Ramisetty Nageswara Rao, Khammam, Hyderabad V. ITO, Khammam

ITA 110/HYD/2011

• Counselvise Citation: [2011] 140 COUNSELVISE.COM (IT) 53692 (ITAT-HYDERABAD)
• Duration Of Justice: 8 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-10-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 16-06-2011
• Assessment Year: 2005-2006
• Appeal Filed On: 21-01-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: K MYTHILI RANI
• Assessee Lawyers: Y R RAO
• Keywords: Corroborative evidences
• Section: 131; 148; 143(3); 234B

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD B BENCH, HYDERABAD BEFORE SHRI CHANDRA POOJARI, ACCOUNTANT MEMBER AND SMT. ASHA VIJAYA RAGHAVAN, JUDICIAL MEMBER ITA NO.110/HYD/2011 ASSESSMENT YEAR 2005-06 SHRI RAMISETTY NAGESWARA RAO, KHAMMAM (PAN AMGPR9873 C) VS THE ITO, KHAMMAM APPELLANT RESPONDENT APPELLANT BY : SHRI Y.R. RAO RESPONDENT BY : SMT. K. MYTHILI RANI DATE OF HEARING : 5.10.2011 DATE OF PRONOUNCEMENT : 13.10.2011 ORDER ORDER ORDER ORDER PER PER PER PER ASHA VIJAYA RAGHAVAN, J.M. ASHA VIJAYA RAGHAVAN, J.M. ASHA VIJAYA RAGHAVAN, J.M. ASHA VIJAYA RAGHAVAN, J.M. THIS APPEAL PREFERRED BY THE ASSESSEE IS DIRECTED A GAINST THE ORDER PASSED BY THE CIT(A) VIJAYAWADA DATED 25 .11.2010 AND PERTAINS TO THE ASSESSMENT YEAR 2005-06. 2. THE ASSESSEE IN THE STATUS OF AN INDIVIDUAL FI LED HIS RETURN OF INCOME ON 16.12.2009 IN RESPONSE TO THE NOTICE ISSUED U/S 148 OF THE INCOME TAX ACT FOR THE ASSESSMENT YE AR 2005-06 ADMITTING TAXABLE INCOME OF RS.86,230/-. THE ASSE SSING OFFICER WHILE COMPLETING THE ASSESSMENT U/S 143(3) R.W.S. 1 47 OF THE ACT MADE AN ADDITION OF RS.1,59,35,000/-. SINCE THE AS SESSEE COULD NOT FURNISH THE SOURCES FOR THE CASH DEPOSITS IN TH E BANK ACCOUNT, THE ASSESSING OFFICER TOOK THE PEAK DEPOSI T OF RS.1,59,35,000/- APPEARING IN THE BANK ACCOUNT AND ASSESSED TO TAX IN THE HANDS OF THE ASSESSEE. THE ASSESSING OF FICER MADE ITA NO.110/HYD/2011 SHRI RAMISETTY NAGESWARA RAO, KHAMMAM. 2 AN ADDITION OF RS.75,000/- UNDER REAL ESTATE BROKER AGE WHICH THE ASSESSEE HAD CLAIMED AS A LOSS. INTEREST U/S 2 34A AND 234B WAS ALSO LEVIED BY THE ASSESSING OFFICER. AGGRIEVE D, THE ASSESSEE PREFERRED AN APPEAL BEFORE THE CIT(A). TH E CIT(A) AT PARA 2 OF HIS ORDER HAS STATED AS FOLLOWS: THE ASSESSEE PREFERRED AN APPEAL AGAINST THE ABOVE ORDER ON 28.1.2010. THE APPEAL WAS FIXED FOR HEARI NG ON 21.7.2010 VIDE NOTICE DATED 9.7.2010. ON THIS DATE , THERE WAS NO COMPLIANCE FROM THE ASSESSEE. HOWEVER, A TELEGRAM WAS RECEIVED IN THIS OFFICE ON 23.7.2010 S EEKING AN ADJOURNMENT. AS REQUESTED, THE APPEAL WAS RE-FI XED FOR HEARING VIDE NOTICE DATED 23.7.2010 ON 30.7.201 0. EVEN ON THIS DATE, THERE WAS NO COMPLIANCE FROM THE ASSESSEE. A FRESH NOTICE DATED 9.8.2010 FIXING THE DATE OF HEARING OF APPEAL ON 15.9.2010 WAS ISSUED TO WHICH AGAIN, THERE WAS NO COMPLIANCE FROM THE ASSESSEE. FINALLY, BY WAY OF A NOTICE DATED 4.11.2010, THE AP PEAL WAS AGAIN FIXED FOR HEARING ON 24.11.2010. ON THIS DATE, THE ASSESSEE SENT A TELEGRAM SEEKING AN ADJOURNMENT WITHOUT GIVING ANY REASONS OR CIRCUMSTANCES WARRANT ING SUCH AN ADJOURNMENT. IT IS EVIDENT FROM THE CONDUC T OF THE ASSESSEE THAT HE IS NOT SERIOUS IN PURSUING THE APPEAL FILED IN SPITE OF SEVERAL OPPORTUNITIES BEING EXTEN DED TO REPRESENT HIS CASE. I AM OF THE VIEW THAT NO USEFU L PURPOSE WOULD BE SERVED BY KEEPING THE APPEAL PENDI NG INDEFINITELY AND, THEREFORE, THE APPEAL IS BEING DE CIDED ON THE BASIS OF THE AVAILABLE MATERIAL ON RECORD. 