Shri S.A.Bhimaraja, CHENNAI V. JCIT, CHENNAI

ITA 1167/CHNY/2010

• Counselvise Citation: [2011] 134 COUNSELVISE.COM (IT) 5062 (ITAT-CHENNAI)
• Duration Of Justice: 9 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-05-2011
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: A
• Next Hearing Date: 13-05-2011
• Assessment Year: 2007-2008
• Appeal Filed On: 15-07-2010
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: K E B RENGARAJAN JR
• Assessee Lawyers: S RAJAKUMAR

Judgement Text

PIN THE INCOME TAX APPELLATE TRIBUNAL BENCH A, CHENNAI B E F O R E DR. O.K.NARAYANAN, VICE PRESIDENT AND SHRI HARI OM MARATHA, JUDICIAL MEMBER .. I.T.A.NO.1167(MDS)2010 ASSESSMENT YEAR : 2007-08 SHRI S.A.BHIMARAJA, THE JOINT COMMISSIONER OF A1, WHISPERING HEIGHTS, VS. INCOME -TAX, 138, ST. MARYS ROAD, S ALARY RANGE VI, ALWARPET, CHENNAI-600018. CHENNAI . PAN-AEFPB5660J. (APPELLANT) (RESPONDENT) APPELLANT BY: SHRI S.RAJAKUMAR RESPONDENT BY: SHRI K.E.B.R ENGARAJAN, JR. STANDING COUNSEL O R D E R PER DR.O.K.NARAYANAN, VICE PRESIDENT THE ABOVE APPEAL WAS DISPOSED OF BY THE TRIBUNAL THROUGH ITS ORDER DATED 24 TH DECEMBER, 2010, BY PARTLY ALLOWING THE APPEAL FILED BY THE ASSESSEE. THEREAFTER THE ASSES SEE FILED A ITA NO.1167(MDS)/2010 2 MISCELLANEOUS PETITION AS M.P. NO.45(MDS)/2011 PRAY ING FOR RECTIFICATION OF A MISTAKE APPARENT IN THE ORDER OF THE TRIBUNAL. ACCORDING TO THE ASSESSEE, THE MISTAKE WAS THAT THE TRIBUNAL DID NOT ADJUDICATE HIS GROUND CHALLENGING THE ADDITION OF ` 5 LAKHS MADE BY THE ASSESSING AUTHORITY AGAINST UNEXPLAINED INVESTM ENT. 2. THE MISCELLANEOUS PETITION WAS ALLOWED AS THE M ISTAKE POINTED OUT BY THE ASSESSEE IS REAL AND THE TRIBUNA L HAS NOT ADJUDICATED THE GROUND STATED ABOVE. ACCORDINGLY T HE EARLIER ORDER OF THE TRIBUNAL DATED 24 TH DECEMBER, 2010 WAS PARTIALLY RECALLED BY THE TRIBUNAL IN ITS ORDER PASSED ON 13 TH MAY, 2011 IN M.P. NO.45(MDS)2011. 3. THIS APPEAL IS CONSIDERED FOR THE SECOND TIME I N THE LIGHT OF THE ABOVE ORDER PASSED BY THE TRIBUNAL IN THE MI SCELLANEOUS PETITION CITED SUPRA. WE HAVE HEARD BOTH SIDES IN DETAIL. ON GOING THROUGH THE RECORDS OF THE CASE WE FIND THAT M/S.ME TROPLEX REALTORS AND PROPERTY DEVELOPERS PVT. LTD. WAS PAID ` 5 LAKHS AS ADVANCE BY THE ASSESSEE TOWARDS PURCHASE OF A PROPERTY. BUT T HE SAID TRANSACTION WAS NOT MATERIALISED AND ACCORDINGLY TH E ADVANCE ITA NO.1167(MDS)/2010 3 AMOUNT OF ` 5 LAKHS WAS RETURNED BY M/S.METROPLEX REALTORS AND