Smt. Vimla Devi, Haridwar v. ITO, Roorkee

ITA 4533/DEL/2011 | 2006-2007
Pronouncement Date: 30-04-2014 | Result: Allowed

Appeal Details

RSA Number 453320114 RSA 2011
Assessee PAN AIWPD6655L
Bench Delhi
Appeal Number ITA 4533/DEL/2011
Duration Of Justice 2 year(s) 6 month(s) 20 day(s)
Appellant Smt. Vimla Devi, Haridwar
Respondent ITO, Roorkee
Appeal Type Income Tax Appeal
Pronouncement Date 30-04-2014
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted H
Tribunal Order Date 30-04-2014
Date Of Final Hearing 05-03-2014
Next Hearing Date 05-03-2014
Assessment Year 2006-2007
Appeal Filed On 10-10-2011
Judgment Text
ITA NO. 4533& CO NO.394/DEL/2011 ASSTT.YEAR: 2006-07 1 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH `H NEW DELHI BEFORE SHRI G.D. AGRAWAL VICE PRESIDENT AND SHRI CHANDRA MOHAN GARG JUDICIAL MEMBER I.T.A.NO.4533/DEL/2011 ASSESSMENT YEAR : 2006-07 VIMLA DEVI VS INCOME TAX OFFICER C/O S.K. MONGA & ASSOCIATES WARD-2 AAYKAR BHAWAN UPHAR 312-313 GOVINDPURI CIVIL LINES ROORKEE. HARIDWAR-249401 (PAN: AIWPD6655L) C.O.NO.394/DEL/2011 (IN I.T.A.NO.4533/DEL/2011) ASSESSMENT YEAR : 2006-07 INCOME TAX OFFICER VS VIMLA DEVI WARD-2 ROORKEE. HARIDWAR. (APPELLANT) (RES PONDENT) APPELLANT BY: SHRI S.K. MONGA ADV. RESPONDENT BY : SHRI SAMEER SHARMA SR.DR O R D E R PER CHANDRAMOHAN GARG J.M. THE APPEAL OF THE ASSESSEE AS WELL AS C.O. OF THE REVENUE HAVE BEEN FILED AGAINST THE ORDER OF COMMISSIONER OF INCOME T AX(A)-I DEHRADUN DATED 10.06.2011 PASSED IN APPEAL NO. 14/RKE/2008-0 9 FOR AY 2006-07. 2. GROUNDS OF APPEAL IN ITA NO. 4533/DEL/2011 REA D AS UNDER:- ITA NO. 4533& CO NO.394/DEL/2011 ASSTT.YEAR: 2006-07 2 1. THAT SMT. VIMLA DEVI DENIES TO TAX AND FOR ANY LIABILITY WHICH HAS BEEN CREATED IN HER NAME INTERA LIA. (I) THAT SHE IS PERMANENT SERVICING IN ANGANWADI DISTT. SAHARANPUR AND SHE WAS APPOINTED ON 25.04.19 79 AND HER ATTENDANCE REGISTER MAY VERIFY. MY ACADEMIC QUALIFICATION IS 8TH CLASS AND I HAVE NOT USED CAPI TAL FOR INVESTMENT IN ANY BUSINESS. (II) THAT SHE HAS NOT TAKEN ANY LIQUOR LICENSE SH E HAS NOT CARRIED ON ANY BUSINESS OF LIQUOR SHE HAS NOT TAKE N ANY DELIVERY OF LIQUOR ETC. THE QUESTION OF MAINTENAN CE OF BOOKS OF ACCOUNTS FILING OF INCOME TAX RETURN AND ENGAGEMENT OF COUNSEL FOR INCOME TAX PROCEEDINGS DO ES NOT ARISE. (III) THAT AS PER HER OWN RESOURCES THE LIQUOR BUS INESS HAS BEEN CARRIED ON BY SH. RAJBIR SINGH AND HIS PAR TNER S.RAVINDER SINGH WHO DID ALL THE ACTIVITIES FROM TA KING THE LICENSE AND UPTO THE END OF THE BUSINESS THEY W ERE INVOLVED AND SH. RAJBIR SINGH BEING MY SON UTILIZED MY NAME. (IV) THAT MY STATEMENT ON OATH WAS RECORDED ON 19.01.2010 BY I.T.O. WARD-2 ROORKEE IN WHICH SHE HAS DENIED ALL THE ACTIVITIES REGARDING THE BUSINESS AN D IN RESPONSE TO QUESTION NO. 7 SHE SAID GEE MERA BAD A BETA SH. RAJBIR NE YEH KARYA KIYA HAI.' 2. THAT THE APPELLATE ORDER AS HAS BEEN FRAMED BY THE C.I.T. APPEAL-I DEHRADUN IS ARBITRARY UNJUST IMP ROPER AND AGAINST THE PROCEDURE. SMT. VIMLA DEVI HAD DISPATCHED THE ADJOURNMENT APPLICATION ON 12.03.201 1 UNDER SPEED POST FOR THE FIXED HEARING ON 14.3.201 1 AND REQUESTED DATE FOR APRIL 2011 BUT THE LD. C.L. T. APPEAL KEPT MUM AND PASSED EX-PARTY APPELLATE ORDER ON 10.06.2011. ITA NO. 4533& CO NO.394/DEL/2011 ASSTT.YEAR: 2006-07 3 3. THAT SMT. VIMLA DEVI ABSOLUTELY DENIES FOR THE INCOME AS DECLARED IN THE ASSESSMENT ORDER RS. 39 03 450/- AND DEMAND CREATED THEREON RS.15 07 030 /- AND NO NOTICE U/S 143(2) HAS BEEN RECEIVED BY HER A S STATED IN THE ASSESSMENT ORDER. 