Lata Chauhan,, v. ITO, Ward-22(2),,

ITA 2608/DEL/2005 | 2001-2002
Pronouncement Date: 14-01-2011 | Result: Allowed

Appeal Details

RSA Number 260820114 RSA 2005
Assessee PAN AADPC4327P
Bench Delhi
Appeal Number ITA 2608/DEL/2005
Duration Of Justice 5 year(s) 7 month(s) 14 day(s)
Appellant Lata Chauhan,,
Respondent ITO, Ward-22(2),,
Appeal Type Income Tax Appeal
Pronouncement Date 14-01-2011
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted E
Tribunal Order Date 14-01-2011
Date Of Final Hearing 10-01-2011
Next Hearing Date 10-01-2011
Assessment Year 2001-2002
Appeal Filed On 31-05-2005
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH E : NEW DELHI DELHI BENCH E : NEW DELHI DELHI BENCH E : NEW DELHI DELHI BENCH E : NEW DELHI BEFORE SHRI I.P.BANSAL JM AND SHRI A.K.GARODIA AM BEFORE SHRI I.P.BANSAL JM AND SHRI A.K.GARODIA AM BEFORE SHRI I.P.BANSAL JM AND SHRI A.K.GARODIA AM BEFORE SHRI I.P.BANSAL JM AND SHRI A.K.GARODIA AM ITA NO.2608/DEL/2005 ITA NO.2608/DEL/2005 ITA NO.2608/DEL/2005 ITA NO.2608/DEL/2005 ASSESSMENT YEAR : 2001 ASSESSMENT YEAR : 2001 ASSESSMENT YEAR : 2001 ASSESSMENT YEAR : 2001 - -- - 02 0202 02 SMT.LATA CHAUHAN SMT.LATA CHAUHAN SMT.LATA CHAUHAN SMT.LATA CHAUHAN 1 SOUTHERN AVENUE 1 SOUTHERN AVENUE 1 SOUTHERN AVENUE 1 SOUTHERN AVENUE MAHARANI BAGH MAHARANI BAGH MAHARANI BAGH MAHARANI BAGH NEW DELHI NEW DELHI NEW DELHI NEW DELHI 110 065. 110 065. 110 065. 110 065. PAN NO.AADPC PAN NO.AADPC PAN NO.AADPC PAN NO.AADPC4327P. 4327P. 4327P. 4327P. VS. VS. VS. VS. INCOME TAX OFFICER INCOME TAX OFFICER INCOME TAX OFFICER INCOME TAX OFFICER WARD WARD WARD WARD- -- -22(2) 22(2) 22(2) 22(2) NEW DELHI. NEW DELHI. NEW DELHI. NEW DELHI. (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI A.R.SINGH ADVOCATE. RESPONDENT BY : SHRI K.RAVI RAMCHANDRAN SR.DR. ORDER ORDER ORDER ORDER PER I.P.BANSAL JM : PER I.P.BANSAL JM : PER I.P.BANSAL JM : PER I.P.BANSAL JM : THIS IS AN APPEAL FILED BY THE ASSESSEE. IT IS DI RECTED AGAINST THE ORDER OF CIT(A) DATED 24.3.2005 FOR THE AY 2001-02. 2. THE GROUNDS OF APPEAL READ AS UNDER:- 1. THE LEARNED ITO HAD IMPOSED PENALTY OF RS.75 00 0/- U/S 271(1)(C) VIDE HIS ORDER DT. 28-06-04. 2. THE LEARNED CIT(A) HAS CONFIRMED THE ABOVE PENAL TY VIDE HIS ORDER DT. 24-03-05. 3. BOTH THE LEARNED ITO AND CIT(A) ARE WRONG IN LAW AND ON FACTS OF THE CASE IN IMPOSING/CONFIRMING THE PEN ALTY. 4. BOTH THE LEARNED ITO AND CIT(A) HAVE IGNORED THE ENDS OF JUSTICE AND LAW IN RESPECT OF ABOVE MATTER. ITA-2608/DEL/2005 2 5. IT IS PRAYED THAT THE ABOVE PENALTY MAY BE DELET ED AND JUSTICE BE RESTORED TO THE HUMBLE AND AGGRIEVED ASSESSEE. 3. THE IMPUGNED PENALTY WAS DELETED BY THIS TRIBUNA L VIDE ITS ORDER DATED 5.8.2005 ON THE GROUND THAT THERE WAS ABSENCE OF SATISFACTION RECORDED BY THE AO IN THE ASSESSMENT ORDER. THE SA ID ORDER OF THE TRIBUNAL WAS CHALLENGED BY THE DEPARTMENT BEFORE HO N'BLE DELHI HIGH COURT AND HON'BLE DELHI HIGH COURT VIDE THEIR DECIS ION DATED 4.12.2008 HAVE RESTORED THE PROCEEDINGS BACK TO THE TRIBUNAL FOR DECIDING THE SAME ON MERITS. ACCORDINGLY THIS APPEAL WAS FIXED . 