POONAM PANDEY,GHAZIABAD vs. ACIT, CIRCLE- 2, GHAZIABAD

The present appeal has been filed by the assessee assailing the correctness of the order dt. 29.9.2017 of CIT(A)-Ghaziabad pertaining to 2014-15 assessment year on the following grounds:

1. That the learned Commissioner of Income Tax (Appeals) has grossly erred both in law and, on facts in upholding the addition, overlooking the facts that the learned Assessing officer has failed to initiate proper enquiry on the material placed on record and, assessment framed u/s 144/143(3) of the Act, and, therefore the order deserve's to be quashed as such.

2. That the learned Commissioner of Income Tax (Appeals) has failed to appreciate that, the learned Assessing officer has failed to provide adequate opportunity to the assessee.

3. That the learned Commissioner of Income Tax (Appeals) has also erred on facts in confirming the addition overlooking the gift deed, pratilipi from tehsil depicting the existence of "Sagwan Trees" and, photographs showing trees had been cut down. The learned Commissioner of Income Tax (Appeals) has framed the order without deliberating on the facts available on record.

2. The relevant facts of the case are that the assessee who returned an income of Rs. 71,330/- from house property, agricultural income and other sources was required by the AO in the course of the scrutiny proceedings to justify the deposit of Rs. 23,17,000/- in her savings bank account with PNB.

3. The assessee in response to the query filed copy of an Affidavit stating that she had been gifted by her family agricultural land situated at Khushi Nagar in the state of Uttar Pradesh. The assessee further stated that she had sold sagwan trees for an amount of Rs. 25 lac to Sh. Mujahidul Islam S/o Ibrahim village Badhara, Post-Dandopur, Distt. Kushinagar (UP). The sale proceeds were received in cash which had been deposited in her account. Sale deed executed on 27.8.2012 was relied upon.

4. The AO disbelieved the evidence noting the fact that the sale deed was executed at Ghaziabad and had only been signed by the assessee, whereas the Sagwan trees were stated to be situated in Khushi Nagar. Thus, he required the assessee to be present. The assessee as para 3.1 of the assessment order requested for time on 6.12.2016 stating that due to illness she was on a bed rest as per Doctor’s advise. The request was supported by a medical certificate. Similarly, on the next date on i.e. 9.12.2016 the assessee again made a similar prayer. The AO interpreted the requests as a failure of the assessee to prove genuineness. The specific reasons of the AO are extracted hereunder: 3.1 Further, before finalizing the assessment order, a final show cause notice u/s 144/143(2) of the I.T. Act, 1961 was issued to the assessee on 06/12/2O16 and the date for compliance was fixed for 09/12/2016, The A.R, Shri Sudhir Jain appeared and stated that the assessee could not be produced for further examination. The A.R. expressed his incapability to prove the genuineness of the income of Rs. 23,17,000/- and further he has requested to complete the case vide order sheet entry dated 08.12.2016. Hence, the addition of Rs. 23,17,000/- is being made under the head “'income from other sources' On this inaccurate particulars penalty proceedings u/s 271(1)(c) is being initited separately. Addition of Rs. 23,17,000/-) (emphasis supplied) 5. When the above reasoning is considered in the context of what is pleaded, it is evident that the proceedings admittedly were becoming time barred, the order u/s 144/143(3), it is noticed is dated 08.12.2016 which is surprising as the AO had fixed the date for compliance as 09.12.2016 curiously the justification for flouting the procedures given is “The A.R. expressed his incapability to prove the genuineness of the income of Rs. 23,17,000/-“ and “ further he has requested to complete the case vide order sheet entry dated 08.12.2016”. The fact that the order is passed on a date prior to the date of compliance in violation of the tenets of natural justice is not addressed by the CIT(A).

6. The assessee before the CIT(A) has also assailed the lack of opportunity before the AO as would be evident from the following submissions extracted in the order by the CIT(A) at page 13 of his order : “3.2 …………………..It is also submitted that the time provided in the show cause notice was only 3 days. Further the order of assessment framed by the ld. Assessing Officer on the same date i.e. 08.12.2016 without considering the genuineness of transacstion or any inquiry……………………………….”. (emphasis supplied) 7. The Ld. AR reiterates the submissions advanced before the tax authorities and the Ld. Sr. DR relies upon the impugned order.

