Smt. Kavitha Shivanand, Bangalore V. Income Tax Officer, ward - 4(2), Bangalore

ITA 1034/BANG/2019

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 5051 (ITAT-BANGALORE)
• Duration Of Justice: 8 month(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-02-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 27-08-2019
• Assessment Year: 2010-2011
• Appeal Filed On: 13-05-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: GANESH R GHALE DE
• Assessee Lawyers: V CHANDRASHEKAR
• Keywords: Set aside
• Section: 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL SMC C BENCH : BANGALORE BEFORE SHRI B.R BASKARAN, ACCOUNTANT MEMBER ITA NO.1034/BANG/2019 ASSESSMENT YEAR : 2010-11 SMT. KAVITHA SHIVANAND, NANDA GOKULA, NO.49, 1 ST CROSS, OPP. PATALAMMA TEMPLE, UTTARAHALLI KENGERI MAIN ROAD, BANASHANKARI 5 TH STAGE, BENGALURU-560 061. PAN CKFPS 9027 Q VS. THE INCOME-TAX OFFICER, WARD-4(2), BENGALURU. APPELLANT RESPONDENT APPELLANT BY : SHRI V CHANDRASHEKAR, ADVOCATE RESPONDENT BY : SHRI GANESH R GHALE, ADVOCATE, STANDING COUNSEL FOR THE DEPT., DATE OF HEARING : 06.11.2019 DATE OF PRONOUNCEMENT : .02.2020 O R D E R PER B.R BASKARAN, ACCOUNTANT MEMBER : THE ASSESSEE HAS FILED THIS APPEAL CHALLENGING TH E ORDER DATED 07-03-2019 PASSED BY LD CIT(A)-10, BENGALURU AND IT RELATES TO THE ASSESSMENT YEAR 2010-11. THE ASSESSEE IS AG GRIEVED BY THE DECISION OF LD CIT(A) IN CONFIRMING THE ADDITION OF RS.26,10,000/- MADE BY THE AO U/S 68 OF THE ACT. ITA NO.1034 /BANG/2019 PAGE 2 OF 6 2. THE FACTS RELATING TO THE ISSUE ARE DISCUSSE D IN BRIEF. THE ASSESSEE HEREIN FILED HER RETURN OF INCOME FOR THE YEAR UNDER CONSIDERATION DECLARING A TOTAL INCOME OF RS.2,04,0 00/-. DURING THE COURSE OF SCRUTINY PROCEEDINGS, THE AO NOTICED THAT THE ASSESSEE HAS MADE CASH DEPOSITS AGGREGATING TO RS.26,10,000/ - IN HER SB ACCOUNT MAINTAINED WITH STATE BANK OF HYDERABAD. W HEN QUESTIONED ABOUT THE SOURCES OF THE DEPOSITS SO MAD E, THE ASSESSEE EXPLAINED THAT SHE RECEIVED A SUM OF RS.25.00 LAKHS AS ADVANCE TOWARDS SALE OF A PROPERTY TO HER BROTHER. IT WAS FURTHER SUBMITTED THAT THE SAID PROPERTY WAS ACQUIRED BY HER THROUGH FAMILY SETTLEMENT. IT WAS FURTHER SUBMITTED THAT THERE WE RE CERTAIN CONFUSIONS BETWEEN THE ASSESSEE AND HER BROTHER AND HENCE THE TRANSACTION COULD NOT MATERIALISE. HENCE THE SAID A MOUNT WAS RETURNED BACK. IT WAS SUBMITTED THAT HER BROTHER S HRI HARISH IS THE PROPRIETOR OF M/S SHREE SARASWATHI IRON FOUNDARIES AND HE SHALL PROVIDE ANY FURTHER INFORMATION. 