Sri. Sadguru Edcuation Trust, Madikeri V. ITO, Madikeri

ITA 1032/BANG/2010

• Counselvise Citation: [2011] 134 COUNSELVISE.COM (IT) 5592 (ITAT-BANGALORE)
• Duration Of Justice: 9 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-05-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 11-05-2011
• Assessment Year: 2004-2005
• Appeal Filed On: 26-08-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: NARESH SAKA JT
• Keywords: Unexplained investment

Judgement Text

ITA.1031/BANG/2010 P AGE - 1 IN THE INCOME TAX APPELLATE TRIBUNAL BANGALORE BENCH 'B', BANGALORE BEFORE SHRI. N. BHARATHVAJA SANKAR, VICE PRESIDENT AND SHRI. GEORGE GEORGE K. JUDICIAL MEMBER I.T.A NO.1031 & 1032/BANG/2010 (ASSESSMENT YEARS : 2003-04 & 2004-05) SHRI SADGURU EDUCATION TRUST, 'SRINIKETAN, NEAR PRIVATE BUS STAND, MADIKERI 571 201 .. APPELLANT V. INCOME-TAX OFFICER, WARD -1, MADIKERI .. RESPONDENT APPELLANT BY : SHRI. T ATA KRISHNA, CA RESPONDENT BY : SHRI. NARESH SAKA, JT.CIT O R D E R PER N. BHARATHVAJA SANKAR, VICE PRESIDENT : THESE ARE TWO APPEALS PREFERRED BY THE ASSESSEE SR I SADGURU EDUCATION TRUST, BANGALORE, FOR THE ASSESSMENT YEAR S 2003-04 AND 2004-05, AGAINST THE APPELLATE ORDERS DATED.06.10.2 009 OF THE COMMISSIONER OF INCOME-TAX(A), MYSORE. 02. LET US FIRST TAKE UP THE COMMON ISSUE RELATING TO JURISDICTION FOR INVOKING INCOME ESCAPEMENT ASSESSMENT UNDER SECTION 147. WE FIND THAT THIS ISSUE IS ADJUDICATED BY THE TRIBUNAL VIDE ITS ORDER IN ITA ITA.1031/BANG/2010 P AGE - 2 NOS.550 AND 551/BANG/2009, DATED.30.11.2009, FOR TH E ASSESSMENT YEARS 2005-06 AND 2006-07 IN ASSESSE'S OWN CASE. T HE TRIBUNAL IN PARA 4 OF ITS ORDER HAS OBSERVED AS UNDER : 'WE HAVE PERUSED THE RECORD. NEITHER THE ASSESSING OFFICER NOR THE LEARNED COMMISSIONER OF INCOME-TAX(A) HAS REPRODUCED THE REASONS FOR REOPENING OF THE ASSESSM ENT. THOUGH THE GIST OF REASONS IS AVAILABLE BUT IN ABSE NCE OF ACTUAL REASONS RECORDED, THIS GROUND OF APPEAL CANN OT BE DISPOSED OF. THE HON'BLE APEX COURT IN THE CASE OF G. K. N. DRIVESHAFTS (INDIA) LTD V. ITO (259 ITR 19) HAD PRE SCRIBED A PROPER PROCEDURE TO BE ADOPTED BY THE ASSESSEE IN C ASE IN WHICH ASSESSMENT IS REOPENED. IN CASE THE APPELLAN T IS REALLY INTERESTED IN PURSUING THE GROUND OF APPEAL NO.1, T HEN HE SHOULD ASK FOR THE COPY OF THE REASONS RECORDED AND MAY FILE OBJECTIONS BEFORE THE ASSESSING OFFICER. THE ASSES SING OFFICER WILL BE REQUIRED TO DISPOSE OF SUCH OBJECTI ONS BY A SPEAKING ORDER. WITH THIS OBSERVATION GROUND OF AP PEAL NO.1 IS DISPOSED OF.' WE FOLLOW THE ABOVE ORDER OF THE TRIBUNAL AND RES TORE THE MATTER BACK TO THE ASSESSING OFFICER IN THIS CASE AS WELL. 03. NEXT IS THE COMMON ISSUE REGARDING THE AVAILABI LITY OF EXEMPTION UNDER SECTION 10(23C). WE FIND THAT THIS ISSUE IS ALSO COVERED BY THE ORDER OF THE TRIBUNAL IN ITA NOS.550 AND 551/BANG/2009, DATED.30.11.2009, FOR THE ASSESSMENT YEARS 2005-06 ITA.1031/BANG/2010 P AGE - 3 AND 2006-07 IN ASSESSE'S OWN CASE. THE TRIBUNAL IN PARA 5 HAS OBSERVED AS UNDER : '5. BEFORE THE LOWER AUTHORITIES, THE