(2) ……………………. (3) ……………………. “(4) Nothing contained in this rule shall affect the power of the [Deputy Commis- sioner (Appeals)] [or, as the case may be, the Commissioner (Appeals)] to direct the production of any document, or the examination of any witness, to enable him to dispose of the appeal, or for any other substantial cause including the enhancement of the assessment or penalty (whether on his own motion or on the request of the [Assessing Officer]) under clause (a) of sub-section (1) of section 251 or the imposition of penalty under section 271.] 8.2 As per record, the stated claim is that a certain agricultural land was gifted to the assessee by her family and this consistent claim on record has not been upset by the tax authorities. Therefore, the next question which comes up for consideration is whether the assessee as owner of the agricultural land had any Sagwaan Trees growing on the specific land at the relevant point of time. The said claim can be easily ascertained on the basis of Land Revenue Records for the relevant period. Similarly, the factum of the trees having been cut can also be demonstrated from the Land Revenue Records. As per the assessee’s claim the trees were cut by one Sh. Mujahidul Islam and payments were received in cash. There is no legal impediment to the said claim being considered. It is seen that no attempt has been made by the Tax Authorities to either discharge their responsibilities of bringing to tax the correct income to tax. The Tax Authorities acting as public servants for the Government of India are presumed to be well conversant with the legal requirements and in all fairness when interacting with the tax paying citizens ought to have advised/guided the taxpayer to bring whatever further necessary supporting evidences they deemed necessary to be brought on record. To presume that a marginal taxpayer would be more aware and better informed about the nitty-gritties of the legal requirements and the quality of evidences necessary which would be accepted and clinchingly demonstrate its stated claims, is highly misplaced. It would be in the interests of the Revenue officers to ensure that tax compliance is actively assisted and encouraged by informing, assisting and advising the taxpayers in all fairness. The unfortunate bureaucratic administrative cynicism due to their own unfortunate and frequent exposures to the scamsters and the manipulators of the system should not be allowed to make the tax authorities immune to the realities of the honest taxpayers. The tax authorities must continuously and zealously shelter the honest law abiders and help them to be tax compliant instead of penalizing them for procedural omissions and compliances. To my mind, it is high time that positive and active steps are taken at the earliest for ensuring their inclusion as honest tax payers instead of alienating them with harsh mechanical obdurate efforts and thus inadvertently encouraging their exclusions from the tax compliant citizens. Undoubtedly, in the first instance, it is for the assessee to prove that a certain income is not amenable to tax. Claims are made in support of the same. The claims admittedly were required to be justified. It may not be out of place to state that ordinarily the issue of burden of proof itself could be avoided in most cases if there are sufficient facts to warrant the conclusion either way. The issue of Burden of proof ordinarily arises as a legal requirement only in cases where there is no evidence on either side or where the evidence available are so balanced, that it is not possible to arrive at a definite conclusion either way. It is in such a case, that the issue as to on whom the burden lies, arises. Undisputedly, in an issue between the Taxpayer and the Revenue, it is the taxpayer on whom the burden of fact lies while that of law lies on the Revenue. The law is only applicable in the tax matters in the peculiar facts of the case since the application of law is with reference to the relevant facts of the particular case. However, as held in Udhavadas Kewalram v CIT (1967) 66 ITR 462, 464 (SC), by the Apex Court , it is for the income tax authorities to prove that a particular receipt is taxable. It was pointed out that in deciding whether an item of receipt is taxable as income, the Tribunal may consider the evidence in the light of the statements made by the assessee, his conduct and the “probabilities”, but in arriving at its conclusion there must be a fair and reasonable full review of the evidence. The burden has also been held to be on the revenue to prove that income accrued or arose in a particular place. Hence, though the principles of law of evidence are not to be ignored by the authorities, but at the same time human probability has to be the guiding principle, since in Income tax cases, the Assessing Officer is not fettered by the technical rules of evidence. 8.3. Applying the tests of human probability as laid down by the Apex Court in CIT v Durga Prasad More (1971) 82 ITR 540 (SC), in the present case, income from sale of Sagwan trees supported by the gift deed, pratilipi from tehsil depicting the existence of "Sagwan Trees" and, photographs showing trees had been cut down are evidences on record as per Ground No. 3 in the present proceedings. It is a fact that at the fag end of the proceedings by the AO she was required to be present. The lady has explained as per record that she had sold Sagwan trees for an amount of Rs. 25 lac to one Sh. Mujahidul Islam S/o Ibrahim village Badhara, Post- Dandopur, Distt. Kushinagar (UP) and that the sale proceeds were received in cash which had been deposited in her account, and relies upon a Sale deed executed on 27.8.2012. In the circumstances, it appears imprudent to disbelieve such evidence merely because the sale deed was executed at Ghaziabad and had only been signed by the seller /assessee, whereas the Sagwan trees were situated allegedly in Khushi Nagar. It is seen that before the CIT(A) references are made to Khasra & Khatauni in para 5.3.1 by him in his order, but he fails to address for what period, the specific Land Revenue Records were being referred to. It is seen that the lady has also placed on record certain photographs to show that some trees have been cut. No doubt, such phoogrphs as an evidence by itself cannot conclusively establish that the trees were growing on the specific piece of land owned by the assessee but when the photographs are considered alongwith relevant land Revenue records evidencing growth of trees which ultimately stood cut, the photographs as a corroborative piece of evidence cannot be discarded as a meaningless effort. Hence, any shortcoming noticed by the AO/CIT(A) should have been communicated to the assessee in all fairness in order to provide the assessee an opportunity to address the issue of sufficiency of evidences. Law does not expect the impossible to be proved. It cannot be expected for the Assessee, in cases of sale of produce from land, as in the present case, to produce an infallible demonstrative proof of such sale as evidence of the transaction. In such circumstances ‘pratilipi’ from tehsil depicting the existence of "Sagwan Trees" and photographs of the cut Trees may be the only available evidence available in the nature of the facts and circumstances of the case since by the time of assessment, the object sold i.e. the "Sagwan Trees", would have already assumed a different dimension in a finished form as a piece of furniture or fixture in a building. Credibility of a transaction is the only substitute which has to be followed where no further evidence is possible due to distance of time. Therefore it appears that in view of the explanation given by the Assessee which appears to be credible, and there are sufficient facts on record including an affidavit in respect of facts affirmed therein, inference can be drawn from the totality of the circumstances of the case, not necessarily with reference to burden of proof, that the assessee had sufficiently discharged her onus to prove that such receipt was genuine. In such such cases, the absence of satisfaction of source i.e., the purchaser, who may be person associated with Timber trade as a supplier or a carpenter or an actual user may not always be available and hence may not be a ground for rejection of the explanation given by the assessee. In the light of the aforementioned peculiar facts and circumstances, wherein the Ld. AR reiterates the submission of the tax authorities and the Ld. Sr. DR relies upon the impugned order, I am of the view that in the present case as set out hereinabove, the impugned order is patently unjustified, indicating improper exercise of discretion bordering on perversity.