ACIT, CHENNAI V. Dr.N.Muthukumar, Salem

ITA 1299/CHNY/2011

• Counselvise Citation: 129921714 RSA 2011
• Duration Of Justice: 2 year(s) 2 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-09-2013
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 11-09-2013
• Assessment Year: 2008-2009
• Appeal Filed On: 07-07-2011
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: E PASS SALEM PAN ADZPMB
• Keywords: Unexplained cash credit; Opportunity of cross examination
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL BENCH A CHENNAI BEFORE SHRI ABRAHAM P. GEORGE, ACCOUNTANT MEMBER AND SHRI S.S. GODARA, JUDICIAL MEMBER I.T.A. NO.1299/MDS/2011 ASST. YEAR : 2008-09 THE ASST. COMMISSIONER OF INCOME TAX, CIRCLE VI(3), CHENNAI. (APPELLANT ) V. DR. N. MUTHUKUMAR, C/O. SISU HOSPITAL INDIA LTD., SISU ROUNTANA, KONDALAMPATTY BYE PASS, SALEM 636 005. PAN : ADZPM4340B. (RESPONDENT) DEPARTMENT BY : SHRI SHAJI P. JACOB, ADDL.CIT ASSESSEE BY : NONE DATE OF HEARING : 11 SEP 2013 DATE OF PRONOUNCEMENT : SEP 2013 O R D E R PER S.S. GODARA, JUDICIAL MEMBER : THIS APPEAL FILED BY THE REVENUE IS DIRECTED AGAI NST THE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEAL S)-V, CHENNAI DATED 21.04.2011, PASSED IN APPEAL NO.178/2 010-11 FOR ITA 1299/MDS/2011 2 ASSESSMENT YEAR 2008-09, IN PROCEEDINGS UNDER SEC. 143(3) OF THE INCOME TAX ACT, 1961 (IN SHORT THE ACT). 2. IN THE COURSE OF HEARING, THE REVENUE VEHEMEN TLY REITERATES THE PLEADINGS AND STRONGLY ARGUES THAT T HE COMMISSIONER OF INCOME TAX (APPEALS) HAS WRONGLY DE LETED THE ADDITION IN QUESTION OF ` .25.80 LAKHS MADE BY THE ASSESSING OFFICER UNDER SEC.68 OF THE ACT. IN THE LIGHT OF T HE PLEADINGS, IT PRAYS FOR ACCEPTANCE OF THE APPEAL. 3. A PERUSAL OF THE CASE FILE REVEALS THAT THE FIR ST EFFECTIVE HEARING OF THE CASE TOOK PLACE ON 12.3.20 12. SINCE THEN TILL DATE, THE APPEAL HAS BEEN ADJOURNED ON 9 OCCASIONS ONLY AT THE REQUEST OF THE ASSESSEE. TODAY ALSO, A SIMILAR PETITION HAS BEEN FILED PRAYING FOR ADJOURNMENT IN VIEW OF FACTS STATED ABOVE, WE REJECT THE ADJOURNMENT PETITION AND PROCEED EX-PARTE AGAINST THE ASSESSEE. ITA 1299/MDS/2011 3 4. THE ASSESSEE IS AN INDIVIDUAL. HE IS A DOCTO R AND DIRECTOR OF M/S. SISU HOSPITAL INDIA LTD. ON 10.6. 2008 HE FILED HIS RETURN DISCLOSING INCOME OF ` .3.14 LAKHS WHICH WAS SUMMARILY PROCESSED ON 26.10.2009. 5. IN THE COURSE OF SCRUTINY, INTER ALIA, THE AS SESSING OFFICER NOTICED THAT THOUGH THE ASSESSEE HAD DECLAR ED ONLY ONE BANK ACCOUNT WITH STATE BANK OF INDIA AT SALEM, THE AIR HAD REVEALED THAT HE WAS HAVING ANOTHER ACCOUNT WITH KO TAK MAHINDRA BANK WHEREIN CASH AMOUNTS OF ` .25.80 LAKHS HAD BEEN DEPOSITED IN THE RELEVANT ACCOUNTING PERIOD. SINCE THE ASSESSEE HAD NOT DISCLOSED THE SAME, THE ASSESSING OFFICER S OUGHT ITS RELEVANT DETAILS. THE ASSESSEE WOULD PLEAD THAT T HE SAID ACCOUNT HAD BEEN MAINTAINED EXCLUSIVELY FOR THE PUR POSE OF SISU CAMPS CONDUCTED BY THE HOSPITAL WHICH WAS TAKEN CAR E OF BY ONE SHRI TIWARI. IT WAS HIS CONTENTION THAT THE SAID P ERSON USED TO DEAL WITH ALL CAMPS AND ALSO TOOKCARE OF THE SAID B ANK ACCOUNT. IN SUPPORT OF THE CONTENTIONS, HE WOULD ALSO PLACE ON RECORD RETURNS OF SHRI TIWARI FOR ASSESSMENT YEAR 2008-09, 2009-10 AND ITA 1299/MDS/2011 4 2010-11. ON THIS, THE ASSESSING OFFICER ALSO SUMMO NED SHRI TIWARI UNDER SEC.131 OF THE ACT WHO DEPOSED THAT WI TH EFFECT FROM 01.4.2010 ONLY, HE HAD STARTED WORKING IN THE HOSPITAL. WE