Gopalkrishna D Hebbar, Dakshina Kannada V. ITO, Hubli

ITA 1283/BANG/2011

• Counselvise Citation: [2013] 120 COUNSELVISE.COM (IT) 0627 (ITAT-BANGALORE)
• Duration Of Justice: 1 year(s) 1 month(s) 14 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-01-2013
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: A
• Next Hearing Date: 16-12-2013
• Assessment Year: 2005-2006
• Appeal Filed On: 15-12-2011
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: BIJOY KUMAR PANDA
• Keywords: Source of fund
• Section: 143(3); 234B; 154

Judgement Text

PAGE 1 OF 8 ITA NO.1 283/BANG/2011 1 IN THE INCOME TAX APPELLATE TRIBUNAL, BANGALORE BENCH A BEFORE SHRI N BARATHVAJA SANKAR, VICE PRESIDENT AND SHRI GEORGE GEORGE K, JUDICIAL MEMBER ITA NO.1283/BANG/2011 (ASSESSMENT YEAR 2005-06) SHRI GOPALKRISHNA D HEBBAR, JOGADAMANDE, POST : IDAGUNDI, TQ: YELLAPUR, DIST : UTTAR KANNADA. PA NO.ABTPH 4509 F VS THE INCOME TAX OFFICER, WARD- 3(1), C R BUILDING, NAVANAGAR, HUBLI-25. (APPELLANT) (RESPONDENT) DATE OF HEARING : 29.01.2013 DATE OF PRONOUNCEMENT : 29.01.2013 APPELLANT BY : SHRI BALRAM R RAO, ADVOCATE RESPONDENT BY : SHRI BIJOY KUMAR PANDA , ADDL. CIT ORD ER PER GEORGE GEORGE K : THIS APPEAL, AT THE INSTANCE OF THE ASSESSEE, IS DIRECTED AGAINST THE ORDER OF THE CIT(A), HUBLI DATED 23.03.2010. T HE RELEVANT ASSESSMENT YEAR IS 2005-06. 2. THERE IS A DELAY OF 541 DAYS IN FILING THIS APPEA L. THE ASSESSEE HAS FILED A PETITION ALONG WITH AN AFFIDAVIT FOR CO NDONATION OF DELAY. THE REASONS STATED FOR THE DELAY IN FILING THE APPEAL AR E AS FOLLOWS:- PAGE 2 OF 8 ITA NO.1 283/BANG/2011 2 3. THAT THE FACTS OF THE CASE ARE UNDER: A. THE ORDER GIVING EFFECT TO THE APPELLATE ORDER OF C IT(A), HUBLI WAS PASSED BY INCOME TAX OFFICER, WARD-3(1), HUBLI ON 26/4/2010 DEMANDING A TAX OF RS.14,552/-. B. WHILE GIVING EFFECT TO THE SAID ORDER, THE ASSESSIN G OFFICER HAD NOT CONSIDERED THE REBATE UNDER SECTION 88 AMOUNTING TO RS.9000 CLAIMED IN MY RETURN. C. HAD THE ASSESSING OFFICER CONSIDERED THE REBATE, I WAS OF BONAFIDE IMPRESSION THAT NET TAX LIABILITY AFTER CONSIDERING THE REBATE WOULD BE LESS THAN RS.1500/- (INTEREST UNDER SECTION 234B : RS.3245 IS NOT CHARG EABLE IN MY CASE AS TOTAL TAX LIABILITY IS LESS THAN RS.500 0) AND I DECIDED NOT TO APPEAL AGAINST THE SAID ORDER CONSIDERING THE TAX LIABILITY VIS--VIS APPEAL COST. D. I REQUESTED THE ASSESSING OFFICER TO CONSIDER THE REBATE AND RECTIFY THE MISTAKE APPARENT ON RECORD UN DER SECTION 154 OF THE ACT. E. VIDE ORDER UNDER SECTION 154 IN F.NO.ITO/W - 3(1)/HBL/2011-12 DATED 26/09/2011, THE ASSESSING OFFICER REVISED THE ORDER CITED IN (A) SUPRA AND DEMANDED THE TAX OF RS.25223/-. F. THE TAX PAYABLE AS PER ORDER CITED IN (D) ABOVE IS V ERY HIGH HAVING CONSIDERED MY PRESENT FINANCIAL POSITION . G. THE ADDITION MADE BY THE ASSESSING OFFICER FOR ASSESSMENT YEAR: 2003-04 & 2004-05 ON THE SAME ISSUE WAS DELETED BY THE