ASSESSEE HAS CONTENDED THAT INCOME IS EXEMPT U/S.10(23C)(IIIAB). BEFORE THE LOWER AUTHORITIES, THE ASSESSEE CLAIMED EXEMPTI ON UNDER CLAUSE (IIIAD) OF SECTION 10(23C). HOWEVER, THIS I S A LEGAL GROUND AND IT CAN BE RAISED FOR THE FIRST TIME. SI NCE THIS ISSUE HAS NOT BEEN DISPOSED OF BY THE ASSESSING OFFICER, THEREFORE, IN RESPECT OF THIS GROUND APPEAL, THE MATTER IS RESTOR ED BACK ON THE FILE OF THE ASSESSING OFFICER.' FOLLOWING THE ABOVE OBSERVATION OF THE TRIBUNAL, TH IS ISSUE IS ALSO RESTORED BACK TO THE ASSESSING OFFICER FOR PASSING A FRESH ORDER. 04. THE NEXT COMMON ISSUE RELATING TO THE ASSESSEE' S GRIEVANCE IN RESPECT OF ADDITION ON ACCOUNT OF WANT OF CONFIRMAT ION FROM CREDITORS, WE FIND, IS ALSO COVERED BY THE IN ITA NOS.550 AND 551/BANG/2009 , DATED.30.11.2009, FOR THE ASSESSMENT YEARS 2005-06 AND 2006-07 IN ASSESSE'S OWN CASE. THE TRIBUNAL IN ITS ABOVE ORDE R IN PARA.14.1 HAS OBSERVED AS FOLLOWS : '14.1 THIS ISSUE IS ALSO RESTORED BACK ON THE FILE OF THE ASSESSING OFFICER AS THE MATTER IS TO BE RECONSIDER ED BY THE ASSESSING OFFICER FOR CONSIDERING THE EVIDENCES, IF ANY, TO BE PLACED BY THE ASSESSEE.' ITA.1031/BANG/2010 P AGE - 4 FOLLOWING THE SAME WE REMAND THIS ISSUE TO THE FILE S OF THE ASSESSING OFFICER FOR FRESH CONSIDERATION. 05. THE ISSUE RELATING TO ADDITION OF ` .1,50,000/- AS UNEXPLAINED INVESTMENT IS TAKEN UP IN THE ASSESSMENT YEAR 2004- 05 ONLY. WE FIND THAT THIS HAS BEEN ADJUDICATED BY THE ORDER OF THE TRIBUNAL IN ITA NOS.550 AND 551/BANG/2009, DATED.30.11.2009, FOR TH E ASSESSMENT YEARS 2005-06 AND 2006-07 IN ASSESSE'S OWN CASE. T HIS ISSUE HAS BEEN DEALT IN THE ABOVE ORDER UNDER ASSESSMENT YEAR 2004 -05, BY OBSERVING AS UNDER IN PARA.15.1 : '15.1. THE ASSESSEE HAS SHOWN A SUM OF ` .11,97,379/- AS EMD WHILE VERIFICATION CARRIED OUT BY THE ASSESSING OFF ICER SHOWN THE EMD AT ` .8,95,000/-. SINCE THE SUM SHOWN BY THE ASSESSEE I S MORE AS COMPARED TO THE DETAILS COLLECTED BY THE ASSESSI NG OFFICER, IT IS NOT UNDERSTANDABLE AS TO HOW THE DIFFERENCE CAN BE TREATED AS INCOME. THE ISSUE HAS NOT BEEN PROPERLY APPRECIATE D BY THE ASSESSING OFFICER, HENCE, THIS ISSUE IS ALSO RESTOR ED BACK ON THE FILE OF THE ASSESSING OFFICER.' FOLLOWING THE ABOVE OBSERVATION OF THE TRIBUNAL FOR THE EARLIER YEAR, WE RESTORE THE MATTER BACK TO THE FILE OF ASSESSING OF FICER FOR FRESH CONSIDERATION. 06. THE LAST ISSUE COMMON TO BOTH THE YEARS IS THE ISSUE RELATING TO LEVY OF INTEREST U/SS.234A AND 234C OF THE ACT. SI NCE LEVY OF INTEREST ITA.1031/BANG/2010 P AGE - 5 UNDER SECTIONS 234A AND 234C IS ONLY CONSEQUENTIAL, WE DIRECT THE ASSESSING OFFICER TO GIVE CONSEQUENTIAL EFFECT,. 07. IN THE RESULT, THE APPEALS FILED BY THE ASSESSE E ARE ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED ON 31.05.2011, AT BANGALORE. SD/- SD/- (GEORGE GEORGE K) (N. BHARATHVAJA SANKAR) JUDICIAL MEMBER VICE PRESIDENT MCN* COPY TO: 1. 2. THE ASSESSEE 3. THE ASSESSING OFFICER 4. THE COMMISSIONER OF INCOME-TAX 5. COMMISSIONER OF INCOME-TAX(A) 6. DR 7. GF, ITAT, BANGALORE BY ORDER ASST.REGISTRAR