3. THE AO NOTICED THAT THE ASSESSEE DID NOT FUR NISH ANY OTHER INFORMATION BESIDES PROVIDING ABOVE SAID EXPLANATIO N. ACCORDINGLY HE HELD THAT THE ASSESSEE HAS NOT DISCHARGED HER BU RDEN PLACED UPON HER SHOULDER U/S 68 OF THE ACT. ACCORDINGLY T HE AO ASSESSED THE ABOVE SAID AMOUNT OF RS.26,10,000/- AS INCOME O F THE ASSESSEE U/S 68 OF THE ACT. THE LD CIT(A) ALSO CONCURRED WI TH THE VIEW TAKEN BY THE AO AND ACCORDINGLY CONFIRMED THE ADDITION. 4. THE LD A.R SUBMITTED THAT THE ASSESSEE HAS R ECEIVE THE IMPUGNED AMOUNT OF RS.25.00 LAKHS FROM HER BROTHER SHRI HARISH, WHO IS THE PROPRIETOR OF M/S SHREE SARASWATHI IRON FOUNDARIES IN ITA NO.1034 /BANG/2019 PAGE 3 OF 6 HIS HUF CAPACITY. HE SUBMITTED THAT THE ASSESSEE H AS FURNISHED A CONFIRMATION LETTER OBTAINED FROM SHRI HARISH AND F URTHER PROVIDED THE PERMANENT ACCOUNT NUMBER OF SHRI A HARISH (HUF) . HE SUBMITTED THAT SHRI HARISH (HUF), THE PROPRIETOR OF M/S SHREE SARASWATHI IRON FOUNDARIES IS REGULARLY ASSESSED TO INCOME TAX. HE SUBMITTED THAT THE REMAINING AMOUNT OF RS.1.10 LAKH S WAS MADE OUT OF HER PAST SAVINGS. ACCORDINGLY HE SUBMITTED T HAT THE ASSESSEE HAS DISCHARGED HER BURDEN PLACED ON HER U/S 68 OF T HE ACT. ACCORDINGLY HE PRAYED THAT THE IMPUGNED ADDITION MA Y KINDLY BE DELETED. 5. THE LD D.R, ON THE CONTRARY, SUBMITTED THAT THE ASSESSEE HAS NOT FURNISHED ANY DOCUMENT TO SUPPORT THE CLAIM OF RECEIPT OF ADVANCE MONEY TOWARDS SALE OF PROPERTY. HE SUBMITT ED THAT THE ASSESSEE HAS FURNISHED A CONFIRMATION LETTER OBTAIN ED FROM HER BROTHER, WHICH STATES THAT HE HAS PAID SUM OF RS.2 5.00 LAKHS TO THE ASSESSEE. HE SUBMITTED THAT THE ASSESSEE HAS N OT PROVED THE GENUINENESS OF TRANSACTION AND THE CREDIT WORTHINES S OF THE CREDITOR. 6. I HEARD RIVAL CONTENTIONS AND PERUSED THE R ECORD. THE CLAIM OF THE ASSESSEE IS THAT SHE HAS RECEIVED A SUM OF R S.25.00 LAKHS FROM HER BROTHER NAMED SHRI A HARISH. IT IS STATED THAT SHRI A HARISH (HUF) IS THE PROPRIETOR OF M/S SHREE SARASWA THI IRON FOUNDARIES AND THE ABOVE SAID PAYMENT OF RS.25.00 L AKHS WAS MADE FROM THE BOOKS/ACCOUNTS OF M/S SHREE SARASWATH I IRON FOUNDARIES. THOUGH THE ASSESSING OFFICER HAS STATE D THAT THE ASSESSEE HAS NOT FURNISHED PROPERTY DOCUMENTS ETC., YET, IN MY ITA NO.1034 /BANG/2019 PAGE 4 OF 6 VIEW, WHAT IS RELEVANT IS WHETHER THE SUM OF RS.2 5.00 LAKHS WAS GIVEN BY A HARISH (HUF) THROUGH M/S SHREE