4. THAT IT IS HUMBLY REQUEST THAT THE PROCEEDINGS MAY KINDLY BE SENT BACK TO THE I.T.O. FOR DETERMINE THE REAL OWNER OR OWNERS OF THE LIQUOR BUSINESS. 5. THAT WITHOUT PREJUDICE TO GROUND NO. 1 (I) (I I) (III) (IV) 2 3 AND 4 THE ASSESSMENT AS HAS BEEN COMPLE TED ON TOTAL INCOME OF RS. 39 03 450/- AND DEMAND CREATED THEREON RS 15 07 030/- IS ARBITRARY UNJUST IMPROP ER AND AGAINST THE DOCTRINE OF NATURAL JUSTICE AND AGAINST THE PROVISIONS OF THE I.T .ACT 1961. 3. WE HAVE HEARD RIVAL ARGUMENTS OF BOTH THE P ARTIES AND CAREFULLY PERUSED THE RECORD PLACED BEFORE US SPECIALLY PAPE R BOOKS FILED BY THE ASSESSEE SPREAD OVER 41 PAGES AND ANOTHER PAPER BOO K DATED 28.8.2012 WHICH CONSISTS OF 110 PAGES FOR WHICH THE LD. COUNS EL OF THE ASSESSEE SUBMITTED THAT THERE WERE UNAVOIDABLE CIRCUMSTANCES HENCE THIS SECOND PAPER BOOK IS BEING FILED FOR THE FIRST TIME BEFORE THIS BENCH. 4. LD. COUNSEL FOR THE ASSESSEE POINTED OUT THA T THE ASSESSEES PERMANENT ADDRESS IS VILLAGE NANHERA TEEPTAN BLOCK NANGAL T EHSIL DEOBAND DISTT. SAHARANPUR WHERE THE ASSESSEE HAS BEEN LIVING FOR T HE LAST 40 YEARS. THE COUNSEL SUBMITTED THAT THE ASSESSEE IS SERVING IN B AL VIKAS PARIYOJNA NANGAL SAHARANPUR AS ANGANWADI WORKER SINCE 25.4.1 979 AND AS PER SALARY ITA NO. 4533& CO NO.394/DEL/2011 ASSTT.YEAR: 2006-07 4 CERTIFICATE DATED 02.09.2011 SHE IS DRAWING SALARY OF RS.1763/- PER MONTH. LD. COUNSEL FURTHER SUBMITTED THAT THE ASSESSEE HAS NO OTHER SOURCE OF INCOME AND ASSESSEE HAS TWO SONS NAMELY SHRI RAJBIR SINGH AND SHRI VIKAS AND THE ASSESEE IS NOT ON TALKING TERMS WITH RAJBIR SINGH (ELDER SON) FOR THE LAST MORE THAN 8 YEARS. THE COUNSEL FURTHER SUBMIT TED THAT SHRI RAJBIR SINGH WITH HIS PARTNER SHRI RAVINDER SINGH APPLIED FOR TA KING THE LICENCE FOR LIQUOR BUSINESS WITH THE FORGED SIGNATURES OF THE ASSESSEE AND THEY HAVE CARRIED ON THE BUSINESS OF LIQUOR DURING FY 2005-06 RELEVANT T O THE AY 2006-07 AND MAINTAINED THE BOOKS OF ACCOUNTS GOT THEM AUDITED AS PER PROVISIONS OF SECTION 44AB OF THE ACT. THE COUNSEL FURTHER SUBMI TTED THAT THESE PERSONS HAVE FILED THE INCOME TAX RETURN ON 3.10.2006 WITH FORGED SIGNATURE OF THE ASSESSEE AND ALSO ENGAGED A COUNSEL NAMELY SHRI ANK UR GOYAL ADVOCATE 16 CIVIL LINES ROORKEE AND VAKALATNAMA WAS ALSO F ILED WITH FORGED SIGNATURE OF THE ASSESSEE. THE COUNSEL FURTHER SUBM ITTED THAT SHRI RAJBIR SINGH AND HIS ASSOCIATE HAVE ALSO TAKEN PAN NO. OF THE ASSESSEE BY AFFIXING THE PHOTO WITH FORGED SIGNATURE WHICH WAS MENTIONED IN THE RETURN OF INCOME. 5. THE COUNSEL OF THE ASSESSEE FURTHER SUBMITTED TH AT THE ASSESSEE HAS NEITHER RECEIVED ANY NOTICE U/S 143(2) OF THE ACT N OR FILED ANY INCOME TAX RETURN AS THE ASSESSEE NEVER CARRIED ON ANY LIQUOR BUSINESS. THE COUNSEL OF ITA NO. 4533& CO NO.394/DEL/2011 ASSTT.YEAR: 2006-07 5 THE ASSESSEE VEHEMENTLY CONTENDED THAT THE ASSESSEE AND HER FAMILY MEMBERS NEVER CAME TO KNOW THAT SHRI RAJBIR SINGH A ND HIS ASSOCIATE HAVE BEEN CARRYING ON THE BUSINESS OF LIQUOR AND OTHER A CTIVITIES IN THE NAME OF THE ASSESSEE MEANING THEREBY THAT THE ACTUAL OWNER OF THE LIQUOR BUSINESS WAS SHRI RAJBIR SINGH AND HIS ASSOCIATE AND IN THIS REGARD