ACIT, Calicut V. Sri.B.Kunhimahim Haji, Kasargode

ITA 128/COCH/2012

• Counselvise Citation: [2013] 140 COUNSELVISE.COM (IT) 68963 (ITAT-COCHIN)
• Duration Of Justice: 1 year(s) 3 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-08-2013
• Appeal Filed By: Department
• Order Result: Partly Allowed
• Bench Allotted: DB
• Next Hearing Date: 05-08-2013
• Assessment Year: 2007-2008
• Appeal Filed On: 03-05-2012
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: S VIJAYAPRABHA
• Assessee Lawyers: C B M WARRIER
• Keywords: Opportunity of being heard; Additional evidence; Deemed dividend

Judgement Text

ITA NO. 128/ COCH/ 2012 1 IN THE INCOME TAX APELALTER TIBUNAL COCHIN BENCH , COCHIN BEFORE S/SH RI N.R.S. GANESAN, JM & B. R. BASKARAN, AM ITA NO. 128 /COCH/ 2012 (ASST YEAR 2007 - 08 ) THE ASST COMMR OF INCOME TAX CEN CIR 1, CALICUT VS SHRI T B KUNHIMAHIN HAJI PADHOOR HOUSE THEKKIL - P O KASARGOD 673 541 ( APPELLANT) (RESPONDENT) PAN NO. AKIPK45093K ASSESSEE BY SHRI C B M WARRIER REVENUE BY SMT S VIJAYAPRABHA, JR - DR DATE OF HEARING 5 TH AUG 2013 DATE OF PRONOUNCEMENT 30 TH , AUG 2013 OREER PER N.R.S G A N ESAN,JM : THIS APPEAL OF THE REVENUE IS DIRECTED AGAINST THE ORDER OF THE CIT(A) - I, KOCHI AND PERTAINS TO AY 2007 - 08. 2 SMT S VIJAYAPRABHA , LD DR HAS SUBMITTED THAT THE CIT(A) ACCEPTED THE CONFIRMATION FILED BY THE ASSESSEE WITHOUT GIVING ANY OPPORTUNITY TO THE AO IN VIOLATI ON OF RULE 46A OF THE IT RULES AND ALLOWED THE CLAIM OF THE ASSESSEE. ACCORDING TO THE LD DR, WHEN THE ASSESSEE HAS FILED ADDITIONAL EVIDENCE BEFORE THE CIT(A), AN OPPORTUNITY OUGHT TO HAVE BEEN GIVEN TO THE AO TO CONTROVERT THE CONTENTS OF THE ADDITION AL EVIDENCE. THE SO CALLED CONFIRMATION FROM DR K P ALI, THE SON - IN - LAW OF THE ASSESSEE WAS ADMITTED WITHOUT ANY FURTHER INVESTIGATION/ENQUIRY BY THE CIT(A) . T HEREFORE, THE LD DR SUBMITTED THAT THE MATTER MAY BE REMANDED TO THE AO FOR RECONSIDERATION. ITA NO. 128/ COCH/ 2012 2 2.1 REFERRING TO THE GROUNDS OF APPEAL, THE LD DR SUBMITTED THAT THE REVENUE HAS TAKEN ONE MORE GROUND REGARDING DELETION OF RS 3,53,333/ , - WHICH HAS ADDED BY THE AO AS DEEMED DIVIDEND U/S 2( 2 2)(E) OF THE ACT. THE CIT(A) DELETED THE ADDITION WITHOUT GIVING A NY REASON IN THE ASSESSMENT ORDER . ACCORDING TO THE LD DR, THE CIT(A) IS EXPECTED TO PASS A SPEAKING ORDER AFTER RECORDING HIS O WN REASONING FOR THE CONCLUSION . SI NCE THE CIT(A) HAS NOT GIVEN ANY REASONING IN THE IMPUGNED ORDER ; A CCORDING TO THE LD DR, TH E CIT(A) ERRED IN DELETING THE ADDITION. 3 WE HAVE HEARD SHRI C B M WARRIER, THE LD REPRESENTATIVE FOR THE ASSESSEE, WHO HAS FAIRLY SUBMITTED THAT THE CONFIRMATION LETTER FROM DR K P ALI WAS FILED BEFORE THE CIT(A) AND THE CIT(A) ADMITTED THE SAME WITHOUT GIVING ANY OPPORTUNITY TO THE AO. WITH REGARD TO THE DEEMED DIVIDEND , THE LD REPRESENTATIVE SUBMITTED THAT THE CIT(A), AFTER CONSIDERING THE EXPLANATIONS OF THE ASSESSEE, DELETED THE ADDITION. EVEN THOUGH NO REASON WAS RECORDED IN THE ORDER, IT IS AP PARENT FROM THE ORDER OF THE CIT(A) THAT THE CIT(A) CONVINCED ABOUT THE EXPLANATION GIVEN BY THE ASSESSEE. 