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Income Tax Appellate Tribunal, “SMC” BENCH, BANGALORE
Before: Shri Chandra Poojari
O R D E R This appeal filed by the assessee is directed against the order of the CIT(A), dated 26.11.2018. The relevant assessment year is 2012-2013.
The assessee has raised following grounds:- “
1. The orders of the lower authorities are contrary to law, facts and evidences on record.
2. The learned AO erred in making an addition of Rs.45,00,000 u/s 69A on the ground that the appellant has not substantiated explanation as to the source of investment which has been erroneously upheld by the learned CIT(A).
3. The lower authorities failed to consider and appreciate that as per the settled legal position even if the explanation is not satisfactory then also the AO is bound to exercise his discretion in a fair manner and so done as explained in the statement of facts under the head “case of the appellant before the honorable ITAT”, the lower authorities should not have made the Smt.Yashodabai Manohar Poddar. impugned addition having regard to the decision of the honorable Supreme Court in the case of Commissioner of Income Tax v. P.K.Noorjehan. 4. For these or any other grounds of appeal that may be urged at the time of hearing it is prayed that the Honorable ITAT may be pleased to allow this appeal in the interest of Equity and Justice.”
3. There was a delay of 267 days in filing this appeal before the Tribunal. The assessee has filed an affidavit explaining the delay, as follows:-
“I, Smt.Yshoda Bai Manohar Poddar, w/o late Manohar, aged about 63 years residing at No.E-172, Hagarga Village, Taluk and District Gulbarga, do hereby solemnly affirm and state on oath as under:
1. 1. I am not assessed to income tax since I am an agriculturist and income is only from agricultural income.
2. I am filing this affidavit in connection with my appeal which is being belated filed before the Honorable ITAT, Bengaluru by 268 days.
3. That I am the appellant in the appeal to be filed by me before the honorable ITAT, Bengaluru on 23/10/2019 and I am aware of the facts of the case and hence I swear to this affidavit.
4. That there is a delay of 268 days in filing the appeal and hence a petition for condonation has been filed along with the appeal memo.
5. That whatever is stated in the petition for condonation of delay accompanying this affidavit is Smt.Yashodabai Manohar Poddar. true to the best of my knowledge and belief and I believe them to be true. 6. I am conversant with the facts of the case and hence I swear to this affidavit. 7. That what is stated in para 1 to 6 thereof is true to the best of my knowledge and belief and I believe them to be true and hence I am swearing to the affidavit. Solemnly affirmed on this day 24th November, 2019.” Accordingly, the assessee prayed for condonation of delay of 268 days.
3.2 The learned Departmental Representative strongly opposed the condonation of delay.
I have heard the rival submissions and perused the material on record. In the present case the assessee herself is an uneducated lady staying in a rural village of Kalaburagi. She was not assisted by legal advisor. She cannot read or write and also cannot sign. This can be seen from the thump impression in the appeal papers. She was also not in a position to get timely legal assistance from a Chartered Accountant or Advocate. It was explained that she came to know about the pending appeal only on receipt of notice of outstanding demand issued by the Assessing Officer, proposing levy of penalty. In my opinion, the delay is not deliberate and intentional nor due to negligence.
Smt.Yashodabai Manohar Poddar.
4.1 Thus, in my opinion, there is a reasonable cause in filing the appeal belatedly by the assessee before this Tribunal. When substantial justice and technical consideration are pitted against each other, the cause of substantial justice deserves to be preferred, for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay. Accordingly, I condone the delay and admit the appeal for deciding the issue on merits.