HONBLE ITAT, BANGALORE BENCH A VIDE ITS ORDER ITA NO.829, 830, 1188, 1189/BANG/201 0 (AYS: 2003-04 & 2004-05) IN MY OWN CASE. 2.1 THE LEARNED DR OPPOSED THE CONDONATION OF DELA Y ON THE GROUND THAT THE ASSESSEE HAS NOT PROVED SUFFICIENCY OF REAS ONS FOR CONDONATION OF DELAY. PAGE 3 OF 8 ITA NO.1 283/BANG/2011 3 2.2 AFTER HEARING BOTH THE PARTIES AND PERUSING TH E AFFIDAVIT FOR CONDONING THE DELAY, WE ARE OF THE VIEW THAT THE ASS ESSEE HAD SUFFICIENT CAUSE FOR FILING THE APPEAL BELATEDLY. FOR IDENTIC AL REASONS, IN THE ASSESSEES OWN CASE, FOR THE ASSESSMENT YEARS 2003-0 4 AND 2004-05, THE TRIBUNAL IN ITA NOS. 829, 830, 1188 & 1189/BANG/201 0 VIDE ORDER DATED 31 ST MAY, 2011 HAD CONDONED THE DELAY OF 856 DAYS IN FILING THE APPEAL BEFORE THE TRIBUNAL. IN VIEW OF THE AFORESAID REASONS, WE CONDONE THE DELAY AND PROCEED TO DISPOSE OFF THE MATTER ON MERITS. 3. THE EFFECTIVE GROUNDS READ AS FOLLOWS:- (2) THE HONBLE COMMISSIONER OF INCOME TAX (APPEALS) ER RED IN LAW AND FACT BY CONFIRMING THE ADDITIONS MADE BY T HE ASSESSING OFFICER TOWARDS INCOME FROM A TRUCK OF RS.42,000 WHEN IT WAS ALREADY A PART OF AND INCLUDED IN SURVEY DECLARATION OF RS.1,00,000/-. (3) THE CIT(A) ERRED IN CONFIRMING THE ADDITION OF RS.38,250/- MADE TOWARDS INTEREST ON ADVANCE BASED ON ENTRIES IN BOOKS OF ACCOUNTS OF THIRD PARTY. 4. BRIEFLY STATED, THE FACTS ARE AS FOLLOWS:- THE ASSESSEE IS AN INDIVIDUAL. HE DERIVES INCOME FROM RICE MILL AND ALSO FROM TRUCK OPERATION. THE RETURN OF INCOM E WAS FILED ON 29.3.2006 DECLARING A TOTAL INCOME FO RS.1 LAKH. THE SCRUTI NY ASSESSMENT WAS COMPLETED UNDER SECTION 143(3) OF THE ACT VIDE ORDE R DATED 18/10/2007 FIXING A TOTAL INCOME AT RS.1,95,250/-. IN THE ASSE SSMENT COMPLETED, THE ASSESSING OFFICER ADDED INTEREST OF RS.38,250/- ON THE DEPOSIT WITH A FIRM (DEPOSIT OF RS.2,25,000). THE ASSESSING OFFICER AL SO ADDED A SUM OF RS.42,000/- AS INCOME FOR PLYING A LORRY UNDER SECTI ON 44AE OF THE ACT. PAGE 4 OF 8 ITA NO.1 283/BANG/2011 4 5. AGGRIEVED, THE ASSESSEE PREFERRED AN APPEAL BEF ORE THE CIT(A). 6. THE CIT(A) CONFIRMED THE ADDITION OF RS.38,250/ - BEING INTEREST RECEIVED ON ADVANCE. THE RELEVANT FINDING OF THE CIT(A) READS AS FOLLOWS:- 3.2 ON CAREFUL EXAMINATION OF THE FACTS, IT IS SEE N THAT THE ASSESSING OFFICER HAS MADE THE ADDITION BASED O N THE MATERIAL EVIDENCE BEING LEDGER EXTRACTS OF THE FIRM IN WHICH THE APPELLANT HAS BEEN SHOWN AS ONE OF THE CREDITORS TO THE TUNE OF RS.2,25,000/- FURTHER THAT THE INTEREST PAYABLE TO THE APPELLANT IS ALSO APPEARING IN THE LEDGER ACCOUNT OF THE FIRM. THE APPELLANT COULD NO T ADDUCE ANY EVIDENCE IN SUPPORT OF HIS CONTENTION THA T SUCH AMOUNT WAS GIVEN AS ADVANCE FOR PURCHASE OF FU EL FOR TRUCK. IN THE FACTS AND CIRCUMSTANCE, THE ADDI TION MADE BY THE ASSESSING OFFICER OF RS.38,250/- IS HELD TO BE JUSTIFIED, HENCE ADDITION IS CONFIRMED. 