Kumari Nancey Duggal, Phagwara V. The Income-tax Officer, Phagwara

MA 63/ASR/2014

• Counselvise Citation: [2016] 124 COUNSELVISE.COM (IT) 4187 (ITAT-AMRITSAR)
• Duration Of Justice: 2 year(s) 1 month(s) 12 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 20-05-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 06-05-2016
• Assessment Year: 2008-2009
• Appeal Filed On: 07-04-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S S KANWAL
• Assessee Lawyers: J S BHASIN
• Keywords: Gift; Additional evidence; Corroborative evidences

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH; AMRITSAR. BEFORE SH. A.D. JAIN, JUDICIAL MEMBER AND SH. T.S. KAPOOR, ACCOUNTANT MEMBER M.A. NO.63(ASR)/2014 (ARISING OUT OF ITA NO.610(ASR)/2013 ASSESSMENT YEAR:2008-09 PAN: ADCPN7142H KUMARI NANCY DUGGAL VS. INCOME TAX OFFICER, 372, HARGBOND NAGAR, WARD-1, PHAGWARA. PHAGWARA. (APPELLANT) (RESPONDENT) APPELLANT BY:SH. J.S. BHASIN, ADV. RESPONDENT BY: SH.S.S. KANWAL, DR DATE OF HEARING: 06/05/2016 DATE OF PRONOUNCEMENT: 20/05/2016 ORDER PER A.D. JAIN, JM: THE ASSESSEE HAS FILED THIS PRESENT MISC. APPLICAT ION, SEEKING RECTIFICATION OF THE ORDER OF THE TRIBUNAL, DATED 2 8.02.2014, PASSED IN ITA NO. 610(ASR)/2013, FOR THE ASSESSMENT YEAR 2008-09. 2. THE LD. COUNSEL FOR THE ASSESSEE CONTENDED THAT WHILE DECIDING THE APPEAL OF THE ASSESSEE, THE TRIBUNAL HAS NOT TAKEN INTO CONSIDERATION THE DETAILED WRITTEN SUBMISSIONS MADE BY THE ASSESSEE, WHERE SPECIFIC REFERENCE HAD BEEN GIVEN TO EACH OF THE FINDINGS GI VEN BY THE LD. CIT(A). HE FURTHER STATED THAT THE APPEAL HAS BEEN DISPOSED OF, WITHOUT REVERSING THE FINDINGS OF THE LD. CIT(A), FOR WHICH, THE FOLL OWING SUBMISSIONS WERE MADE BEFORE THE TRIBUNAL: MA NO.63(ASR)/2014 ASSESSMENT YEAR : 2008-09 2 I THE ID.CIT(A), IN PARA 10 PAGE 15 OF HIS ORDER, W HILE ADMITTING THE ADDITIONAL EVIDENCE FILED BY ASSESSEE BEFORE HI M TO EXPLAIN MARRIAGE EXPENSES COLLECTIVELY INCURRED BY FAMILY, AS DETAILED ON PAGE 11 OF HIS ORDER, HELD THUS ' I AM OF THE CONSIDERED OPINION THAT THE AMOUNT OF WITHDRAW/S ARE INTERCONNECTED WITH THAT O F MARRIAGE EXPENSES AS WELL AS DEPOSITS UNDER REFERENCE. THEREFORE THE COPIES OF B ANK ACCOUNTS MAINTAINED BY THE FAMILY MEMBERS ARE VERY CRUCIAL AND NECESSARY EVIDE NCE IN DECIDING THE APPEAL UNDER REFERENCE....' THIS FINDING OF THE CIT(A), NOT CHAL