Meenakshi. R, CHENNAI V. ITO, CHENNAI

ITA 1075/CHNY/2016

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 8228 (ITAT-CHENNAI)
• Duration Of Justice: 5 month(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-10-2016
• Appeal Filed By: Assessee
• Bench Allotted: A
• Assessment Year: 2009-2010
• Appeal Filed On: 21-04-2016
• Court: TRIBUNAL
• Department Lawyers: SHIVA SRINIVAS
• Assessee Lawyers: JHARNA HIRALAL
• Keywords: Unexplained cash credit
• Section: 143(3); 68; 54

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH : CHENNAI . . . , . . ' #$ , % &' ( [ BEFORE SHRI N.R.S. GANESAN, JUDICIAL MEMBER AND SHRI D. S. SUNDER SINGH, ACCOUNTANT MEMBER ] ./ I.T.A.NO.1075/MDS/2016 / ASSESSMENT YEAR : 2009-10 MRS. MEENAKSHI R PLOT NO.33, VOC 1 ST CROSS STREET AMBAL NAGAR, KOVUR CHENNAI 600 122 VS. THE INCO ME TAX OFFICER NON-CORPORATE WARD 17(2) CHENNAI [PAN AIFPM 5994C] ( )* / APPELLANT) ( +,)* /RESPONDENT) / APPELLANT BY : MS. JHARNA HIRALAL, CA /RESPONDENT BY : SHRI SHIVA SRINIVAS, JCIT / DATE OF HEARING : 26 - 0 9 - 2016 ! / DATE OF PRONOUNCEMENT : 17 - 10 - 2016 / O R D E R PER D.S. SUNDER SINGH, ACCOUNTANT MEMBER THIS APPEAL OF THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF THE COMMISSIONER OF INCOME-TAX (APPEALS)-5, CHENNA I, DATED 29.12.205 FOR ASSESSMENT YEAR 2009-10. 2. AT THE OUTSET, IT WAS NOTED THAT THERE WAS A DELAY OF 50 DAYS IN FILING THIS APPEAL BY THE ASSESSEE. THE ASSES SEE HAS FILED A PETITION FOR CONDOANTION OF DELAY. WE HAVE HEARD THE LD. AR AND THE LD. DR. ITA NO. 1075/16 :- 2 -: WE FIND THAT THERE WAS SUFFICIENT CAUSE FOR NOT FIL ING THE APPEAL WITHIN THE STIPULATED TIME. THEREFORE, WE CONDONE THE DEL AY AND ADMIT THE APPEAL. 3. THE ASSESSING OFFICER MADE ADDITION OF ` 1,16,511/- IN THE ASSESSMENT ORDER PASSED U/S 143(3) OF THE ACT ON A CCOUNT OF CAPITAL GAINS AND MADE A FURTHER ADDITION OF ` 12,25,440/- AS UNEXPLAINED CASH CREDITS U/S 68 OF THE INCOME-TAX ACT, 1961. AT THE TIME OF ASSESSMENT, THE LD. AR INFORMED THAT THE SOURCES OF CASH DEPOSITS WAS TRANSACTIONS RELATING TO THE SON OF THE ASSESSEE, SHRI R. BALAJI. SINCE SHRI R. BALAJI, SON OF THE ASSESSEE HAD NO PAN, TH E DEPOSITS WERE MADE IN THE JOINT NAMES. HOWEVER, NO EVIDENCE WA S PRODUCED BEFORE THE ASSESSING OFFICER TO SUBSTANTIATE THE CL AIM. THEREFORE, THE ASSESSING OFFICER MADE THE ADDITION U/S 68 OF THE ACT. THE ASSESSEE WENT IN APPEAL BEFORE THE CIT(A). BEFORE THE CIT(A ) ALSO THE TRANSACTIONS WERE NOT PROPERLY EXPLAINED. HOWEVER , THE LD. AR STATED BEFORE THE CIT(A) THAT THE PROPERTY BELONGED TO SMT . MEENAKSHI WAS SOLD AND AGREED FOR THE ASSESSMENT OF LONG TERMS CA PITAL GAINS AT ` 1,16,511/-. WITH RESPECT TO THE CASH CREDITS IN TH E BANK ACCOUNT OF THE ASSESSEE, HE REITERATED THE SUBMISSIONS MADE BEFORE THE ASSESSING OFFICER STATING THAT THE CREDITS WERE BELONGING TO HER SON SHRI BALAJI AND THE DEPOSITS WERE MADE IN THE JOINT ACCOUNT FO R THE SAKE OF ITA NO. 1075/16 :- 3 -: CONVENIENCE AND SECURITY. THE CIT(A) HAS CONFIRMED THE ADDITION SINCE NO EVIDENCE WAS PRODUCED AND NO PROPER EXPLAN ATION WAS SUBMITTED BEFORE THE CIT(A) ALSO. THEREFORE, THE ASSESSEE IS IN APPEAL BEFORE THE TRIBUNAL. 