ITO, Ward-2, Warangal V. Shri Kasagani Jagadeeshwar, Warangal

ITA 1169/HYD/2011

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 66156 (ITAT-HYDERABAD)
• Duration Of Justice: 1 year(s) 1 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-08-2012
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 14-05-2012
• Assessment Year: 2007-2008
• Appeal Filed On: 17-06-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Unexplained investment; Peak credit; Additional evidence

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCH B, HYDERABAD BEFORE SMT. ASHA VIJAYARAGHAVAN, JUDICIAL MEMBER AND SHRI D.KARUNAKARA RAO, ACCOUNTANT MEMBER ITA NO.1169/HYD/2011 : ASSESSMENT YEAR 2007 -08 INCOME - TAX OFFICER, WARD - 2, WARANGAL. (APPELLANT) V/S SHRI KASA GA NI JAGADEESWAR. WARANGAL (PAN - AJLPK 7307 A ) (RESPONDENT) APPELLANT BY : SHRI V.V.RAMANARAO RSPONDENT BY : SHRI A.V.RAGHURAM DATE OF HEARING 08.08.2012 DATE OF PRONOUNCEMENT 10.8. 2012 O R D E R PER D.KARUNAKARA RAO, ACCOUNTANT MEMBER: THIS APPEAL BY THE REVENUE IS DIRECTED AGAINST TH E ORDER OF THE CIT(A) VI, HYDERABAD DATED 31.3.2011 FOR THE A SSESSMENT YEAR 2007-08. 2. EFFECTIVE GROUNDS OF THE REVENUE IN THIS APPEAL READ AS FOLLOWS- 1. .. 2. THE CIT(A) FAILED TO APPRECIATE THAT THE FACT TH E ASSESSEE HAS NOT BOTHERED TO APPEAR BEFORE THE A.O. EVEN AFTER GIVIN G SUFFICIENT OPPORTUNITY AND HAS ALSO NOT FURNISHED ANY INFORMAT ION IN SUPPORT OF THE CONTENTION. 3. THE CIT(A) ERRED IN HOLDING THAT THE EVEN THOUGH THE NEW ADDRESS OF THE APPELLANT IS AVAILABLE WITH THE AO, THE AO H AS NOT RESPONDED TO THE REMAND REPORT CALLED FOR AND HAS NOT SUBMITT ED THE SAME EVEN AFTER A LAPSE OF NEARLY FIVE MONTH IS NOT ACCE PTABLE IN VIEW OF THE FACT THAT THE ASSESSEE WAS EXAMINED ON OATH AND FURTHER ENQUIRES WERE CAUSED AND THIS FACT WAS NOT BROUGHT TO THE NOTICE OF THE CIT(A) BY THE ASSESSEE. 4. ITA NO.1169/HYD/2011 SHRI KASAQANI JAGADEESWAR. WARANGAL 2 3. FACTS OF THE CASE IN BRIEF ARE THAT THE ASSESSE E IS AN INDIVIDUAL DERIVING INCOME FROM TRADING IN CEMENT AND STEEL AN D ALSO GETTING PETTY AMOUNT AS BROKERAGE IN REAL ESTATE TRANSACTIONS. H E FILED RETURN OF INCOME FOR THE ASSESSMENT YEAR 2007-08 ADMITTING IN COME OF RS.98,000. HOWEVER, THE ASSESSING OFFICER COMPLETED THE ASSESS MENT ON A TOTAL INCOME OF RS.75,61,610, AFTER MAKING ADDITIONS ON A CCOUNT OF UNEXPLAINED INVESTMENT, BEING BANK DEPOSITS IN THE UNDISCLOSED BANK ACCOUNTS, TO THE TUNE OF RS.74,62,319/- AND (II) UN DISCLOSED BANK INTEREST INCOME OF RS.1,290, VIDE ORDER OF ASSESSMENT DATED 29.12.2009, PASSED UNDER S.143(3) OF THE ACT. 4. ON APPEAL, BEFORE THE CIT(A), ASSESSEE FILED CE RTAIN ADDITIONAL EVIDENCE WITH REGARD TO THE SOURCES FOR THE BANK TR ANSACTIONS AND FILED PETITION REQUESTING TO ADMIT THE ADDITIONAL EVIDENC E UNDER RULE 46A OF THE IT RULES. THE CIT(A) FORWARDED THE SAME TO THE ASS ESSING OFFICER FOR HIS COMMENTS, AND CALLED FOR A REMAND REPORT. SINCE TH E ASSESSING OFFICER FAILED TO SUBMIT ANY REMAND REPORT DESPITE PASSAGE OF CONSIDERABLE TIME OF NEARLY FIVE MONTHS, THE CIT(A) PROCEEDED TO DISP OSE OFF THE APPEAL, ON CONSIDERATION OF THE FURTHER SUBMISSIONS OF THE ASS ESSEE AND THE ADDITIONAL EVIDENCE, AND ULTIMATELY DIRECTED THE AS SESSING OFFICER TO RESTRICT THE ADDITION MADE UNDER THE HEAD UNEXPLAIN ED INVESTMENT UNDER S.69 TO THE PEAK CREDIT IN THE BANK ACCOUNTS, I.E. RS.4,52,212 OF DCB BANK AND RS.5,08,325 OF THE ICICI BANK, AS REDUCED BY THE BALANCE AVAILABLE FOR SOURCE TO THE DEPOSITS MADE AS PER TH E ASSESSEES LETTER. HE WORKED OUT THE ADDITION THUS SUSTAINABLE TO RS.6,15 ,600, AND ACCORDINGLY PARTLY ALLOWED THE APPEAL OF THE ASSESSEE. 