Ms. Malika Khan, New Delhi v. ITO, New Delhi

CO 460/DEL/2012 | 2008-2009
Pronouncement Date: 26-07-2013 | Result: Allowed

Appeal Details

RSA Number 46020123 RSA 2012
Assessee PAN APHPK9407M
Bench Delhi
Appeal Number CO 460/DEL/2012
Duration Of Justice 8 month(s) 5 day(s)
Appellant Ms. Malika Khan, New Delhi
Respondent ITO, New Delhi
Appeal Type Cross Objection
Pronouncement Date 26-07-2013
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted E
Tribunal Order Date 26-07-2013
Date Of Final Hearing 17-07-2013
Next Hearing Date 17-07-2013
Assessment Year 2008-2009
Appeal Filed On 21-11-2012
Judgment Text
ITA NO. 5266/DEL/2012 & C.O. NO. 460/DEL/2012 1 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH E NEW DELHI BEFORE SHRI I.C. SUDHIR JUDICIAL MEMBER AND SHRI SHAMIM YAHYA ACCOUNTANT MEMBER I.T.A. NO. 5266/DEL/2012 A.Y. : 20 08 - 0 9 INCOME TAX OFFICER WARD 46(4) ROOM NO. 419 4 TH FLOOR MAYUR BHAVAN NEW DELHI : (APHPK9407M) VS. MS. MALIKA KHAN E-74 2 ND FLOOR SAKET NEW DELHI (APPELLANT) (APPELLANT) (APPELLANT) (APPELLANT) (RESPONDENT) (RESPONDENT) (RESPONDENT) (RESPONDENT) AND C.O. NO. 460/ DEL/201 2 (IN I.T.A. NO.5266/DEL/2012) MS. MALIKA KHAN E-74 2 ND FLOOR SAKET NEW DELHI A.Y. : 2008-09 INCOME TAX OFFICER WARD 46(4) ROOM NO. 419 4 TH FLOOR MAYUR BHAVAN NEW DELHI : (APHPK9407M) VS. (APPELLANT) (APPELLANT) (APPELLANT) (APPELLANT) (RESPONDENT) (RESPONDENT) (RESPONDENT) (RESPONDENT) ASSESSEE BY : SH. P.C. YADAV ADV. & SH. RAJESH JAIN CA DEPARTMENT BY : SH. SAMEER SHARMA SR. D.R. ORDER ORDER ORDER ORDER PER SHAMIM YAHYA: AM PER SHAMIM YAHYA: AM PER SHAMIM YAHYA: AM PER SHAMIM YAHYA: AM THIS APPEAL BY THE REVENUE AND CROSS OBJECTION BY THE ASSESSEE EMANATE OUT OF THE ORDER OF THE LD. COM MISSIONER OF INCOME TAX (APPEALS)-XXX NEW DELHI DATED 06.7.201 2 PERTAINING TO ASSESSMENT YEAR 2008-09. ITA NO. 5266/DEL/2012 & C.O. NO. 460/DEL/2012 2 2. THE ISSUE RAISED IN THE REVENUE IS THAT LD. CO MMISSIONER OF INCOME TAX (A) ERRED IN DELETING THE ADDITION OF R S. 35 50 000/- MADE BY THE ASSESSING OFFICER ON ACCOUNT OF UNEXPL AINED CASH CREDIT U/S. 68. 3. THE ISSUE RAISED IN THE ASSESSEES CROSS OBJECTI ON IS THAT LD. COMMISSIONER OF INCOME TAX (A) ERRED IN MAKING AN A D-HOC ADDITION OF RS. 3 00 000/- ON ESTIMATE BASIS AND IN ARBITRAR Y MANNER AND WITHOUT THERE BEING ANY MATERIAL JUSTIFYING THE AD DITION TO BE MADE. 4. IN THIS CASE THE ASSESSEE FILED RETURN OF INCOM E ON 16.7.2008 DECLARING A NET TAXABLE INCOME OF RS. 2 49 120/-. THE RETURN WAS PROCESSED U/S. 143(1) AND SUBSEQUENTLY THE CASE WAS SELECTED FOR SCRUTINY. THE ASSESSING OFFICER IN THIS REGARD NO TED THAT NUMEROUS OPPORTUNITIES WERE GIVEN TO THE ASSESSEE BUT THE ASSESSEE DID NOT PROPERLY RESPOND OR COMPLIED WITH THE ASSESSING OF FICERS NOTICES. ASSESSING OFFICER NOTED THAT ASSESSEES SAVINGS BA NK ACCOUNT WITH ICICI BANK SAKET SHOWED CASH DEPOSIT AMOUNTING TO RS. 35 50 000/-. ASSESSEE WAS ASKED TO FURNISH THE EXPLANATION IN THIS REGARD. ASSESSEE FAILED TO DO SO. THEREFORE THE ASSESSIN G OFFICER TREATED THE AMOUNT OF RS. 35.50 LACS AS UNEXPLAINED INCOME OF THE ASSESSEE. 