Smt Madhuri Bakshi, v. The I T O 5 (2),

1 IN THE INCOME TAX APPELLATE TRIBUNAL INDORE BENCH INDORE BEFORE SHRI JOGINDER SINGH JUDICIAL MEMBER AND SHRI V.K. GUPTA ACCOUNTANT MEMBER ITA NO.413/IND/08 A.YS. 2004-05 SMT. MADHURI BAKSHI INDORE PAN ABSPB-5135-G APPELLANT VS INCOME TAX OFFICER 5(2) INDORE RESPONDENT APPELLANT BY : SHRI K.C. PATEL RESPONDENT BY : SMT. APARNA KARAN SR. DR O R D E R PER BENCH THIS APPEAL IS BY THE ASSESSEES AGAINST THE ORDER O F THE LEARNED CIT(A) DATED 24 TH MARCH 2008 WHEREIN THE FIRST GROUND RAISED IS THA T THE LEARNED CIT(A) ERRED IN ESTIMATING THE HOUSEHOLD EX PENSES AT RS. 1 LAC AND CONFIRMING THE ADDITION OF RS. 60 000/- MADE BY THE ASSESSING OFFICER. DURING HEARING OF THIS APPEAL WE HAVE HEARD SHRI K.C. PATEL LD. COUNSEL FOR THE ASSESSEE AND SMT. APARNA KARAN SR. DR. THE CRUX OF 2 ARGUMENTS ADVANCED BY MR. PATEL IS THAT THERE IS ON LY SALARY INCOME TO THE ASSESSEE THE FDRS WERE ENCASHED FOR EDUCATION OF THE CHILDREN AND THERE ARE ONLY HUSBAND AND WIFE ARE RESIDING IN THE HOUSE. THE HOUSEHOLD WITHDRAWALS MADE BY THE ASSESSEE WERE ARG UED TO BE SUFFICIENT TO MEET OUT THE NEEDS OF THE FAMILY. ON THE OTHER HAND THE LEARNED SENIOR DEPARTMENTAL REPRESENTATIVE DEFENDED THE IMPUGNED ORDER BY CONTENDING THAT A WELL REASONED ORDER HAS BEEN PASSED BY THE LD. FIRST APPELLATE AUTHORITY. 2. ON CONSIDERATION OF ARGUMENTS ADVANCED BY THE LE ARNED RESPECTIVE COUNSELS AND THE MATERIAL AVAILABLE ON R ECORD IT IS SEEN THAT THE ASSESSEE WHO IS ABOUT 57 YEARS OF AGE AT THE RE LEVANT TIME WAS SERVING WITH ORIENTAL INSURANCE COMPANY AND LATER O N TOOK RETIREMENT UNDER VRS. THE ASSESSING OFFICER ESTIMATED THE HOUS EHOLD EXPENSES AT RS.1 52 200/- AS SHOWN AT PAGE 2 OF THE ASSESSMENT ORDER BIFURCATING THE AMOUNT UNDER VARIOUS HEADS. THERE IS A MENTION IN THE ASSESSMENT ORDER THAT THE ASSESSEE WITHDREW ONLY RS. 40 000/- IN CASH AND WAS HAVING FUNDS OF RS. 97 386/- IN THE BANK. THE LD. ASSESSING OFFICER ADDED RS.1 12 200/- TO THE INCOME OF THE ASSESSEE O N ACCOUNT OF LOW HOUSEHOLD WITHDRAWAL. ON APPEAL THE LD. CIT(A) ES TIMATED THE EXPENSES AT RS.1 LAC. APART FROM EDUCATIONAL EXPENS ES WHICH WERE SEPARATELY EXPLAINED BY THE ASSESSEE. THE ASSESSEE SHOWED THE HOUSEHOLD EXPENSES AT RS.73 000/- GIVING THE DETAIL S OF MILK KIRANA 3 ELECTRICITY TELEPHONE CONVEYANCE VEGETABLE AND F RUITS PROPERTY TAX WATER TAX CLOTHING SOCIAL OBLIGATION AND MISCELLA NEOUS EXPENSES AS HAS BEEN MENTIONED IN PARA 5 OF THE IMPUGNED ORDER ITSE LF. DURING HEARING A PASSIONATE ARGUMENT WAS ADVANCED BY THE LD. COUNSEL FOR THE ASSESSEE THAT SINCE THE HUSBAND OF THE ASSESSEE IS PARALYTIC THEREFORE THERE IS NO EXPENSES FOR PARTIES OUTDOOR VISIT TOURISM AND LA VISH PURCHASES ETC. IT IS ALSO SEEN THAT FDRS WERE ENCASHED SEPARATELY FOR EDUCATIONAL EXPENSES AND THE SAME WERE DULY EXPLAINED AS IS EVI DENCED FROM LAST PAGE OF THE IMPUGNED ORDER. IN THE LIGHT OF THESE FACTS IT CAN BE SAID THAT THE CLAIMED EXPENSES BY THE ASSESSEE ARE SUFFI CIENT TO MEET OUT THE HOUSEHOLD NEEDS ESPECIALLY THE EXPENSES ON EDUCATIO N WERE SEPARATE FROM THE CLAIMED EXPENSES. IT IS ALSO SEEN THAT TH E LEARNED ASSESSING OFFICER HAS ADDED CERTAIN AMOUNTS ON ACCOUNT OF PER SONAL CONVEYANCE WATER TAX RENT KIRANA TELEPHONE BILLS AND ELECT RICITY EXPENSES THAT TOO WITHOUT ASSIGNING ANY REASON. STILL TO PUT AN END T O THE LITIGATION IN OUR VIEW IT WILL MEET THE ENDS OF JUSTICE IF THE ADDIT ION SUSTAINED BY THE LEARNED CIT(A) IS RESTRICTED TO RS. 10 000/-. THERE FORE THIS GROUND OF THE ASSESSEE IS PARTLY ALLOWED. 