ITO, Jamshedpur V. Smt. Veena Pandey, Jamshedpur

ITA 106/RAN/2016

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 8846 (ITAT-RANCHI)
• Duration Of Justice: 1 year(s) 10 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-03-2018
• Appeal Filed By: Department
• Order Result: Partly Allowed
• Bench Allotted: DB
• Assessment Year: 2008-2009
• Appeal Filed On: 08-04-2016
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: P K MONDAL JCIT LD
• Assessee Lawyers: BINOD KR SARAIWALA CA LD
• Section: 234B; 69

Judgement Text

1 ITA NO. 106/RAN/16 IN THE INCOME TAX APPELLATE TRIBUNAL, RANCHI BENCH, RANCHI BEFORE: SHRI J. SUDHAKAR REDDY, ACCOUNTANT MEMBER AND SHRI S.S. VISWANETHRA RAVI, JUDICIA L MEMBER I.T.A NO. 106/RAN/16 A.Y 2008-09 I.T.O., WARD 3(3), JAMSHEDPUR APPELLANT VS. SMT. VEENA PANDEY, JAMSHEDPUR RESPONDENT FOR THE APPELLANT : SHRI P.K. MONDAL, JCIT, LD.DR FOR THE RESPONDENT : SHRI BINOD KR. SARAIWALA, CA , LD.AR DATE OF HEARING : 27-02-2018 DATE OF PRONOUNCEMENT : 01-03-2018 ORDER PER BENCH: THIS APPEAL BY REVENUE IS AGAINST THE ORDER DT. 22- 01-2016 OF CIT(A), JAMSHEDPUR FOR THE ASSESSMENT YEAR 2008-09, WHEREIN HE DELETED THE ADDITION OF RS. 60,00,000/- MADE BY THE AO U/S. 69 OF THE ACT ON ACCOUNT OF INVESTMENT IN FIXED DEPOSITS AND CHARGING OF INTEREST U/S. 234B OF THE ACT. 2. GROUND NO.1 IS RELATING TO DELETION OF ADDITION OF RS.60,00,000/- MADE U/S. 69 OF THE ACT ON ACCOUNT OF UNDISCLOSED F IXED DEPOSITS BY THE CIT-A. 3. THE CASE OF ASSESSEE WAS THAT THE IMPUGNED AMOUN T IN QUESTION ARISING OUT OF FIXED DEPOSITS WAS RE-INV ESTED ON MATURITY VALUE FROM EARLIER DEPOSITS. 4. THE CIT-A CONSIDERING THE REMAND REPORT AND THE SUBMISSIONS OF ASSESSEE DELETED THE IMPUGNED ADDITION MADE BY T HE AO. 5. WE FIND THAT THE CIT-A EXAMINED THE ASSESSMENT R ECORD TOGETHER WITH THE SUBMISSIONS OF ASSESSEE AND THE R EMAND REPORT OF 2 ITA NO. 106/RAN/16 THE AO. THE CIT-A FOUND THAT THE ASSESSEE HAS NOT M ADE ANY FRESH INVESTMENTS IN THE REMAND REPORT. ACCORDING TO CIT -A, THIS WAS ONLY MATURITY PROCEEDS OF RE-INVESTMENTS MADE IN EARLIE R YEAR. RELEVANT PORTION OF CIT-AS ORDER IS REPRODUCED HEREIN BELOW :- THEREFORE BEFORE INVOKING 69, THE FOLLOWING CONDI TION MUST BE SATISFIED:- (A) THE ASSESSEE HAS MADE INVESTMENT IN THE FINANCIAL Y EAR IMMEDIATELY PROCEEDINGS THE ASSESSMENT YEAR. (B) SUCH INVESTMENT ARE NOT RECORDED IN THE BOOKS OF AC COUNT, IF ANY MAINTAINED BY HIM FOR ANY SOURCE OF INCOME. (C) THE ASSESSEE DOES NOT OFFER ANY EXPLANATION ABOUT T HE NATURE AND SOURCE OF THE INVESTMENT OR THE EXPLANATION OFFERED BY HIM IS NOT IN THE OPINION OF THE AO SATISFACTORY. IF THE ABOVE CONDITIONS ARE SATISFIED, THE VALUE OF SUCH INVESTMENT MAY BE DEEMED TO BE THE INCOME OF THE ASSESSEE OF SUCH FIN ANCIAL YEAR. NOW ANALYZING THE ABOVE CONDITION, IT IS FOUND THAT THE ASSESSEE HAS NOT MADE ANY FRESH INVESTMENT, RATHER IT IS A RE-ASSESSMENT OF MATURITY PROCEEDS OF INVESTMENT MADE IN EARLIER YEAR WHICH HAS ALSO BEEN CONFIRMED BY THE AO IN HIS REMAND REPORT AS WELL AS SUPPORTED BY BANK ENTR IES. THE SECOND CONDITION IS ALSO NOT FULFILLED AS THE A O IN HIS ORDER HAS HIMSELF MENTIONED THE METHOD OF ACCOUNT AS NA OR NOT ACC OUNT. EVEN IF IT IS TREATED AS NOT APPLICABLE IT SIMPLY SUGGESTS THAT THE A SSESSEE IS NOT MAINTAIN THE BOOKS OF ACCOUNT. AS NO BOOKS OF ACCOUNT IS BEING M AINTAINED BY THE ASSESSEE, RECORDING THE INVESTMENT IN BOOKS OF ACCOUNT DOES N OT ARISE. THEREFORE, THE SECOND CONDITION IS ALSO NOT FULFILLED. THE THIRD G ROUND RELATES TO OFFERING AN EXPLANATION WHICH HAS ALREADY BEEN QUOTED HEREIN SU PRA. THEREFORE NONE OF THE CONDITION MENTIONED IS FULFIL LED IN THIS CASE. ON BOTH THE CIRCUMSTANCES MENTIONED ABOVE, THE ADDITION MADE BY THE AO OF RS.60,00,000/- IS HEREBY DELETED. 