Sri. Anthony P.S., V. ITO,

ITA 1215/BANG/2013

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 5363 (ITAT-BANGALORE)
• Duration Of Justice: 3 year(s) 9 month(s) 16 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-05-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 17-04-2017
• Assessment Year: 2009-2010
• Appeal Filed On: 02-08-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: G KAMALADAR HEARD ON
• Assessee Lawyers: H GURUSWAMY ITP

Judgement Text

ITA.1215/BANG/2013 PAGE - 1 IN THE INCOME TAX APPELLATE TRIBUNAL BENGALURU BENCH 'B', BENGALURU BEFORE SHRI. INTURI RAMA RAO, ACCOUNTANT MEMBER AND SHRI. LALIT KUMAR, JUDICIAL, JUDICIAL MEMBER I.T.A NO.1215/BANG/2013 (ASSESSMENT YEAR : 2009-10) SHRI. ANTHONY P.S, M/S. JAGADESHWARA CONSTRUCTIONS, K. M. ROAD, KALASA, MUDIGERE TALUK .. APPELLANT PAN : ABKPA1964C V. INCOME-TAX OFFICER, WARD 1, CHIKMAGALUR .. RESPONDENT ASSESSEE BY : SHRI. H. GURUSWAMY, ITP REVENUE BY : SHRI. G. KAMALADAR, STANDING COUNSEL HEARD ON : 17.04.2017 PRONOUNCED ON : .05.2017 O R D E R PER LALIT KUMAR, JUDICIAL MEMBER: THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST TH E ORDER OF CIT (A), MYSURU, DT.07.03.2013, FOR THE ASSESSMENT YEAR 2009 -10. ITA.1215/BANG/2013 PAGE - 2 02. THE ASSESSEE IS IN APPEAL BEFORE US WITH THE FO LLOWING GROUNDS OF APPEAL : 03. THE ASSESSEE IS A CONTRACTOR AND ALSO AN AGRICU LTURIST. HE DECLARED RS.10,75,000/- AS AGRICULTURAL INCOME IN ADDITION T O THE INCOME FROM ITA.1215/BANG/2013 PAGE - 3 CONTRACT OF RS.3,48,890/-. THE CASE WAS SELECTED F OR SCRUTINY AND NOTICE U/S.143(2) WAS ISSUED. DESPITE SERVICE OF THE NOTI CE THE ASSESSEE DID NOT APPEAR ON MANY OCCASIONS AND ON 07.12.2011 ASSESSEE S AR APPEARED BUT FAILED TO PRODUCE THE BOOKS OF ACCOUNT AND THE RELE VANT DOCUMENTS AS CALLED FOR BY THE AO, SO AS TO ENABLE THE AO TO PASS THE A SSESSMENT ORDER. IN THE ABSENCE OF THE SAME, AO WAS LEFT WITH NO OTHER OPTI ON BUT TO EXAMINE THE CASE OF THE ASSESSEE BASED ON THE AUDIT REPORT AND THE BALANCE SHEET. IN THE BALANCE SHEET, THE FOLLOWING AMOUNTS WERE SHOWN AS EXPENDITURE : DARSHAN CONCRETE .. RS.1,60,000/- ANNAPOORNESHWARI .. RS.1,52,256/- SIVA HARDWARE .. RS. 42,000/- INDIAN AUTO CORPORATION .. RS. 35,862/- JOY CRUSHER .. RS.4,25,500/- SHANTHA GOWDA (SAND) .. RS.1,25,000/- MARIAPPA FOR LABOUR DUE .. RS.3,85,360/- TOTAL .. RS.13,25,968/- AS THE AMOUNT WAS SHOWN AS OUTSTANDING AND WAS NOT PAID, THEREFORE, THE SAID AMOUNT WAS DISALLOWED IN THE PROFIT AND LOSS A CCOUNT. 04. THE ASSESSEE, DURING THE YEAR UNDER CONSIDERATI ON HAS RECEIVED AN AMOUNT OF RS.9 LAKHS AS ADVANCE FROM HORANADU TEMPL E TOWARDS CERTAIN CONSTRUCTION WORK AND IT WAS THE CASE OF THE ASSESS EE BEFORE US THAT ON ACCOUNT OF FAILURE OF THE ASSESSEE TO PERFORM THE W ORK, THE ASSESSEE WAS TO RETURN THE SAID AMOUNT IN THE SUBSEQUENT ASSESSMENT YEAR. BUT THE AO WAS ITA.1215/BANG/2013 PAGE - 4 NOT SATISFIED WITH THE EXPLANATION GIVEN BY THE ASS ESSEE. THEREFORE THE ADDITION OF RS.9 LAKHS WAS MADE BY THE AO AS INCOME OF THE ASSESSEE. 