Smt. Malti Gupta, Indore v. The Income Tax Officer 3(1), Indore

ITA 450/IND/2010 | 2007-2008
Pronouncement Date: 13-08-2010 | Result: Allowed

Appeal Details

RSA Number 45022714 RSA 2010
Assessee PAN ABIPG3811G
Bench Indore
Appeal Number ITA 450/IND/2010
Duration Of Justice 1 month(s) 5 day(s)
Appellant Smt. Malti Gupta, Indore
Respondent The Income Tax Officer 3(1), Indore
Appeal Type Income Tax Appeal
Pronouncement Date 13-08-2010
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted SMC
Tribunal Order Date 13-08-2010
Assessment Year 2007-2008
Appeal Filed On 08-07-2010
Judgment Text
1 IN THE INCOME TAX APPELLATE TRIBUNAL SMC-I BENCH INDORE BEFORE SHRI JOGINDER SINGH JUDICIAL MEMBER ITA NO.450/IND/2010 A.Y.2007-08 SMT. MALTI GUPTA INDORE PAN ABIPG 3811 G APPELLANT VS INCOME TAX OFFICER 3(1) INDORE RESPONDENT APPELLANT BY : SHRI PRAKASH JAIN CA RESPONDENT BY : SMT. APARNA KARAN SR. DR O R D E R THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER OF THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS)-I IND ORE DATED 17.3.2010 2. DURING THE HEARING OF THIS APPEAL I HAVE HEARD SHRI PRAKASH JAIN LD. COUNSEL FOR THE ASSESSEE AND SMT. APARNA KARAN LD. SR. DR. AT THE 2 OUTSET MR. JAIN DID NOT PRESS GROUND NO. 1 THEREF ORE THIS GROUND IS DISMISSED AS NOT PRESSED. 3. THE NEXT GROUND RAISED BY THE ASSESSEE PERTAINS TO CONFIRMING THE ADDITION OF RS. 2 39 393/- BY INVOKING THE PROVISIO NS OF SECTION 69 OF THE ACT BY TREATING THE INVESTMENT MADE BY THE ASSESSEE IN AGRICULTURAL LAND WHICH WAS TREATED AS UNEXPLAINED INVESTMENT. THE C RUX OF ARGUMENTS ON BEHALF OF THE ASSESSEE IS THAT THE ASSESSEE PURC HASED SOME AGRICULTURAL LAND FOR AN AMOUNT OF RS. 2 39 393/- S ITUATED IN RANGPURA DISTRICT RAISEN. IT WAS CLAIMED THAT THE ASSESSEE IS HAVING INCOME FROM OTHER SOURCES AND CAPITAL GAINS NOT OBLIGED TO MAIN TAIN BOOKS OF ACCOUNTS. THE ASSESSEE CLAIMED TO HAVE FILED BALAN CE-SHEET AND COMPUTATION OF INCOME FOR THE ASSESSMENT YEAR IN QU ESTION AND THE IMPUGNED INVESTMENT WAS MADE OUT OF THE FUNDS AVAIL ABLE WITH THE ASSESSEE. IT WAS PLEADED THAT EACH AND EVERY ENTRY MENTIONED IN SUCH BALANCE-SHEET WAS EXPLAINED DURING ASSESSMENT STAGE AS WELL AS FIRST APPELLATE STAGE AND THE SAME IS TALLYING. IT WAS F URTHER ASSERTED THAT THE ASSESSEE DISCHARGED THE ONUS BY PRODUCING EVIDENCE FOR PURCHASE OF LAND AND THE SOURCE THEREOF AS THE STATEMENT OF AFF AIRS OF EARLIER YEAR AND IMPUGNED ASSESSMENT YEAR WAS FILED DURING THE A SSESSMENT PROCEEDINGS. IT WAS SPECIFICALLY POINTED OUT THAT THE RETURN OF EARLIER YEAR WAS ACCEPTED BY THE DEPARTMENT. THE ASSESSEE HAS A LSO FILED PAPER BOOK RUNNING INTO 1 TO 19 PAGES WHICH IS KEPT ON RE CORD. ON THE OTHER 3 HAND THE LEARNED SENIOR DEPARTMENTAL REPRESENTATIV E CONTENDED THAT THE ASSESSEE DID NOT EXPLAIN THE SOURCE OF THE INVE STED AMOUNT; THEREFORE THE ADDITION WAS CORRECTLY MADE BY THE D EPARTMENT. MY ATTENTION WAS ALSO INVITED TO PARA 2.1 (PAGE 2) OF THE IMPUGNED ORDER. 