THE ASSESSEE ALSO FILED THE REPORT WITH SSP HARIDWAR ON 12.09.2011 M ENTIONING ALL THE FACTS. THE COUNSEL OF THE ASSESSEE SUBMITTED THAT AFTER CO MPLETION OF ASSESSMENT U/S 144/143(3) OF THE ACT SHRI RAJBIR SINGH AND H IS ASSOCIATE FILED AN APPEAL BEFORE THE COMMISSIONER OF INCOME TAX DEHRA DUN WITH FORGED SIGNATURE OF THE ASSESSEE. THE COUNSEL POINTED OUT THE NOTICE OF HEARING OF APPEAL HAS BEEN ISSUED TO THE ADDRESS OF ROORKEE AN D THE ASSESSEE RECEIVED FIRST NOTICE DATED 03.03.2011 BY PERSONAL SERVICE O N 11.03.2011 IN VILLAGE NANHERA TEEPTAN. IN THIS NOTICE DATE OF HEARING W AS FIXED ON 14.03.2011. THE COUNSEL SUBMITTED THAT THE ASSESSEE IMMEDIATELY ENGAGED HER COUNSEL SHRI TILAK RAJ ADVOCATE OF ROORKEE AND FILED AN ADJ OURNMENT APPLICATION ON 12.03.2011 BY SPEED POST INCLUDING AN AFFIDAVIT AND VAKALATNAMA AND IT WAS REQUESTED THAT APPEAL BE KINDLY ADJOURNED TO SOME O THER DATE IN APRIL AND PERMANENT ADDRESS OF THE ASSESSEE IN SAID APPLICATI ON MAY KINDLY BE NOTED FOR FURTHER PURPOSES. ITA NO. 4533& CO NO.394/DEL/2011 ASSTT.YEAR: 2006-07 6 6. THE LD. COUNSEL OF THE ASSESSEE FURTHER SUBMITTE D THAT THE COMMISSIONER OF INCOME TAX(A) MENTIONED IN HIS ORDE R THAT THE LAST LETTER DATED 03.03.2011 WAS SERVED ON THE ASSESSEE THROUGH THE ASSESSING OFFICER AND HER SIGNATURE WAS OBTAINED AS A TOKEN OF RECEIP T. BUT THERE HAS NOT BEEN ANY COMPLIANCE. IN VIEW OF THIS IT IS CONCLUDED T HAT SHE HAS NOTHING TO SAY IN THE MATTER AND APPEAL IS BEING DECIDED ON MERITS . THE COUNSEL VEHEMENTLY CONTENDED THAT AGAINST THE DATE OF HEARI NG FIXED FOR 14.03.2011 THE ASSESSEE FILED AN ADJOURNMENT APPLICATION ON 12 .03.2011 UNDER SPEED POST ENCLOSED WITH AN AFFIDAVIT VAKALATNAMA OF SHR I TILAK RAJ ADVOCATE ROORKEE. THIS ADJOURNMENT APPLICATION HAS NOT BEEN CONSIDERED AND THE COMMISSIONER OF INCOME TAX(A) PASSED THE IMPUGNED O RDER DATED 10.06.11 I.E. ABOUT THREE MONTHS LATER FROM THE DATE OF HEAR ING. THE COUNSEL ALSO SUBMITTED THAT THE ASSESSEE FILED AN APPLICATION U/ S 154 OF THE ACT BUT THE SAME WAS NOT DECIDED PROPERLY. SUBSEQUENTLY THE A SSESSEE WAS BOUND TO FILE THIS APPEAL. 7. LD. COUNSEL OF THE ASSESSEE HAS DRAWN OUR ATTENT ION TOWARDS SECOND PAPER BOOK DATED 28.8.2012 SPREAD OVER 110 PAGES AN D SUBMITTED THAT WHEN THE ASSESSEE RECEIVED NOTICE DATED 03.03.2011 FROM COMMISSIONER OF INCOME TAX THEN THE ASSESSEE BECAME ACTIVE TO PROT EST PROCEEDINGS OF THE TAX AUTHORITIES ON THE SOLE BASIS THAT THE ASSESSEE WAS NEVER ENGAGED IN LIQUOR ITA NO. 4533& CO NO.394/DEL/2011 ASSTT.YEAR: 2006-07 7 BUSINESS AND ALL PROCEEDINGS FROM OBTAINING OF LICE NSE TO FILING OF INCOME TAX RETURN AND FILING OF APPEAL BEFORE THE COMMISSI ONER OF INCOME TAX(A) HAS BEEN DONE BY SHRI RAJBIR SINGH AND HIS ASSOCIAT E WITH FORGED SIGNATURES OF THE ASSESSEE. THE COUNSEL HAS SPECIALLY DRAWN O UR ATTENTION TOWARDS PAPER BOOK PAGE NO. 45 WHICH IS RESIDENT CERTIFICAT E ISSUED BY GRAM PRADHAN VILLAGE NANHERA TEEPTAN CERTIFYING THAT TH E ASSESSEE IS A PERMANENT RESIDENT OF VILLAGE NANHERA TEEPTAN SINCE LAST 40 Y EARS. THE COUNSEL OF THE ASSESSEE HAS FURTHER DRAWN OUR ATTENTION TOWARDS OB SERVATIONS OF THE COMMISSIONER OF INCOME TAX(A) IN PARA 3 & 4 OF THE IMPUGNED ORDER AND SUBMITTED THAT THE OBJECTIONS OF THE ASSESSEE HAVE NOT BEEN DECIDED BY THE COMMISSIONER OF INCOME TAX(A) PROPERLY BY IGNORING