4. IN THE QUANTUM PROCEEDINGS WHICH HAVE BEEN DECID ED BY THE AO VIDE ORDER DATED 15.12.2003 THE ASSESSEE WAS REQUI RED TO EXPLAIN THE AMOUNT OF ` 11 60 000/- RECEIVED BY THE ASSESSEE ON ACCOUNT OF SALE OF AGRICULTURAL LAND SITUATED AT DHARA PARGANA AFZALG ARH TEHSIL NAGINA DISTT.BIJNORE UP TO FIVE DIFFERENT PERSONS. ON TH E BASIS OF DETAILS FURNISHED BY THE ASSESSEE THE AO ISSUED SUMMONS TO ALL THE FIVE PERSONS. ONE OF THEM NAMELY SHRI ASHOK KUMAR DID N OT APPEAR AND SENT A WRITTEN REPLY DATED 18.3.2003 STATING IF MY MEMORY SERVES ME RIGHT I HAVE NOT MADE ANY TRANSACTION TO SMT.LATA CHAUHAN. THE AO CONFRONTED THIS FACT TO THE ASSESSEE AND IN THESE C IRCUMSTANCES THE SUM OF ` 2 25 000/- PERTAINING TO SHRI ASHOK KUMAR WAS TREATED AS UNEXPLAINED CASH CREDIT IN THE HANDS OF THE ASSESSE E AND ACCORDINGLY ADDED TO THE INCOME OF THE ASSESSEE U/S 68 OF THE A CT. 5. ON THE AFOREMENTIONED ADDITION OF ` 2 25 000/- PENALTY OF ` 75 000/- HAS BEEN IMPOSED VIDE IMPUGNED ORDER DATED 28.6.2004. THE AO FOUND THAT ASSESSEE COULD NOT EXPLAIN THE SOURCE OF ` 2 25 000/- DURING THE COURSE OF ASSESSMENT PROCEEDINGS. THE R EPLY DATED 17.6.2004 FILED BY THE ASSESSEE IN RESPONSE TO SHOW CAUSE NOTICE FOR LEVY OF PENALTY WAS NOT CONSIDERED TO BE SATISFACTO RY BY THE AO. THE AO REJECTED THE CONTENTION OF THE ASSESSEE THAT THE ASSESSEE WAS NOT ITA-2608/DEL/2005 3 SUPPLIED WITH THE COPY OF THE REPLY OF SHRI ASHOK K UMAR. ACCORDING TO THE AO THE SAME WAS CONFRONTED TO THE ASSESSEE VID E SHOW CAUSE NOTICE DATED 27.6.2003 AND ASSESSEE COULD NOT OFFER ANY LOGICAL EXPLANATION IN THIS REGARD. IN APPELLATE PROCEEDIN GS IT HAS BEEN THE CASE OF THE ASSESSEE THAT THE AMOUNT WAS RECEIVED B Y HER ON ACCOUNT OF SALE OF LAND WHICH COULD NOT BE TREATED AS CASH CREDIT MERELY BECAUSE THE BUYER WAS NOT COOPERATING WITH THE ASSE SSEE. THE ASSESSEE FILED COPY OF AGREEMENT TO SELL WHEREIN TH E VALUE OF TRANSACTION WAS SHOWN BY CONFIRMING THE PAYMENT. I T WAS SUBMITTED THAT ASSESSEE ALSO HAD REQUESTED AO TO ISSUE SUMMON S U/S 131 TO THE BUYER BUT THE AO DID NOT DO SO. CONSIDERING THESE SUBMISSIONS CIT(A) IN THE IMPUGNED ORDER HAS OBSERVED IN PARA 8 AS UND ER:- 8. I FIND THAT WHILE THE APPELLANT MAY HAVE SOME SUBSTANCE IN HIS PLEADINGS WHICH ARE SET TO BE CONF IRMED BY THE AGREEMENT TO SELL THESE ARGUMENTS SHOULD RI GHTLY BE RAISED BEFORE THE CIT(A) IN AN APPEAL AGAINST TH E ASSESSMENT ORDER. THE APPEAL AT HAND IS AGAINST TH E PENALTY ORDER. FURTHERMORE I FIND THAT THE AGREEM ENT TO SELL IS NOT REGISTERED AND IS ONLY NOTARIZED. AS P ER THE REGISTRATION LAWS AN AGREEMENT TO SELL IN RESPECT OF IMMOVABLE PROPERTY MUST NECESSARILY BE REGISTERED B EFORE THE SUB REGISTRAR. FURTHERMORE THE AMOUNTS SAID T O BE RECEIVED ARE ALSO EVIDENCED BY A RECEIPT BEARING RE VENUE STAMPS. IN LIGHT OF THIS POSITION I AM UNABLE TO GRANT ANY RELIEF TO THE APPELLANT. 6. HOWEVER LEARNED CIT(A) HAS CONFIRMED THE LEVY O F PENALTY AGAINST WHICH THE ASSESSEE IS AGGRIEVED HENCE IN APPEAL. 