7. WITH REGARD TO DETERMINATION OF INCOME AT RS.1, 95,250/- AGAINST THE INCOME RETURNED AT RS.1 LAKH (ACCORDING TO THE ASSESSEE, THE RETURNED INCOME INCLUDES INCOME FROM ALL SOURCES), THE CIT(A) DECIDED THE ISSUE AGAINST THE ASSESSEE. THE RELEVANT FINDING O F THE CIT(A) READS AS FOLLOWS:- 4.2 I HAVE CAREFULLY CONSIDERED THE SUBMISSIONS OF THE AR AND THE ORDER OF THE ASSESSING OFFICER. THE ASSESSING OFFICER NOTICED THAT THE RETURN FOR ASSESSMENT YEAR 2005-06 WAS NOT FILED TILL THE DATE OF SURVEY. THE APPELLANT IN THE COURSE OF SURVEY PROCEEDINGS DECLARED INCOME OF RS.1,00,000/-. THE APPELLANT ACCORDINGLY FILED THE RETURN AND PAID THE TAXES. PAGE 5 OF 8 ITA NO.1 283/BANG/2011 5 THE ASSESSING OFFICER, AFTER VERIFICATION OF SURVEY RECORDS FOUND THAT THERE IS NOTHING TO SHOW THAT TH E INCOME DECLARED OF RS.1,00,000/- IS INCLUDED IN THE RETURNED INCOME. FURTHER THAT NOTHING IS ADDUCED O N RECORD BY THE APPELLANT TO SHOW THAT THE INCOME DECL ARED IS ATTRIBUTED TO THE SAME ISSUE ON WHICH ADDITIONS HAVE BEEN MADE IN THE ASSESSMENT ORDER. 4.3 THE ASSESSING OFFICER HAS CARRIED OUT THE NECESSARY VERIFICATION AS REGARDS THE ISSUE OF ASCERTAINING THE CORRECTNESS OF THE INCOME DECLARED OF RS.1,00,000/- WITH REFERENCE TO THE SURVEY RECORDS A ND AFTER DUE VERIFICATION, THE ASSESSING OFFICER HAS G IVEN A CLEAR FINDING THAT THE INCOME DECLARED IS NOT ATTRI BUTABLE TO THE ISSUES WHICH HAS BEEN THE SUBJECT MATTER OF ADDITIONS IN THE ASSESSMENT ORDER. THE ASSESSING OFFICER HAS EXAMINED THE ISSUES AND MADE ADDITIONS ON THE BASIS OF THE MATERIAL FACTS EMANATING FROM THE DOCUMENTS FOUND DURING SURVEY AND MATERIAL AVAILABLE ON RECORD. THE APPELLANT HAS NOT FILED (SIC) HIS RETU RNS OF INCOME FOR ASSESSMENT YEAR 2005-06 TILL THE DATE OF SURVEY, AND HAS DECLARED SOME INCOME FOR NOT HAVING FURNISHED THE RETURNS, THEREFORE, THE ONUS SQUARELY LIES ON THE APPELLANT TO DISCHARGE THE BURDEN OF ESTABLI SHING THAT THE INCOME DECLARED OF RS.1,00,000/- IS ATTRIB UTABLE TO THE SAME ISSUES WHICH HAD BEEN THE SUBJECT MATTE R OF ADDITIONS IN THE ASSESSMENT ORDER TO PROVE THAT SUC H DECLARED INCOME IS INCLUDED IN THE ASSESSED INCOME. BUT THE APPELLANT HAS FAILED TO DISCHARGE THE BURDEN CA ST ON HIM. THEREFORE, THE ASSESSING OFFICER IS JUSTIFIED IN MAKING THE ADDITION OF ADMITTED DECLARED INCOME OF RS.1,00,000/- TO THE TOTAL INCOME ASSESSED. THE AD DITION MADE IS UPHELD. THIS GROUND IS DECIDED AGAINST THE APPELLANT. 8. AGGRIEVED, THE ASSESSEE IS IN APPEAL BEFORE US. PAGE 6 OF 8 ITA NO.1 283/BANG/2011 6 9. THE LEARNED AR REITERATED THE SUBMISSIONS MADE BEFORE THE INCOME TAX AUTHORITIES, WHEREAS THE LEARNED DR SUPP ORTED THE FINDINGS OF THE CIT(A). 