REPORT OF ITO WARD- II ROORKEE DATED 12.12.2010 (PB NO. 56 TO 58). LD . COUNSEL HAS ALSO DRAWN OUR ATTENTION TOWARDS AFFIDAVIT DATED 2.3.2012 OF T HE ASSESSEE FILED BEFORE THIS TRIBUNAL (PB NO. 77-79). THE COUNSEL SUBMITTE D THAT ON THE REQUEST OF THE ASSESSEE THE COMMISSIONER OF INCOME TAX(A) CAL LED A REPORT FROM ITO BY LETTER DATED 29.12.2009 (PB PAGE NO. 54-55) AND THE ITO SUBMITTED HIS REPORT TO THE COMMISSIONER OF INCOME TAX(A) ON 12.2 .2010 WHEREIN IT HAS BEEN MENTIONED THAT IT IS QUITE POSSIBLE THAT SHRI RAJENDRA PAL SINGH IS THE ACTUAL PERSON INVOLVED IN THE LIQUOR BUSINESS WHICH IS CARRIED OUT IN THE NAME OF THE ASSESSEE. BECAUSE SHRI RAJENDRA PAL SI NGH THE HUSBAND OF THE ITA NO. 4533& CO NO.394/DEL/2011 ASSTT.YEAR: 2006-07 8 ASSESSEE HAS BEEN OPERATING THE BANK ACCOUNT IN IOB PERTAINING TO VARIOUS TRANSACTIONS OF LIQUOR THEREON OR HE HAS BEEN INTRO DUCED BY HIS SON SHRI RAJBIR SINGH TO OPEN HIS BANK ACCOUNT IN IOB AND IT IS UNDOUBTEDLY CONFIRMED THAT THE LIQUOR BUSINESS WAS BEING RUN BY THE FAMILY MEMBERS OF THE ASSESSEE. 8. LD. COUNSEL OF THE ASSESSEE HAS ALSO DRAWN OUR A TTENTION TOWARDS THE FIRST PAPER BOOK SPREAD OVER 42 PAGES WHEREIN FIRST LY THE ASSESSEE REQUESTED THE ITO-WARD-II ROORKEE FOR EXAMINATION OF SIGNATU RES ON THE INCOME TAX RETURN VAKALATNAMA AUDIT REPORT MEMORANDUM OF AP PEAL FORM NO.35 GROUND OF APPEAL ETC. THROUGH THE HANDWRITING EXPER T. THIS LETTER WAS SUBMITTED ON 3.4.2013 BUT WHEN ITO DID NOT TAKE ANY ACTION THEN THE ASSESSEE HERSELF TOOK HANDWRITING REPORT FROM MR. S ANJEEV TOMAR HANDWRITING EXPERT AND AS PER HIS REPORT DATED 29.4 .2013 DISPUTED SIGNATURES OF THE ASSESSEE ON ALL PAPERS ILLEGAL LICENCE APP LICATION FOR LIQUOR LICENSE INCOME TAX RETURN VAKALATNAMA AUDIT REPORT APPEA L FORM NO. 35 FOR AY 2006-07 WERE FORGED AND ALL THESE DOCUMENTS HAVE NO T BEEN SIGNED BY THE ASSESSEE. THE COUNSEL FURTHER SUBMITTED THAT IF TH E ASSESSEE IS LIVING PERMANENTLY SINCE LAST 40 YEARS IN VILLAGE NANHERA TEEPTAN DRAWING A MEAGER SALARY OF RS.1763/- THEN IF OTHER FAMILY ME MBERS OF THE ASSESSEE WITH THE AID OF OUTSIDE PERSONS AND ASSOCIATES CONT RACT LIQUOR BUSINESS IN THE ITA NO. 4533& CO NO.394/DEL/2011 ASSTT.YEAR: 2006-07 9 NAME OF ASSESSEE BY MAKING FORGED SIGNATURES THEN THE ASSESSEE CANNOT BE HELD RESPONSIBLE TO PAY TAX FROM THE INCOME EARNED BY OTHER PERSONS FROM LIQUOR BUSINESS. 9. REPLYING TO THE ABOVE LD. DR SUBMITTED THAT THE SECOND PAPER BOOK DATED 28.8.2012 SPREAD OVER 110 PAGES WAS NOT SUBMI TTED BEFORE THE AUTHORITIES BELOW AND THEREFORE THESE DOCUMENTS R EQUIRE EXAMINATION AND VERIFICATION AT THE END OF THE ASSESSING OFFICER. LD. DR FURTHER SUBMITTED THAT THE COMMISSIONER OF INCOME TAX(A) HAD DECIDED OBJECTIONS OF THE ASSESSING OFFICER IN PARA 3 & 4 OF THE IMPUGNED ORD ER AND WHEN THE FAMILY MEMBERS OF THE ASSESSEE ARE CONDUCTING BUSINESS OF LIQUOR IN THE NAME OF ASSESSEE AND HER SON AND HUSBAND OPERATING BANK ACC OUNT AND OTHER ACTIVITIES IN THE ASSESSEES NAME THEN THE ASSESSE E CANNOT ESCAPE FROM HER LIABILITY TO PAY TAX ON THE INCOME EARNED FROM THE LIQUOR BUSINESS. THE DR FAIRLY ACCEPTED THAT THE MAIN GRIEVANCE OF THE ASSE SSEE THAT THE LIQUOR BUSINESS WAS CONDUCTED WITHOUT HER KNOWLEDGE BY MAK ING HER FORGED SIGNATURE RIGHT FROM THE MAKING OF APPLICATION FOR LIQUOR LICENSE TO FILING THE APPEAL