ITO, Ward-8(3), Hyd, Hyderabad V. K. Harishankar Goud, Hyd, Hyderabad

CO 14/HYD/2015

• Counselvise Citation: [2015] 123 COUNSELVISE.COM (IT) 0988 (ITAT-HYDERABAD)
• Duration Of Justice: 2 month(s) 16 day(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 17-06-2015
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 14-09-2016
• Assessment Year: 2009-2010
• Appeal Filed On: 01-04-2015
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: RAJAT MITRA
• Assessee Lawyers: N VENKATRAM
• Section: 143(3)

Judgement Text

ITA NO.1819 OF 2014 HARI SHANKAR GOUD HYD. PAGE 1 OF 4 IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD B BENCH, HYDERABAD BEFORE SHRI B. RAMAKOTAIAH, ACCOUNTAN T MEMBER & SMT.ASHA VIJAYARAGHAVAN, JUDICIAL MEMBER ITA NO. 1819/HYD/2014 (ASSESSMENT YEAR: 2009-10) INCOME TA X OFFICER WARD 8(3) HYDERABAD VS. SRI K. HARI SHANKAR GOUD 505 CBR ESTATE, MADINAGUDA HYDERABAD PAN: AOEPK 3294 G (APPELLANT) (RESPONDENT) C.O. NO.14/HYD/2015 (ARISING OUT OF ITA NO.1819/HYD/2014) SRI K. HARI SHANKAR GOUD 505 CBR ESTATE, MADINAGUDA HYDERABAD PAN: AOEPK 3294 G VS. INCOME TAX OFFICER WARD 8(3) HYDERABAD (CROSS OBJECTOR ) (RESPONDENT) FOR REVENUE : SHRI RAJAT MITRA, CIT (DR) FOR ASSESSEE : SHRI N. VENKATRAM DATE OF HEARING : 16.04.2015 DATE OF PRONOUNCEMENT : 17 .06 .2015 O R D E R PER SMT. ASHA VIJAYARAGHAVAN, J.M. THIS IS AN APPEAL PREFERRED BY THE REVENUE AGAINST THE ORDER OF THE CIT (A)-III, HYDERABAD, DATED 8 TH SEPTEMBER, 2014 RELATING TO A.Y 2009-10 AND CROSS OBJECTION IN SUPP ORT OF ORDER OF THE CIT (A). ITA NO.1819 OF 2014 HARI SHANKAR GOUD HYD. PAGE 2 OF 4 2. BRIEFLY STATED, THE ASSESSEE IS AN INDIVIDUAL, D ERIVING INCOME FROM HOUSE PROPERTY FILED HIS RETURN OF INCO ME FOR A.Y 2009-10 ON 24.11.2009 DECLARING TOTAL INCOME OF RS. 1,89,800. IN VIEW OF THE FACT THAT THE ASSESSEE HAD DEPOSITED CASH IN HIS TWO ACCOUNTS I.E. ICICI BANK AND ANDHRA BANK AGGREG ATING TO RS.82,95,500, THE CASE WAS SELECTED FOR SCRUTINY. A O DURING THE COURSE OF THE ASSESSMENT PROCEEDINGS CAME TO THE CO NCLUSION THAT THE CASH DEPOSITS COMPRISES OF AN AMOUNT OF RS . 41,08,000 BEING THE SALE PROCEEDS OF PLOT NO.4, S.NO.148, KON DAPUR (V) HYDERABAD AND HAD ALSO TAKEN INTO CONSIDERATION THE SHORT TERM CAPITAL GAIN DERIVED THEREFROM. AO COMPLETED THE AS SESSMENT ON 30.12.2011 U/S 143(3) DETERMINING TOTAL INCOME AT RS.87,61,330. ON APPEAL IT WAS SUBMITTED BEFORE THE CIT (A) THAT THE ADDITION OF RS.41,08,000 WHICH FORMS PART AND P ARCEL OF RS.82,95,000 IS NOT CORRECT. 