NOTICE FROM THE ASSESSMENT ORDER DATED 29.12.2010 T HAT THE FINDINGS OF THE ASSESSING OFFICER READ THAT THE SAI D PERSON HAD ALSO FAILED TO DISCLOSE ALL THE RELEVANT PARTICULAR S OF THE CAMPS ETC IN QUESTION. THEREFORE, THE ASSESSING OFFICER DID NOT AGREE WITH THE ASSESSEES EXPLANATION AND WAS OF THE VIEW THAT THE RETURNS FILED BY SHRI TIWARI FILED ON 31.8.2010, IE. AFTER THE DISCUSSION OF THE ISSUE IN THE COURSE OF SCRUTINY ON 10.8.2010 WERE ONLY COVER UP, HE HELD THAT SINCE THE ASSESSEE HAD NOT DISCLOS ED THE IMPUGNED DEPOSIT AS WELL AS THE BANK ACCOUNT, WHICH HAD COME TO HIS KNOWLEDGE THROUGH AIR INFORMATION, THE IMPUG NED SUM OF ` .25.80 LAKHS HAD TO BE ADDED AS UNEXPLAINED CASH CREDIT UNDER SEC.68 OF THE ACT. 6. AGGRIEVED, THE ASSESSEE PREFERRED APPEAL. IT IS TO BE SEEN FROM THE CASE FILE THAT FIRST OF ALL THE CO MMISSIONER OF INCOME TAX (APPEALS) TAKES INTO CONSIDERATION THE A SSESSEES ITA 1299/MDS/2011 5 QUALIFICATIONS AS WELL AS THOSE POSSESSED BY HIS WI FE. THEREAFTER, HE OBSERVES THAT THE ASSESSEE IS ENGAGED IN SOCIAL ACTIVITIES OF HEALTH CAMPS IN A CHARITABLE MANNER. THEN, HE IS O F THE VIEW THAT THE ASSESSEE HAD NOT BEEN GRANTED OPPORTUNITY OF CROSS EXAMINATION OF SHRI TIWARI IN THE COURSE OF SCRUTI NY. THE COMMISSIONER OF INCOME TAX (APPEALS) HOLDS THAT TH E ASSESSEE HAS DULY PRODUCED ALL THE VOUCHERS PROVING GENUINEN ESS OF THE EXPENDITURE AND ALSO EXPLAINED THE INCOME IN QUESTI ON. ACCORDINGLY, THE ADDITION IN QUESTION OF ` .25.80 LAKHS STANDS DELETED WHICH LEAVES THE REVENUE AGGRIEVED. 7. WE HAVE HEARD THE REVENUE AND PERUSED THE RELEVANT FINDINGS OF THE ASSESSING OFFICER AS WELL AS THE COMMISSIONER OF INCOME TAX (APPEALS). THERE IS HA RDLY ANY DISPUTE THAT THE ASSESSEE HAD NOT INITIALLY DISCLOS ED THE BANK ACCOUNT COMPRISING DEPOSITS OF ` .25.80 LAKHS IN QUESTION. AS STATED HEREINABOVE, THE EXPLANATION OF THE ASSESSEE IN THE COURSE OF SCRUTINY WAS THAT THE AMOUNT IN QUEST ION HAD BEEN DEPOSITED BY SHRI TIWARI. IN OTHER WORDS, THE ASSE SSEE HAS NOT ITA 1299/MDS/2011 6 ALTOGETHER DISOWNED THE BANK ACCOUNT IN QUESTION. NEITHER THE ASSESSING OFFICER NOR THE COMMISSIONER OF INCOME TA X (APPEALS) HAVE DISCUSSED IN DETAIL THE RELEVANT EXPLANATION O F THE ASSESSEE BASED ON THE DOCUMENTARY EVIDENCE, IF ANY, FILED I N THE COURSE OF SCRUTINY. IN OTHER WORDS, THE FINDINGS OF TH E ASSESSING OFFICER HAD BEEN PRIMARILY SWAYED BY THE FACT THAT THE RETURNS OF SHRI TIWARI WERE AFTER THOUGHT AND THE BANK ACCOUNT IN QUESTION HAD COME TO HIS NOTICE ONLY BY AIR INFORMATION; WHE REAS THE COMMISSIONER OF INCOME TAX (APPEALS) HAS BEEN IMPRE SSED BY THE ALLEGED ACT OF ASSESSEE CONDUCTING PHILANTHROP IC MEDICAL CARE AND ALSO DOCUMENTARY EVIDENCE IN THE SHAPE OF VOUCHERS ETC. WHOSE DETAILS ARE NOWHERE FORTHCOMING. IN THE SE CIRCUMSTANCES, WE FEEL THAT INTEREST OF JUSTICE WI LL BE MET IN CASE THE ISSUE IS RESTORED TO THE FILE OF THE ASSESSING OFFICER WHO SHALL REDECIDE THE ISSUE IN ACCORDANCE WITH LAW AFTER AFF ORDING ADEQUATE OPPORTUNITY OF HEARING TO THE ASSESSEE. W E ALSO GRANT LIBERTY TO THE ASSESSEE TO FILE FURTHER NECESSARY EVIDENCE, IF ANY, IF SO ADVISED. ITA 1299/MDS/2011 7 8. IN THE RESULT, THE APPEAL IS ALLOWED FOR STATIS TICAL PURPOSE. ORDER PRONOUNCED ON THE, DAY OF SEPTEMBER 2013. ( ABRAHAM P. GEORGE ) ( S.S. GODARA ) ACCOUNTANT MEMBER JUDICIAL MEMBER CHENNAI, DATED : SEPTEMBER 2013 JLS. C.C : APPELLANT/RESPONDENT/CIT(A)/CIT/DR/G.FILE