PROPERTY DEVELOPERS PVT. LTD. TO THE ASSESSEE. BOT H PAYMENT AND RECEIPT WERE MADE THROUGH CHEQUES AND REFLECTED IN THE BANK ACCOUNTS OF THE RESPECTIVE PARTIES. THEY HAVE BEEN PROPERLY ACCOUNTED ALSO. 4. THE ASSESSING OFFICER HAS REJECTED THE EXPLANAT ION OF THE ASSESSEE AND ADDED THE SUM OF ` 5 LAKHS AS UNEXPLAINED INCOME ONLY ON THE GROUND THAT THE ASSESSEE HAD NOT FURNIS HED PAN OF THE PARTY AND CONFIRMATION LETTER FROM THE PARTY. THE A SSESSEE EXPLAINED THAT IT IS DIFFICULT TO GET SUCH PARTICULARS FROM A PARTY WHO WAS ASSOCIATED WITH AN ABORTED TRANSACTION. ACCORDING TO THE ASSESSEE THIS IS MORE SO BECAUSE THE PROPERTIES INVOLVED ARE AGRICULTURAL PROPERTIES AND AS THERE WAS NO BUSINESS TRANSACTION BETWEEN THE ASSESSEE AND THE SAID PARTY, IT IS NOT POSSIBLE TO COLLECT SUCH DETAILS AT THE TIME OF PAYING THE ADVANCE AND GETTING BACK THE ADVANCE. 5. WE FIND THAT THE EXPLANATION OFFERED BY THE ASS ESSEE IS PLAUSIBLE. M/S.METROPLEX REALTORS AND PROPERTY DEV ELOPERS PVT. LTD. AND THE ASSESSEE DID NOT HAVE ANY REGULAR BUSINESS TRANSACTION. THE ASSESSEE WAS PROPOSING TO PURCHASE SOME PROPERTIES FROM ITA NO.1167(MDS)/2010 4 M/S.METROPLEX REALTORS AND PROPERTY DEVELOPERS PVT. LTD., WHICH ULTIMATELY DID NOT MATERIALISE. THEREFORE THE ADVA NCE GIVEN BY THE ASSESSEE WAS RETURNED. THESE TRANSACTIONS ARE RECO RDED AND HAVE BEEN MADE THROUGH BANKS. THE ASSESSING AUTHORITY D OES NOT HAVE ANY DOUBT ON THE BONA FIDES OF THESE TRANSACTIONS. THE ASSESSING AUTHORITY ALSO DOES NOT HAVE ANY CASE THAT THESE TR ANSACTIONS WERE ENACTED BY THE ASSESSEE HIMSELF. IN SUCH CIRCUMSTA NCES, DISBELIEVING THE VERSION OF THE ASSESSEE ON A TECHN ICAL GROUND OF NON AVAILABILITY OF PAN, IS NOT JUSTIFIED. IT IS SEEN THAT THE ASSESSING OFFICER HAS ADDED BACK THE SUM OF ` 5 LAKHS SIMPLY ON SOME LUCID GROUNDS. 6. IN THE FACTS AND CIRCUMSTANCES OF THE CASE WE T HINK IT IS UNJUSTIFIED TO RETAIN THE SUM OF ` 5 LAKHS BY WAY OF ADDITION. IT IS DELETED. 7. THIS ORDER SHALL ALSO BE READ ALONGWITH THE ORD ER OF THE TRIBUNAL DATED 24 TH DECEMBER, 2010. ITA NO.1167(MDS)/2010 5 8. ULTIMATELY THE APPEAL FILED BY THE ASSESSEE IS PARTLY ALLOWED. ORDER PRONOUNCED IN THE OPEN COUR T AT THE TIME OF HEARING ON FRIDAY, THE 13 TH DAY OF MAY, 2011 AT CHENNAI. SD/- SD/- (HARI OM MARATHA) (DR.O.K.NARAYANAN) JUDICIAL MEMBER VICE-PRESIDENT CHENNAI, DATED THE 13 TH MAY, 2011. V.A.P. COPY TO: (1) APPELLANT (2) RESPONDENT (3) CIT(A) (4) CIT (5) D.R. (6) GUARD FILE