Mr. B. Kunhi Ahmed, Mangalore V. DCIT, Mangalore

ITA 1238/BANG/2016

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 4162 (ITAT-BANGALORE)
• Duration Of Justice: 2 year(s) 7 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-02-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 13-02-2019
• Assessment Year: 2009-2010
• Appeal Filed On: 20-06-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Unexplained cash credit; Opportunity of being heard; Additional evidence
• Section: 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL BANGALORE BENCH ES B , BANGALORE BEFORE SHRI N.V.VASUDEVAN, VP & SHRI B.R.BASKARAN, AM ITA NO. 1238 / BANG /201 6 : ASST.YEAR 2009 - 2010 SHRI B.KUNHI AHMED HASNAIN NADIR OPP : FR.MULLERS HOSTEL DERALAKATTE BANGALORE 575 018. PAN : ABLPA9471B . VS. THE DY.COMMISSIONER OF INCOME - TAX, CENTRAL CIRCLE MANGALORE . (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI NARENDRA SHARMA, ADVOCATE RESPONDENT BY : SHRI R.N.SID D APP AJI, ADDL.CIT DATE OF HEARING : 13.02.2019 DATE OF PRONOUNCEMENT : 15 .02.2019 O R D E R PER B.R.BASKARAN, AM : THE APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER DATED 14.03.2016 PASSED BY THE LEARNED CIT(A) - II , PANAJI, AND IT RELATES TO ASSESSMENT YEAR 2009 - 2010 . 2. THE ASSESSEE IS AGGRIEVED BY THE DECISION OF THE LEARNED CIT(A) IN CONFIRMING ADDITION OF RS. 5.5 0 LAKH MADE BY THE ASSESSING OFFICER U/S 68 OF THE ACT. 3. WE HEARD THE PARTIES AND PERUSED THE RECORD. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE ASSES SING OFFICER NOTICED THAT THE ASSESSEE HAS BORROWED MONEY FROM SOME OF HIS RELATIVES FOR MAKING INVESTMENTS IN THE IMMOVABLE PROPERTIES. THE ASSESSEE DID NOT FURNISH ANY CONFIRMATION LETTER FROM ANY OF THE CREDITORS AND HENCE THE A.O. ASSESSED ITA NO. 1238 / BANG /201 6 . SHRI B.KUNHI MUHMED 2 THE SAME AS INCOME RELATING TO UNEXPLAINED CREDIT S. THE AMOUNT SO ASSESSED DURING THE YEAR UNDER CONSIDERATION WAS RS.20.75 LAKH , WHICH CONSISTED OF LOAN TAKEN FROM SHRI NISAR AHMED - RS.13.25 LAKH S AND SHRI BASHEER AHMED - RS.1.5 0 LAKH S . 4. IN THE APPELLATE PROCEEDINGS, THE ASSESSEE FURNISHED CONFIRMATION LETTER OBTAINED FROM THE CREDITORS. H ENCE, THE LEARNED CIT(A) CALLED FOR A REMAND REPORT FROM THE ASSESSING OFFICER. IT WAS NOTICED THAT THE ASSESSEE HAD RECEIVED AN AMOUNT OF RS.13.25 LAKH S FROM SHRI NISHAR AHMED IN FOUR INSTALMENTS AS DETAILED BELOW: - 10.04.2008 - RS.5.5 0 LAKH S 10.04.2008 - RS.1.25 LAKH S 27.07.2008 - RS.1.00 LAKH S 24.07.2008 - RS.5.5 0 LAKH S ---------------- TOTAL RS.13.25 LAKH S ============ 5. IN THE REMAND PRO CEEDINGS, THE ASSESSING OFFICER ACCEPTED FIRST THREE TRANSACTIONS REFERRED ABOVE. AS REGARDS THE