, there is an apparent mistake in M.A. No. 29/ALLD/2016 In ITA No. 158/ALLD/2015 Smt. Divya Gupta 2 the impugned order of the Tribunal which requires to be rectified by recalling the impugned order and deciding the issue on merits. 3. On the other hand, the assessee has filed the written submissions which are as under:- “1. That the only point of dispute raised in the Miscellaneous Application is that Hon. ITAT in its order dt. 20.01.2016 is not in a comprehensive manner. 2. In this respect it is to state that the only point in the original Appeal was the addition of Rs. 7,63,090.00 being the ½ share investment of the Appellant in purchase of the property on 06.08.2007, which has been treated by the Assessing as well as the First Appellate Authorities as unexplained investment, while the Respondent has been insisting and had explained the source of investment out of sale of personal jewelry etc. The Hon. Tribunal has accepted the same and in the last para of the order has observed" We have gone into the relevant record and paper book filed by the assesse in which jewellery and bullion have been shown by the assesse and same is part of Stridhan, hence appeal of the assesse is allowed." 3. Thus it cannot be said that the order of the Hon. Tribunal is not comprehensive. 4. On the other hand above finding of the fact and above observation cannot be treated as "mistake apparent on the record" which can be agitated in the Miscellaneous Application. How the discretionary powers of the Hon. Tribunal be challenged as mistake! 5. Further the Appellant has quoted the wording of the First Appellate Authority which was incorporated by the Hon. Tribunal by reference as the Appeal filed by the Assessee never agitated these matters in the Appeal itself. The only addition was agitated of Rs. 7,63,090.00 and not 5,00,000.00 and 4,50,000.00 which were already deleted by the First Appellate Authority. Thus quoting of those observations by the Appellant in present Miscellaneous Application amounts to misguidance. In the above facts and circumstances, it is requested that the explanation be accepted, present Miscellaneous Application be rejected and no disturbance in the order of Hon. Tribunal dt. 20.01.2016 should be allowed.” 4. Thus, the assessee has also not disputed the fact that the only issue agitated before the Tribunal was addition of Rs. 7,63,090/-. 5. After considering the submissions of the learned DR and written submissions of the assessee as well as careful perusal of the orders of the authorities below and M.A. No. 29/ALLD/2016 In ITA No. 158/ALLD/2015 Smt. Divya Gupta 3 impugned order of this Tribunal, we find that the A.O. while completing the assessment under section 144 r.w.s. 148 has made three additions to the total income of the assessee in para 7 as under:- “7. From the above, it is clear that assessee is deliberately avoiding to submit the information as required. The matter involve limitation and I have no option except to pass the based judgment assessment order on the basis of material and facts as available on the record. After above discussion total income of the assessee is computed as below:- a. Total income of the assessee as shown Rs. 143110/- b. Purchase of land as per deed with cost of Stamp duty 763090/- c. Cost of car Rs. 500000/- d. ½ Cost of plant & machinery with cost of construction as estimated by ITI Rs. 900000/2 Rs. 450000 Total Income Rs. 1856200/- 6. The assessee challenged the action of the A.O. before the CIT(A). The CIT(A) granted relief to the assessee in respect of the addition made on account of investment in car, plant and machinery. The CIT(A) confirmed the addition made by the A.O. on account of purchase of land with cost of stamp duty total amounting to Rs. 7,63,090/-. The assessee challenged the order of the CIT(A) before the Tribunal and raised four grounds which are reproduced by the Tribunal in para 2 of the impugned order as under:- “1. That the learned Commissioner Income Tax Appeals, hereinafter referred to as the First Appellate Authority, was not justified in upholding the addition of Rs. 7,63,090/- on account of unexplained investment in the property. 2. That the Assessing Authority as well as learned Frist Appellate Authority were not justified in overlooking the written submissions and the facts of the case which is already on the record of the Assessing Authority. 3. That the learned First Appellate Authority was not justified in overlooking the written submissions supported by documentary evidences inspite of report of the Assessing Authority which has been held by the Appellate Authority as redundant. M.A. No. 29/ALLD/2016 In ITA No. 158/ALLD/2015 Smt. Divya Gupta 4 4. That the First Appellate Authority was not justified in overlooking the previous statements of accounts which were submitted alongwith the return of Income and it is only on that basis the case has been explained.” 