7. AFTER NARRATING THE FACTS IT WAS SUBMITTED BY T HE LEARNED AR THAT THE SAID AMOUNT OF ` 2 25 000/- WAS DULY SUPPORTED BY THE AGREEMENT TO SELL AND THE BUYER HAD CONFIRMED THE TRANSACTION AND HAD CONFIRMED THE MAKING OF PAYMENT THEREIN. HE SUBMITTED THAT W ITHOUT CONFRONTING THE REPLY OF SHRI ASHOK KUMAR TO THE ASSESSEE AO H AS LEVIED PENALTY AND AO ALSO REJECTED THE CONTENTION OF THE ASSESSEE REGARDING ISSUE OF ITA-2608/DEL/2005 4 SUMMONS U/S 131. HE SUBMITTED THAT THOUGH CIT(A) H AS FOUND SUBSTANCE IN THE SUBMISSIONS OF THE ASSESSEE BUT EV EN THEN HE HAS CONFIRMED THE PENALTY WHICH IS AGAINST THE NATURAL PRINCIPLES OF LAW AND THUS HE PLEADED THAT PENALTY CONFIRMED BY THE CIT( A) SHOULD BE DELETED. 8. ON THE OTHER HAND LEARNED DR RELYING ON THE ORD ER OF AO AND CIT(A) PLEADED THAT PENALTY SHOULD BE CONFIRMED. 9. WE HAVE HEARD BOTH THE PARTIES AND CONSIDERED TH EIR SUBMISSIONS IN THE LIGHT OF MATERIAL PLACED BEFORE US. IT IS RECORDED BY THE CIT(A) IN PARA 6 THAT THE ASSESSEE HAD FILED CO PY OF AGREEMENT TO SELL WHEREIN VALUE OF TRANSACTION WAS SHOWN AND FAC T OF PAYMENT WAS CONFIRMED. A REQUEST WAS MADE TO THE AO FOR ISSUE OF SUMMONS TO SHRI ASHOK KUMAR U/S 131. ON ALL THESE SUBMISSIONS CIT (A) HAS RECORDED A FINDING THAT THESE SUBMISSIONS OF THE ASSESSEE MAY HAVE SOME SUBSTANCE WHICH ARE SAID TO BE CONFIRMED BY THE AGR EEMENT TO SELL BUT HE POINTED OUT THAT THESE ARGUMENTS SHOULD HAVE BEE N TAKEN BY THE ASSESSEE BEFORE THE CIT(A) IN THE QUANTUM PROCEEDIN GS. HE FURTHER FOUND THAT AGREEMENT TO SELL WAS NOTARIZED AND ACCO RDING TO THE REGISTRATION LAWS SUCH AGREEMENT WAS REQUIRED TO B E REGISTERED. HE ALSO FOUND THAT THE AMOUNT TO BE RECEIVED IS ALSO E VIDENCED BY A RECEIPT BEARING REVENUE STAMPS. IF IT IS SO THEN ASSESSEE HAD PRIMA- FACIE DISCHARGED HER OBLIGATION TO SUBSTANTIATE HER EXPLANATION AND NO MATERIAL WHATSOEVER HAS BEEN BROUGHT ON RECORD TO S HOW THAT SUCH EXPLANATION OF THE ASSESSEE WAS EITHER FALSE OR NOT SUBSTANTIATED. THE AMOUNT RECEIVED BY THE ASSESSEE WAS FROM AN IDENTIF IED PERSON WHO HAD RESPONDED TO THE SUMMONS ISSUED BY THE AO. THE REFORE IT WAS IMPERATIVE FOR THE AO TO EXAMINE THE VERACITY OF TH E AGREEMENT TO SELL TO ESTABLISH THE TRUTH. THE COPY OF AGREEMENT WAS ALSO WITH THE AO. THEREFORE IT CANNOT BE SAID THAT ASSESSEE HAD NOT DISCHARGED PRIMARY ITA-2608/DEL/2005 5 ONUS LAY ON HER. IN THESE CIRCUMSTANCES WE ARE OF THE OPINION THAT IT IS NOT A FIT CASE WHERE LEVY OF PENALTY CAN BE HELD TO BE JUSTIFIED. THEREFORE WE DELETE THE PENALTY AND APPEAL FILED B Y THE ASSESSEE IS ALLOWED. 10. IN THE RESULT THE APPEAL OF THE ASSESSEE IS AL LOWED. DECISION PRONOUNCED IN THE OPEN COURT ON 14 TH JANUARY 2011. SD/- SD/- (A.K.GARODIA) (A.K.GARODIA) (A.K.GARODIA) (A.K.GARODIA) (I.P.BANSAL) (I.P.BANSAL) (I.P.BANSAL) (I.P.BANSAL) ACCOUNTANT MEMBER ACCOUNTANT MEMBER ACCOUNTANT MEMBER ACCOUNTANT MEMBER JUDICIAL MEMBER JUDICIAL MEMBER JUDICIAL MEMBER JUDICIAL MEMBER DATED : 14.01.2011. VK. COPY FORWARDED TO: - 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR ITAT ASSISTANT REGISTRAR ITA-2608/DEL/2005 6