3. THE NEXT GROUND PERTAINS TO UPHOLDING THE ACTION OF THE ASSESSING OFFICER BY THE LD. FIRST APPELLATE AUTHORITY IN REJ ECTING THE CLAIM U/S 89(1) OF THE ACT FOR WANT OF DETAILS AND FORMAL APPLICATI ON IN FORM NO. 10E. DURING HEARING IT WAS EXPLAINED BY THE LD. COUNSEL FOR THE ASSESSEE THAT 4 THE RELEVANT DETAILS WERE SUBMITTED BY THE ASSESSEE FOR WHICH OUR ATTENTION WAS INVITED TO THE FACTS OF THE CASE WHIC H ARE AVAILABLE ON RECORD AS IS EVIDENT FROM THE RECORD FILED DURING F IRST APPELLATE STAGE WHICH ARE THAT THE ASSESSEE RECEIVED RS. 15 24 483/ - ON RETIREMENT LIKE RS.10 51 687/- (EX-GRATIA) RS. 3 03 373/- (GRATUITY ) RS. 1 44 238/- (LEAVE ENCASHMENT) AND RS. 25 187/- (GSLI). THE AS SESSEE CLAIMED RS. 5 LACS AS EXEMPTION U/S 10(10C) BEING EMPLOYEE FROM A PUBLIC SECTOR UNDERTAKING. THE EMPLOYER PAID THE TOTAL AMO UNT OF RS.15 24 483/- AS PER VRS. THE ASSESSEE ALSO SUBMIT TED FORM NO. 10E ALONG WITH NECESSARY DETAILS (WORKING SHEET) FOR CL AIMING TAX RELIEF U/S 89(1) OF THE ACT. HOWEVER BEING A DISPUTED ISSUE REGARDING RELIEF U/S 89(1) FOR THE AMOUNT OF EX-GRATIA OVER AND ABOVE RS . 5 LACS THE EMPLOYER DID NOT ALLOW THE CLAIM AND DEDUCTED TAX A ND ISSUED FORM NO. 16 TO THE ASSESSEE. EVEN IF IT IS PRESUMED THAT TH E NECESSARY DETAILS WERE NOT FILED IN FORM NO. 10E AND OTHERWISE FILED MAY NOT DISENTITLE THE ASSESSEE FOR CLAIMING SUCH RELIEF AS OUT OF EX GRAT IA AMOUNT RS. 5 LACS IS FULLY EXEMPT U/S 10(10C) OF THE ACT AND THE ASSESSE E IS ENTITLED TO RELIEF BEING RETIRED FROM A PUBLIC SECTOR UNDERTAKING. TH ERE IS A SPECIFIC FINDING THAT THE ASSESSEE FILED COPIES OF CALCULATION OF RE LIEF CLAIMED U/S 89(1) FORM NO. 16 FORM 12BA ISSUED BY THE EMPLOYER ALONG WITH THE RETURN OF INCOME BUT THE ASSESSMENT ORDER IS SILENT ABOUT THE AVAILABILITY OF THESE DOCUMENTS. THE CLAIM OF THE ASSESSEE WAS FORWARDED TO THE ASSESSING 5 OFFICER BY THE LD. CIT(A) VIDE LETTER DATED 29.10.2 007 TO WHICH IT WAS REPORTED BY THE ASSESSING OFFICER THAT ASSESSEE WAS ASKED TO APPEAR ON 19.11.2007 BUT SHE DID NOT APPEAR HENCE THE POSITIO N WAS NOT VALIDATED. WITHOUT COMMENTING FURTHER WE DIRECT THE ASSESSING OFFICER TO GRANT RELIEF TO THE ASSESSEE AS PER THE PROVISIONS OF THE ACT FOR WHICH SUFFICIENT OPPORTUNITY OF BEING HEARD BE PROVIDED TO THE ASSES SEE. THE ASSESSEE IS ALSO AT LIBERTY TO FURNISH EVIDENCE IF ANY TO SUB STANTIATE HER CLAIM. THIS GROUND OF THE ASSESSEE IS ALLOWED FOR STATISTICAL P URPOSES. RESULTANTLY THE APPEAL OF THE ASSESSEE IS PARTLY ALLOWED FOR STATISTICAL PURPOSES ONLY. ORDER PRONOUNCED IN OPEN COURT ON 9 TH APRIL 2010. SD SD (V.K. GUPTA) (JOGINDER SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER APRIL 9 2010 COPY TO: APPELLANT RESPONDENT CIT CIT(A) DR G UARD FILE *DBN/