3. IT WAS POINTED OUT THAT THE AO CONCLUDED THAT TH E ASSESSEE HAD NOT EXPLAINED PROPERLY THE SOURCES OF CASH DEPO SITS. IT WAS SUBMITTED THAT THE OBSERVATION OF AO IS VAGUE AND T HE AO HAD FAILED TO TAKE INTO COGNIZANCE, THE EXPLANATIONS GI VEN BY THE ASSESSEE AND THE ORDER OF AO IS NOT A SPEAKING ORDE R AS NO DEFECTS WERE POINTED OUT BY THE AO. IT WAS FURTHER POINTED OUT THAT THE AO HAS NOT TAKEN INTO CONSIDERATION THE CA SH WITHDRAWALS MADE FROM BOTH THE BANK ACCOUNTS WHICH ALSO CONSTITUTE THE SOURCES OF CASH DEPOSITS AND HENCE T HE CONCLUSION THAT NO PROPER EXPLANATION WAS GIVEN FOR THE SOURCE S OF CASH DEPOSITS IS ERRONEOUS AND IS NOT BASED ON THE FACTS OF THE CASE. IT WAS ALSO STATED THAT THE AO HAD NOT CONSIDERED THE FACT THAT OUT OF THE CASH DEPOSITS, A SUM OF RS.1,89,800 BEING TH E RENT DERIVED ITA NO.1819 OF 2014 HARI SHANKAR GOUD HYD. PAGE 3 OF 4 FROM TWO PROPERTIES IS ALSO INCLUDED AND HENCE THE ADDITION IS UNWARRANTED. 4. THE LD CIT (A) WAS OF THE OPINION THAT THE MATTE R REQUIRES EXAMINATION BY THE AO WITH REFERENCE TO THE ASSESSM ENT RECORDS AND FURTHER EVIDENCES AND THEREFORE, DIRECTED THE A O TO EXAMINE THE MATTER AND ALLOW THE SAME, IF PROPERLY EXPLAINE D. THE CIT (A) PARTLY ALLOWED THE APPEAL PREFERRED BY THE ASSESSEE . 5. AGGRIEVED, THE DEPARTMENT IS IN APPEAL BEFORE US RAISING THE FOLLOWING GROUNDS: 1. THE LD CIT (A) HAS ERRED BOTH ON FACTS AND LAW. 2. THE LD CIT (A) OUGHT TO HAVE APPRECIATED THE FAC T THAT THE ONUS TO EXPLAIN AND SUBSTANTIATE THE CREDITS IN THE BANK ACCOUNT IS ON THE ASSESSEE, WHICH HE HAD FAILE D TO DO SO. 3. THE LD CIT (A) OUGHT TO HAVE APPRECIATED THE FAC T THAT THE ASSESSEE HAS FAILED TO DISCLOSE THE INCOME FROM CAPITAL GAINS ON SALE OF PROPERTY, WHICH WAS BROUGH T TO TAX BY THE AO. 4. THE LD CIT (A) OUGHT NOT TO HAVE REMITTED BACK T HE ABOVE ISSUES TO THE AO FOR RE-VERIFICATION, AS THE CIT (A) DOES NOT HAVE POWER TO SET ASIDE THE ISSUES TO THE AO AS PER PROVISIONS OF SECTION 251(1) OF THE ACT. 5. THE LD CIT (A) OUGHT TO HAVE APPRECIATED THE FAC T THAT THE AO DOES NOT HAVE POWER TO REVISIT THE ASSESSMEN T AGAIN ON THE CONCLUDED ASSESSMENT AND CANNOT GAIN T HAT POWER FROM THE ORDER OF THE CIT (A) WHICH IS NOT AUTHORISED BY THE PROVISIONS OF THE I.T. ACT. ITA NO.1819 OF 2014 HARI SHANKAR GOUD HYD. PAGE 4 OF 4 6. WE HAVE HEARD BOTH THE PARTIES. SINCE THE CIT (A ) ERRED IN REMITTING THE ISSUES BACK TO THE AO FOR RE-VERIFICA TION AND SINCE THE CIT (A) IS NOT AUTHORISED UNDER THE PROVISIONS OF SECTION 251(1) OF THE ACT SET ASIDE THE ASSESSMENT AGAIN, W E CONSIDER IT APPROPRIATE TO SET ASIDE THE ISSUE TO THE FILE OF T HE AO FOR DECIDING THE ISSUE AFRESH AFTER DULY CONSIDERING TH E OBEJCTION/EXPLANATION OF ASSESSEE. 7. IN THE RESULT APPEAL IN ITA NO.1819/HYD/2014 IS ALLOWED FOR STATISTICAL PURPOSES AND THE CROSS OBJECTION NO .14/HYD/2015 SUPPORTING THE ORDER OF THE CIT (A) IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 17 TH JUNE, 2015. S D/ - S D/ - (B. RAMAKOTAIAH) (ASHA VIJAYARAGHAVAN) ACCOUNTANT MEMBER JUDICIAL MEMBER HYDERABAD, DATED 17 TH JUNE, 2015. VNODAN/SPS COPY TO: 1. INCOME TAX OFFICER WARD 8(3) D BLOCK, 8 TH FLOOR, IT TOWERS, AC GUARDS, HYDERABAD 2. SRI K. HARI SHANKAR GOUD, 505 CBR ESTATE, MADINAGUD A, HYDERABAD 3. THE CIT(A) - III HYDERABAD 4. THE CIT II HYDERABAD 5. THE DR, ITAT, HYDERABAD 6. GUARD FILE BY ORDER