7. Thus, there is no ambiguity or dispute about the subject matter of the appeal filed by the assessee before the Tribunal being the addition sustained by the CIT(A) of Rs. 7,63,090/- on account of unexplained investment in the property. It is apparent from the impugned order of the Tribunal that the Tribunal has discussed the facts in respect of the other additions made by the A.O. which were deleted by the CIT(A). In para 6 of the impugned order, the submissions of the counsel of the assessee are reproduced by the Tribunal as under:- “In reply to said notice the counsel of the assessee has produced following submissions: i. The property in which floor mill was running, in the name of Smt. Divya Gupta & Smt, Sudha Gupta purchased jointly on consideration of Rs. 14 lacs and stamp duty paid there on Rs. Rs. 1.28 lacs. As per notice it was mentioned about investment of Rs. 25 lacs and stamp duty paid is 2.5 lacs is not true and beyond the stretch of imagination. It appears that complaint was bogus one and based on fallacy and baseless grounds. In support of our claim the property purchase papers were enclosed herewith for your kind perusal. The copy of return for the Assessment year 2007 2008, 2008-2009 & 2009-2010 are enclosed herewith along with other relevant document. ii. The detail of registry paper is enclosed herewith for your kind consideration. iii. The return of M/s Maya Foods for Assessment year 2007-08, 2008-09 & 2009-10 are enclosed herewith for your perusal. iv. The car is gifted to Smt. Divya Gupta on her marriage by their family members. v. The detail of investments and cash etc., are reflected in the balance sheet which is enclosed herewith. vi. The income of the flour mill can be easily obtained from the enclosed acknowledgment of M/s Maya Foods.” 8. Thus, the assessee admitted the fact that the property on which the flour mill is running was purchased jointly by the assessee and Smt. Sudha Gupta. The assessee has not disputed the cost of investment in the said property. The Tribunal M.A. No. 29/ALLD/2016 In ITA No. 158/ALLD/2015 Smt. Divya Gupta 5 has discussed the other additions made by the A.O. with respect to the plant and machinery and on account of expenditure on construction of the shed which was not the subject matter of the appeal. In para 9 to 12 of the impugned order, the Tribunal has discussed all other issues as under:- “9. We have considered the submissions made by the AR and the fact that the car was gifted to the assessee on the occasion of her marriage and purchased in the year 2003 for a consideration of Rs. 3,85,000/-, no addition can be made in the A:Y 2008-09 on this account. Therefore, the action of the A.O. is not tenable and accordingly, the addition of Rs. 5,00,000/- made by the A.O. on account of Cost of Car is hereby deleted. It is seen from the order of the A.O. that on the basis of field enquiries, it was reported by the ITI that one flour mill in the name of Maya Foods was running at the land purchased by the assessee. The ITI, on the basis of his pure imagination and estimate the plant and machinery and the construction of shed should be Rs. 9,00,000/-. The assessee's share being 50%, the A.O, made an addition of Rs.4,50,000/- in the income of the assessee. 10. During the appellate proceedings, the ld. AR of the assessee has submitted that the land was given on rent to M/s Maya Food, which was a separate entity as a firm and was assessed under PAN No. AAOFM4389A. In his remand report, the A.O. has conveniently escaped to make any relevant comment on the same. 11. The contention of the Id. AR has been considered. Since, M/s Maya Food is a separate firm and assessed to tax separately, no addition can be made on account of investments made by the firm in the hands of the assessee. It is also stated that the assessee is not a partner in the said firm. The assessee had given her land to M/s Maya Food and the rental income from the same is being shown by the assessee in her return of income. Therefore, considering the facts and circumstances of the case, the action of the A.O. in making an addition of Rs. 4,50,000/- in the hands of the assessee is not tenable and accordingly, deleted hereby. 12. We have gone into the relevant record and paper book filed by the assessee in which jewellery and bullion have been shown by the assessee and same is part of the Stridhan, hence appeal of the assessee is allowed.” 9. It is apparent from the impugned order of the Tribunal that the issue of addition of Rs. 7,63,090/- being ½ share of assessee in the investment in purchase of property has not been considered and decided by the Tribunal. Therefore, without adjudication of the issue involved in the appeal of the assessee, the Tribunal M.A. No. 29/ALLD/2016 In ITA No. 158/ALLD/2015 Smt. Divya Gupta 6 has finally allowed the appeal and hence there is an apparent mistake from record so far as the issue raised in the appeal was not at all adjudicated by the Tribunal. Accordingly, in the facts and circumstances of the case as discussed above, we recall the impugned order of the Tribunal dated 20 th January, 2016 for fresh adjudication of the appeal filed by the assessee. The appeal of the assessee is directed to be listed for fresh hearing and adjudication in normal course. 10. In the result, the Misc. Application filed by the Revenue is allowed. Order pronounced in open court on 11.10.2022 virtually. Sd/- Sd/- [RAMIT KOCHAR] [VIJAY PAL RAO] ACCOUNTANT MEMBER JUDICIAL MEMBER Date: 11.10.2022 Varanasi/Allahabad sh Copy forwarded to: 1. Appellant- Smt. Divya Gupta 2. Respondent-ITO, Ward-2(3), Varanasi 3. CIT(A) 4. CIT 5. DR By order Sr. P.S.