SARASWATH I IRON FOUNDARIES OR NOT?. IF THE AMOUNT OF RS.25.00 LAKH S WAS GIVEN BY THE ABOVE SAID CONCERN FROM OUT OF ITS BOOKS, THEN THE QUESTION OF MAKING ANY ADDITION SHOULD NOT ARISE. THIS IS SO B ECAUSE, (A) THE IDENTITY OF CREDITOR IS NOT IN DISPUTE SINCE HE IS THE BROTHER OF THE ASSESSEE; (B) GENUINENESS AND CREDITWORTHINESS COUL D NOT BE DOUBTED WITH, IF THE ABOVE SAID PAYMENT IS ACCOUNTE D IN THE BOOKS OF M/S SHREE SARASWATHI IRON FOUNDARIES. FURTHER I T IS ASSESSED TO INCOME TAX UNDER PAN NO.AAFHA3839L. 7. ACCORDINGLY, THE BENCH ASKED THE LD A.R TO F URNISH LEDGER ACCOUNT COPY FROM THE BOOKS OF M/S SHREE SARASWATHI IRON FOUNDARIES IN ORDER TO PROVE THAT THE PAYMENT OF RS .25.00 LAKHS WAS MADE FROM OUT OF ITS BOOKS. ACCORDINGLY, THE A SSESSEE HAS FURNISHED COPY OF LEDGER ACCOUNT MAINTAINED IN THE NAME OF THE ASSESSEE BY M/S SARASWATHI IRON FOUNDARY. A PERUSA L OF THE LEDGER ACCOUNT COPY WOULD SHOW THAT THE ASSESSEE HAS BEEN PAID A SUM OF RS.25.00 LAKHS DURING THE YEAR UNDER CONSIDERATION. UNDER THESE SET OF FACTS, THE ADDITION OF RS.25.00 LAKHS IS NOT WARRANTED. HOWEVER, WE NOTICE THAT THERE WAS NO OCCASION FOR T HE AO TO VERIFY THE LEDGER ACCOUNT COPY FURNISHED BEFORE THE TRIBUN AL. HENCE, FOR THE LIMITED PURPOSE OF EXAMINING THE LEDGER ACCOUNT COPY, I RESTORE THIS ISSUE TO THE FILE OF THE ASSESSING OFFICER. A FTER SATISFYING HIMSELF WITH THE CLAIM OF THE ASSESSEE BY EXAMINING THE ABO VE SAID DOCUMENT, THE AO MAY DELETE THE ADDITION OF RS.25.0 0 LAKHS. ITA NO.1034 /BANG/2019 PAGE 5 OF 6 8. THE REMAINING AMOUNT OF ADDITION IS RS.1.10 L AKHS AND THE ASSESSEE CLAIMED THE SAME TO BE HER PAST SAVINGS. CONSIDERING THE FACT THAT THE ASSESSEE IS ASSESSED TO INCOME-TAX, I AM OF THE VIEW THAT THERE IS NO REASON TO DOUBT HER EXPLANATION WI TH REGARD TO THE AMOUNT OF RS.1.10 LAKH. ACCORDINGLY I SET ASIDE TH E ORDER PASSED BY LD CIT(A) ON THIS ISSUE AND DIRECT THE AO TO DELETE THE ADDITION OF RS.1.10 LAKH. 9. IN THE RESULT, THE APPEAL OF THE ASSESSEE I S TREATED AS ALLOWED FOR STATISTICAL PURPOSES. 10. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS TREATED AS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 3 RD FEBRUARY, 2020. SD/ - (B.R BASKARAN) ACCOUNTANT MEMBER BANGALORE, DATED, THE 3 RD FEBRUARY, 2020. /VMS/ COPY TO: 1. APPELLANT (S) / CROSS OBJECTOR(S) 2. RESPONDENT(S) 3. CIT 4. CIT(A) 5. DR, ITAT, BANGALORE. 6. GUARD FILE BY ORDER ASST. REGISTRAR ITAT, BANGALORE