DCIT, Kottayam V. K C ARUNA, Kottayam

CO 13/COCH/2011

• Counselvise Citation: [2012] 122 COUNSELVISE.COM (IT) 7350 (ITAT-COCHIN)
• Duration Of Justice: 1 year(s) 16 day(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 20-07-2012
• Appeal Filed By: Department
• Bench Allotted: DB
• Assessment Year: 2005-2006
• Appeal Filed On: 04-07-2011
• Court: TRIBUNAL
• Department Lawyers: A S BINDU
• Assessee Lawyers: THOMAS CHERIAN
• Keywords: Opportunity of being heard
• Section: 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL COCHIN BENCH, COCHIN BEFORE S/SHRI N.R.S.GANESAN, JM AND B.R.BASKAR AN, AM I.T.A. NO. 181/COCH/2011 ASSESSMENT YEAR : 2005-06 THE DEPUTY COMMISSIONER OF INCOME-TAX, CENTRAL CIRCLE, KOTTAYAM. VS. SMT. K.C.ARUNA, THIRUVONAM WINES, SOUPARNIKA ANNEX, GANDHINAGAR, KOTTAYAM. [PAN:AFOPA 7509M] (REVENUE-APPELLANT) (ASSESSEE- RESPONDENT) C.O. NO. 13/COCH/2011 (ARSG. OUT OF I.T.A. NO. 181/COCH/2011 ASSESSMENT YEAR : 2005-06 SMT. K.C.ARUNA, THIRUVONAM WINES, SOUPARNIKA ANNEX, GANDHINAGAR, KOTTAYAM. [PAN:AFOPA 7509M] VS. THE DEPUTY COMMISSIONER OF INCOME-TAX, CENTRAL CIRCLE, KOTTAYAM. (ASSESSEE-APPELLANT) (REVENUE- RESPONDENT) REVENUE BY SMT. A.S. BINDU, SR. DR ASSESSEE BY SHRI THOMAS CHERIAN, CA DATE OF HEARING 19/06/2012 DATE OF PRONOUNCEMENT 20/07/2012 O R D E R PER B.R.BASKARAN, ACCOUNTANT MEMBER: THE APPEAL OF THE REVENUE AND THE CROSS OBJEC TION FILED BY THE ASSESSEE ARE DIRECTED AGAINST THE ORDER DATED 14-12-2010 PASSED BY THE LD. CIT(A)-I, TRIVANDRUM AND THEY RELATE TO THE ASSESSMENT YEAR 2005-06. 2. THE REVENUE IS ASSAILING THE DECISION OF THE LD. CIT(A) IN DELETING THE CASH CREDIT ADDITION OF RS.11.50 LAKHS MADE U/S. 68 OF THE ACT. IN THE CROSS OBJECTION, THE ASSESSEE IS SUPPORTING THE ORDER OF THE LD. CIT(A). I.T.A. NO. 181 NO./COCH/2011 & C.O. NO. 13/COCH/2011 2 3. THE FACTS RELEVANT TO THIS ISSUE ARE STATED IN B RIEF. THE INSTANT ASSESSMENT WAS COMPLETED IN THE HANDS OF THE ASSESSEE U/S. 153C OF THE ACT, CONSEQUENT TO SEIZURE OF CERTAIN DOCUMENTS RELATING TO THE ASSESSEE DURING T HE COURSE OF SEARCH CONDUCTED IN THE HANDS OF SHRI SUBHASH BOSE AND SMT. PUSHPA BOSE. D URING THE COURSE OF THE ASSESSMENT PROCEEDINGS, THE ASSESSEE FILED A CASH F LOW STATEMENT AND ASSET LIABILITY STATEMENT BEFORE THE ASSESSING OFFICER. ON PERUSAL OF THE CASH FLOW STATEMENT, THE ASSESSING OFFICER NOTICED THAT THE ASSESSEE HAS TAK EN A LOAN OF RS.11.50 LAKHS FROM SHRI P.K. SAHEED, TELLICHERRY. THE ASSESSEE DID NOT FIL E THE CONFIRMATION LETTER IN RESPECT OF THE ABOVE SAID LOAN. HENCE, THE ASSESSING OFFICER ADDED THE SAME U/S. 68 OF THE ACT. BEFORE THE LD. CIT(A), THE ASSESSEE FILED THE CONFI RMATION LETTER AND THE FIRST APPELLATE AUTHORITY, WITHOUT CONFRONTING THE SAME WITH THE AS SESSING OFFICER, DELETED THE ADDITION MADE U/S. 68 OF THE ACT. AGGRIEVED BY THE SAID ORD ER, THE REVENUE IS IN APPEAL BEFORE US. 4. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE RECORD. WE NOTICE THAT THE LD. CIT(A) DID NOT CONFRONT THE CONFIRMATION LETTER FILED BY THE ASSESSEE WITH THE ASSESSING OFFICER, THOUGH IT IS AN ADDITIONAL EVIDE NCE FILED FOR THE FIRST TIME BEFORE HER. WHEN THIS FACT WAS POINTED OUT BY THE BENCH, THE LD COUNSEL APPEARING FOR THE ASSESSEE AGREED TO SUBMIT NECESSARY DETAILS BEFORE THE AO AND ACCORDINGLY PLEADED FOR ONE MORE OPPORTUNITY TO PROVE THE CREDIT BEFORE THE ASSESSING OFFICER. THE LD. DR ALSO DID NOT OBJECT TO THE PLEA MADE BY THE LD. AR. ACC ORDINGLY, WE SET ASIDE THE ORDER OF THE LD. CIT(A) AND RESTORE THE MATTER TO THE FILE O F THE AO WITH A DIRECTION TO EXAMINE THE ISSUE AFRESH IN ACCORDANCE WITH LAW AFTER AFFOR DING NECESSARY OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 5. SINCE THE APPEAL FILED BY THE REVENUE IS REMAND ED BACK TO THE FILE OF THE ASSESSING OFFICER, THE CROSS OBJECTION FILED BY THE ASSESSEE HAS BECOME INFRUCTUOUS AND IS LIABLE TO BE DISMISSED. I.T.A. NO. 181 NO./COCH/2011 & C.O. NO. 13/COCH/2011 3 5. IN THE RESULT, THE APPEAL FILED BY THE REVENUE I S TREATED AS ALLOWED FOR STATISTICAL PURPOSES AND THE CROSS OBJECTION FILED BY THE ASSES SEE IS DISMISSED. PRONOUNCED ACCORDINGLY O N 20-07-2012 SD/- SD/- (N.R.S.GANESAN) (B.R.BASKARAN) JUDICIAL MEMBER ACCOUNTANT MEMBER PLACE: KOCHI DATED: 20TH JULY, 2012 GJ COPY TO: 1. SMT. K.C.ARUNA,THIRUVONAM WINES, SOUPARNIKA ANNE X, GANDHINAGAR, KOTTAYAM. 2.THE DEPUTY COMMISSIONER OF INCOME TAX, CENTRAL CI RCLE, KOTTAYAM. 3.THE COMMISSIONER OF INCOME-TAX(APPEALS)-I, TRIVAN DRUM. 4.THE COMMISSIONER OF INCOME-TAX, CENTRAL, KOCHI 5. D.R., I.T.A.T., COCHIN BENCH, COCHIN. 6. GUARD FILE. BY ORDER (ASSISTANT REGISTRAR) I.T.A.T, COCHIN