Sri. P. Girish, Bangalore V. CIT, Bangalore

ITA 1099/BANG/2016

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 9367 (ITAT-BANGALORE)
• Duration Of Justice: 3 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-09-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 17-08-2016
• Assessment Year: 2005-2006
• Appeal Filed On: 27-05-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: DK JHA
• Assessee Lawyers: P DINESH
• Section: 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL BANGALORE BENCH A BEFORE SHRI VIJAY PAL RAO , JUDICIAL MEMBER I.T.A. NO. 1099 /BANG/201 6 (ASSESSMENT YEAR : 200 5 - 06 ) SHRI P.GIRISH, NO.29, SHAM RESIDENCY, F - 1 BLOCK, 1 ST STAGE, MSS LAYOUT, ANANDNAGAR, BANGALOR E - 560 024 PAN ALKPP 1698N VS. COMMISSIONER OF INCOME TAX (APPEALS) - 6, BANGALORE. APPELLANT RESPONDENT. APPELLANT BY : SHRI P. DINESH, ADVOCATE. RESPONDENT BY : SHRI D.K. JHA, CIT (D.R) DATE OF H EARING : 30.08.2016. DATE OF P RONOUNCEMENT : 16 .9. 201 6 . O R D E R PER SHRI VIJAY P AL RAO, J. M. : THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER DT.14 .3.2016 OF COMMISSIONER OF INCOME TAX (APPEALS) - 6, BANGALORE FOR THE ASSESSMENT YEAR 2005 - 06. 2. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS : 2 ITA NO. 1099/ BANG/ 2016 3. THE ONLY ISSUE ARISES IN THE APPEAL OF THE ASSESSEE IS REGARDING ADDITION MADE BY THE ASSE SSING OFFICER ON ACCOUNT OF CASH DEPOSITED IN THE BANK ACCOUNT. THE ASSESSEE IS AN INDIVIDUAL AND FILED ITS RETURN OF INCOME ADMITTING TOTAL INCOME OF RS.93,130. THE ASSESSEE HAS ALSO ADMITTED LONG TERM CAPITAL LOSS OF RS.7,75,579 OUT OF THE SALE OF GOLD JEWELLERY OF RS.23 LAKHS COMPUTED AS 3 ITA NO. 1099/ BANG/ 2016 PER COST INDEX. THE ASSESSING OFFICER FOUND THAT THE ASSESSEE HAS FAILED TO EXPLAIN THE SOURCE OF INVESTMENT IN PROPERTIES AS WELL AS CASH DEPOSIT AND ACCORDINGLY MADE AN ADDITION OF RS.23 LAKHS AS UNEXPLAINED SOURCE OF INCOME UNDER SECTION 68 OF THE INCOME TAX ACT, 1961 (IN SHORT 'THE ACT'). THE ASSESSEE CHALLENGED THE ACTION OF THE ASSESSING OFFICER BEFORE THE CIT (APPEALS) AND REITERATED ITS CONTENTION THAT THE JEWELLERY IN QUESTION WAS INHERITED BY THE ASSESSEE A S PER THE WILL OF GRANDFATHER OF LATE SRI HANUMANTHAPPA. THE SAID JEWELLERY WAS PURCHASED BY THE FAMILY MEMBERS / RELATIVES OF THE ASSESSEE AND THE ASSESSEE RECEIVED THE SAID AMOUNT ON SALE OF THE JEWELLERY INHERITED FROM GRANDFATHER . THE CIT (APPEALS) DID NOT ACCEPT THIS CONTENTION BY NOTING THE FACT THAT THE JEWELLERY DECLARED BY THE GRANDFATHER IN VDIS, 1997 W AS WEIGHED AT 17.434 KGS AND THERE WAS NO MENTION IN THE WILL ABOUT THE SAID