05. WITH RESPECT TO THE AGRICULTURAL INCOME, THE AS SESSEE HAS SHOWN AN INCOME OF RS.10,75,000/- FROM AGRICULTURAL HOLDING OF RS.9.07 ACRES. THE AO HAS RESTRICTED THE AGRICULTURAL INCOME TO RS.5,2 5,000/- ON THE GROUND THAT THE AGRICULTURAL INCOME DECLARED BY THE ASSESS EE WAS EXAGGERATED AND WAS NOT IN CONSONANCE WITH THE LOCAL OUTPUT OF THE AGRICULTURAL LAND. BEING AGGRIEVED WITH THE ABOVE ADDITIONS, ASSESSEE FILED AN APPEAL BEFORE THE CIT (A). 06. THE CIT (A) HAS DISMISSED THE APPEAL VIDE ORDER DT.07.03.2013. BEING AGGRIEVED BY THE ORDER PASSED BY THE CIT (A), THE ASSESSEE IS IN APPEAL BEFORE US, WITH THE GROUNDS MENTIONED HEREIN ABOVE. 07. AT THE OUTSET, THE LD. AR HAS MOVED AN APPLICAT ION UNDER RUE 29 OF THE ITAT RULES, FOR ADMISSION OF NEW EVIDENCES BEIN G THE CONFIRMATION LETTERS ISSUED BY VARIOUS CREDITORS. IT WAS THE CA SE OF THE ASSESSEE THAT THESE LETTERS NOW PRODUCED BY THE SAID CREDITORS WERE NEC ESSARY TO BE EXAMINED AS THESE DOCUMENTS GOES TO THE ROOT OF THE MATTER T O SHOW THAT THE INCOME ASSESSED AND CONFIRMED BY THE LOWER AUTHORITIES WAS NOT IN ACCORDANCE WITH LAW. ITA.1215/BANG/2013 PAGE - 5 08. THE LD. DR ON THE CONTRARY, HAS SUBMITTED THAT THE APPLICATION FOR ADMISSION OF NEW EVIDENCES CANNOT BE ENTERTAINED AT THIS STAGE AS THESE DOCUMENTS WERE PROCURED BY THE ASSESSEE AFTER THE O RDER WAS PASSED BY THE CIT (A) ON 07.03.2013. THEREFORE THERE WAS NO OCCA SION FOR THE CIT (A) TO EXAMINE THESE NEW DOCUMENTS. 09. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIAL ON RECORD. IT IS THE CASE OF THE ASSESSEE THAT THE AM OUNT SHOWN AS DEBTORS IN THE BALANCE SHEET WERE RETURNED IN THE SUBSEQUENT F INANCIAL YEAR AS IS CLEAR FROM THE LETTERS. THEREFORE, THESE CONFIRMATION LE TTERS ARE REQUIRED TO BE EXAMINED BY THE AUTHORITIES BELOW. 10. IN OUR VIEW, THE LETTERS FILED BY THE ASSESSEE FROM DARSHAN KUMAR, SHIV KUMAR, CYRIL KUTINHA, JOY FERNANDIS, SHANTE GO WDA AND MARIYAPPA, SHOW THAT THE DUES WERE CLEARED IN THE FINANCIAL YE AR 2009-10 AND THEREFORE THESE LETTERS ARE REQUIRED TO BE CONSIDERED BY THE AO WHILE FINALISING THE ASSESSMENT PROCEEDINGS. ACCORDINGLY, WE REMAND THE MATTER IN TOTALITY TO THE FILE OF THE AO FOR ADJUDICATING AFRESH, AFTER G IVING AN OPPORTUNITY OF HEARING TO THE ASSESSEE IN RESPECT OF THESE CONFIRM ATION LETTERS NOW PRODUCED BY THE ASSESSEE AND ON ALL OTHER ISSUES. WE WOULD LIKE TO ADD THAT IN THE CONFIRMATION LETTERS, THE ASSESSEE HAS NEITH ER GIVEN THE PROOF OF ITA.1215/BANG/2013 PAGE - 6 IDENTITY OF THE PERSONS NOR THE BANK ACCOUNT NUMBER AND PAN NUMBER. WE DIRECT THE ASSESSEE TO PRODUCE THE DETAILS LIKE THEIR IDENTITY CARD, BANK ACCOUNT AND PAN NUMBERS BEFORE THE AO IN RESPECT TO THESE PERSONS. WE ALSO MAKE IT CLEAR THAT IF THE ASSESSEE FAILS TO PR ODUCE THE DETAILS OF THESE PERSONS AS ABOVE, THEN THE AO SHALL NOT CONSIDER TH ESE CONFIRMATION LETTERS AND DECIDE THE MATTER AFRESH WITHOUT RELYING ON THE M . 11. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWE D FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT ON THE 19 TH DAY OF MAY, 2017. SD/- SD/- (INTURI RAMA RAO) (LALI T KUMAR) ACCOUNTANT MEMBER JUDICIAL M EMBER