Sadiq Anunali Salehmohamed , Hyderabad V. Income Tax Officer, Ward-7(1), Hyderabad

ITA 130/Hyd/2019

• Counselvise Citation: [2020] 110 COUNSELVISE.COM (IT) 8881 (ITAT-HYDERABAD)
• Duration Of Justice: 1 year(s) 5 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-07-2020
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: DB-B
• Next Hearing Date: 15-07-2020
• Assessment Year: 2007-2008
• Appeal Filed On: 01-02-2019
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: M NARMADA
• Assessee Lawyers: LAXMINIWAS SHAR MA
• Keywords: Residential status; Peak credit
• Section: 143(3); 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCH B ', HYDERABAD SMT. P. MADHAVI DEVI, JUDICIAL MEMBER AND SHRI A. MOHAN ALANKAMONY, ACCOUNTANT MEMBER (THROUGH VIDEO CONFERENCE) ITA NO. 130 /HYD/201 9 ASSESSMENT YEAR: 20 07 - 08 SADIQ AUNALI, SALEHMOHAMED, HYDERABAD. PAN ANDPS 7428Q VS. INCOME - TAX OFFICER, WARD 7(1), HYDERABAD. APPELLANT RESPONDENT ASSESSEE BY: S HRI LAXMINIWAS SHARMA REVENUE BY: SMT. M. NARMADA DATE OF HEARING: 15 /0 7 /2020 DATE OF PRONOUNCEMENT: 29 /07/2020 O R D E R PER SHRI A. MOHAN ALANKAMONY, A.M.: THIS APPEAL IS FILED BY THE ASSESSEE AGGRIEVED BY THE EX - P ARTE ORDER OF LD. CIT (A) - 3, HYDERABAD IN ITA NO. 10422/ITO - (7)(1)/HYD/CIT(A) - 3/2017 - 18, DATED 13/12/2018 PASSED U/S. 250(6) R.W.S 147 & 143(3) OF THE ACT FOR THE AY 2007 - 08. THIS APPEAL WAS HEARD THROUGH VIRTUAL HEARING ON 15/07/2020. 2. THE ASSESSEE HAS RAISED SEVERAL GROUNDS IN HIS APPEAL HOWEVER, THE CRUX OF THE ISSUE IS THAT THE LD. CIT (A) HAS ERRED IN CONFIRMING THE ORDER PASSED BY THE LD. AO WHO HAD MADE ADDITION OF RS. 3,33,54,245/ - WITH RESPECT TO THE PEAK BALANCE 2 ITA NO. 130 /HYD/201 9 SADIQ AUNALI SALEHMOHAMED, HYD. CREDITED IN THE BANK ACCOUNT MAINTAINED BY THE ASSESSEE ABROAD. 3. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE IS AN INDIVIDUAL AND RESIDENT OF INDIA FILED HIS RETURN OF INCOME ON 30/01/2008 DECLARING TOTAL INCOME OF RS. 62,657/ - . SUBSEQUENTLY, INFORMATION WAS RE CEIVED FROM THE DDIT (INV.) UNIT - 1(1), HYDERABAD THAT THE ASSESSEE WAS MAINTAINING AN ACCOUNT WITH HSBC BANK, GENEVA, SWITZERLAND. ON QUERY, THE ASSESSEE SUBMITTED THAT HE WAS A TANZANIAN CITIZEN UNTIL THE YEAR 2012 AND DURING THE YEAR 2012 HE HAD OBTAINE D INDIAN CITIZENSHIP. IT WAS REVEALED BY THE INVESTIGATION WING OF THE REVENUE THAT THE ASSESSEE HAD OPENED A BANK ACCOUNT IN HSBC BANK AT GENEVA ON 27/4/2006 JOINTLY ALONG WITH CERTAIN OTHER INDIVIDUALS. THEREFORE, THE CASE OF THE ASSESSEE WAS REOPENED U/ S 147 & 148 OF THE ACT AND FINALLY ASSESSMENT WAS COMPLETED ON 29/12/2016 WHEREIN THE LD. AO COMPUTED THE PEAK CREDIT IN THE ASSESSEES FOREIGN BANK ACCOUNT WHICH WORKED OUT TO RS. 3,33,54,245/ - ($ 7,34,675.24) AND ADDED TO THE INCOME OF THE ASSESSEE BECAU SE THE ASSESSEE COULD NOT ESTABLISH THAT THE AMOUNT DEPOSITED IN THE BANK ACCOUNT MAINTAINED ABROAD DOES NOT BELONG TO HIM. 4. THE LD. AO HAD ARRIVED AT SUCH CONCLUSIONS BASED ON THE MATERIALS ON RECORD SINCE THE ASSESSEE HAD NOT COOPERATED BEFORE THE L D. AO IN HIS PROCEEDINGS. THE LD. CIT (A) ALSO PASSED AN EX - PARTE ORDER CONFIRMING THE ORDER OF THE LD.AO BASED ON THE MATERIALS ON RECORD BECAUSE EVEN BEFORE HIM THE ASSESSEE DID NOT ADEQUATELY CO - OPERATE IN THE PROCEEDINGS. 