5. LEARNED DEPARTMENTAL REPRESENTATIVE SUBMITTED T HAT THE CIT(A) IS NOT JUSTIFIED IN GIVING RELIEF TO THE ASS ESSEE, WITHOUT GIVING PROPER OPPORTUNITY TO THE ASSESSING OFFICER TO FURN ISH HIS REMAND REPORT. HE SUBMITTED THAT DESPITE REPEATED OPPORTUNITIES GI VEN BY THE ASSESSING ITA NO.1169/HYD/2011 SHRI KASAQANI JAGADEESWAR. WARANGAL 3 OFFICER DURING THE ASSESSMENT PROCEEDINGS, THE ASS ESSEE FAILED TO FURNISH ANY EVIDENCE TO SUBSTANTIATE ITS CLAIM, AND THE DEL AY IN THE SUBMISSION OF THE REMAND REPORT WAS DUE TO NON-COOPERATION ON THE PART OF THE ASSESSEE WHO FAILED TO RESPOND TO THE NOTICES ISSUE D DURING THE REMAND PROCEEDINGS. 6. THE LEARNED COUNSEL FOR THE ASSESSEE ON THE OTH ER HAND, STRONGLY SUPPORTED THE ORDER OF THE CIT(A). 7. WE HEARD BOTH SIDES AND PERUSED THE IMPUGNED OR DERS OF THE REVENUE AUTHORITIES AND OTHER MATERIAL AVAILABLE ON RECORD. WE FIND THAT THE ADDITIONAL EVIDENCE FILED BY THE ASSESSEE BEFOR E THE CIT(A) IS VERY MUCH RELEVANT FOR PROPER ADJUDICATION OF THE POINT IN DISPUTE BEFORE THE FIRST APPELLATE AUTHORITY, AND AS SUCH THE CIT(A) W AS JUSTIFIED IN ADMITTING THE SAME. HAVING ADMITTED THE SAID EVIDENCE, THE C IT(A), IN ALL FAIRNESS, FORWARDED THE SAME TO THE ASSESSING OFFICER TO OFFE R HIS COMMENTS BY SUBMISSION OF A REMAND REPORT. THE ASSESSING OFFIC ER HAS FAILED TO FURNISH HIS REMAND REPORT WITHIN A REASONABLE TIME, AND IT IS ONLY AFTER A LONG WAIT OF OVER FIVE MONTHS, IT APPEARS THE CIT(A) HA S PROCEED TO DISPOSE OFF THE APPEAL, DULY ADMITTING THE ADDITIONAL EVIDE NCE AND BASED ON THE FURTHER SUBMISSIONS OF THE ASSESSEE. THERE MAY BE REASONS FOR THE DELAY IN THE SUBMISSION OF THE REMAND REPORT, SUCH AS NON -COOPERATION OF THE ASSESSEE IN RESPONSE TO THE SUMMONS, ETC. DURING TH E REMAND PROCEEDINGS. BUT THAT ITSELF DOES NOT JUSTIFY NON- SUBMISSION OF THE REMAND REPORT, AS THE ASSESSING OFFICER, AFTER GIVI NG REASONABLE OPPORTUNITY, COULD HAVE FURNISHED THE REMAND REPORT TO THE CIT(A), DRAWING HIS OWN INFERENCES ON THE ADDITIONAL EVIDEN CE SOUGHT TO BE FILED BY THE ASSESSEE BEFORE THE CIT(A). IN ANY EVENT, THE CIT(A) HAS PASSED A REASONABLE AND SPEAKING ORDER, AND FOR THE DETAIL ED REASONS DISCUSSED IN PARA 5 OF THE IMPUGNED ORDER, RESTRICTED THE ADD ITION MADE UNDER S.69 OF THE ACT, TO THE PEAK CREDIT AS REDUCED BY THE AV AILABLE SOURCES, WHICH ITA NO.1169/HYD/2011 SHRI KASAQANI JAGADEESWAR. WARANGAL 4 WORKED OUT TO RS.6,15,600. AS SUCH, THERE IS NO REMAND REPORT OF ASSESSING OFFICER IN EXISTENCE EVEN TODAY WITH FIND INGS CONTRARY TO THE ONES OF THE CIT(A), AS THE REVENUE FAILS TO DEMONST RATE ITS EXISTENCE BEFORE US. IN THE CIRCUMSTANCES, WE FIND NO INFIRM ITY IN THE ORDER OF THE CIT(A), WHICH IS ACCORDINGLY CONFIRMED, AND THE GRO UNDS OF THE REVENUE, WHICH ARE DEVOID OF MERIT, ARE DISMISSED. 8. IN THE RESULT, REVENUES APPEAL IS DISM ISSED. ORDER PRONOUNCED IN THE COURT ON 10.8.2012 SD/- SD/- ( ASHA VIJAYARAGHAVAN) (D.KARUNAKARA RAO) JUDICIAL MEMBER. ACCOUNTANT MEMBER. DT/- 10TH AUGUST, 2012 COPY FORWARDED TO: 1. SHRI KASAGANI JAGADEESWAR. H.NO.2-4-860, RAMNAGAR, HANUMAKONDA,WRANGAL. 2. 3. INCOME - TAX OFFICER, WARD - 2, WARANGAL. COMMISSIONER OF INCOME-TAX(APPEALS) VI, HYDERABAD 4. COMMISSIONER OF INCOME-TAX V, HYDERABAD 5. DEPARTMENTAL REPRESENTATIVE ITAT, HYDERABAD B.V.S.