3. WITH RESPECT TO MERIT OF THE CASE, THE CIT(A) O BSERVED THAT THE ASSESSING OFFICER HAD GIVEN STATUTORY NOTI CES TO WHICH ITA NO.110/HYD/2011 SHRI RAMISETTY NAGESWARA RAO, KHAMMAM. 3 THERE WAS NO RESPONSE FROM THE ASSESSEE. SECONDLY, EVEN THE STATEMENT RECORDED U/S 131 OF THE ACT, THE ASSESSEE COULD NOT EXPLAIN SATISFACTORILY THE NATURE AND SOURCES OF CA SH DEPOSITS MADE IN THE BANK ACCOUNT AND THEREFORE, THE CASH DE POSITS IN THE BANK ACCOUNT WERE NOT PROVED TO BE MADE OUT OF THE DISCLOSED SOURCES OF THE ASSESSEE ACCORDING TO THE ASSESSING OFFICER. THE ASSESSING OFFICER THUS, TOOK THE PEAK OF THE CASH DEPOSITS IN THE BANK ACCOUNT DURING THE RELEVANT PE RIOD AND HELD THE AMOUNT TO BE UNEXPLAINED AND BROUGHT TO TA X IN THE ASSESSMENT YEAR. 4. THE CIT(A) ON FURTHER APPEAL CONCLUDED THAT THE EXPLANATION GIVEN IN THE ASSESSMENT PROCEEDINGS WER E REITERATED IN THE APPEAL PAPERS AND THE ASSESSEE HA S NOT BROUGHT ON RECORD ANY NEW EVIDENCE OR EXPLANATION I N THE PROCEEDINGS BEFORE HIM. RELYING ON THE DECISION OF THE HONBLE PUNJAB & HARYANA IN THE CASE OF ANIL GOEL VS. CIT (A) (306 ITR 212). THE CIT(A) HELD THAT THE ORDER OF THE A SSESSING OFFICER IS TO BE CONFIRMED IN THE ABSENCE OF ANY PR OPER EXPLANATION BY THE ASSESSEE WITHOUT ANY SUPPORTING EVIDENCE. AGGRIEVED THE ASSESSEE IS IN APPEAL BEFORE US. 5. THE LEARNED AUTHORIZED REPRESENTATIVE FOR THE A SSESSEE SHRI Y.R. RAO SUBMITTED BEFORE US THAT THE ASSESSEE WAS A VERY INSIGNIFICANT PERSON HOLDING A CLERICAL JOB WITH EA RNING MEAGRE INCOME. IT WAS EXPLAINED THAT THE ASSESSEE WAS INV OLVED IN REAL ESTATE TRANSACTION AND AS A BROKER, TO SAFEGUARD HI S INTEREST; THE ASSESSEE TOOK UPON HIMSELF TO DEPOSIT IN HIS BA NK ACCOUNT, THE AMOUNT OF CONSIDERATION PAID BY THE SELLER TO T HE BUYER INSTEAD OF RECEIVING ONLY THE BROKERAGE CHARGES. T HE LEARNED COUNSEL PLEADED THAT THE ASSESSEE WAS NOT AWARE OF THE ITA NO.110/HYD/2011 SHRI RAMISETTY NAGESWARA RAO, KHAMMAM. 4 CONSEQUENCES OF DEPOSITING THE AMOUNT IN HIS NAME B EING IGNORANT OF THE PROVISIONS OF IT ACT AND ALSO DUE T O IGNORANCE. THEREFORE, HE PLEADED THAT THIS INADVERTENCE ON THE PART OF THE ASSESSEE SHOULD BE TREATED LENIENTLY. 6. FROM THE ORDER OF THE CIT(A), WE FIND THAT THERE HAS BEEN NO REPRESENTATION BY THE ASSESSEE OR HIS LEARN ED AUTHORIZED REPRESENTATIVE AND IN SPITE OF SEVERAL O PPORTUNITIES THE APPEAL HAD TO BE DECIDED ON THE BASIS OF AVAILA BLE MATERIAL ON RECORD BY THE CIT(A) DUE TO NON APPEARANCE OF TH E ASSESSEE. IN THESE CIRCUMSTANCES, IN ORDER TO GIVE AN OPPORTU NITY TO THE ASSESSEE TO EXPLAIN AND SUBSTANTIATE HIS STAND, THE MATTER IS REMITTED BACK TO THE CIT(A) TO PASS ORDERS IN ACCOR DANCE WITH LAW AND THE ASSESSEE ASSURES TO COOPERATE WITH THE PROCEEDINGS. 7. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED FOR STATISTICAL FOR THE PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT 13 .10.2011 S SS SD/ D/D/ D/- -- - ( (( (CHANDRA POOJARI) CHANDRA POOJARI) CHANDRA POOJARI) CHANDRA POOJARI) S SS SD/ D/D/ D/- -- - (ASHA VIJAYA RAGHAVAN) (ASHA VIJAYA RAGHAVAN) (ASHA VIJAYA RAGHAVAN) (ASHA VIJAYA RAGHAVAN) ACCOUNTANT MEMBER ACCOUNTANT MEMBER ACCOUNTANT MEMBER ACCOUNTANT MEMBER JUDICIAL MEMBER JUDICIAL MEMBER JUDICIAL MEMBER JUDICIAL MEMBER DATED THE 13 TH OCTOBER, 2011 ITA NO.110/HYD/2011 SHRI RAMISETTY NAGESWARA RAO, KHAMMAM. 5 COPY FORWARDED TO: 1. SHRI RAO & SAI, ADVOCATES & TAX CONSULTANTS, 6-3- 571/1&2, ROCK VISTA, ROCKDALE COMPOUND, SOMAJIGUDA, HYDERABAD-500 082. 2. THE ITO, WARD 1, KHAMMAM 3. THE CIT(A) -VIJAYAWADA 4. THE ADDL. CIT, KHAMMAM RANGE, KHAMMAM 5. THE CIT, HYDERABAD 6. THE DR, ITAT, HYDERABAD NP/