JEWELLERY WHEREAS THE OTHER MOVABLE AND IMMOVABLE PROPERTIES WERE C LEARLY MENTIONED ALONG WITH THE BANK ACCOUNTS AND FDRS. THUS THERE WAS N O MENTION OF ANY JEWELLERY IN THE WILL. 4. BEFORE THE TRIBUNAL, APART FROM REITERATING THE EXPLANATION OF SOURCE OF THE CASH ON SALE OF JEWELLERY INHERITED UNDER THE WILL THE LD. A R OF THE ASSESSEE HAS ALSO TAKEN A LEGAL PLEA THAT THE CASH DEPOSIT IN THE BANK CANNOT BE TREATED AS 4 ITA NO. 1099/ BANG/ 2016 CASH CREDIT UNDER THE PROVISIONS OF SECTION 68 AS IT WAS NOT A CASH CREDIT IN THE BOOKS OF ACCOUNT OF THE ASSESSEE. THEREFORE NO ADDITION CAN BE MADE UNDE R THE PROVISIONS OF SECTION 68 OF THE ACT. IN SUPPORT OF HIS CONTENTION, HE HAS RELIED UPON THE DECISION OF HON'BLE BOMBAY HIGH COURT IN THE CASE OF CIT VS. BHAICHAND N GANDHI (1982) 11 TAXMAN 59 (BOM) AS WELL AS THE DECISION OF THE LUCKNOW BENCH OF THE T RIBUNAL DT.25.4.2013 IN THE CASE OF ITO VS. KAMAL KUMAR MISHRA IN ITA NO.398/LKW/2012. 5. ON THE OTHER HAND, , THE LD. DR HAS RELIED UPON THE AUTHORITIES BELOW AND SUBMITTED THAT IT IS IMMATERIAL THAT THE ASSESSING OFFICER HAS REFERRED THE SECTION 6 8 INSTEAD OF 69 WHEN THE ASSESSEE HAS FAILED TO EXPLAIN THE SOURCE OF THE DEPOSIT MADE IN THE BANK. THE SUBSTANTIAL QUESTION IS THE EXPLANATION OF THE SOURCE WHICH THE ASSESSEE HAS FAILED AND THEREFORE THE ADDITION IS JUSTIFIED. 6. HAVING CONSIDERE D THE RIVAL SUBMISSION AND RELEVANT MATERIAL ON RECORD, IT IS NOTED THAT THIS TECHNICAL LEGAL ISSUE OF NON - APPLICATION OF SECTION 68 HAS NOT BEEN RAISED BY THE ASSESSEE EITHER BEFORE THE ASSESSING OFFICER OR BEFORE THE CIT (APPEALS). EVEN NO SUCH GROUND H AS BEEN RAISED BY THE ASSESSEE IN THE GROUNDS OF APPEAL THOUGH THIS PLEA WAS RAISED BY THE LD. AR DURING THE COURSE OF HEARING. THEREFORE IN VIEW OF THE FACT THAT THIS PLEA HAS BEEN RAISED FIRST TIME 5 ITA NO. 1099/ BANG/ 2016 WHICH HAS NOT BEEN EXAMINED BY THE AUTHORITIES BELOW AN D THERE IS NO VIEW ON THIS POINT BY THE ASSESSING OFFICER AS WELL AS BY THE CIT (APPEALS) , THIS OBJECTION REQUIRES TO BE EXAMINED BY THE AUTHORITIES BELOW . ACCORDINGLY, IN THE FACTS AND CIRCUMSTANCES OF THE CASE, WITHOUT EXPRESSING ANY VIEW ON THE OTHER ISSUE RAISED ON MERITS , THE MATTER IS SET ASIDE TO THE RECORD OF THE ASSESSING OFFICER TO CONSIDER AND DECIDE THIS OBJECTION OF APPLICABILITY OF SECTION 68 OF THE ACT. 7. IN T HE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT ON 16TH DAY OF SEPT., 201 6 . SD/ - (VIJAY PAL RAO) JUDICIAL MEMBER *REDDY GP COPY TO : 1. APPELLANT 2. RESPONDENT 3. C.I.T. 4. CIT(A) 5. DR, ITAT, BANGALORE. 6. GUARD FILE. BY ORDER ASST. REGISTRAR, ITAT, BANGALORE