Sri.V.K.Hamza, Trichur V. ACIT,

CO 24/COCH/2013

• Counselvise Citation: [2013] 122 COUNSELVISE.COM (IT) 9050 (ITAT-COCHIN)
• Duration Of Justice: 1 month(s) 12 day(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 18-10-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 10-10-2013
• Assessment Year: 2009-2010
• Appeal Filed On: 06-09-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: V SIVARAMAKRISHNAN
• Keywords: Additional evidence

Judgement Text

1 ITA NO.462/COCH/2013 CO 24/COCH/2013 IN THE INCOME TAX APPELLATE TRIBUNAL COCHIN BENCH, COCHIN BEFORE SHRI N.R.S. GANESAN (JM) AND SHRI B.R. BASKA RAN(AM) I.T.A NO. 462/COCH/2013 (ASSESSMENT YEAR 2009-10) A.C.I.T., CIR.2(1) VS SHRI V.K. HAMZA RANGE-2, THRICHUR ROOM NO.11, R.H. REAL ESTATE ANK COMPLEX, POOTHOLE ROAD THRISSUR PAN : AAMPH7712A (APPELLANT) (RESPONDENT) C.O. NO.24/COCH/2013 (ARISING OUT OF I.T.A NO. 462/COCH/2013) (ASSESSMENT YEAR 2009-10) SHRI V.K. HAMZA VS A.C.I.T., CIR.2(1) THRISSUR RANGE-2, THRICHUR (CROSS OBJECTOR) (RESPONDENT) REVENUE BY : SHRI M ANIL KUMAR, C.I.T. / SMT. LATHA V KUMAR ASSESSEE BY : SHRI V SIVARAMAKRISHNAN DATE OF HEARING : 10-10-2013 DATE OF PRONOUNCEMENT : 18-10-2013 O R D E R PER N.R.S. GANESAN (JM) BOTH THE APPEAL OF THE REVENUE AND CROSS OBJECTION OF THE ASSESSEE ARE DIRECTED AGAINST THE ORDER OF CIT(A)-V, KOCHI D ATED 28-03-2013. 2 ITA NO.462/COCH/2013 CO 24/COCH/2013 2. SMT. LATHA V KUMAR, THE LD.DR SUBMITTED THAT THE CIT(A) ACCEPTED THE ADDITIONAL EVIDENCE IN THE FORM OF CONFIRMATION LETTERS FROM THE CREDITORS. HOWEVER, NO OPPORTUNITY WAS GIVEN TO TH E ASSESSING OFFICER TO CONTROVERT THE ADDITIONAL EVIDENCE. THE LD.DR POIN TED OUT THAT THE CIT(A) HAS ALSO NOT EXAMINED THE CONFIRMATION LETTER. WIT HOUT EXAMINING THE GENUINENESS OF THE CONFIRMATION LETTER, THE CIT(A) DELETED THE ADDITION TO THE EXTENT OF RS.25 LAKHS TOWARDS CASH CREDIT. WIT H REGARD TO THE EXPENDITURE, THE ASSESSEE DID NOT PRODUCE ANY VOUCH ER IN SUPPORT OF THE EXPENDITURE CLAIMED. THE CIT(A), ON THE BASIS OF T HE VOUCHERS SAID TO BE PRODUCED BEFORE HIM DELETED THE ADDITION MADE BY TH E ASSESSING OFFICER. ACCORDING TO THE LD.DR, THE GENUINENESS OF THE VOUC HERS SAID TO BE PRODUCED BY THE ASSESSEE BEFORE THE CIT(A) WAS NOT EXAMINED AND THE ASSESSING OFFICER WAS ALSO NOT GIVEN AN OPPORTUNITY TO CONTROVERT THE SAME. THEREFORE, THE LD.DR SUBMITTED THAT THE ORDER PASSE D BY THE CIT(A) IS IN GROSS VIOLATION OF RULE 46 OF I.T. RULES, THEREFORE , THE MATTER MAY BE REMITTED BACK TO THE FILE OF THE ASSESSING OFFICER FOR EXAMINATION. 3. ON THE CONTRARY, SHRI V SIVARAMAKRISHNAN, THE LD .REPRESENTATIVE FOR THE ASSESSEE SUBMITTED THAT THE CONFIRMATION WITH R EGARD TO CASH CREDIT AND THE VOUCHERS FOR CONSTRUCTION WAS PRODUCED BEFO RE THE ASSESSING 3 ITA NO.462/COCH/2013 CO 24/COCH/2013 OFFICER IN THE COURSE OF ASSESSMENT PROCEEDINGS. T HE ASSESSING OFFICER, HOWEVER, HAS NOT ISSUED ANY ACKNOWLEDGEMENT FOR THE MATERIALS PRODUCED. IN SPITE OF THAT THE ASSESSING OFFICER, IN THE ASSE SSMENT ORDER, SAYS THAT THE ASSESSEE HAS NOT FILED ANY DETAILS TO PROVE THE GEN UINENESS AND CREDITWORTHINESS OF THE CREDITOR. ACCORDING TO THE LD.REPRESENTATIVE, IN FACT, ALL THE MATERIALS WERE FILED BEFORE THE ASSESSING O FFICER AS WELL AS BEFORE THE CIT(A). THE ASSESSING OFFICER FAILED TO VERIFY THE MATERIAL FILED BY THE ASSESSEE; HOWEVER, THE CIT(A) AFTER TAKING NOTE OF THE MATERIAL FILED BY THE ASSESSEE BEFORE THE ASSESSING OFFICER AS WELL AS BE FORE THE CIT(A) DELETED THE ADDITION. THE LD.REPRESENTATIVE FURTHER SUBMIT TED THAT IF THE TRIBUNAL FEELS THAT THE MATTER NEEDS TO BE VERIFIED BY THE A SSESSING OFFICER THE ASSESSEE MAY NOT HAVE OBJECTION FOR REMITTING THE M ATTER BACK TO THE FILE OF THE ASSESSING OFFICER FOR RECONSIDERATION. 4. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS ON EITH ER SIDE AND ALSO PERUSED THE MATERIAL AVAILABLE ON RECORD. THOUGH T HE LD.REPRESENTATIVE FOR THE ASSESSEE CLAIMED THAT ALL THE MATERIALS WERE FI LED BEFORE THE ASSESSING OFFICER, HE HAS NO OBJECTION TO REMIT THE MATTER FO R RE-EXAMINATION. IN THE ABSENCE OF ANY MATERIAL TO SUGGEST THAT THE CONFIRM ATION LETTER AND THE VOUCHERS FOR CONSTRUCTION WERE NOT PRODUCED BEFORE THE ASSESSING OFFICER, THIS TRIBUNAL IS OF THE CONSIDERED OPINION THAT THE OBSERVATIONS MADE BY 4 ITA NO.462/COCH/2013 CO 24/COCH/2013 THE ASSESSING OFFICER IN THE ASSESSMENT ORDER CANNO T BE IGNORED. IF THE ASSESSING OFFICER MADE ANY OBSERVATION CONTRARY TO THE FACTS OF THE CASE, IT IS OPEN TO THE ASSESSEE TO FILE AN AFFIDAVIT BEFORE THIS TRIBUNAL CONTRADICTING THE OBJECTION / FINDING OF THE ASSESSING OFFICER AN D IN THAT CASE, THIS TRIBUNAL MAY CALL FOR PROPER EXPLANATION FROM THE A SSESSING OFFICER. IN THE ABSENCE OF ANY SUCH AFFIDAVIT CONTRADICTING THE OBS ERVATION / FINDING OF THE ASSESSING OFFICER WITH REGARD TO PRODUCTION OF CONF IRMATION LETTERS AND THE VOUCHERS, THIS TRIBUNAL CANNOT IGNORE THE OBSERVATI ON MADE BY THE ASSESSING OFFICER. THEREFORE, THIS TRIBUNAL IS OF THE CONSIDERED OPINION THAT THE CIT(A) HAS ENTERTAINED THE ADDITIONAL EVIDENCE IN VIOLATION OF RULE 46A OF THE ACT. THEREFORE, AN OPPORTUNITY HAS TO BE GI VEN TO THE ASSESSING OFFICER TO READJUDICATE THE MATTER IN THE LIGHT OF THE ADDITIONAL MATERIAL FILED BEFORE THE CIT(A). THEREFORE, THE ORDER OF THE CIT (A) IS SET SIDE AND THE ISSUES REGARDING THE CASH CREDIT OF RS.25 LAKHS AND THE COST OF THE CONSTRUCTION IS REMITTED BACK TO THE FILE OF THE AS SESSING OFFICER. THE ASSESSING OFFICER SHALL EXAMINE THE ISSUE AFRESH IN THE LIGHT OF THE MATERIAL SAID TO BE PRODUCED BEFORE THE CIT(A) AND THEREFORE , DECIDE THE SAME IN ACCORDANCE WITH LAW AFTER GIVING REASONABLE OPPORTU NITY OF HEARING TO THE ASSESSEE. 5 ITA NO.462/COCH/2013 CO 24/COCH/2013 5. THE CROSS OBJECTION IS FILED ONLY TO SUPPORT THE ORDER OF THE CIT(A) CONTENDING THAT THE MATERIALS WERE ALREADY PRODUCED BEFORE THE ASSESSING OFFICER. IN VIEW OF THE DISCUSSION MADE ABOVE, NO FURTHER DELIBERATION IS REQUIRED ON THE CROSS OBJECTION. 6. ACCORDINGLY, BOTH THE APPEAL OF THE REVENUE AND THE CROSS OBJECTIONS ARE ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 18 TH OCTOBER, 2013. SD/- SD/- (B.R. BASKARAN) (N.R.S. GANESAN) ACCOUNTANT MEMBER JUDICIAL MEMBER COCHIN, DT : 18 TH OCTOBER, 2013 PK/- COPY TO: 1. THE A.C.I.T., CIR.2(1), RANGE-2, AAYAKAR BHAVAN, S.T. NAGAR,TRICHUR 2. SHRI V.K. HAMZA, ROOM NO.11, R.H. REAL ESTATE, A .N.K. COMPLEX, POOTHOLE ROAD, THRISSUR 3. THE COMMISSIONER OF INCOME-TAX, THRISSUR 4. THE COMMISSIONER OF INCOME-TAX(A)-V, 2 ND FLOOR, SAN JUAN TOWERS, OLD RAILWAY STATION ROAD, ERNAKULAM NORTH, KOCHI-682 01 8 5. THE DR (TRUE COPY) BY ORDER ASSTT. REGISTRAR, INCOME-TAX APPELLATE TRIBUNAL, COCHIN BENCH