10. AFTER HEARING THE RIVAL SUBMISSIONS AND PERUSI NG THE MATERIALS ON RECORD, WE RENDER OUR FINDINGS AS FOLLOWS:- (I) ADDITION OF RS.38,250/- BEING INTEREST RECEIVED ON ADVANCE 10.1 IN THE COURSE OF SURVEY ACTION, IT WAS NOTICED THAT THE ASSESSEE HAD DEPOSITED A SUM OF RS.2,25,000/- WITH THE FIRM M/S V V SHANBAG, BPC DEALERS, YELLAPUR. THE ENTRIES IN THE LEDGER ACCOU NT OF THE FIRM INDICATED THAT THE INTERESTS WERE PAID ON SUCH DEPOSITS. THE ASSESSEE CONTENDED THAT THESE ARE NOT DEPOSITS, BUT ADVANCES MADE FOR THE S UPPLY OF DIESEL FOR PLYING OF HIS TRUCK. HOWEVER, AS RIGHTLY POINTED OUT BY THE CIT(A), THE LEDGER ACCOUNT OF THE FIRM HAS CLEARLY SHOWN THAT THE ASSES SEE, AS A CREDITOR TO THE TUNE OF RS.2,25,000/- AND FURTHER THAT THE INTEREST WAS PAID ON THIS ADVANCE. THE ASSESSEE HAS NOT PRODUCED ANY MATERIAL TO DISPEL THE CONCLUSION DRAWN BY THE INCOME-TAX AUTHORITIES. THE REFORE, WE HOLD THAT THE ADDITION MADE IS JUSTIFIED AND NO INTERFERENCE IS CALLED FOR. ACCORDINGLY, GROUND NO.3 IS DISMISSED. (II) INCOME FROM RICE MILL 10.2 THE ASSESSEE VIDE HIS LETTER DATED 27/10/2005 HAD MADE VOLUNTARY DECLARATION FOR THE ASSESSMENT YEARS 2003-0 4 TO 2005-06, WHEREIN HE HAD OFFERED A SUM OF RS.1 LAKH EACH OF T HE THREE ASSESSMENT YEARS. THE CONTENT OF THE LETTER IS AS FOLLOWS:- PAGE 7 OF 8 ITA NO.1 283/BANG/2011 7 I AM BASICALLY AGRICULTURIST, BUT OWN ONE RICE MILL , AND ONE TRUCK. THE RICE MILL IS SEASONAL ONE AND ANNUA L TOTAL TURNOVER IS NOT MORE THAN RS.60000/- AND NECESSARY BOOKS OF ACCOUNTS IS ALREADY PRODUCED AND SHOWN TO YO U. AND THE EXPENSES INCURRED IS MORE THAN THE TURNOVER . AND INCOME FROM TRUCK IS ABOUT RS.40000/- PER YEAR. HENCE MY TAXABLE INCOME IS LESS THAN THE TAXABLE INC OME. HENCE I AM NOT FILED THE RETURN. STILL TO COOPERAT E AND HONOR YOUR WORD I AM DECLARING TOTAL INCOME OF RS.3 LAKHS FOR 3 YEARS. YEARLY RS. ONE LAKH STARTING FROM ASSESSMENT YEAR 2003-04 TO 2005-06. I WILL FILE NECESSARY RETURN AND PAY TAX BY END OF THIS FINANCIAL YEAR. AS I HAVE COME FORWARD VOLUNTARILY TO DECLARE THE INCOME, I REQUEST YOUR HONOR NOT CHARGE ANY PENALTY UNDER ANY PROVISIONS OF INCOME TAX LAW. KINDLY FAVOU R ME BY HONORING MY HUMBLE REQUEST. 10.3 THE TRIBUNAL IN ASSESSEES OWN CASE FOR THE A SSESSMENT YEARS 2003-04 AND 2004-05, HELD THAT INCOME OF RS.1 LAKH THAT IS DECLARED BY THE ASSESSEE WILL COVER UP THE INCOME FROM ALL SOURCES OF INCOME. IN VIEW OF THE ORDER OF THE TRIBUNAL IN ASSESSEES OWN CASE FOR TH E ASSESSMENT YEARS 2003- 04 AND 2004-05 (SUPRA), WE ARE OF THE VIEW THAT NO SEPARATE ADDITION OF RS.42,000/- IS TO BE MADE UNDER SECTION 44AE OF THE ACT, SINCE IT WOULD BE PART OF AND INCLUSIVE OF THE RETURNED INCOME OF RS. 1 LAKH. IT IS ORDERED ACCORDINGLY. THEREFORE, GROUND NO.2 IS ALLOWED. 11. IN THE RESULT, THE ASSESSEES APPEAL IS PARTLY ALLOWED AS INDICATED ABOVE. PAGE 8 OF 8 ITA NO.1 283/BANG/2011 8 THE ORDER IS PRONOUNCED ON THE 29 TH DAY OF JANUARY, 2013 AT BANGALORE. SD/- SD/- (N BARATHVAJA SANKAR) (GEORGE GEORGE K) VICE PRESIDENT JUDICIAL MEMBER COPY TO : 1. THE REVENUE 2. THE ASSESSEE 3. THE CIT CONCERNE D. 4. THE CIT(A) CONCERNED. 5. DR 6. GF MSP/ BY ORDER SENIOR PRIVATE SECRETARY, ITAT, BAN GALORE.