LANGED BY REVENUE, AND PRESSED BEFORE THE BENCH, HAS GONE UN-NOTICED I N THE ORDER OF BENCH. II. IN PARA 11.4, THE ID.CIT(A) TOOK NOTE OF THE WITHDR AWLS MADE COLLECTIVELY BY FAMILY MEMBERS, AND FINALLY HELD TH AT SUCH WITHDRAWLS WERE OF RS. 13,91,000/- FOR MARRIAGE EXP ENSES. IT WAS POINTED OUT AT THE TIME OF HEARING THAT THE ID. CIT(A) OMITTED TO CONSIDER WITHDRAWL OF RS.68000/- MADE BY ASSESSE E'S BROTHER (AS NOTED ON PAGE 11 OF HIS ORDER), WHEN HE TOOK NO TE ONLY OF RS.1,24,000/- (BEING TWO WITHDRAWLS OF RS.50000 + 7 4000) AGAINST THREE WITHDRAWLS, ONE MORE OF RS.68000/-. III. IT WAS FURTHER POINTED OUT THAT WHILE SUMMING UP TH E TOTAL WITHDRAWLS ON PAGE 17, THE ID.CIT(A) WRONGLY HELD T HAT DEPOSITS OF RS.75000/- MADE IN BANK ON 25.7.07 AND 21.11.07, WERE OUT OF TOTAL WITHDRAWLS OF RS. 14,66,000/-, THUS LEAVIN G BALANCE WITHDRAWLS AT RS. 13,91,000/-, WHEN SUCH DEPOSITS W ERE INDEPENDENTLY SURRENDERED IN THE RETURN FILED FOR W ANT OF ANY SOURCE (AS MENTIONED IN OPENING PARA ON PG.10 OF CI T(A)'S ORDER). IV. THE ABOVE TWO OMISSIONS/ERRORS WERE THUS REQUESTED TO BE TAKEN INTO ACCOUNT, TO REACH THE FIGURE OF WITHDRAW ALS AT RS. 14.66 LEAS + 68000/- = 15.34 LACS, WHICH AS PER CIT (A), WERE AVAILABLE FOR MEETING MARRIAGE EXPENSES AND FOR MAK ING DEPOSIT IN THE BANK ACCOUNT. V. THE ID.CIT(A) FURTHER INFERRED THAT OUT OF ABOVE W ITHDRAWALS, THE ASSESSEE'S OWN NET WITHDRAWALS WERE ONLY RS.9,6 7,000/- (800000+42000+200000), AND IF SHE PRESUMABLY DEPOSI TED RS.8 LACS IN HER BANK ON 30.01.2008, THEN ONLY THE BALAN CE AMOUNT OF RS. 1,67,000/- WAS LEFT WITH HER FOR MARRIAGE EX PENSES. THEN HE FURTHER INFERRED THAT COLLECTIVELY WITH HIS FATH ER AND BROTHER'S WITHDRAWALS, THE TOTAL CASH AVAILABLE WAS RS.5,91,0 00/-, WHICH HE RIDICULED WHETHER COULD BE ENOUGH TO PERFORM A D AUGHTER'S MA NO.63(ASR)/2014 ASSESSMENT YEAR : 2008-09 3 MARRIAGE, TO MEET EXPENSES ON JEWELLERY, BOOKING OF JC RESORT, CATERING AND DOWRY ETC LOOKING TO THE STATUS OF ASS ESSEE'S FAMILY. HE ALSO WONDERED THAT IF THE ASSESSEE'S MAR RIAGE WAS PERFORMED WITH RS.5.91 LACS, WHAT WOULD HAVE BEEN R ECEIVED BY THE ASSESSEE FROM HER IN LAWS AT THE TIME OF HER DI VORCE. VI. ASSAILING THE ABOVE FINDINGS OF ID.CIT(A), IT WAS POINTED OUT THAT THE , ASSESSEE'S CLAIM MADE BEFORE CIT(A), (AS APPE ARS ON PAGE 7 OF HIS ORDER) THAT ABOUT 50 TOLAS OF OLD FAMILY