5. BEFORE THE LD. COMMISSIONER OF INCOME TAX (A) AS SESSEE SUBMITTED AS UNDER:- THE ASSESSEE HAS FILED THE RETURN OF INCOME ON 16.7.2008 DECLARING TAXABLE INCOME OF RS. 2 49 120/ -. DURING THE YEAR UNDER CONSIDERATION THE ASSESSEE H AS STARTED BUSINESS OF TRADING IN FOOD GRAIN. THE SALE PROCEED FROM THE ABOVE BUSINESS AMOUNTED T O RS. 36 22 000/- AND ASSESSEE HAS DEPOSITED A SUM OF RS. ITA NO. 5266/DEL/2012 & C.O. NO. 460/DEL/2012 3 35 50 000/- IN HER REGULAR BANK ACCOUNT NO. 017101002859 WITH ICICI BANK SAKET NEW DELHI OUT OF THE SALE PROCEEDS OF FOOD GRAIN BUSINESS. DURING THE ASSESSMENT PROCEEDINGS A SUM OF RS. 1 81 000/- WAS VOLUNTARILY OFFERED FOR TAXATION REPRESENTING NET PROFIT OF 5% U/S. 44AF ON TURNOVER OF RS. 36 22 000/- OF THE FOOD GRAIN BUSINESS AS THE SAME COULD NOT BE REFLECTED IN THE REGULAR RETURN DUE TO THE PERSISTENT MEDICAL PROBLEM OF HER HUSBAND. THE ASSESSING OFFICER HAS ADDED THE ABOVE AMOUNT O F RS. 35 50 000/- IN RETURNED INCOME OF THE ASSESSEE REJECTING THE SUBMISSIONS OF THE ASSESSEE THAT THE ABOVE SUM IS OUT OF THE SALE PROCEEDS OF FOOD GRAIN BUSI NESS OF THE ASSESSEE. IT IS PERTINENT TO NOTE THAT THE HUSBAND OF THE ASS ESSEE IS SUFFERING FROM MAJOR DEPRESSIVE DISORDER FOR LAST A BOUT 5 YEARS AND HAS BEEN ON REGULAR MEDICATION SINCE THEN . DUE TO THE PERSISTENT MEDICAL PROBLEM OF HER HUSBAN D ASSESSEE COULD NOT FILE ITS RETURN OF INCOME CORRE CTLY AND FAILED TO DISCLOSE THE INCOME FROM FOOD GRAIN BUSIN ESS UNDER BONAFIDE MISTAKE. DOCUMENTARY EVIDENCE REGARDING ILLNESS OF THE HUS BAND OF THE ASSESSEE ARE SEPARATELY ENCLOSED JUSTIFYING THAT THE MISTAKE WAS BONAFIDE. COPY OF SOME OF THE CASH MEMOS ARE ALSO ENCLOSED SEPARATELY SHOWING THE SALE PROCEEDS FROM THE FOOD GRAIN BUSINESS. ITA NO. 5266/DEL/2012 & C.O. NO. 460/DEL/2012 4 THE ABOVE SUBMISSIONS CLEARLY ESTABLISH THAT THE AD DITION MADE BY THE ASSESSING OFFICER IS NOT CALLED FOR ON FACTS AND CIRCUMSTANCES OF THE CASE AND HENCE DESERVES TO BE DELETED. 6. SUBMISSIONS OF THE ASSESSEE WERE FORWARDED TO T HE ASSESSING OFFICER BY THE LD. COMMISSIONER OF INCOME TAX (A) AND THE REMAND REPORT FROM THE ASSESSING OFFICER WAS OBTAINED. REJOINDER OF THE SAME WAS ALSO ASKED FROM THE ASSESSEE. CONSIDERING THE REMAND REPORT AND THE SUBMISSIONS LD. COMMISSIONER OF INC OME TAX (A) HELD THAT HE HAS FOUND THAT THE ASSESSEE HAS FURNI SHED THE COMPLETE DETAILS OF THE SALE MADE BY HER. THAT IT HAS ALSO NOTICED THAT ASSESSING OFFICER HAS FAILED TO EXAMINE THE F ACTS OF THE CASE DURING THE ASSESSMENT