The facts of the case are that the assessee is an individual doing agriculture and is an illiterate. The assessee has deposited cash amounting to Rs.25,00,000 and Rs.20,00,000 on 14.10.2011 and 28.10.2011, respectively, totaling to Rs.45,00,000 in her savings bank account number 0192000100081262 with Punjab National Bank, Super Market, Gulbarga. Thereafter, the AO re-opened the case u Is 147 of the Act after obtaining approval from the Joint Commissioner of Income Tax, Kalaburagi and accordingly notice u/s 148 dated 30.03.2017 was issued and served on the assessee, asking to file the income tax return or submit the reply within 30 days from the date of receipt of the notice. In the meanwhile as there was a change of incumbent, a fresh opportunity of being heard was given by the new AO vide letters dated 16.08.17, 28.08.17 and 30.10.17. Thereafter, a final opportunity was again given on 14.1. 1.17, in response to which the assessee along with her son appeared. In course of hearing it was informed to the assessee to submit· her explanations
Smt.Yashodabai Manohar Poddar. along with documentary evidences, if any with regard to the above cash deposits of Rs.45,00,000 on or before 04.12.2017. As there was no response for the above, a final show cause notice dated 08.12.17 was again issued to the assessee duly indicating that in absence of not furnishing any corroborative evidence(s), the assessment would be completed ul s 144 (Best Judgement) of the Act, depending on the facts of the case. In response to this final show cause notice, the authorized representative of the assessee appeared before the AO and the case was again adjourned to 15.12.2017. The ARs finally appeared on 15.12.2017 and submitted the following details:-
(i) That the appellant owned agricultural land of about 18 acres 37 guntas situated at Hagarga village of Kalaburagi district. (ii) That she has sold about 8 acres in the year 2004. (iii) That the balance 10 acres and 37 guntas was used for agricultural operations till 2012 and sold the same during the year 2012. (iv) That before selling the above agricultural lands, she carried on agricultural activities in the above lands and the sources, which is reproduced as under:-
1. 1. I have 3 sons viz. Ramesh M Poddar, who does 20,00,000 furniture works, Satish M.Poddar who is in private service and Rajesh M Poddar is a Goldsmith. During the year 2011, I have deposited a sum of Rs.20 lakhs which is accumulated savings over a period of years of my all 3 sons.
2. Advance against sale of land of 9 acres 37 5,00,000 guntas in Hagarga village
Smt.Yashodabai Manohar Poddar.
Accumulated past savings from agriculture 20,00,000 income of several years and sale proceeds of agriculture land sold earlier.
The assessee also sought time up to 20th December, 2017 for furnishing the return of income, explanations and affidavits.
5.1 As no documentary evidence in support of the above claims were produced before the A.O., the A.O. completed the assessment on 22.12.2017 u/s 144 r.w.s. 147 of the Act and the total cash deposits of Rs.45,00,000 deposited in the bank account number 0192000100081262 with Punjab National Bank, Super Market, Gulbarga were treated as unexplained income u/s 69A of the Act.
Aggrieved, the assessee is in appeal before the CIT(A). Before the CIT(A) the assessee has filed affidavit of (i) Shri Satish, (ii) Shri Rajesh, and (iii) Shri Ramesh, as under:-
Affidavit of Satish Affidavit of Rajesh Affidavit of Ramesh That I am an That I am an That I am an agriculturist agriculturist agriculturist cultivating lands cultivating lands cultivating lands situated at Hagarga situated at Hagarga situated at Hagarga Village in Kalaburagi Village in Kalaburagi Village in Kalaburagi Taluka Taluka. Taluka. That I was in private That I was a Goldsmith That I have carried out service for about 12 for about 10 years in furniture and years in Kalaburagi till Kalaburagi till 2015. carpentry work for 2015 about 15 years in Kalaburagi till 2015. That I have given an That I have given an That I have given an amount of Rs.6,50,000 amount of Rs.5,50,000 amount of Rs.8,00,000 to my mother to my mother to my mother Smt.Yashoda Bai Smt.Yashoda Bai Smt.Yashoda Bai
Smt.Yashodabai Manohar Poddar.
Poddar during the F.Y. Poddar during the F.Y. Poddar during the F.Y. 2011-12. 2011-12. 2011-12. That the said amount That the said amount That the said amount is paid out of my own is paid out of my own is paid out of my own funds arising out of funds arising out of funds arising out of savings of my income savings of my income savings of my income from private service from jewellery and from furniture and over a period of years. other objects making carpentry works over a (Goldsmith) over a period of years. period of year. That I am satying with That I am staying with That I am staying with my mother and my mother and my mother and brothers in Hagarga borthers in Hagarga brothers in Hagarga village contributing Village contributing Village contributing small portion of my small portion of my small portion of my income towards income towards income towards common household common household common household expenses. expenditure. expenditure. That I am not an That I am not an That I am not an income-tax assessee as income-tax assessee as income-tax assessee as my total income was my total income was my total income was below taxable margin below taxable margin below taxable margin in all the years. in all the years. in all the years.
