Mallesh Kujala, Hyd, Hyderabad V. ITO, Ward-4(3), Hyd, Hyderabad

ITA 1101/HYD/2015

• Counselvise Citation: 110122514 RSA 2015
• Duration Of Justice: 3 month(s) 30 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-12-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 14-12-2015
• Assessment Year: 2008-2009
• Appeal Filed On: 24-08-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SITARAM
• Keywords: Gift; Opportunity of being heard
• Section: 68

Judgement Text

THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCH A, HYDERABAD BEFORE SMT. P. MADHAVI DEVI, JUDICIAL MEMBER AND SHRI S. RIFAUR RAHMAN, ACCOUNTANT MEMBER ITA NO. 1101/HYD/2015 ASSESSMENT YEAR: 2008-09 MALLESH KUJALA, HYDERABAD PAN ACTPK0814H VS. INCOME-TAX OFFICER, WARD 4(3), HYDERABAD (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI MOHD. AFZAL REVENUE BY : SHRI SITA RAM DATE OF HEARING : 14/12/2015 DATE OF PRONOUNCEMENT : 23/12/2015 O R D E R PER S. RIFAUR RAHMAN, A.M.: THIS APPEAL IS PREFERRED BY THE ASSESSEE AGAINST T HE ORDER OF CIT(A)-I, HYDERABAD DATED 28/05/2015 FOR THE AY 200 8-09. 2. THERE WAS A DELAY OF 13 DAYS IN FILING THIS APPE AL BEFORE US. THE DELAY IS CONDONED AND THE APPEAL IS ADMITTED FO R HEARING FOR THE REASON THAT THE ASSESSEE WAS NOT WELL AND SUFFERED FROM ACUTE DENGU FEVER AT THE RELEVANT POINT OF TIME AND TO THIS EFF ECT A MEDICAL CERTIFICATE WAS PRODUCED. 3. BRIEFLY THE FACTS OF THE CASE ARE, ASSESSEE IS A PROPRIETOR OF M/S BHARATH STEEL PALACE. HE FILED HIS RETURN OF INCOME FOR AY 2008-09 ON 09/06/2008 ADMITTING INCOME OF RS. 2,60,170/-. THE CASE WAS SELECTED FOR SCRUTINY AND TOTAL TAXABLE INCOME WAS DETERMINED AT RS. 11,60,170/- BY MAKING AN ADDITION OF RS. 9,00,000/- TOWARDS UNEXPLAINED CASH DEPOSITS U/S 68 OF THE INCOME-TAX ACT, 1961 (IN SHORT ACT). 2 ITA NO. 1101 /HYD/2014 MALLESH KUJALA 4. AGGRIEVED WITH THE ABOVE ORDER OF AO, ASSESSEE P REFERRED APPEAL BEFORE THE CIT(A). 5. THE CIT(A) HAS DISMISSED THE APPEAL OF ASSESSEE, AS THE ASSESSEE HAD FAILED TO SUBMIT INFORMATIONS SENT VID E LETTER DATED 24/04/2015 AND ALSO -NONE APPEARED ON BEHALF OF THE ASSESSEE FOR HEARING OF THE CASE POSTED ON 14/05/2015 AND 28/05/ 2015. 6. AGGRIEVED WITH THE ABOVE ORDER OF CIT(A), THE AS SESSEE IS IN APPEAL BEFORE US AND RAISED THE FOLLOWING GROUNDS O F APPEAL: 1. THE ORDER OF THE LEARNED COMMISSIONER OF INCOM E TAX (APPEALS) IS AGAINST LAW, AND PROBABILITIES OF CASE. 2. THE LEARNED COMMISSIONER OF INCOME TAX ERRED IN CONFIRMING THE ADDITION OF RS.9,00,000 / - IN THE HANDS OF ASSESS EE. 3. THE LEARNED COMMISSIONER OF INCOME TAX ERRED IN NOT APPRECIATING THE SALE CONSIDERATION MENTIONED IN THE AGREEMENT OF S ALE AND FURTHER ERRED IN DIRECTING THE APPELLANT TO FURNISH THE DETAILS IN RESPECT OF ASSESSEE'S MOTHER WHO HAS ALREADY EXPIRED ON 28.01.2013. 4. THE APPELLANT CRAVES LEAVE TO ADD TO, AMEND OR MODIFY THE ABOVE GROUNDS OF APPEAL EITHER BEFORE OR AT THE TIME OF HEARING OF THE APPEAL, IF IT IS CONSIDERED NECESSARY. 