PROCEEDINGS. LD. COMMISSION ER OF INCOME TAX (A) GAVE A FINDING THAT COPY OF THE CASH MEMOS WERE VERIFIED BY HIM WHICH CLEARLY PROVES THAT CASH DEPOSITS BY THE ASSESSEE WAS OUT OF THE SALES MADE BY HER. 7. LD. COMMISSIONER OF INCOME TAX (A) FURTHER OBSER VED THAT ASSESSEE DID NOT DISCLOSE THESE TRANSACTIONS IN TH E RETURN OF INCOME DUE TO GENUINE REASONS AND HAS OFFERED THE SAME FOR TAXATION U/S. 44AF. LD. COMMISSIONER OF INCOME TAX (A) FURTHER N OTED THAT ASSESSEE HAS ALSO GIVEN CAPITAL ACCOUNT AND BALANCE SHEET OF THE PRECEDING YEAR. HE NOTED THAT ASSESSEE HAD TAKEN A LOAN OF RS. 20 LACS FROM ABHISHEK BUIDCOM PVT. LTD. DURING THE FIN ANCIAL YEAR 2006- 07. LD. COMMISSIONER OF INCOME TAX (A) OBSERVED TH AT ASSESSING OFFICER DID NOT ENQUIRE INTO THIS ASPECT OF THE L OAN AND CAPITAL ACCOUNT. HE OBSERVED THAT ASSESSEE HAS SUFFICIENT C APITAL AND THE ASSESSEES COUNSEL ALSO PRODUCED ALL THE CASH MEMOS WHICH WERE SHOWN TO THE ASSESSING OFFICER. BUT THE ASSESSIN G OFFICER WAS ADAMANT NOT TO ENQUIRE INTO THESE DETAILS. LD. C OMMISSIONER OF INCOME TAX (A) PROCEEDED TO HOLD THAT ARGUMENTS OF THE ASSESSEE ITA NO. 5266/DEL/2012 & C.O. NO. 460/DEL/2012 5 ARE ACCEPTED AND THE ASSESSING OFFICER IS DIRECTED TO CHARGE TAX AS PER THE PROVISIONS OF SECTION 44AF OF THE ACT WHIC H WORKED OUT TO RS. 1 81 100/-. 8. HOWEVER LD. COMMISSIONER OF INCOME TAX (A) NOT ED THAT THOUGH ASSESSEE WAS A SALARIED PERSON FOR THE PART OF THE YEAR SHE HAD NOT MAINTAINED FULL SETS OF BOOKS OF ACCOUNTS L IKE CASH BOOK LEDGER BILLS AND VOUCHERS FOR ALL EXPENSES. LD. COMMISSIONER OF INCOME TAX (A) HELD THAT IN THE OVERALL CIRCUMSTANC ES HE WAS MAKING THE ADDITION OF RS. 3 LACS TO COVER THE OMIS SION AND COMMISSION OF CONCEALMENT OF INCOME IN ADDITION TO THE ESTIMATED INCOME ADDITION OF RS. 1 81 100/- U/S. 44AF OF THE I.T. ACT. 9. AGAINST THE ABOVE ORDER THE REVENUE HAS FILED T HE APPEAL AND ASSESSEE HAS FILED THE CROSS OBJECTION. 10. WE FIND THAT ASSESSING OFFICER HAS FOUND THAT ASSESSEE WAS DERIVING INCOME FROM SALARY. THERE WAS CASH DEPOSI TS OF RS. 35 50 000/- IN HER SAVINGS BANK ACCOUNT. NO EXPLA NATION WHATSOEVER WAS GIVEN TO THE ASSESSING OFFICER DESP ITE SEVERAL NOTICES. HENCE ASSESSING OFFICER ADDED THE SAME AS THE ASSESSEES OWN DISCLOSED INCOME. BEFORE THE LD. CO MMISSIONER OF INCOME TAX (A) ASSESSEE CLAIMED THAT SHE HAS STARTE D THE TRADING OF FOOD GRAINS DURING THE YEAR AND SUBMITTED THE BILLS PURCHASE VOUCHERS. THESE SUBMISSIONS WERE REMANDED TO ASSES SING OFFICER FOR HIS COMMENTS. LD. COMMISSIONER OF INCOME TAX (A ) WAS NOT SATISFIED WITH THE REMAND REPORT IN THIS REGARD. HE OBSERVED THAT ASSESSING OFFICER HAS FAILED TO EXAMINE THE FACTS OF THE CASE DURING THE ASSESSMENT PROCEEDINGS. LD. COMMISSIONER OF I NCOME TAX (A) PROCEEDED TO HOLD THAT ASSESSING OFFICER HAD NOT M ADE NECESSARY ENQUIRIES