JEW ELLERY WAS GIFTED AT THE TIME MARRIAGE, HAD ESCAPED HIS ATTENT ION, WHEN HE THOUGHT IT WAS PURCHASED OUT OF HIS ABOVE ESTIMATE OF RS.5.91 LACS. VII. THEN THE ASSESSEE'S CLAIM OF HAVING RECEIVED SHOGU NS OF (APPROX) RS.2.50 LACS (AS APPEARS ON PAGE 7 OF HIS ORDER) ON MARRIAGE, ALSO ESCAPED THE NOTICE OF CIT(A). VIII. IT WAS THUS ARGUED IN TOTALITY TO BRING HOME THE P OINT THAT EVEN AS . PER CIT(A)'S OWN FINDINGS, IF CORRECTED INTER ALIA BY, ALLOWING THE BENEFIT OF RS.68000+RS.75000+RS.250000 /- SHAGUNS AND FAMILY JEWELLERY, THERE WERE FUNDS TO T HE TUNE OF RS.9.84 LACS FOR INCURRING MARRIAGE EXPENSES, BESID ES GIFTING OF 50 TOLAS OF FAMILY JEWELLERY (EXCLUDING THE WHOLE O F RS.8 LACS DEPOSITED IN BANK). ONE ACCENT CAR OF OVER RS.7 LAC S, WAS INDEPENDENT OF ABOVE EXPENSES. THIS WOULD ALSO JUST IFY A REASONABLY GOOD AMOUNT SPENT ON DOWRY ARTICLES. IX. THE ID.CIT(A), TO SHOW THE BALANCE FUNDS FOR MARRI AGE EXPENSES AT ABYSMAL LOW, HAD TAKEN APART THE ENTIRE AMOUNT O F RS.8 LACS DEPOSITED IN BANK, CONTRARY TO ASSESSEE'S CLAIM THA T NOT THE WHOLE, BUT PARTLY OUT OF WITHDRAWALS AND PARTLY OUT OF SALE PROCEEDS OF DOWRY ARTICLES HAD GONE INTO THIS BANK DEPOSIT. THE ABOVE BREAK UP WAS DIALTED BEFORE THE BENCH TO IMPR ESS UPON THE POINT THAT THE ASSESSEE COLLECTIVELY HAD AMPLE FUNDS TO SUPPORT ITS TWIN CLAIM OF HAVING MADE THE IMPUGNED DEPOSIT OF RS.8 LAC, OUT OF THE ABOVE WITHDRAWALS AS ALSO OUT OF FUNDS RETERIEVED FROM DISPOSAL OF DOWRY ARTICLES. X. IT WAS ALSO ARGUED BEFORE THE BENCH THAT THE DATE O F DEPOSIT OF RS.8 - LAC IN BANK AND THE DATE OF DIVORCE I.E. 30. 01.2008, BEING THE SAME, WAS NOT A SHEER COINCIDENCE BUT SUPPORTED THE MA NO.63(ASR)/2014 ASSESSMENT YEAR : 2008-09 4 ASSESSEE'S CLAIM OF A DIRECT NEXUS OF THIS AMOUNT H AVING ORIGINATED FROM THE RESIDUALS OF A BROKEN MARRIAGE. 3. THE LD. COUNSEL FOR THE ASSESSEE FURTHER SUBMIT TED THAT IN PARA 12 OF THE ORDER OF THE TRIBUNAL, IT HAS BEEN HELD THAT THE WITHDRAWALS MADE MUST HAVE BEEN UTILISED ON HER MARRIAGE, BY NOT ACC EPTING THE ASSESSES VERSION THAT THE AMOUNT OF WITHDRAWALS COULD BE KEP T WITH HER FOR MORE THAN 2 YEARS; THAT THEN, IN THE SAME PARA, THE BENC H HAS OBSERVED THAT THE ASSESSEE HAD NOT ESTABLISHED ANY REASON OR CIRC UMSTANCE UNDER WHICH SHE WAS PREVENTED TO PRODUCE THE EVIDENCE AS REQUIRED BY THE AO; AND THAT AGAIN, IN PARA 