Sri..Babu Rajendraprasad, Kollam V. DCIT, Kollam

ITA 1227/COCH/2005

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 64824 (ITAT-COCHIN)
• Duration Of Justice: 6 year(s) 9 month(s) 20 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-09-2012
• Appeal Filed By: Assessee
• Bench Allotted: DB
• Next Hearing Date: 03-09-2012
• Assessment Year: 1999-2000
• Appeal Filed On: 08-12-2005
• Court: TRIBUNAL
• Assessee Lawyers: N S RAJAGOPAL
• Keywords: Unexplained investment; Opportunity of being heard; Additional evidence

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL COCHIN BENCH, COCHIN BEFORE S/SHRI N.R.S.GANESAN, JM AND B.R.BASKAR AN, AM I.T.A. NO.1227/COCH/2005 ASSESSMENT YEAR : 1999-2000 SHRI S. BABU RAJENDRA PRASAD, ARUNODAYAM, CHATHANNOOR, KOLLAM. [PAN:ARMPS 4916J] VS. THE DEPUTY COMMISSIONER OF INCOME-TAX, CENTRAL CIRCLE, KOLLAM (ASSESSEE -APPELLANT) (REVENUE-R ESPONDENT) ASSESSEE BY SHRI N.S. RAJAGOPAL, CA REVENUE BY SHRI PRATAP NARAYAN SHARMA, JR. DR DATE OF HEARING 03/09/2012 DATE OF PRONOUNCEMENT 28/09/2012 O R D E R PER B.R.BASKARAN, ACCOUNTANT MEMBER: THE APPEAL OF THE ASSESSEE IS DIRECTED AGAINS T THE ORDER DATED 28-09-2005 PASSED BY THE LD. CIT(A)-I,KOCHI AND IT RELATES TO THE AS SESSMENT YEAR 1999-2000. 2. THIS APPEAL WAS ORIGINALLY DISPOSED OF BY THE TR IBUNAL, VIDE ITS CONSOLIDATED ORDER DATED 27-06-2008. SUBSEQUENTLY, THE ASSESSEE FILED A MISCELLANEOUS PETITION POINTING OUT THAT GROUND NO. 6 RAISED BY THE ASSESSEE WAS NO T DISPOSED OF BY THE TRIBUNAL. FINDING MERIT IN THE SAID SUBMISSIONS MADE BY THE A SSESSEE, THE TRIBUNAL, VIDE ITS ORDER DATED 29-04-2011, RECALLED ITS ORDER FOR THE LIMITE D PURPOSE OF DISPOSING OF GROUND NO.6. ACCORDINGLY, THIS CASE WAS POSTED FOR HEARI NG AND THE PARTIES WERE HEARD. I.T.A. NO.1227COCH/2005 2 3. GROUND NO. 6 RAISED BY THE ASSESSEE READS AS UNDER:- 6. BECAUSE THE APPELLANT HAS EXPLAINED THE CASH F LOW STATEMENT YEAR WISE SOURCE AND YEARWISE INVESTMENT IN THE CONSTRUCTION OF ARUNODAYAM AUDITORIUM AND THAT CASH FLOW STATEMENT HAS BEEN ACCEPTED BY THE ASSESSING OFFICER, HE IS NOT JUSTIFIED IN MAKING AN ADDITION OF RS. 32,35,0 00/- UNDER THE GUISE OF UN- EXPLAINED INVESTMENT. AS THERE WAS NO UNEXPLAINED INVESTMENT THE ADDITION IS TO BE DELETED. THE ADDITION OF RS. 6,000/- UNDER CHIT TY AND RS. 41,590/- UNDER VEETHAPALISA ARE WITHOUT ANY BASIS AND THE VEETHAP ALISA AND COMMISSION RECEIVED HAVE BEEN RETAINED THE ADDITION MAY PLEAS E BE DELETED. 4. THE FACTS RELATING THERETO ARE STATED IN BRIEF. THE ASSESSEE HAD MADE INVESTMENTS IN THE CONSTRUCTION OF AN AUDITORIUM CA LLED ARUNODAYAM AND ALSO ON PURCHASE OF SAMTHRIPTHI HALL. THE SOURCES FOR TH E SAID CONSTRUCTION AND PURCHASE WERE EXPLAINED AS UNDER:- 1. COST OF MATERIALS SUPPLIED BY GOPALAKRISHNAN, CONTRACTOR RS. 14,25,000 2. AMOUNT RECEIVED FROM NRE ACCOUNTS OF 6,10,000 FRIENDS AND RELATIVES AS 3. AMOUNTS RECEIVED BACK UPTO DECEMBER, 1997 FROM THE LOANS GIVEN UNDER HIRE PURCHASE LOANS AND ADVANCES OUTSTANDING AS ON 15.9.95 A ND 52,00,000 INCOME EARNED FOR THE ASST. YEARS 96-97 TO 99-00 --------------- 72,35,000 ======== 5. HOWEVER, THE ASSESSING OFFICER DID NOT ACCEPT THE CLAIM OF THE RECEIPT OF BUILDING MATERIALS SUPPLIED BY GOPALAKRISHNAN, CONTRACTOR AN D ALSO THE RECEIPT OF AMOUNTS FROM NRE ACCOUNTS OF FRIENDS AND RELATIVES. HE ALSO REST RICTED THE AMOUNTS REALISED ON LOANS GIVEN IN THE EARLIER YEARS TO RS. 40 LAKHS, AS AGAI NST THE CLAIM OF RS.52.00 LAKHS. IN EFFECT THE AO ACCEPTED THE SOURCES ONLY TO THE TUNE OF RS.40.00 LAKHS. ACCORDINGLY, THE