BEFORE THE COMMISSIONER OF INCOME TAX(A) RE QUIRES DEEP AND DUE DILIGENT INQUIRY AT THE END OF ASSESSING OFFICER SO THAT THE LIABILITY OF TAX PAYMENT MAY BE FASTENED ON THE PERSON WHO ACTUALLY EARNED INCOME FROM LIQUOR BUSINESS. ITA NO. 4533& CO NO.394/DEL/2011 ASSTT.YEAR: 2006-07 10 10. ON CAREFUL CONSIDERATION OF ABOVE WE OBSERVE T HAT THE COMMISSIONER OF INCOME TAX(A) DECIDED THE OBJECTION OF THE ASSES SEE WITH FOLLOWING OBSERVATIONS AND FINDINGS:- AS MENTIONED ABOVE THE ASSESSEE ONCE APPEARED ALONG WITH HER HUSBAND AND SUBMITTED THAT SHE WAS A BENAMIDAR AND BUSINESS HAD REALLY BEEN DONE BY HER SON SHRI RAJVEER SINGH WHO WAS IN THE SAME TINE OF BUSI NESS. ACCORDING TO HER SHE WAS WORKING AS TEACHER A ANGANWARI NANHERA TIPRAN SAHARANPUR DRAWING SALARY OF RS.1500/- PER MONTH AND WAS QUITE IGNORAN T ABOUT THE BUSINESS. THE AO WAS ASKED VIDE THIS OFF ICE LETTER DT. 29.12.2009 TO COLLECT THE RELEVANT FACTS AND SEND HIS REPORT. HE SUBMITTED HIS REPORT VIDE HIS LETTER F.NO.APPEAL/ITO/W-2/RKE/2009-10/1726 DATED 12.02.2010. THE MAIN POINTS OF THE REPORT ARE NOTE D BELOW: I. THE RETURN WAS SIGNED BY THE ASSESSEE ONLY. II. SHE WAS THE LICENSEE HOLDER FOR THE LIQUOR BUSINESS. III. THE FINANCIAL TRANSACTIONS RELATING TO THE BUSINESS WERE CARRIED OUT THROUGH THE S.8. A/C NO.1 1572 WITH INDIAN OVERSEAS BANK ROORKEE. THE A/C WAS JOI NTLY IN THE NAMES OF THE ASSESSEE AND HER HUSBAND SHRI RAJENDRA PAL SINGH AND WAS OPERATED BY THE LATTER. IV. HER SON SHRI RAJVEER SINGH IS ASSESSED TO TAX SHOWING INCOME FROM LIQUOR BUSINESS SEPARATELY. V. SHE LIVES IN VILLAGE NANHERA TIPRAN WITH HER FATHER-IN-LAW IN THE ANCESTRAL HOUSE WHEREAS HER HU SBAND AND SON LIVE AT AJAD NAGAR ROORKEE IN A HOUSE WHIC H WAS CONSTRUCTED BY THE FAMILY MEMBERS ON THE PLOT O WNED BY HER. HER HUSBAND SHRI RAJENDRA PAL SINGH IS NOT ASSESSED TO TAX. HE WAS NOT ABLE TO COLLECT SPECIFIC INFORMATION ABO UT WHO HAD INVESTED IN THE BUSINESS AND CONDUCTED THE SAME . HE ITA NO. 4533& CO NO.394/DEL/2011 ASSTT.YEAR: 2006-07 11 WAS OF THE VIEW THAT CONSIDERING THE AVAILABLE FAC TS AND CIRCUMSTANCES IT COULD BE SAID THAT THE BUSINESS W AS RUN BY THE ASSESSEE'S FAMILY OR BY HER HUSBAND SHRI RAJ ENDRA PAL SINGH. 2. THE ASSESSING OFFICERS REPORT DOES NOT SUBSTANTIAT E THE ASSESSEE'S CONTENTION THAT SHE WAS A BENAMIDAR FOR HER SON SHRI RAJENDRA SINGH. ON HIS PART SHRI RAJVEER SINGH HAS NOT COME FORWARD TO OWN UP THE BUSINESS AND HAS SHOWN NO INTEREST IN THE ASSESSMENT OR THE APPEAL PROCEEDING. IT IS THE ASSESSEE IN WHOSE NAME THE LI CENSE FOR LIQUOR-VENDING WAS ISSUED. IT IS SHE WHO FURNIS HED THE RETURN OF INCOME AS WELL AS PREFERRED APPEAL AGAINS T THE ASSESSMENT. ACCORDING TO THE CHARTERED ACCOUNTANT THE AUDIT REPORT AND THE AUDITED ACCOUNTS BEAR HER SIGN ATURE. UNLESS SHE SUBSTANTIATES HER CONTENTION BY RELIABLE EVIDENCE OR HER SON VOLUNTARY OWNS UP THE BUSINESS AS WELL AS TAX LIABILITY SHE CANNOT GET AWAY BY SAYIN G THAT SHE WAS A BENAMIDAR OF HER SON. ACCORDINGLY IT IS HELD THAT SHE ALONE IS ACCOUNTABLE FOR THE BUSINESS DONE IN HER NAME. 11. WE ALSO OBSERVE THAT THE IMPUGNED ORDER HAS B EEN PASSED ON 10.06.2011. BEFORE THAT THE COMMISSIONER OF INCOME TAX(A) ASKED A DETAILED REPORT FROM ITO WARD-2 ROORKEE THROUGH L ETTER DATED 29.12.09 (PB PAGE NO. 54-55) AND THE ITO SUBMITTED HIS REPOR T DATED 12.02.2010 