The CIT(A) confirmed the order of the Assessing Officer, by observing as under:-
“5.The explanations of the assessee are not accepted for the following reasons:- (1) That all the three sons claimed that they were agriculturists cultivating lands situated at Hagarga Village in Kalaburagi Taluka, but have not specified their extent of land holdings in their names including survey numbers. Even the pass books showing the details of agricultural lands held by them individually were never submitted before the Assessing Officers to substantiate their claim of agricultural holdings and income earned out of agricultural activities, over the period of years.
Smt.Yashodabai Manohar Poddar.
(3) That no details regarding the need and purpose of giving an amount of Rs.20,00,000 collectively to their mother, who is an illiterate in the FY 2011-12, was furnished. (4) The reasons mentioned in the Affidavits are identical and similar in nature and clearly shows that the same were prepared as an afterthought to substantiate their claim of sources, without any documentary evidences. (5) Even during the stage of remand report proceedings, neither the AR nor the assessee has produced any evidences in support of their claims with regard to information submitted in the affidavits in the form of any corroborative evidences. (6) The assessee has also failed to furnish the names and addresses of the persons who have purchased agricultural lands from the assessee and the amount of consideration received at any stage before the Assessing Officers, including in the remand report proceedings. 5.2) The assessee in his written submissions before the undersigned has stated that the assessment u/s 144 r.w.s. 147 was completed within a span of one month and there was no time available to the assessee to furnish any information / document before the AO cannot be accepted since Assessment was completed on 22.12.2017 and the remand report was submitted by the AO on 24.10.2018. Hence, there was almost ten months time available to the assessee / AR to substantiate their claims. Other than furnishing Affidavits, the assessee / AR has not produced any corroborative evidences even during the course of remand proceedings with regard to land holdings / survey numbers / details of land sold / agricultural activities carried over the period of years and the income earned therefrom. Hence, it
Smt.Yashodabai Manohar Poddar. is clear that the assessee has no information available to substantiate her claim. Accordingly, the addition made by the AO amounting to Rs.45,00,000/- as unexplained income u/ s 69A of the I.T.Act, 1961, is sustained. In view of the above discussion, all the grounds of appeal are hereby dismissed.”
8. Aggrieved by the order of the CIT(A), the assessee is in appeal before the Tribunal. The learned counsel for the assessee relied upon the grounds raised and on the other hand, the learned Departmental Representative relied upon the orders of the Income-tax authorities.
9. I have heard the rival submissions and perused the material on record. Before the CIT(A), the assessee has filed affidavits of her sons Sri.Satish, Sri. Rajesh and Sri.Ramesh, and they have confirmed that they have paid Rs.6.50 lakh, Rs.5.50 lakh and Rs.8.00 lakh, respectively to the assessee. These affidavits are not got verified by the Department. In my opinion, before sustaining the addition, it is incumbent upon the authorities concerned to examine the contentions of the affidavit by examining the concerned parties, which the authorities failed to do. Further, the AR pleaded that the assessee sold a property of 9 acres 37 guntas in Hagarga village and he is ready to produce the relevant documents. Thus, pleaded that the assessee may be granted an opportunity to furnish the same before the lower authorities. In the interest of justice I grant the assessee an opportunity to produce the Smt.Yashodabai Manohar Poddar.
relevant sale documents before the Assessing Officer, regarding the receipt of Rs.5 lakh from the sale of the said property. Further, the assessee has taken a plea that she has saved Rs.20 lakh from several years and sales proceeds of agricultural land sold earlier. Thus, the assessee is directed to produce the relevant details also before the lower authorities. Accordingly, I am inclined to remit the entire issue to the file of the Assessing Officer for fresh consideration. The assessee is directed to co- operative with the Department with necessary details and documents.
In the result, the appeal filed by the assessee is partly allowed for statistical purposes.