13, THE BENCH HAS HELD THAT NO SUPPORTING EVIDENCE WAS FILED EITHER BEFORE THE REVENUE OR EVE N BEFORE THE BENCH IN SUPPORT OF THE CASH DEPOSIT OF RS. 8 LACS. 4. HE FURTHER STATED THAT WHILE GIVING THE FINDINGS , THE BENCH HAS OMITTED TO TAKE NOTICE OF THE FOLLOWING SUBMISSIONS MADE WITH REFERENCE TO THE MATERIAL ON RECORD: I) THAT FOR AVAILABILITY OF CASH AFTER A GAP OF TWO YEARS, HEAVY RELIANCE WAS PLACED ON THE DECISION OF THIS BENCH I N THE CASE OFSH. JASWANT CHEEMA VS. ACIT, 143 TTJ (ASR)/ (UO ) 41, AND A HARD COPY OF THIS DECISION WAS ALSO HANDED OV ER TO THE BENCH TO FACILITATE QUICK REFERENCE. II) THAT BEFORE THE LD. CIT(A) ITSELF, IT WAS PLEAD ED THAT WHEN THE MARRIAGE HAD FAILED TO PROP UP, THE DOWRY ARTIC LES HAD TO BE DISPOSED OF WITH HEAVY HEART, UNMINDFUL THAT THE SALE VOUCHERS TO THE EXTENT OBTAINED, WERE TO BE RETAINE D, TO FACE AN UNEXPECTED GRILLING AT THE HANDS OF THE REVENUE. THIS FACT WAS ALSO BROUGHT TO THE NOTICE OF THE HONBLE BENCH , BUT IT ESCAPED NOTICE. MA NO.63(ASR)/2014 ASSESSMENT YEAR : 2008-09 5 5. IN VIEW OF THE ABOVE SUBMISSIONS, THE LD. COUNSE L FOR THE ASSESSEE PLEADED THAT THERE ARE CERTAIN ERRORS AND OMISSION S IN THE ORDER OF THE TRIBUNAL AND THE SAME MAY BE RECALLED FOR FRESH ADJ UDICATION. 6. THE LD. DR RELIED UPON THE ORDER OF THE TRIBUNAL DATED 28.02.2014. 7. HAVING HEARD THE PARTIES AND HAVING THOROUGHLY GONE THROUG H THE CONTENTIONS RAISED BY THE ASSESSEE IN THE MISCELLA NEOUS APPLICATION, WE FIND THE CONTENTION OF THE ASSESSEE TO BE CORRECT. OUR ORDER DATED 28.02.2014 DOES NOT MAKE MENTION OF THE AFORESAID ARGUMENTS RAISED ON BEHALF OF THE ASSESSEE. IT HAS NOT BEEN DISPUTED T HAT THESE SUBMISSIONS HAD INDEED BEEN MADE BEFORE THE BENCH. NON-CONSIDER ATION OF THE ASSESSEES SUBMISSIONS CONSTITUTES A MISTAKE APPAR ENT FROM RECORD IN OUR ORDER. THEREFORE, IN THE INTEREST OF JUSTICE, WE RECALL THE ORDER THE TRIBUNAL DATED 28.02.2014 AND FIX THE APPEAL FOR FR ESH HEARING ON 30.06.2016. REGISTRY TO ISSUE NOTICE TO THE PARTIES. ORDER PRONOUNCED IN THE OPEN COURT ON 20/05/ 2 016. SD/- SD/- (T.S. KAPOOR) (A.D. JAIN) ACCOUNTANT MEMBER JUDICIAL MEMBER /SKR/ DATED: 20/05/2016 COPY OF THE ORDER FORWARDED TO: 1. THE ASSESSEE:KUMARI NANCY DUGGAL, JALANDHAR. 2. THE ITO WARD-1, PHAGWARA. 3. THE CIT(A), JLR 4. THE CIT, JLR 5. THE SR DR, ITAT, AMRITSAR. TRUE COPY BY ORDER