TO COMMISSIONER OF INCOME TAX(A). THE LAST PART OF TH IS REPORT (I) READS AS UNDER:- I) SMT. VIMLA DEVI THE ASSESSEE IS UNDOUBTEDLY EMPLOYED IN ANGAN BARI AND DRAWING A SALARY OF RS.1500/- PER MONTH. HER SALARY IS CREDITED IN HER SB A/C IN PNB NANGAL. THE APPREHENSION OF HER SIGNATU RE BEING FORGED BY OTHERS TO CARRY OUT THE LIQUOR BUSI NESS IN ITA NO. 4533& CO NO.394/DEL/2011 ASSTT.YEAR: 2006-07 12 HER NAME CANNOT BE SAID TRUE AS THE COUNSEL WHO HAS PREPARED HER IT RETURN AND CA WHO HAS PREPARED THE AUDIT REPORT HAVE ADMITTED AND CERTIFIED THAT THE SIGNATURE ON THE RETURN AND ON THE AUDIT REPORTS AR E OF THE ASSESSEE ONLY. HOWEVER FROM THE DISCREET ENQU IRY IT COULD NOT BE ESTABLISHED THAT THE ASSESSEE SMT. VI MLA DEVI WAS RUNNING THE LIQUOR BUSINESS BY HERSELF. THIS FACT IS ALSO PROVED BY THE OPERATION OF THE IOB BAN K ACCOUNT BY SHRI RAJENDRA PAL SINGH AND NOT BY THE ASSESS. IN THIS REGARD THE REPORT OF THE ITI ALSO REVEALS THAT SMT. VIMLA DEVI THE ASESSEE LIVES SEPARATELY IN VILLAGE NANHERA TIPRAN ALONG WITH HER FATHER-IN-LAW IN THEIR ANCESTRAL HOUSE WHEREAS SHRI RAJENDRA PAL SIN GH HUSBAND OF THE ASSESSEE AND THEIR SON SHRI RAJBIR S INGH LIVE IN THEIR SEPARATE HOUSE AT AZAD NAGAR ROORKEE AND THE HOUSE WAS CONSTRUCTED BY THE FAMILY MEMBERS OF THE ASSESSEE ON THE PLOT OWNED BY THE ASSESSEE. SHRI R AJBIR SINGH THE SON OF THE ASSESSEE IS ALREADY IN THE LI QUOR BUSINESS AND SHRI RAJENDRA PAL SINGH THE HUSBAND I S NOT FILING ANY RETURN. UNDER THE FACTS AND CIRCUMSTANT IAL EVIDENCES IT IS WELL UNDERSTOOD THAT THE LIQUOR BU SINESS WAS BEING RUN BY THE FAMILY MEMBERS OF THE ASSESSSE E AND AS SHRI RAJENDRA PAL SINGH THE HUSBAND OF THE ASSESSEE HAS BEEN OPERATING THE BANK ACCOUNT IN IOB PERTAINING TO VARIOUS TRANSACTIONS OF LIQUOR TRADIN G OR AS HE HAS BEEN INTRODUCED BY HIS SON SHRI RAJBIR SING H TO OPEN THIS BANK ACCOUNT IN THE IOB IT IS UNDOUBTEDL Y CONFIRMED THAT THE LIQUOR BUSINESS WAS BEING RUN BY THE FAMILY MEMBERS OF THE ASSESSEE BUT AS THE BANK ACCO UNT WAS OPENED IN THE NAME OF SHRI RAJENDRA PAL SINGH W HO IS FOUND OPERATING THE SAME FOR CARRYING OUT THE LI QUOR BUSINESS RELATED TRANSACTIONS IT IS QUITE POSSIBLE THAT SHRI RAJENDRA PAL SINGH IS THE ACTUAL PERSON INVOLVED IN THE LIQUOR BUSINESS WHICH IS CARRIED OUT IN THE NAME OF THE ASSESSEE. 12. LASTLY WE ALSO OBSERVE THAT THE ASSESSEE HAS F ILED HER AFFIDAVIT ON 2.3.2012 BEFORE THIS TRIBUNAL BY STATING AS UNDER:- ITA NO. 4533& CO NO.394/DEL/2011 ASSTT.YEAR: 2006-07 13 1. THAT MY SOURCE OF INCOME IS SALARY ABOUT RS.1800/- P.M. FROM BAL VIKAS PARIYOJNA NANGAL SAHARANPUR. I HAD APPOINTED THROUGH APPOINTMENT LET TER DATED 25.04.1979 AND MY DESIGNATION IS ANGANWADI. 2. THAT I HAD BLESSED WITH TWO SONS NAMELY SH RAJB IR SINGH AND SH. VIKAS AND TWO DAUGHTERS. MY ELDER SO N SH. RAJBIR SINGH HAS BEEN CARRYING ON THE BUSINESS OF COUNTRY LIQUOR AND DURING THE A. Y. 2006-07 HE HAD TAKEN THE COUNTRY LIQUOR LICENSE IN MY NAME DULY FORGED SIGNATURES ON THE APPLICATION AND OTHER DOCUMENTS F OR WHICH 1 HAD NO KNOWLEDGE. 3. THAT HE HAD FILED THE INCOME TAX RETURN IN MY NAME OF THE BUSINESS OF COUNTRY LIQUOR FOR THE PERI OD 01.04.2005 TO 31 .03.2006 AND I HAD NEITHER SIGNED ANY INCOME TAX RETURN NOR FILED WITH THE I.T.O WARD-2 ROORKEE. 4. THAT MY SON ENGAGED THE INCOME TAX LAWYER SH. ANKUR GOYAL ADVOCATE AND MADE THE FORGED SIGNATURES ON HIS VAKALATNAMA. 