4. I HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PER USED THE MATERIAL AVAILABLE ON THE FILE. BRIEF FACTS ARE THAT THE AS SESSEE PURCHASED TWO ACRES OF LAND BEARING KHASRA NO. 10/1/2/1 SITUATED AT VILLAGE RANGPURA DISTRICT RAISEN FOR AN AMOUNT OF RS.2 29 393/- CLAI MED TO BE OUT OF EXPLAINED SOURCES OF INCOME (COPY OF SALE DEED IS A VAILABLE AT PAGES 15 TO 19 OF THE PAPER BOOK). THE TOTAL AMOUNT CLAIME D TO BE INVESTED BY THE ASSESSEE WAS TREATED BY THE LEARNED ASSESSING OFFICER FROM UNEXPLAINED SOURCES WHICH RESULTED INTO ADDITION OF RS.2 39 393/-. THE ASSESSMENT ORDER WAS UNSUCCESSFULLY CARRIED IN APPE AL BEFORE THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) WHICH IS UNDER CHALLENGE BEFORE THIS TRIBUNAL. 5. BEFORE COMING TO ANY CONCLUSION THE FACTUAL FIN DING OF THE LEARNED ASSESSING OFFICER WHICH IS AVAILABLE AT PAGE 1 OF T HE ASSESSMENT ORDER IS REPRODUCED HEREUNDER :- IN THIS CASE THE RETURN OF INCOME HAS BEEN FILED ON 23.07.2007 VIDE ACKNOWLEDGEMENT NO. 0002101663 DECLARING TOTAL INCO ME AT RS. 1 32 670/-. THE CASE WAS SELECTED UNDER SCRUTINY THROUGH APPRO VAL OF CCIT ACCORDINGLY NOTICE U/S 143(2) WAS ISSUED ON 19.09.2008 WHICH WA S SERVED ON 27.9.2008 FIXING THE CASE FOR 29.09.2008. THIS CASE WAS RECE IVED ON TRANSFER FROM ITO 2(2) INDORE. DUE TO CHANGE OF INCUMBENT AGAIN A N OTICE U/S 142(1) ALONG WITH QUESTIONNAIRE ISSUED ON 10.09.2009 FIXING THE CASE FOR HEARING ON 23.09.2009. ON THE DATE FIXED FOR HEARING NONE ATTE NDED. AGAIN A NOTICE U/S 142(1) ISSUED ON 07.10.2009 SERVED UPON ASSESSEE ON 09.10.2009 FIXING THE 4 CASE OF HEARING ON 16.10.2009 . IN COMPLIANCE TO THIS SHRI D.K. SAKLECHA (CA) A.R. OF THE ASSESSEE ATTENDED FROM TI ME TO TIME AND FILED REPLY WITH DETAILS. THE DETAILS SO FILED HAVE BEEN CONSIDERED AND PLACED ON RECORD. THE CASE WAS ALSO DISCUSSED WITH THE COUNSEL. THE LEARNED ASSESSING OFFICER WAS OF THE VIEW THAT THE NECESSARY DETAILS OF SOURCE WERE NOT FURNISHED AND ESTIMATED THE INCO ME FROM TUITION AT RS.72 000/- AND ON ACCOUNT OF TUITION RS.33 000/- W ERE ADDED. HOWEVER FOR THE IMPUGNED ISSUE THE WHOLE AMOUNT WAS TREATE D AS UNEXPLAINED INVESTMENT U/S 69 OF THE ACT. THE ASSESSMENT ORDE R WAS AFFIRMED BY THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) ME RELY ON THE GROUND THAT THE ASSESSEE DID NOT FURNISH ANY DETAIL OF INCOME I.E. INFLOW OF CASH. I HAVE PERUSED THE PAPER BOOK FILED BY TH E ASSESSEE WHEREIN IT IS SEEN THAT IN THE RETURN FILED FOR ASSESSMENT YEA R 2006-07 (F.Y. 2005- 06) THE ASSESSEE HAS SHOWED INCOME OF RS.1 12 486/ - AND AGRICULTURAL INCOME OF RS. 24 600/-. FOR THE ASSESSMENT YEAR 200 7-08 THE TOTAL INCOME HAS BEEN SHOWN AT RS. 1 93 669/- AND AGRICUL TURAL INCOME AT RS. 49 600/-. IT IS PERTINENT TO MENTION HERE THAT THE RETURN FOR THE ASSESSMENT YEAR 2006-07 WAS DULY ACCEPTED BY THE DE PARTMENT. ON A QUERY FROM THE BENCH WHETHER THE INCOME FOR THE AS SESSMENT YEAR 2006-07 WAS ACCEPTED IT WAS CONTENDED BY THE LEARN ED SENIOR DEPARTMENTAL REPRESENTATIVE THAT THOUGH ACCEPTED BU T THE ORDER WAS PASSED U/S 143(1)(A) OF THE ACT AND NOT U/S 143(3) OF THE ACT. I AM OF THE VIEW THAT EVEN IF THE ORDER HAS BEEN PASSED U/S 143 (1)(A) DOES NOT 5 MEAN THAT THERE WAS NO INCOME TO THE ASSESSEE AND O NLY THE INCOME ASSESSED U/S 143(3) IS ACCEPTABLE THEREFORE ONE F ACT IS OOZING OUT THAT FOR THE ASSESSMENT YEAR 2006-07 THERE WAS INCOME WI TH THE