3 ITA NO. 130 /HYD/201 9 SADIQ AUNALI SALEHMOHAMED, HYD. 5. BEFORE US, THE LD. AR MAD E ELABORATE SUBMISSIONS. HE SUBMITTED THAT THE ASSESSEES UNCLE ALONG WITH CERTAIN OTHER MEMBERS OF THE FAMILY AND THE ASSESSEE HAD OPENED THE BANK ACCOUNT IN GENEVA AND HAD TRANSACTED SOME AMOUNT IN THE BANK ACCOUNT. THE LD. AR FURTHER SUBMITTED THAT THO UGH THE ASSESSEE HAD SIGNED THE ACCOUNT OPENING FORM HE WAS NOT AWARE OF THE TRANSACTIONS MADE IN THE BANK ACCOUNT BY THE ASSESSEES UNCLE. HE FURTHER ARGUED STATING THAT THE ASSESSEE NEVER RECEIVED ANY MONEY FROM THOSE TRANSACTIONS NOR CONTRIBUTED ANY MON EY IN THAT BANK ACCOUNT. HE FURTHER EXPLAINED STATING THAT SUBSEQUENTLY DUE TO FAMILY DISPUTES THE ASSESSEE PARTED RELATIONSHIP WITH HIS UNCLE. IT WAS THEREFORE PLEADED THAT SINCE THE ASSESSEE DID NOT OWN ANY CASH IN THE BANK ACCOUNT MAINTAINED ABROAD, TH E ADDITION MADE BY THE LD. REVENUE AUTHORITY WHICH WAS FURTHER CONFIRMED MAY BE DELETED. THE LD. DR ON THE OTHER HAND VEHEMENTLY ARGUED IN SUPPORT OF THE ORDERS OF THE REVENUE AUTHORITIES AND PRAYED FOR CONFIRMING THE SAME. 5. WE HAVE HEARD THE RIVAL SU BMISSIONS AND CAREFULLY PERUSED THE MATERIALS ON RECORD. FROM THE FACTS OF THE CASE, WE ARE OF THE VIEW THAT THE ASSESSEE HAS NOT FULLY SATISFIED THE LD. REVENUE AUTHORITIES WITH RESPECT TO THE ONUS CAST UPON HIM TO EXPLAIN THE TRANSACTION MADE IN THE BAN K ACCOUNT MAINTAINED ABROAD ALONG WITH THE OTHER MEMBERS OF THE FAMILY. IT ALSO APPEARS THAT THE ASSESSEE HAS NOT FULLY CO - OPERATED WITH THE LD. REVENUE AUTHORITIES IN THEIR PROCEEDINGS. WE ALSO FIND THAT THE REVENUE HAS ALSO NOT EVEN MADE ANY ATTEMPT TO M AKE ANY ENQUIRIES FROM THE OTHER MEMBERS OF THE FAMILY WITH WHOM THE 4 ITA NO. 130 /HYD/201 9 SADIQ AUNALI SALEHMOHAMED, HYD. ASSESSEE HAD JOINTLY MAINTAINED THE BANK ACCOUNT IN GENEVA TAKING AID FROM THE INTERNATIONAL TREATY. THEREFORE, THE REVENUE HAS ALSO FAILED TO COMPLY WITH THE OBLIGATION CASTE UPON THEM T O CARRY OUT THE INVESTIGATION IN A FAIR MANNER. ONCE THE ASSESSEE HAS STATED A POSSIBLE FACT/TRUTH THEN IT IS PERTINENT ON THE PART OF THE REVENUE TO FAIRLY VERIFY THE SAME. CONSIDERING THESE FACTS AND CIRCUMSTANCES OF THE CASE, IN THE INTEREST OF THE JUST ICE, WE HEREBY REMIT THE MATTER BACK TO THE FILE OF THE LD AO FOR FRESH CONSIDERATION WITH DIRECTION TO ADMIT AND EXAMINE ANY EVIDENCE PRODUCED BY THE ASSESSEE EVEN IF IT IS FOR THE FIRST TIME AND THEREAFTER DECIDE THE MATTER IN ACCORDANCE WITH LAW AND MER IT. AT THE SAME TIME, WE ALSO DIRECT THE ASSESSEE TO PROMPTLY COOPERATE BEFORE THE LD. REVENUE AUTHORITIES IN THEIR PROCEEDINGS FAILING WHICH THEY SHALL BE AT LIBERTY TO PASS APPROPRIATE ORDERS BASED ON THE MATERIALS ON RECORD. 6. IN THE RESULT, APPEAL O F THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. PRONOUNCED IN THE OPEN COURT ON THE 29 TH JULY, 2020. SD/ - (P. MADHAVI DEVI) JUDICIAL MEMBER SD/ - (A. MOHAN ALANKAMONY) ACCOUNTANT MEMBER HYDERABAD, DATED 29 TH JULY, 2020. 5 ITA NO. 130 /HYD/201 9 SADIQ AUNALI SALEHMOHAMED, HYD. OKK COPY FORWARDED TO: 1. SHRI SADIQ AUNALI SALEHMOHAMED, H.NO. 202, NOVA PLAZA D. NO. 10 - 2 - 348/1TO 4, OPP. POLICE STATION, ASIF NAGAR, HYDERABAD. 2. I T O, WARD 7 (1) , ROOM NO. 806, 8 TH FLOOR, SIGNATURE TOWERS, KONDAPUR, HYDERABAD 500 084 3. CIT(A) - 3 , HYDERABAD 4. 5. PR. CIT - 3 , HYDERABAD THE DR, ITAT, HYDERABAD 6. GUARD FILE