ITO, Circle-10(1)., Hyderabad V. Shiv Kumar Linga, Secunderabad

ITA 1153/HYD/2011

• Counselvise Citation: [2011] 140 COUNSELVISE.COM (IT) 53690 (ITAT-HYDERABAD)
• Duration Of Justice: 3 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-10-2011
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2007-2008
• Appeal Filed On: 15-06-2011
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: B V PRASAD REDDY
• Assessee Lawyers: D J ADHIA
• Keywords: Unexplained cash credit; Unexplained investment
• Section: 68; 2; 69C

Judgement Text

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.1153/HYD/2011 ASSESSMENT YEAR 2007-08 ITO, CIRCLE 10(1), HYDERABAD VS M/S S HIV KUMAR LINGA, SECUNDERABAD (PAN AATPL 2054 J) APPELLANT RESPONDENT APPELLANT BY : SHRI B.V. PRASAD REDDY RESPONDENT BY : SHRI D.J. ADHIA DATE OF HEARING : 3/10/2011 DATE OF PRONOUNCEMENT : 13.10.2011 ORDER PER ASHA VIJAYA RAGHAVAN, J.M. THIS APPEAL PREFERRED BY THE REVENUE IS DIRECTED AG AINST THE ORDER PASSED BY THE CIT(A) VI, HYDERABAD DATED 15.3.2011 AND PERTAINS TO THE ASSESSMENT YEAR 2007-08. 2. BRIEF FACTS OF THE ISSUE ARE THAT THE ASSESSEE HAS FILED ITS RETURN OF INCOME FOR THE ASSESSMENT YEAR UNDER CONS IDERATION DECLARING AN INCOME OF RS.95,680/-. THE CASE WAS S ELECTED FOR SCRUTINY AND NOTICES WERE ISSUED TO THE ASSESSEE. THE ITO, WARD 10(1), HYDERABAD ADDED A SUM OF RS.21,80,531/- U/S 69C AS UNEXPLAINED INVESTMENT IN GOLD ON THE GROUND THA T THE ASSESSEE HAS PURCHASED GOLD WEIGHING 2800 GRAMS FOR MAKING ORNAMENTS TO ADORN THE IDOL OF SRI VENKATESWARA AT HINDU TEMPLE TRUST, LAS VEGAS, USA AND THAT THE BILLS WE RE NOT PRODUCED FOR VERIFICATION ON ACCOUNT OF PURCHASE OF GOLD. THE ITA NO.1153 OF 2011 ITA NO.1153 OF 2011 ITA NO.1153 OF 2011 ITA NO.1153 OF 2011 SHRI SHIV KUMAR LINGA, SECUNDERABAD SHRI SHIV KUMAR LINGA, SECUNDERABAD SHRI SHIV KUMAR LINGA, SECUNDERABAD SHRI SHIV KUMAR LINGA, SECUNDERABAD 2 ASSESSING OFFICER HAS ALSO ADDED A SUM OF RS.24,37, 100/- TOWARDS DEPOSITS MADE IN THE BANK DURING THE YEAR O N THE GROUND THAT NO PROPER EXPLANATION WAS GIVEN FOR THE DEPOSITS MADE IN THE BANK. AGGRIEVED, THE ASSESSEE PREFERRE D AN APPEAL BEFORE THE CIT(A). THE LEARNED COUNSEL FOR THE ASS ESSEE IN SUPPORT OF HIS CONTENTION FILED A COPY OF THE LETTE R FROM THE CHAIRMAN, HINDU TEMPLE OF LAS VEGAS, USA WHEREIN IT HAS BEEN VERY CLEARLY STATED THAT GOLD WAS PURCHASED WI TH THE FUNDS PROVIDED BY THE TRUSTEES FOR PREPARATION OF S HANKU AND CHAKRAM. FURTHER, IT WAS EXPLAINED THAT AFTER THE ASSESSEE HAD BOUGHT GOLD IN THE NAME OF THE CUSTOMERS I.E. T EMPLE AUTHORITIES AND LATER PREPARED THE ORNAMENTS AND RE CEIVED ONLY THE SERVICE CHARGES AT 5%. 