4. BEFORE US, THE LD. AR APPEARING FOR THE ASSESSEE S UBMITTED THAT THE ASSESSEE IS A SMALL EMPLOYEE WORKING AS A NURSE IN A PRIVATE HOSPITAL WITH MEAGER SOURCE OF INCOME. SHE FURTHER ADDED THAT THE REPRESENTATIVE WHO REPRESENTED THE CASE BEFORE THE ASSESSING OFFICER AND THE CIT(A) WAS NOT A QUALIFIED CA OR AN ADVOCAT E AND HE HAS MISREPRESENTED THE CASE. THEREFORE, THE LD. AR SUB MITTED THAT UNNECESSARY DEMAND OF ` 4,64,650/- WAS RAISED IN HER CASE WHICH IS BEYOND HER FINANCIAL CAPACITY . SHE FURTHER SUBMIT TED THAT IN FACT THE ASSESSEE SOLD THE PROPERTY LOCATED AT NO.2/7, LAKSH MIPURAM, GANGAI AMMAN KOIL STREET, VADAPALANI, CHENNAI 600 026 AND THE RESULTANT CONSIDERATION WAS RECEIVED BY THE ASSESSEE WHICH W AS CREDITED IN THE ACCOUNT OF THE ASSESSEE. THE CONSIDERATION SO REC EIVED ON ACCOUNT OF SALE OF THE PROPERTY WAS REINVESTED IN ACQUIRING NE W RESIDENTIAL PROPERTY AND THE ASSESSEE IS ELIGIBLE FOR DEDUCTIO N U/S 54 OF THE ACT. IN SUPPORT OF THE CONTENTION, THE LD. AR HAS FILED COPY OF THE SALE DEED AND AGREEMENT OF SALE. BOTH THE AGREEMENT OF SALE AND SALE DEED WERE ALSO FILED BEFORE THE CIT(A). SHE PLEADED THA T THE CASE MAY BE ITA NO. 1075/16 :- 4 -: REMITTED BACK TO THE FILE OF THE ASSESSING OFFICER SINCE BOTH THE ASSESSING OFFICER AND THE CIT(A) HAVE NOT EXAMINED THE ISSUE PROPERLY AND LD. AR ALSO DID NOT EXPLAIN THE CASE BEFORE THE LOWER AUTHORITIES CORRECTLY. 5. ON THE OTHER HAND, THE LD. DR ARGUED THAT AS PER PA RA 5.2 OF THE CIT(A)S ORDER IT IS STATED BY THE LD. AR THAT THE ASSESSEE IS NOT INTERESTED IN CONTESTING THE ISSUE OF CAPITAL GAINS , HENCE, THE ESTIMATION OF CAPITAL GAINS AT ` 1,16,511/- REQUIRES TO BE UPHELD. REGARDING THE ADDITION U/S 68, THE LD. DR SUPPORTE D THE ORDERS OF THE LOWER AUTHORITIES. 6. WE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATE RIAL PLACED BEFORE US. THE ASSESSEE IS A SMALL TIME EM PLOYEE WORKING AS A NURSE IN A PRIVATE NURSING HOME, WHO COULD NOT AP PROACH A QUALIFIED CA FOR PRESENTING HER CASE. THE LD. AR HAS FURNISH ED THE AGREEMENT OF SALE AND SALE DEED AND EVIDENCE FOR ACQUIRING THE P ROPERTY AND SUBMITTED THAT THE SOURCE OF DEPOSITS MADE IN THE B ANK ACCOUNT WAS FROM THE SALE CONSIDERATION OF THE PROPERTY. FURTH ER SHE STATED THAT THE SALE CONSIDERATION SO RECEIVED WAS INVESTED IN RESIDENTIAL PROPERTY FOR WHICH SHE IS ELIGIBLE FOR DEDUCTION U/S 54 OF THE ACT. WE ARE OF THE OPINION THAT THE ASSESSING OFFICER HAS NOT EXAMINED THE ISSUE CORRECTLY. THEREFORE, WE DEEM IT FIT TO REMIT THE MATTER BACK TO THE FILE ITA NO. 1075/16 :- 5 -: OF THE ASSESSING OFFICER IN THE INTEREST OF RENDERI NG PROPER JUSTICE TO THE ASSESSEE. THE ASSESSING OFFICER IS FREE TO CA LL THE NECESSARY INFORMATION AND REDO THE ASSESSMENT AFRESH AS PER L AW. THE ASSESSEE IS DIRECTED TO FURNISH THE NECESSARY DETAILS BEFORE THE ASSESSING OFFICER FOR COMPLETION OF THE ASSESSMENT. 7. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 17 TH OCTOBER, 2016, AT CHENNAI. SD/- SD/- ( . . . ' ) (N.R.S. GANESAN) / JUDICIAL MEMBER ( . . ' #$ ) (D.S. SUNDER SINGH) % / ACCOUNTANT MEMBER #$ / CHENNAI %& / DATED: 17 TH OCTOBER, 2016 RD &' ()*) / COPY TO: 1 . / APPELLANT 4. + / CIT 2. / RESPONDENT 5. ),- . / DR 3. +/' / CIT(A) 6. -01 / GF