5. THAT THE INCOME TAX CASE HAD COMPLETED U/S 144 OF THE LT .ACT. 1961 ON 30.12.2008 ON A TOTAL INCOM E OF RS. 39 03 450/- AGAINST WHICH THE APPEAL BEFORE THE HON 'BLE COMMISSIONER OF INCOME TAX(A) HAD FILED BY MY SON A ND HIS COUNSEL AND MADE THE FORGED SIGNATURES IN THE MEMORANDUM OF HIS FORM.. 6. THAT ALONGWITH MY HUSBAND SH. R.P. SINGH HAD APPEARED BEFORE THE HON'BLE CIT(A)-1 ON 18.12.2009 AND TOLD TO THE APPELLATE AUTHORITY THAT I HAD NOT CARR IED 00- ANY LIQUOR BUSINESS IN MY LIFE AND ONLY MY ELDER SON SH . RAJBIR SINGH HAS BEEN CARRYING ON THIS BUSINESS SINCE THE YEAR 2001. THE ENTRY HAS BEEN MADE BY THE HONBLE APPELL ATE AUTHORITY IN THE ORDER SHEET. 7. THAT I HAD RECEIVED A NOTICE DATED 3.3.2011 ON 11.3.2011 THROUGH I.T.I. IN THE VILLAGE NANHERA TEE PTAN FOR ITA NO. 4533& CO NO.394/DEL/2011 ASSTT.YEAR: 2006-07 14 THE HEARING ON APPEAL ON 14.3.2011 FROM THE COMMISS IONER OF INCOME TAX(A)-I DEHRADUN. I HAD ENGAGED COUNSE L NAMELY SHRI TILAK RAJ ADVOCATE AT ROORKEE AND ADJOURNMENT APPLICATION HAS DISPATCHED ALONG WITH A FFIDAVIT UNDER SPEED POST ON 12.03.2011 BUT THE APPEAL HAS B EEN DECIDED EX PARTE BY THE LD. COMMISSIONER OF INCOME TAX(A) DEHRADUN ON 10.6.2011 AND DISMISSED THE APPEAL AGAI NST WHICH I HAD FILED THE APPEAL BEFORE THE HONBLE IT AT NEW DELHI ON 3.10.2011 WHICH HAS BEEN FIXED FOR HEARING ON 12.04.2012 BEFORE THE BENCH H AND ITA NO. IS 4533/DEL/2011 AND C.O.NO.394/DEL/2011 AND I WILL AP PEAR BEFORE THE HONBLE MEMBERS ALONG NWITH MY COUNSEL O N THE DATE FIXED FOR. 8. THAT I AGAIN SUBMIT AS UNDER: . (I) 1 HAD NOT APPLIED FOR LICENSE FOR COUNTRY LIQUO R SHOP. (II) 1 HAD NOT CARRIED ON ANY LIQUOR BUSINESS. (III) NO INCON1E TAX RETURN HAS BEEN FILED BY ME. M Y INCOME IS ONLY FROM SALARY AS MENTIONED ABOVE. (IV) NO NOTICEU/S 143 (2) OR ANY NOTICE OF HEARING HAD BEEN SERVED UPON ME FROM THE INCOME TAX OFFICER WA RD-2 ROORKEE. (V) I HAVE NEVER' APPEARED BEFORE THE INCOME TAX OFFICER WARD-2 ROORKEE UPTO THE DATE OF ASSESSMEN T ORDER. (VI) 1 WAS UNKNOWN REGARDING THE PROCEEDINGS OF INCOME TAX ETC. (VII) THAT THE APPEAL BEFORE THE COMMISSIONER OF INCOME TAX(A) HAD FILED BY ME THE SAME HAD FILED B Y MY SON SH.RAJBIR SINGH AND ABOVE NAMED ADVOCATE. 9. THAT I HAD COME TO KNOW THAT MY SON SH.RAJBIR SINGH HAD FILED A COMPLIANT BEFORE YOUR HONOUR WHICH IS INCOR RECT. 10. THAT THE FACT OF THIS AFFIDAVIT HAS BEEN EXPLAINED BEFORE ME IN HINDI AND AFTER UNDERSTANDING THE SAME I HAVE SI GNED THIS AFFIDAVIT. ITA NO. 4533& CO NO.394/DEL/2011 ASSTT.YEAR: 2006-07 15 13. FROM CAREFUL PERUSAL OF FIRST PAPER BOOK FILED BY THE ASSESSEE DATED 10.6.2013 WE ALSO OBSERVE THAT THE ASSESSEE FIRST APPROACHED ITO FOR EXAMINATION OF HER SIGNATURES ON THE INCOME TAX RET URN VAKALATNAMA AUDIT REPORT MEMORANDUM OF APPEAL FORM NO. 35 GROUND OF APPEAL ETC. THROUGH HANDWRITING EXPERT REPORT ON 3.4.2013 AND AT THE SA ME TIME THE ASSESSEE HERSELF OBTAINED A REPORT FROM SHRI SANJEEV TOMAR HANDWRITING EXPERT AND AS PER HIS REPORT DATED 29.4.13 THE SIGNATURES ON LIQUOR LICENCE APPLICATION LICENCE INCOME TAX RETURN VAKALATNAMA AUDIT REPO RT APPEAL FORM NO. 35 WERE FOUND FORGED AND AS PER THIS REPORT SIGNATURE ON ALL ABOVE DOCUMENTS WERE NOT SIGNED BY THE ASSESSEE AS THE DISPUTED SIG NATURES AND STANDARD SIGNATURES WERE NOT MADE BY THE SAME PERSON AND IN VIEW OF THIS REPORT THE CONTENTIONS OF THE ASSESSEE ARE FOUND TO BE SUBSTAN TIAL AND THESE CONTENTIONS WERE NOT DECIDED BY THE COMMISSIONER OF INCOME TAX( A) IN PROPER MANNER AND THE COMMISSIONER OF INCOME TAX(A) PROCEEDED TO DECIDE THE APPEAL ON MERITS BY IGNORING THE SUBMISSIONS AND CONTENTIONS OF THE ASSESSEE. 