NARENDER KAUR,SAHARANPUR vs. ITO, WARD-3(3), SAHARANPUR

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ITA 7000/DEL/2017Status: DisposedITAT Delhi27 June 2018AY 2009-104 pages
AI SummaryRemanded

What did the Tribunal hold?

The Tribunal set aside the impugned order and remanded the matter back to the AO. The AO was directed to verify the financial status and relationship of Smt. Ajit Kaur with the assessee, rather than strictly insisting on documentary evidence of gold sale, considering the age and potential lack of foresight of the lender.

What were the facts?

The assessee received a loan of Rs. 2,50,000 from Smt. Ajit Kaur, an 80-year-old lady who claimed to have sold gold and deposited the money in her bank account before issuing a cheque. The Assessing Officer (AO) added back Rs. 2,00,000 of this loan, citing a cash deposit by Smt. Ajit Kaur prior to the cheque disbursement.

What were the issues?

Whether the addition made by the AO on account of the loan from Smt. Ajit Kaur was justified without adequately verifying the lender's financial capacity and relationship with the assessee, especially given the lender's age and claim of selling gold.

Which sections of the Income-tax Act were involved?

Section 131

AI-generated summary — verify with the full judgment below

Income Tax Appellate Tribunal, DELHI BENCH: ‘SMC’ NEW DELHI

Before: SMT. DIVA SINGH

For Respondent: Ms. Ashima Neb, Sr. DR
Hearing: 18.04.2018Pronounced: 27.06.2018

The present appeal has been filed by the assessee, assailing the correctness of the order dated 29.08.2017 of CIT(A)-Muzaffarnagar pertaining to 2009-10 AY on the following ground: “

That the assessee has taken the loan of Rs. 2,50,000/- from Smt. Ajit Kaur and the confirmation has already filed. The affidavit of Ajit Kaur is enclosed. She is an old lady aged more than 80 years. She has sold the gold and deposit the money in the bank account and given the cheque to Narinder Kaur. The copy of Bank account has already filed. No notice u/s 131 was given to Smt. Ajit Kaur. The additions of Rs. 2,00,000/- is also confirmed by the CIT(Appeal) is also not justified. It is, therefore, requested to kindly consider the above facts and allow the appeal or in the alternative any other suitable relief which your honour may deem fit and the same may be granted.”

2. At the time of hearing, no one was present on behalf of the assessee. The appeal was passed over. In the second round also, no one was present, however, on considering the material available on record, it was considered appropriate to proceed with the present appeal ex-parte qua the assessee appellant on merits after hearing the Ld. Sr. DR.

3. The relevant facts of the case are that the assessee in the year under consideration, as per para 2.1 was an individual deriving income from tuitions and interest etc. A specific property, it was noticed, had been purchased in co-ownership with Smt. Kulwant Kaur and Smt. Manjeet Kaur. The assessee’s share of investment was explained as sourced from past savings to the extent of Rs. 1,90,000/-, Rs. 2 lacs from loan received by cheque from Smt. Sarla Rani and a loan of Rs.

ITA-7000/Del/2017 Page 2 of 4 2.50 lakh by cheque from Smt. Ajit Kaur. The AO brought to tax an amount of Rs. 2 lacs from the stated loan of Rs. 2.50 lacs advanced by Smt. Ajit Kaur on the grounds that before the disbursement of the specific amount by cheque there was a cash deposit of Rs. 2 lacs by the said lady few days prior to the issuance of cheque. The assessee relied upon the affidavit of Smt. Ajit Kaur to state that the proposed addition was not warranted on facts. The specific narration on record, reproduced by the Assessing Officer is extracted hereunder: “The assessee has taken loan of Rs. 2,50,000/- from Ajit Kaur and confirmation has already filed. The affidavit of Ajit Kaur is enclosed. She is old lady aged more than 80 years. She has sold the gold and deposit the money in the bank account and given the cheque to Narinder Kaur.” (emphasis supplied) 4. Accordingly, in view thereof, addition was made by the AO. The assessee carried the issue in appeal before the CIT(A) reiterating the submissions. In the absence of documentary evidence supporting the sale of gold, the addition made by the AO was affirmed.

5.

The assessee is in appeal aggrieved by the said order.

6.

The Ld. Sr. DR relies upon the orders of the authorities below. However, on query, was unable to state the relationship of the assessee with the then 80 yrs. old lady Smt. Ajit Kaur. Considering the peculiar facts & circumstances of the case, I am of the view that in the interest of the substantial justice, it would be appropriate to set aside the impugned order as there is no relevant discussion about the relationship and the financial status of Smt. Ajit Kaur. The Ld. Sr. DR has submitted that it is the responsibility of the assessee to place the necessary facts and evidences on record and in the facts of the present case the assessee has not even cared to put in an appearance before the ITAT, accordingly it has been her prayer that the appeal may not be remanded and in case it has to be remanded, it may be remanded to the Assessing Officer as facts would need to be verified. The objection of the Ld. Sr. DR that remand may not be directed has not been accepted taking note of the fact that admittedly the tax payer widow of late Sh. Jaspaal Singh as per the assessment order itself relying upon tuition income etc. may not have had the benefit of appropriate advise. Considering the fact that on 19.01.2009 Smt. Ajit Kaur who was described as 80 yr. old at the relevant point of time has claimed that ITA-7000/Del/2017 Page 3 of 4 she has sold jewellery and files an affidavit in support thereof. This explanation cannot be discarded purely on suspicions. At best the tax authorities could have sought to verify the financial status of the said lady and the relationship of the present tax payer with the said lady. I am doubtful whether Smt. Ajit Kaur would have had the foresight to retain the necessary evidences in support of the claim of sale of the jewellery. The observation is made keeping in mind the reality of the marginal tax payers and their lack of awareness often noticed in such similar type of cases. The tax authorities need to carry out a concerted campaign to educate the taxpayers to retain primary documents of financial transactions which on being questioned would need to be supported by documentary evidences. I have noticed that the social mileu which the taxpayer represents, often is grossly ignorant of the nitty gritties of law and is unaware of the importance and need for having and retaining documentary evidence as often they are not aware about the sanctity of documentary evidences to be retained for supporting their genuine legitimate claims. I have noticed that due to these ignorances, their experience with law and administrative functionaries is unfortunately bitter and suspicious. Adequate steps need to be taken administratively to educate the aspirational India to become savvy and alive to the needs that every financial transaction if questioned, needs to be supported by documentary evidences and mere statements of truthful events by itself becomes meaningless in the absence of supporting documents. The ignorant and innocent marginal tax payers as yet have not been exposed to the cynicism of distrust which pervades the administrative and quasi judicial authorities. 6.1 Accordingly, keeping the realities of the time in mind and the realities of the tax payers viz-a-viz the legal requirements, I deem it appropriate in the peculiar facts of the present case to set aside the impugned order back to the file of the AO with a direction to address the financial status of Smt. Ajit Kaur at the relevant point of time and her relationship with the taxpayer and not necessarily to insist on supporting documentary evidences which the lady, if alive, may not have retained. The AO shall, accordingly, in the light of the above directions verify the assertions in the affidavit and pass a speaking order in accordance with law after giving the assessee a reasonable

ITA-7000/Del/2017 Page 4 of 4 opportunity of being heard. It is hoped that the opportunity so provided is not abused by the assessee and full and complete facts are placed on record in support of its claim. Permission to place any evidence, the assessee may have in her possession, is granted which the AO is duty bound to consider before passing of the order.

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