7. LD. AR SUBMITTED THAT THE ASSESSEE WAS IN RECEIP T OF GIFT FROM HIS MOTHER SMT. K. VENKATAMMA OF RS. 9 LAKHS. HE SU BMITTED THAT THE GIFT WAS GENUINE AND PAID OUT OF SALE PROCEEDS OF H ER PROPERTY, WHICH WAS SOLD ON 08/03/2002 FOR RS. 10,70,000/- ( REFER PAGES 22 TO 25 OF THE PAPER BOOK). THE SAME WAS HIGHLIGHTED IN THE CA PITAL ACCOUNT OF THE ASSESSEE IN THE RELEVANT AY. A COPY OF THE BANK STATEMENT OF ASSESSEES MOTHER ALSO SUBMITTED (REFER PAGES 10 TO 14 OF THE PAPER BOOK). LD. AR ALSO SUBMITTED THAT PROPER OPPORTUNIT Y WAS NOT GIVEN BEFORE DISMISSING APPEAL OF THE ASSESSEE BY THE CIT (A) AND ALSO THE LETTERS DATED 24/04/2015 AND 28/05/2015 WERE NOT PR OPERLY SERVED ON THE ASSESSEE. 8. LD. DR, ON THE OTHER HAND, REFERRING TO THE GIFT FROM MOTHER OF ASSESSEE, SUBMITTED THAT THE SOURCE OF INCOME OF MO THER WAS OUT OF SALE OF LAND IN THE YEAR 2002-03, BUT, THE GIFT WAS MADE IN THE YEAR 3 ITA NO. 1101 /HYD/2014 MALLESH KUJALA 2006-07 SINCE THE TIME GAP OF SALE AND GIFT ARE MO RE THAN 4 YEARS, THEREFORE, THE TRANSACTION CANNOT BE RELIED UPON. 9. WE HAVE CONSIDERED THE SUBMISSIONS OF BOTH THE C OUNSELS AND PERUSED THE MATERIAL FACTS ON RECORD AS WELL AS GO NE THROUGH THE ORDERS OF REVENUE AUTHORITIES. WE ARE OF THE VIEW THAT THE ASSESSEE HAD FILED THE SOURCE OF SOURCE FOR MAKING AN ADVANC E OF RS. 11,10,000 FOR PURCHASE OF SHOP AT GOLNAKA, AMBERPET . ONE OF THE MAIN SOURCE WAS RS. 9,00,000/-, WHICH WAS RECEIVED FROM HIS MOTHER AS GIFT. IN SUPPORT OF THE SAME, ASSESSEE HAD FILED COPY OF BANK PASS BOOK OF HIS MOTHER SMT. K. VENKATAMMA VIDE PAGES 10 TO 14 OF THE PAPER BOOK. FROM THE BANK STATEMENT, SMT. VENKATAMM A HAD DEPOSITED CASH TO THE EXTENT OF RS. 9,00,000/- AND GAVE THE SAME AS GIFT TO ASSESSEE. ACCORDING TO THE LD. AR, ASSESSEE WAS NOT SERVED PROPERLY THE LETTERS FOR SEEKING DETAILS IN SUPPORT OF GIFT FROM MOTHER AND POSTING THE DATE OF HEARING OF APPEAL ON 14/05/ 2015 AND 28/05/2015. CONSIDERING THE ABOVE FACTS, WE ARE OF THE VIEW THAT THE ASSESSEE WAS NOT GIVEN PROPER OPPORTUNITY TO PRESEN T HIS CASE, WE ARE INCLINED TO SET ASIDE THE ORDER OF CIT(A) AND R EMIT THE ISSUE BACK TO THE FILE OF THE AO WITH DIRECTION TO EXAMINE/INV ESTIGATE THE CASH DEPOSITS IN THE ACCOUNTS OF ASSESSEE AND HIS MOTHER SMT. K. VENKATAMMA AND RE-DO THE ASSESSMENT IN ACCORDANCE W ITH LAW AFTER PROVIDING REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE IN THE MATTER. 10. IN THE RESULT, APPEAL OF THE ASSESSEE IS TREATE D AS ALLOWED FOR STATISTICAL PURPOSES. PRONOUNCED IN THE OPEN COURT ON 23 RD DECEMBER, 2015. SD/- SD/- (P. MADHAVI DEVI) (S. RIFAUR RAHM AN) JUDICIAL MEMBER AC COUNTANT MEMBER HYDERABAD, DATED: 23 RD DECEMBER, 2015 4 ITA NO. 1101 /HYD/2014 MALLESH KUJALA KV COPY TO:- 1) SRI MALLESH KUJALA, C/O MOHD. AFZAL, ADVOC ATE, 11-5-465, SHERSONS RESIDENCY, FLAT NO. 402, CRIMIN AL COURT ROAD, RED HILLS, HYDERABAD 500 004. 2) ITO, WARD 4(3), HYDERABAD 3 CIT(A)-I, HYDERABAD 4) PR. CIT-I, HYDERABAD 5) THE DEPARTMENTAL REPRESENTATIVE, I.T.A.T., H YDERABAD.