ASSESSEE. THE COMPUTATION OF INCOME ATTACHED WITH ACKNOWLEDGE MENT WAS DULY FURNISHED BY THE ASSESSEE BEFORE THE REVENUE AUTHOR ITIES AS IS EVIDENT FROM THE CERTIFICATE DULY SIGNED BY THE ASSESSEE TH AT PAGES 1 TO 11 AND 14 TO 19 OF THE PAPER BOOK WERE FILED BEFORE THE AS SESSING OFFICER AND THE CASH FLOW STATEMENT FOR FINANCIAL YEAR 2006-07 (PAGES 12 AND 13 OF THE PAPER BOOK) WAS FILED BEFORE THE LEARNED COMMIS SIONER OF INCOME TAX (APPEALS). EVEN IN THE OPENING PARA OF THE ASSE SSMENT ORDER (REPRODUCED ABOVE) THERE IS A CLEAR MENTION THAT TH E ASSESSMENT PROCEEDINGS WERE ATTENDED FROM TIME TO TIME THE DE TAILS WERE FILED BY THE ASSESSEE AND THE CASE WAS DISCUSSED WITH THE CO UNSEL. NO SPECIFIC DEFECT HAS BEEN PIN-POINTED BY THE ASSESSING OFFICE R THEREFORE THE CONCLUSION THAT THE SAME AMOUNT BECAME UNEXPLAINED AT THE LATER STAGE CANNOT BE SAID TO BE JUSTIFIED. IF THE LEARNED ASSE SSING OFFICER WAS NOT SATISFIED WITH THE DETAILS FILED BY THE ASSESSEE BE FORE HIM NOTHING PREVENTED HIM TO ASK FOR FURTHER CLARIFICATION OR T O EXAMINE THE AUTHENTICITY OF THE DOCUMENTS/EVIDENCE FILED AS CLA IMED BY THE ASSESSEE. THE PURCHASE DEED/SALE DEED OF THE IMPUGN ED LAND WAS ALSO FILED BEFORE THE LEARNED ASSESSING OFFICER. THE ST ATEMENT OF AFFAIRS ALONG WITH COMPUTATION OF INCOME OF BOTH THE YEARS WAS DULY FILED BY THE 6 ASSESSEE BEFORE THE ASSESSING OFFICER OUT OF WHICH THE EARLIER YEAR RETURNS WERE DULY ACCEPTED BY THE DEPARTMENT THERE FORE HOW IT BECAME UNEXPLAINED. ALL THE ENTRIES MADE IN THE COMPUTATIO N ARE DULY TALLYING WHICH WERE ALSO CLAIMED TO BE EXPLAINED BEFORE THE REVENUE AUTHORITIES THEREFORE IN MY OPINION NO ADDITION IS CALLED FOR U/S 69 OF THE ACT. ADMITTEDLY AS PER THE PROVISIONS OF SECTION 69 OF THE ACT THE ONUS OF PROVING THE SOURCE OF MONEY IS ON THE ASSESSEE WHI CH HE HAS DISCHARGED IN THE PRESENT CASE. MERELY BECAUSE THE EXPLANATION OF THE ASSESSEE REGARDING INVESTMENT IS NOT ACCEPTABLE TH E REVENUE CANNOT TREAT THE INVESTMENT AS UNEXPLAINED. THE REVENUE IS EXPECTED TO BRING ON RECORD THE MATERIAL FROM WHICH IT COULD BE CONCL UDED THAT THE INVESTMENTS MADE BY THE ASSESSEE ARE UNEXPLAINED. IF THIS IS NOT DONE NO ADDITION COULD BE MADE AS UNDISCLOSED INCOME OF THE ASSESSEE. THIS VIEW FINDS SUPPORTS FROM THE DECISION OF THE ALLAHA BAD HIGH COURT IN CIT V. DAYACHAND JAIN VAIYA; 98 ITRT 280. EVEN IF THE E XPLANATION OF THE ASSESSEE IS REJECTED SECTION 69 CONFERS ONLY A DIS CRETION TO THE ITO TO TREAT THE INVESTMENT AS INCOME OF THE ASSESSEE BECA USE THE WORD USED IS MAY AND NOT SHALL IN THE SAID SECTION AS WAS HELD IN CIT V. MUGAL DARBAR 216 ITR 301 (AP) BUT AT THE SAME TIME THIS DISCRETION IS SUPPOSED TO USED JUDICIALLY AND NOT ARBITRARILY. H OWEVER IN THE PRESENT APPEAL SINCE THE BOOKS OF ACCOUNTS ARE MAINTAINED AND EACH ENTRY IS TALLYING WHEREIN NO DEFECT WAS POINTED OUT BY THE DEPARTMENT THEREFORE 7 NO ADDITION U/S 69 IS JUSTIFIED. THEREFORE THIS AP PEAL OF THE ASSESSEE IS ALLOWED. FINALLY THE APPEAL OF THE ASSESSEE IS A LLOWED ORDER PRONOUNCED IN THE OPEN COURT ON 13 TH AUGUST 2010 SD/- (JOGINDER SINGH) JUDICIAL MEMBER 13 TH AUGUST 2010 COPY TO: APPELLANT RESPONDENT CIT CIT(A) DR G UARD FILE *DN/