AMOUNT OF RS.5.5 0 LAKH S RECEIVED ON 24.07.2008, THE ASSESSING OFFICER OBSERVED THAT THE SA ME WAS REMITTANCE FROM A PERSON NAMED SHRI DEAN MOHIUDEEN. SINCE THE ABOVE AMOUNT OF RS.5.5 0 LAKH HAS NOT BEEN RECEIVED FROM THE BANK ACCOUN T OF SHRI NISHAR AHMED, THE LD CIT(A) CONFIRME D TO THE EXTENT OF RS.5.50 LAKH AND GRANTED RELIEF IN RESPECT OF ITA NO. 1238 / BANG /201 6 . SHRI B.KUNHI MUHMED 3 REMAINING ADDITIONS. THE ASSESSEE IS AGGRIEVED BY THE ORDER SO PASSED BY LD CIT(A). 6. BEFORE US , THE ASSESSEE HAS MOVED A PETITION SEEKING ADMISSION OF AN ADDITIONAL EVIDENCE, WHICH IS IN THE FORM OF CONFIRMATION OBTAINED FROM SHRI DEAN MOHIUDEEN, WHEREIN HE HAS HAS STATED THAT HE HAD GIVEN HIS NAME AND ADDRESS TO THE BANK W HILE TRANSFERRING FUNDS TO THE ASSESSEE AND FURTHER CONFIRMED THAT THE ABOVE SAID AMOUNT OF RS.5.5 0 LAKH S WAS GIVEN BY SHRI NISHAR AHMED ONLY TO THE ASSESSEE. THE LEARNED AR PRAYED FOR THE ADMISSION OF THE ADDITIONAL EVIDENCE BY SUBMITTING THAT THE CONFIRM ATION LETTER GIVEN BY SHRI DEAN MOHIUDEEN IS A VITAL DOCUMENT IN ORDER TO PROVE THAT THE LOAN TAKEN BY THE ASSESSEE FROM SHRI NISHAR AHMED ONLY . 7. THE LEARNED DEPARTMENTAL REPRESENTATIVE SUBMITTED THAT THE ADDITIONAL EVIDENCE FURNISHED BY THE ASSESSEE REQUIRES EXAMINATION AT THE END OF THE ASSESSING OFFICER. 8. WE FIND MERIT IN THE SUBMISSION MADE BY THE LEARNED DR. WE NOTICED THAT THE IMPUGNED ADD ITION OF RS.5.5 0 LAKH HAS BEEN CONFIRMED BY THE LEARNED CIT(A) ONLY ON THE GROUND THAT THE SAME HAS NOT BEEN RECEIVED FROM SHRI NISHAR AHMED BUT FROM SHRI DEAN MOHIUDEEN. THE CONFIRMATION LETTER FURNISHED BY WAY OF ADDITIONAL EVIDENCE, ACCORDING TO THE ASS ESSEE, CLARIFIES THE ACTUAL POSITION. SINCE THIS ADDITIONAL EVIDENCE REQUIRES EXAMINATION AT THE END OF THE ASSES SING OFFICER, WE SET ASIDE THE ORDER PASSED BY THE LEARNED CIT(A) ON THIS ISSUE AND RESTORE THE SAME TO THE FILE OF THE ASSESSING ITA NO. 1238 / BANG /201 6 . SHRI B.KUNHI MUHMED 4 OFFICER FOR E XAMINING IT AFRESH BY DULY CONSIDERING THE ADDITIONAL EVIDENCE FURNISHED BY THE ASSESSEE. AFTER AFFORDING ADEQUATE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE, THE ASSESSING OFFICER MAY TAKE APPROPRIATE DECISION IN ACCORDANCE WITH LAW. 9 . IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES . ORDER PRONOUNCED ON THIS 15 TH DAY OF FEBRUARY, 2019 . SD/ - SD/ - (N.V.VASUDEVAN) ( B.R.BASKARAN ) VICE - PRESIDENT ACCOUNTANT MEMBER BANGALORE ; DATED : 15 TH FEBRUARY, 2019 . DEVDAS* COPY OF THE ORDER FORWARDED TO : TRUE COPY BY ORDER, (ASSTT. REGISTRAR) ITAT, BANGALORE 1. THE APPELLANT 2. THE RESPONDENT. 3. THE CIT (A) - 2 , PANAJI . 4. THE PR. CIT (CENTRAL) , BENGALURU. 5. DR, ITAT, BANGALORE 6. GUARD FILE.