6. IN VIEW OF ABOVE, WE FIND THAT THE CIT-A WAS COR RECT IN DELETING THE SAME. WE DO NOT FIND ANY INFIRMITY IN THE IMPU GNED ORDER OF THE CIT-A. GROUND NO. 1 OF REVENUES APPEAL IS DISMISSE D. 7. GROUND NO. 2 IS RELATING TO DELETION OF CHARGI NG OF INTEREST U/S. 234B OF THE ACT. 8. AFTER HEARING THE RIVAL SUBMISSIONS AND PERUSING THE RECORD, WE FIND THAT THE INTEREST U/S. 234B/C OF THE ACT IS TO BE CHARGED ON DECLARED RETURNED INCOME AND NOT ON ASSESSED INCOME AS PER DECISION OF THE OF THE HONBLE JURISDICTIONAL HIGH COURT IN THE CASE OF SHRI AJAY PRAKASH VERMA IN TA NO. 38 OF 2010 REPORTED IN 2013 (1)TMI 140, WHICH IN TURN, FOLLOWED THE LAW LAID DOWN BY THE FU LL BENCH IN THE CASE OF SMT. TEJ KUMARI REPORTED IN 114 TAXMAN 404 (PAT) (FB), 3 ITA NO. 106/RAN/16 WHERE IT WAS HELD THAT INTEREST CANNOT BE LEVIED ON ASSESSED INCOME AND IT CAN BE LEVIED ONLY ON THE INCOME DECLARED I N THE RETURN OF INCOME. THE APPELLANT REVENUE CHALLENGED THE SAME B EFORE THE HONBLE SUPREME COURT BY WAY OF A SLP AND WHICH WAS DISMISSED BY HOLDING THAT THERE IS NO MERITS IN THE APPEAL VIDE ITS ORDER DT. 01-08- 2000. THE LD. DR COULD NOT CONTROVERT THE SAME. 9. WE FURTHER FIND THE CO-ORDINATE BENCH, ITAT, RAN CHI IN THE CASE OF RSB INDUSTRIES LTD(FORMERLY KNOWN AS M/S. LAL TE CHNOLOGIES LTD) VS. ACIT, ITA NOS. 199 & 200/RAN/2014 AND 212 & 213 /RAN/2014 FOR THE A.YS 2009-10 & 2010-11 AND IN THE CASE OF SHREE NIWAS JOSHI VS. ACIT, ITA NOS. 279 & 280/RAN/2016 FOR THE A.YS. 200 1-02 & 2005- 06, COPY OF THE SAME ARE ON RECORD, ON SIMILAR SET OF FACTS AND CIRCUMSTANCES HAS DISPOSED OF THE SAID ISSUE IN FAV OUR OF ASSESSEE BY DISMISSING THE GROUNDS OF APPEAL OF THE REVENUE BY FOLLOWING THE DECISION OF THE HONBLE JURISDICTIONAL HIGH COURT O F JHARKHAND IN THE CASE OF SUPRA. WE FURTHER FIND THAT THE ISSUE IN HAND, FACTS AND CIRCUMSTANCES OF THOSE CASES OF ITAT RANCHI ARE IDE NTICAL AND SIMILAR. 10. IN VIEW OF ABOVE, AND RESPECTFULLY FOLLOWING TH E DECISION OF THE HONBLE JURISDICTIONAL HIGH COURT IN THE CASE OF AJ AY PRAKASH VARMA SUPRA , WE ARE OF THE VIEW THAT THE ORDER OF CIT-A IS NOT JUSTIFIED IN CONFIRMING THE ORDER OF AO IN CHARGING THE INTERES T ON ASSESSED INCOME. THE AO IS DIRECTED TO MODIFY HIS ORDER. TH EREFORE, GROUND NO. 2 RELATING TO CHARGING OF INTEREST U/S. 234B O F THE ACT RAISED BY THE REVENUE IS LIABLE TO BE MODIFIED. GROUND NO. 2 OF REVENUES APPEAL IS ALLOWED FOR STATISTICAL PURPOSE. 4 ITA NO. 106/RAN/16 11. IN THE RESULT, THE APPEAL OF THE REVENUE IN IT A NO. 106/RAN/06 FOR THE A.Y 2008-09 IS ALLOWED IN PART. ORDER PRONOUNCED ON 01-03-2 018 SD/- SD/- J. SUDHAKAR REDDY S.S. VISWANETHRA RAVI ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 01-03-2018 PP(SR.P.S.) COPY OF THE ORDER FORWARDED TO: 1 . APPELLANT INCOME TAX OFFICER, WARD 3(3), 4 PHALGU ROAD, NORTHER TOWN. BISTUPUR, JAMSHEDUPUR. 2 RESPONDENT SMT. VEENA PANDEY, C/O SHRI VIJAY PANDE Y, H.NO.1, LAXMI NAGAR, BAJRANG BAGAN, TELCO, JAMSHEDPUR. 3 . THE CIT(A), RANCHI 4. 5. CIT , RANCHI DR, ITAT RANCHI BENCHES, RANCHI. / TRUE COPY, BY ORDER, SR.PS ITAT, RANCHI