3. WITH RESPECT TO THE ADDITIONS OF RS.24,37,100/- BEING UNEXPLAINED CASH CREDIT U/S 68 OF THE IT ACT, THE L EARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT ALL THE DEP OSITS APPEARING IN THE NAME OF THE ASSESSEE IN HIS BANK A CCOUNT ARE THE AMOUNTS RECEIVED FROM THE CUSTOMERS TOWARDS PUR CHASE OF GOLD. IT WAS SUBMITTED THAT ALL THE AMOUNTS DEPOSI TED WERE CLEARED WITHIN A SHORT PERIOD AND GOLD IN THE NAME OF THE CUSTOMERS WERE PURCHASED AND ITEMS WERE PREPARED AN D GIVEN BACK TO THE CUSTOMERS. THE LEARNED COUNSEL FOR THE ASSESSEE HAD PRODUCED THE BANK ACCOUNTS IN SUPPORT OF HIS CL AIM. THE CIT(A) DELETED THE ADDITIONS MADE U/S 69C AND ALSO THE ADDITION MADE U/S 68. AGGRIEVED, THE REVENUE IS IN APPEAL BEFORE US AND RAISED THE FOLLOWING GROUNDS: 1. THE CIT(A) ERRED IN FACTS OF THE CASE. ITA NO.1153 OF 2011 ITA NO.1153 OF 2011 ITA NO.1153 OF 2011 ITA NO.1153 OF 2011 SHRI SHIV KUMAR LINGA, SECUNDERABAD SHRI SHIV KUMAR LINGA, SECUNDERABAD SHRI SHIV KUMAR LINGA, SECUNDERABAD SHRI SHIV KUMAR LINGA, SECUNDERABAD 3 2. THE CIT(A) OUGHT TO HAVE CALLED FOR A REMAND REPORT ON THE FRESH EVIDENCE FILED DURING THE APPELLATE PROCEEDINGS FOR THE FIRST TIME. 3. THE CIT(A) OUGHT TO HAVE APPRECIATED THE FACT THAT INSPITE OF GIVING SEVERAL OPPORTUNITIES, THE ASSESS EE NEITHER PRODUCED THE DETAILS OF INVESTMENT MADE IN GOLD NOR PRODUCED THE PROOF THAT THE AMOUNTS ARE RECEIVED IN DIFFERENT YEARS FOR PURCHASE OF GOLD TO MAKE ORNAMENTS FOR SUPPLY OF THE SAME TO CHAIRMAN OF BOARD TRUSTEES, HINDU SOCIETY OF NEVADA, LAS VEGAS. 4. THE CIT(A) OUGHT TO HAVE CONSIDERED THE FACT THAT T HE DEPOSITS WERE MADE BY THE ASSESSEE FROM UNKNOWN SOURCES BUT NOT FROM THE ADVANCES RECEIVED FROM THE CUSTOMERS AS CLAIMED BY THE ASSESSEE IN VIEW OF THE FACT THAT SOME OF THE ENTRIES SHOWN AS CREDIT CARD PURCHASES AND INVESTMENT IN MUTUAL FUNDS. 4. THE LEARNED DEPARTMENTAL REPRESENTATIVE ARGUED THAT THE ASSESSEE HAS FAILED TO PRODUCE ENOUGH EVIDENCE AND PROOF THAT THE AMOUNTS ARE RECEIVED IN DIFFERENT YEARS FO R PURCHASE OF GOLD TO MAKE THE ORNAMENTS AND SIMILARLY WITH RESPE CT TO ADVANCES RECEIVED FROM CUSTOMERS, THE ASSESSEE HAD NOT SUBSTANTIATED HIS STAND, WHEREAS, BEFORE THE CIT(A) , THE ASSESSEE HAD FILED THE LETTER OF THE CHAIRMAN, BOAR D OF TRUSTEES, HINDU SOCIETY, NAVEDA, LAS VEGAS. THE LE ARNED COUNSEL FOR THE ASSESSEE POINTED OUT THAT THE CIT(A ) OUGHT TO HAVE CALLED FOR A REMAND REPORT ON THE FRESH EVIDEN CE FILED DURING THE APPELLATE PROCEEDINGS FOR THE FIRST TIME . 5. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE MATERIALS AVAILABLE ON RECORD. AFTER CONSIDERING T HE FACTS AND CIRCUMSTANCES OF THE CASE, WE DEEM IT FIT TO RESTOR E THE ISSUES TO ITA NO.1153 OF 2011 ITA NO.1153 OF 2011 ITA NO.1153 OF 2011 ITA NO.1153 OF 2011 SHRI SHIV KUMAR LINGA, SECUNDERABAD SHRI SHIV KUMAR LINGA, SECUNDERABAD SHRI SHIV KUMAR LINGA, SECUNDERABAD SHRI SHIV KUMAR LINGA, SECUNDERABAD 4 THE FILE OF ASSESSING OFFICER TO CONSIDER THE FRESH EVIDENCE SUBMITTED BEFORE THE CIT(A) AND DECIDE THE ISSUES I N ACCORDANCE WITH LAW AFTER GIVING A REASONABLE OPPOR TUNITY TO THE ASSESSEE TO PRESENT HIS CASE. 6. IN THE RESULT, THE APPEAL OF THE REVENUE IS ALL OWED FOR STATISTICAL 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 COPY FORWARDED TO: 1. THE ITO, WARD 10(1), IT TOWERS, HYDERABAD 2. SHRI SHIV KUMAR LINGA, PLOT NO.18, PAIGAH COLONY, SHIV NILAYAM, SP ROAD, SECUNDERABAD 3. THE CIT(A) -VI, HYDERABAD 4. THE CIT, HYDERABAD 5. THE DR, ITAT, HYDERABAD NP/