ASSESSING OFFICER ADDED THE SUM OF RS. 32,35,000/- AS THE SAID SOURCES WERE NOT SATISFACTORY, VIZ., RS. 14,25,000/- RELATING TO CLA IM OF RECEIPT OF BUILDING MATERIALS; RS.6,10,000/- RELATING TO THE CLAIM OF RECEIPT OF F UNDS FROM FRIENDS AND RELATIVES AND RS.12,00,000/- OUT OF THE CLAIM OF COLLECTION OF AD VANCES THE ASSESSEE CARRIED THIS I.T.A. NO.1227COCH/2005 3 MATTER IN APPEAL BEFORE THE LD. CIT(A). WE NOTICE THAT THE FIRST APPELLATE AUTHORITY DID NOT ADJUDICATE THIS ISSUE, THOUGH IT WAS SPECIFICAL LY RAISED BY THE ASSESSEE IN GROUND NUMBER 8 AND ALSO IN GROUND NUMBERS 12-14. AGAINST THE ORDER OF THE LD. CIT(A), THE ASSESSEE HAS FILED APPEAL BEFORE US. 6. THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE DEPARTMENT HAS SUMMONED SHRI GOPALAKRISHNAN, CONTRACTOR AND HAS TAKEN A SWO RN STATEMENT FROM HIM ON 25-09- 1995, I.E., SUBSEQUENT TO THE PASSING OF THE ASSESS MENT ORDER. HE FURTHER SUBMITTED THAT THE COPY OF THE STATEMENT WAS NOT GIVEN TO THE ASSESSEE AND THE ASSESSEE BELIEVES THAT THE SAID SWORN STATEMENT TAKEN FROM SHRI GOPAL AKRISHNAN, CONTRACTOR SUPPORTS HIS CASE. BEFORE THE TRIBUNAL, THE ASSESSEE HAS ALSO FI LED AN AFFIDAVIT OBTAINED FROM SHRI GOPALAKRISHNAN, CONTRACTOR, WHEREIN SHRI GOPALAKRIS HNAN HAS STATED THAT HE HAS SUPPLIED BUILDING MATERIALS WORTH RS. 14,25,000/- T O THE ASSESSEE FOR CONSTRUCTION OF THE AUDITORIUM. ACCORDINGLY, THE LD A.R PRAYED THA T THE ADDITIONAL EVIDENCE BE ACCEPTED, AS THE SAME FORMS AN IMPORTANT PIECE OF E VIDENCE. ON THE CONTRARY THE LD D.R SUPPORTED THE ORDER OF THE AO. 7. AS NOTED EARLIER, THE LD. CIT(A) HAS NOT DISPOSE D OF THE GROUNDS RELATING TO THE ADDITION OF RS. 32,35,000/-. IN ADDITION TO THAT, THE SWORN STATEMENT HAS BEEN TAKEN FROM SHRI GOPALAKRISHNAN, CONTRACTOR SUBSEQUENT TO THE PASSING OF THE ASSESSMENT ORDER. ACCORDING TO THE ASSESSEE, THE SAID SWORN S TATEMENT WOULD SUPPORT HIS CASE. THE ASSESSEE HAS ALSO FILED AN AFFIDAVIT FROM THE S AID SHRI GOPALAKRISHNAN, CONTRACTOR IN SUPPORT OF HIS CONTENTION THAT HE HAS SUPPLIED BUIL DING MATERIALS TO THE ASSESSEE. UNDER THESE CIRCUMSTANCES, WE ARE OF THE VIEW THAT THIS MATTER REQUIRES EXAMINATION. SINCE ADDITIONAL EVIDENCE IS FILED BEFORE US AND FU RTHER THE SWORN STATEMENT IS TAKEN FROM SHRI GOPALAKRISHNAN AFTER THE COMPLETION OF TH E ASSESSMENT, WE FEEL IT PROPER TO SET ASIDE THIS ISSUE TO THE FILE OF THE ASSESSING O FFICER. ACCORDINGLY, WE SET ASIDE THIS MATTER TO THE FILE OF THE ASSESSING OFFICER WITH TH E DIRECTION TO EXAMINE THE ISSUES RELATING TO RS.32,35,000/- AFRESH AFTER CONSIDERING THE SWORN STATEMENT TAKEN FROM SHRI GOPALAKRISHNAN, CONTRACTOR, THE AFFIDAVIT GIVEN BY HIM AND SUCH OTHER DOCUMENTS/EVIDENCES THAT MAY BE PRODUCED BEFORE HIM BY THE ASSESSEE AND TAKE I.T.A. NO.1227COCH/2005 4 APPROPRIATE DECISION IN ACCORDANCE WITH LAW AFTER A FFORDING NECESSARY OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 8. IN THE RESULT, THE GROUND NO.6 IN THE APPEAL FI LED BY THE ASSESSEE IS TREATED AS ALLOWED FOR STATISTICAL PURPOSES. PRONOUNCED ACCORDINGLY ON 28-09- 2012. SD/- SD/- (N.R.S.GANESAN) (B.R.BASKARAN) JUDICIAL MEMBER ACCOUNTANT MEMBER PLACE: KOCHI DATED: 28TH SEPTEMBER, 2012 GJ COPY TO: 1. SHRI S. BABU RAJENDRA PRASAD, ARUNODAYAM, CHATHA NNOOR, KOLLAM. 2. THE DEPUTY COMMISSIONER OF INCOME-TAX, CENTRAL C IRCLE, KOLLAM. 3. THE COMMISSIONER OF INCOME-TAX (APPEALS)-I, KOCH I. 4.THE COMMISSIONER OF INCOME-TAX, CENTRAL, KOCHI 5. D.R., I.T.A.T., COCHIN BENCH, COCHIN. 6. GUARD FILE. BY ORDER (ASSISTANT REGISTRAR) I.T.A.T, COCHIN