INTO THE ASPECTS OF THE LOAN AND CAPITAL ACCOUNT. HE OBSERVED THAT ASSESSEE HAS PRODUCED THE CASH MEMO BUT THE ITA NO. 5266/DEL/2012 & C.O. NO. 460/DEL/2012 6 ASSESSING OFFICER WAS ADAMANT NOT TO ENQUIRE INTO THE DETAILS. CONSIDERING THE SAME LD. COMMISSIONER OF INCOME TA X (A) HELD THAT ASSESSING OFFICER IS DIRECTED TO CHARGE TAX AS PER THE PROVISIONS OF SECTION 44AF OF THE I.T. ACT. 10.1 WE FIND THAT ASSESSEE HAS ONLY PRODUCED SOME O F THE VOUCHERS BEFORE THE ASSESSING OFFICER IN REMAND PROCEEDINGS . SHE HAS NOT FURNISHED ALL THE RELEVANT DETAILS BEFORE THE ASSES SING OFFICER. HOWEVER LD. COMMISSIONER OF INCOME TAX (A) HAS GIV EN AN OBSERVATION THAT ASSESSEE HAS FILED THE NECESSARY D ETAILS AND THE ASSESSING OFFICER HAS NOT EXAMINE THE SAME. WE FIN D THAT IN THIS CASE THERE IS TOTALLY CONTRADICTORY FINDING BY THE ASSESSING OFFICER IN THE ASSESSING OFFICERS REMAND REPORT AND THE LD . COMMISSIONER OF INCOME TAX (A) IN HIS APPELLATE ORDER. IT IS ALSO NOTED THAT ASSESSEE HAS NOT SUBMITTED THE DETAILS OF HER BUSINESS TO TH E ASSESSING OFFICER IN THE RETURN OF INCOME. UNDER THE CIRCUM STANCES IN OUR CONSIDERED OPINION INTEREST OF JUSTICE WILL BE SER VED IF THE MATTER IS REMITTED TO THE FILE OF THE ASSESSING OFFICER. A CCORDINGLY WE REMIT THE ISSUE TO THE FILE OF THE ASSESSING OFFICER. ASS ESSING OFFICER IS DIRECTED TO CONSIDER THE ISSUE AFRESH TAKING INTO A CCOUNT ASSESSEES SUBMISSIONS BEFORE THE LD. COMMISSIONER OF INCOME T AX (A). NEEDLESS TO ADD THAT THE ASSESSEE SHOULD BE GRANTED ADEQUATE OPPORTUNITY OF BEING HEARD. ASSESSEES CROSS OBJECETION ASSESSEES CROSS OBJECETION ASSESSEES CROSS OBJECETION ASSESSEES CROSS OBJECETION 11. SINCE WE HAVE REMITTED THE ORDERS OF THE LD. CO MMISSIONER OF INCOME TAX (A) TO THE FILE OF THE ASSESSING OFFICER THE ISSUE RAISED BY THE ASSESSEE IN THE CROSS OBJECTION WILL ALSO BE CONSIDERED BY THE ASSESSING OFFICER. ACCORDINGLY WE REMIT THIS ISS UE RAISED IN THE CROSS OBJECTION TO THE FILES OF THE ASSESSING OFFI CER. ITA NO. 5266/DEL/2012 & C.O. NO. 460/DEL/2012 7 12. IN THE RESULT THE APPEAL FILED BY THE REVENUE AND CROSS OBJECTION FILED BY THE ASSESSEE ARE ALLOWED FOR ST ATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 26/7/2013. SD/- SD/- [ [[ [I.C. SUDHIR I.C. SUDHIR I.C. SUDHIR I.C. SUDHIR] ]] ] [SHAMIM YAHYA] [SHAMIM YAHYA] [SHAMIM YAHYA] [SHAMIM YAHYA] JUDICIAL MEMBER JUDICIAL MEMBER JUDICIAL MEMBER JUDICIAL MEMBER ACCOUNTANT MEMBER ACCOUNTANT MEMBER ACCOUNTANT MEMBER ACCOUNTANT MEMBER DATE 26/7/2013 SRBHATNAGAR SRBHATNAGAR SRBHATNAGAR SRBHATNAGAR COPY FORWARDED TO: COPY FORWARDED TO: COPY FORWARDED TO: COPY FORWARDED TO: - -- - 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT (A) 5. DR ITAT TRUE COPY BY ORDER ASSISTANT REGISTRAR ITAT DELHI BENCHES ITA NO. 5266/DEL/2012 & C.O. NO. 460/DEL/2012 8