14. AS WE HAVE ALREADY OBSERVED THAT THE DOCUMENTS SUBMITTED BY THE ASSESSEE FIRST TIME BEFORE THIS TRIBUNAL CONTAINED IN PAPER BOOK 2 DATED 28.4.2012 WERE NOT BEFORE THE AUTHORITIES BELOW DUR ING ASSESSMENT AND APPELLATE PROCEEDINGS THEREFORE WE ALSO FIND IT J UST AND PROPER THAT THESE DOCUMENTS SHOULD BE VERIFIED AND EXAMINED AT THE EN D OF ASSESSING OFFICER ITA NO. 4533& CO NO.394/DEL/2011 ASSTT.YEAR: 2006-07 16 IN THE LIGHT OF CONTENTIONS AND SUBMISSIONS OF THE ASSESSEE AND OTHER SURROUNDING CIRCUMSTANCES. 15. ACCORDINGLY WE ARE INCLINED TO HOLD THAT THE O RDERS OF THE AUTHORITIES BELOW HAD BEEN PASSED ON THE BACK OF THE ASSESSEE A ND BY IGNORING VITAL OBJECTIONS AND CONTENTIONS OF THE ASSESSEE. THUS IN OUR CONSIDERED OPINION ASSESSMENT ORDER AND APPELLATE ORDER ARE NOT SUSTAI NABLE AND WE SET ASIDE THE SAME. HOWEVER TO MEET THE ENDS OF JUSTICE WE ALS O FIND IT JUST AND PROPER TO RESTORE THE ENTIRE CONTROVERSY TO THE FILE OF AS SESSING OFFICER WITH A DIRECTION THAT THE ASSESSING OFFICER SHALL DECIDE T HE OBJECTIONS OF THE ASSESSEE BY AFFORDING DUE OPPORTUNITY OF HEARING FO R THE ASSESSEE. WE ALSO DIRECT THE ASSESSING OFFICER THAT INCOME TAX CAN BE CHARGED ONLY ON THE PERSON WHO EARNED INCOME FROM THE LIQUOR BUSINESS A ND THE ASSESSING OFFICER WITH DUE DILIGENCE WILL DEEPLY INQUIRE INTO THE MATTER AND THE ASSESSING OFFICER WILL FASTEN THE TAX LIABILITY ON THE PERSON WHO ACTUALLY OBTAINED LIQUOR LICENCE CONDUCTED BUSINESS OF LIQU OR AND EARNED INCOME THEREFROM. THE ASSESSING OFFICER IS ALSO DIRECTED THAT IF ANY CRIMINAL ACT IS FOUND TO BE DONE BY ANY PERSON THEN THE ASSESSING OFFICER SHALL INFORM THAT ACT TO THE POLICE AUTHORITY INCLUDE JURISDICTION TO INVESTIGATE CRIMINAL ACT. 16. IN THE RESULT GROUND NO. 4 OF THE ASSESSEE IS ALLOWED. ITA NO. 4533& CO NO.394/DEL/2011 ASSTT.YEAR: 2006-07 17 17. SINCE WE HAVE RESTORED THE MATTER TO THE FILE O F ITO WITH THE AFOREMENTIONED DIRECTIONS FOR DETERMINATION OF THE REAL OWNER OF THE LIQUOR BUSINESS WHO ACTUALLY EARNED THEREFROM THE OTHER G ROUNDS OF THE ASSESSEE DO NOT SURVIVE FOR ADJUDICATION ON MERITS AND WE DISMI SS THE SAME WITHOUT GOING ON MERITS. C.O. OF THE REVENUE 18. THE REVENUE HAS ALSO FILED C.O. NO. 394/D/2011 AGAINST THE IMPUGNED ORDER. SINCE WE HAVE RESTORED ALL ISSUES TO THE FI LE OF ITO WARD ROORKEE FOR DE NOVO ADJUDICATION BY AFFORDING DUE OPPORTUNITY O F HEARING TO THE ASSESSEE THEREFORE CO OF THE REVENUE DOES NOT REQU IRE ADJUDICATION ON MERITS AND WE DISMISS THE SAME WITHOUT MAKING ANY D ETAILED DISCUSSION. 19. IN THE RESULT THE APPEAL OF THE ASSESSEE MAY B E TREATED AS ALLOWED FOR STATISTICAL PURPOSES AND CO OF THE REVENUE STANDS D ISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 30.4.2014. SD/- SD/- (G.D. AGRAWAL) (CHANDRA MOHAN GARG) VICE PRESIDENT JUDICIA L MEMBER DT. 30 TH APRIL 2014 GS ITA NO. 4533& CO NO.394/DEL/2011 ASSTT.YEAR: 2006-07 18 COPY FORWARDED TO:- 1. APPELLANT 2. RESPONDENT 3. CIT(A) 4. CIT 5. DR BY ORDER ASSTT. REGISTRAR