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Income Tax Appellate Tribunal, CHANDIGARH BENCHES, ‘SMC’, CHANDIGARH
Before: MS. DIVA SINGH
The present appeal has been filed by the assessee (legal heir) in whose name the order was passed by the Ld. CIT(A) also wherein the correctness of the said order dt. 27/09/2018 of Ld. CIT(A)-1, Chandigarh pertaining to 2005-06 assessment year is assailed on the following grounds:
That the orders of Ld. CIT(A) is illegal, erroneous and perverse and thus needs to be quashed. 2. (A) That the Ld. CIT(A) is not justified in concurring with the impugned addition on account of Rs. 2,00,000/- being the amount invested by the appellant out of his agricultural income having sufficient agricultural land which is illegal, arbitrary and thus bad in law. (B) That without prejudice to above, the appellant also disputes the quantum of addition as highly excessive. 3. That the appellant craves leave to add, amend or delete any of the grounds of appeal on or before the disposal of the present appeal.
However before proceeding to address the specific grievance of the assessee it is relevant to first address the dealy of 17 days pointed out by the Registry in the filing of the present appeal.
2.1 Ld. AR relying upon the application moved by the assessee submitted that the delay has occurred on account of the fact that the copy of the impugned order could not be served upon the assessee by the department. The reason being that the assessee’s residence is in a remote part of the village and copy of the impugned order could not be made available. Subsequently the assessee obtained the order from the Ld. CIT(A). Attention was invited to the facts that the assessee having lost his father was handicapped and hence there is delay of 17 days even, otherwise it is pleaded that the delay is unintentional and inadvertent.
2.2. The Ld. Sr. DR Mr. Arvind Sudarshan on a perusal of the Condonation of delay application dt. 09/09/2019 posed no objection to the delay being condoned.
2.3. I have heard the submissions and perused the record in the facts as pleaded and available on the record, I hold that the delay being unintentional and inadvertent deserved to be condoned. It is seen that no advantage has been drawn by the assessee in the filing the appeal late and no undue advantage has been visited upon the Revenue in case the delay is condoned.
2.4 Accordingly, on consideration of the entirety of the facts and circumstances and pleadings the delay of 17 days is condoned. Said order was pronounced in the Open Court via webex and the parties were directed to argue the appeal on merits.
Ld. AR inviting attention to the specific findings of the Ld. CIT(A) arrived at in para 6.2.1 submitted that the said findings has been arrived at ignoring the facts and evidence on record.
Inviting attention to paper book running into 14 pages the Ld. AR relied upon the documents at page 8 to 13 submitted that these were the copies of Jamabandi showing not only ownership of agriculture land as pleaded but also evidencing the fact that it was under self cultivation, at the relevant point of time.
On a perusal of the impugned order it is seen that these documents were filed as fresh evidence before the Ld. CIT(A) and were remanded back to the A.O. However these appears not to have been taken into consideration while arriving at the findings.
In these circumstances the Ld. AR was required to address whether there was a translation of these documents filed in Gurumukhi or would he be willing for the issue being remanded back for consideration and verification.
The Ld. AR submitted that he has no objection if the issue is remanded back taking into consideration the fact that the assessee was the owner of about 26 Acres of land at the relevant point of time which was under self cultivation evidenced by the Jamabandi record and thus the amount of Rs. 2 lacs could be said to have been sourced from this. Apropos the amount being transferred by cheque as noted by the tax authorities it was his submission that it was a very old account and the bank failed to be in a possession to give any evidence as to the source however in case the tax authority are in a position to demolish the assessee’s claim he may be given time to respond. The fact remains that ownership of land is available and evidence of agriculture activities thereon is also there this would demonstrate the presumption that the funds were available from which the deposits are made. It was submitted that it would be supported by the decision of the jurisdictional High Court in the case of CIT Vs. Shri Jarnail Singh Karta in of 2008 dt. 12/05/2008, copy of the said decision it was submitted was made available to the Ld. CIT(A) available at page 2 to 7 and relied upon.
The Ld. Sr. DR Mr. Arvind Sudarshan considering the facts posed no objection to the remand of the issue back to the file of the Ld. CIT(A).
I have heard the submissions and perused the material available on the record it is seen that before the Ld. CIT(A) the issue for consideration was the deposit of Rs. 11,00,000/- for which the assessee had filed fresh evidence which had been admitted as discussed in para 6.1.1 of the impugned order. On perusal of the same it is seen that copy of Jamabandi was made available to the A.O. as well as Ld. CIT(A).
“ Now the assesse has furnished before your good self additional evidence in which he has furnished the copy of sale deeds to prove the source of investment, details of share allotment by M/s Bassi Tubes Pvt. Ltd. to prove genuineness of share allotment, copy of jamabandi to prove credit worthiness, death certificate of Sh. Gurdial Singh and copy of bank statement to prove the genuineness of transaction. The assessee has furnished the net investment was Rs. 5,34,000/- only out of which 53400 shares @ Rs. 10 each share were allotted to the assessee.” Emphasis supplied 10. It is seen in the following decision arrived at by the Ld. CIT(A) that there is no discussion whatsoever on the evidence filed in regard to the agricultural activity. The Ld. CIT(A) merely rejected the claim taking into consideration the fact that the money was received by way of bank transfer. There is no evidence to show that the bank transfer was not from agricultural activity the presumption drawn is not sustainable. The relevant findings is reproduced hereunder:
“6.2.1 As regards the deposits of Rs. 2,00,000/- is concerned, the appellant stated that the money was out his agricultural income. He has further stated that appellant owns 24 acres of land and has adequate income to justify the investment of Rs. 2,00,000/-. However, on going through the bank account of the appellant, it is seen that the money has been received by bank transfer. The appellant has not been able to explain the source of the transfer. Hence, in absence of any explanation regarding the source of Rs. 2,00,000/- the addition of this amount is upheld.”
In the light of the argument of the parties before the Bench, and their prayer considering the time lag qua the amount being transferred by cheque and the possibility of the record not being available the fact remains that the evidence available on record has remained ignored. In the circumstances It is appropriate to accept the prayer of the parties before the Bench and remand the issue back to the file of the Ld. CIT(A) with direction to taken into consideration the evidence relied upon and in case the Revenue has any contrary evidence to make it available to the assessee with reasonable opportunity to rebut the same being granted.
It goes without saying that the legal principles relied upon and the evidence on record cannot be discarded subject to the above directions the ground raised by the assessee are allowed. Said order was pronounced in the Open Court via webex at the time of hearing itself.
In the result the appeal of the Assessee is allowed for statistical purposes.