4 WE HAVE CON SIDERED THE RIVAL CONTENTIONS ON EITHER SIDES AND ALSO PERUSED THE RELEVANT MATERIAL ON RECORD. THE FIRST ISSUE IS IN RESPECT OF THE ADDITION OF RS. 15 LACS , WHICH IS THE RECEIPT OF MONEY FROM DR K P ALI. THE ASSESSEE ADMITTEDLY HAS NOT PRODUCED ANY MATERIAL BEFORE THE AO TO SUPPORT THE CLAIM OF RECEIPT OF MONEY FROM DR KP ALI. HOWEVER, THE ASSESSEE HAS FILED CONFIRMATION LETTER FROM DR K P ALI BEFORE THE CIT(A) IN SUPPORT OF THE MONEY RECEIVED FROM DR ALI. THE CIT(A) HAS NOT MADE ANY INDEPENDENT ENQUIRY ON THE BASIS OF THE CONFIRMATION LETTER AND NO OPPORTUNITY WAS GIVEN TO THE AO TO CONTROVERT THE CONTENTS OF THE CONFIRMATION LETTER . RULE 46A IS VERY CLEAR THAT WHENEVER AN ADDITIONAL EVIDENCE IS FILED, THE ITA NO. 128/ COCH/ 2012 3 CIT(A) HAS TO GIVE OPPORTUNITY TO THE AO TO CONTROVERT THE CONTENTS OF THE ADDITIONAL EVIDENCE. SINCE SUCH AN OPPORTUNITY WAS NOT GIVEN TO THE AO, THIS TRIBUNAL IS OF THE CONSIDE RED OPINION THAT THE AO SHALL RECONSIDER THIS ISSUE IN THE LIGHT OF THE ADDITIONAL EVIDENCE FILED BY THE ASSESSEE BEFORE THE CIT(A). ACCORDINGLY, THE ORDERS OF THE LOWER AUTHORITIES ARE SET ASIDE AND THE ISSUE OF ADDITION OF RS. 15 LACS RECEIVED FROM DR K P ALI WAS REMANDED BACK TO THE FILE OF THE AO. THE AO SHALL REEXAMINE THE ISSUE AFRESH IN THE LIGHT OF THE CONFIRMATION LETTER SAID TO BE FILED BEFORE THE CIT(A) AND THEREAFTER DECIDE THE SAME IN ACCORDANCE WITH LAW AFTER GIVING REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 5 THE NEXT ISSUE IS WITH REGARD TO THE ADDITION OF RS. 3,53,333/ - AS DEEMED DIVIDEND. ADMITTEDLY, THE CIT(A) HAS NOT GIVEN ANY REASON. THE CIT(A) SIMPLY REPRODUCED THE WRITTEN SUBMISSIONS FILED BY THE ASSESSEE AND WITHOUT ANY DISCUSSION, FOUND THAT THE ADDITION IS UNTENABLE. THIS TRIBUNAL IS OF THE CONSIDERED OPINION THAT THE CIT (A) HAS EXPECTED TO RECORD REASONS AFTER CONSIDERING THE SUBMISSIONS OF THE ASSESSEE FOR ADDITION OR DELETION . SINCE THE CIT(A) HAS NOT RECOR DED HIS OWN REASONING, THIS TRIBUNAL WAS OF THE OPINION THAT THE ORDER OF THE CIT(A) DELETING THE ADDITION MADE BY THE AO IS NOT JUSTIFIED. 5.1 SINCE THE MAIN ISSUE OF ADDITION OF RS. 15 LACS WAS REMANDED TO THE FILE OF THE AO FOR THE SAKE OF CONSISTEN CY, THIS TRIBUNAL IS OF THE CONSIDERED OPINION THAT THE ADDITION OF RS. 3,53,333/ - ALSO NEEDS TO BE REMANDED TO THE FILE OF THE AO. ACCORDINGLY, THE ORDERS OF THE LOWER AUTHORITIES ARE SET ASIDE ON THE ISSUE OF ADDITION OF RS. 3,53,333/ - ON ACCOUNT OF DEEMED DIVIDEND AND REMAND BACK TO THE FILE OF THE AO FOR RECONSIDERATION. THE AO SHALL REEXAMINE THE ISSUE AFRESH AND DECIDE THE SAME IN ACCORDANCE WITH LAW AFTER GIVING REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. ITA NO. 128/ COCH/ 2012 4 6 IN THE RES ULT, THE APPEAL FILED BY THE REVENUE IS ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 30 TH , DAY OF AUG 2013. SD/ - SD/ - ( B.R. BASKARAN) ( N .R.S GANESAN) ACCOUNTANT MEMBER JUDICIAL MEMBER COCHIN: DATED 30 TH , AUG 2013 RAJ* COPY TO: 1. APPELLANT THE AST COMMR OF INCOME TAX, CENTRAL CIRCLE,1, CALICUT 2. RESPONDENT SHRI T B KJUNHIMAHIN HAJI, PADHOOR HOUSE, THEKKIL - PO, KASARGOD - 541 3. CIT(A) 4. CIT . CALICUT 5. DR 6. GUARD FILE BY ORDER ASSISTANT REGISTRAR ITAT, COCHIN