P.Ganesan, Sivakasi V. DCIT, Madurai

ITA 1314/CHNY/2015

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 96254 (ITAT-CHENNAI)
• Duration Of Justice: 4 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-10-2015
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: C
• Next Hearing Date: 05-10-2015
• Assessment Year: 2007-2008
• Appeal Filed On: 29-05-2015
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: PG R
• Assessee Lawyers: V RAJASEKARAN; SHRI P R
• Keywords: Unexplained investment
• Section: 153A; 2

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH, CHENNAI , . , ! ' BEFORE SHRI CHANDRA POOJARI, ACCOUNTANT MEMBERAND SHRI G. PAVAN KUMAR, JUDICIAL MEMBER ./ I.T.A.NO.1314/MDS/2015. ! # $# / ASSESSMENT YEAR : 2008-2009 SHRI. P. GANESAN, NO.53, SATCHIAPURAM ROAD, THIRUTHANGAL, SIVAKASI 626 130 VS. THE DEPUTY COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE III, MADURAI [PAN ABYPG 3315R] ( / APPELLANT) ( /RESPONDENT) %& ' ( / APPELLANT BY : SHRI. V. RAJASEKARAN, C.A. )*%& ' ( /RESPONDENT BY : SHRI.P. RADHAKRISHNAN, IRS, JCIT. ' + / DATE OF HEARING : 05-10-2015 ,-$ ' + / DATE OF PRONOUNCEMENT : 16-10-2015 / O R D E R PER G. PAVAN KUMAR, JUDICIAL MEMBER : THE APPEAL IS FIELD BY THE ASSESSEE AGAINST THE O RDER OF THE COMMISSIONER OF INCOME TAX (APPEALS)-19, CHENNAI DA TED 25.02.2015 IN ITA NO.578/14-15 FOR THE ASSESSMENT YEAR2008-09 PASSED ITA NO.1314/MDS/2015 :- 2 -: U/S.143(3) R.W.S. 153A AND 250 OF THE INCOME TAX AC T (IN SHORT THE ACT). 2. THE ASSESSEE HAS RAISED ONLY ONE SUBSTANTIVE GROUND OF ADDITION OF ADVANCE OF ;5 LAKHS TO SHRI. V. KANNAN ON 28.03.2008 AS PER THE AGREEMENT WHICH WAS WRONGLY DEBITED TO THIR D PARTY ACCOUNT IN THE BOOKS. 3. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE I S AN INDIVIDUAL AND PARTNER OF M/S. SONY GROUP CONCERNS . SEARCH OPERATIONS U/S.132 OF THE ACT WAS CONDUCTED IN M/S . SONY FIREWORKS PRIVATE LIMITED, THE MAIN GROUP CONCERN AT SIVAKAS I ON 21.10.2008 AND ALSO RESIDENTIAL PREMISES OF THE FOUNDER OF GRO UP. SIMULTANEOUSLY, INCOME TAX DEPARTMENT CONDUCTED SURVEY U/S.133A OF THE ACT ON THE BUSINESS PREMISES AND FACTORIES AND IMPOUNDED BOOK S OF ACCOUNTS, DOCUMENTS AND OTHER INCRIMINATING MATERIAL. A NOTI CE U/S.153C READ WITH SECTION 153A(A) DATED 30.11.2009 WAS ISSUED TO THE ASSESSEE TO FILE A RETURN OF INCOME WITHIN STIPULATED TIME 4. IN RESPONSE TO NOTICE, THE ASSESSEE HAS E-FILED RE TURN OF INCOME ON 19.09.2010 WITH TOTAL INCOME OF ;8,74,474 /-. IN THE ASSESSMENT PROCEEDINGS, QUESTIONNAIRE WAS ISSUED FOR SEEKING EXPLANATIONS TO ENTRIES FOUND IN THE SEIZED MATERIA L AND DETAILS OF ASSETS, BANK ACCOUNTS, MOVABLE AND IMMOVABLE ASSETS OWNED BY THE ITA NO.1314/MDS/2015 :- 3 -: ASSESSEE. THE LD. AR APPEARED ALONGWITH BANK ACCOUN T STATEMENTS AND FILED CLARIFICATION AND SUBMITTED EVIDENCES TO SUPP ORT THE CASE. THE LD. ASSESSING OFFICER CONSIDERING THE SUBMISSIONS ON RE CORD MADE AN ADDITION OF ;5 LAKHS PAID AS PER SALE AGREEMENT AL ONGWITH OTHER ADDITIONS. AN AGREEMENT DATED 31.03.2008 WAS ENTER ED BETWEEN ASSESSEE AND SHRI. V. KANNAN, FOR TRANSFER OF RIGHT S AND INTEREST OVER THE ALLOTMENT OF FLAT NO.P-1 IN AARANYA PROJECT, CH ENNAI IN FAVOUR OF THE ASSESSEE FOR A CONSIDERATION OF ;14,35,000/-. A S PART PERFORMANCE OF THE AGREEMENT THE ASSESSEE PAID AN AMOUNT OF ;5 ,00,000/- VIDE CHEQUE NO.023509 DATED 28.03.2008 AND THE BALANCE A GREED TO BE PAYABLE ON OR BEFORE 09.04.2008. THE ASSESSEE HAS WITHDRAWN THE AMOUNT OF ;5 LAKHS FROM BUSINESS CONCERN M/S. MICK Y PAPER CAPS WORKS BUT WRONGLY AMOUNT WAS DEBITED TO MOHAMMED B HAI ACCOUNT INSTEAD OF SHRI. V. KANNAN. THEREFORE, IT WAS NOT REFLECTED IN BALANCE SHEET AS ADVANCE FOR PURCHASE OF ASSET. THE ASSESS ING OFFICER PURELY ON SURMISES AND SUSPICION TREATED WITHDRAWAL OF ;5 LAKHS AS UNACCOUNTED INVESTMENT AS NO EVIDENCE OR CONFIRMAT ION WAS FILED. AGGRIEVED BY THE ORDER OF THE ASSESSING OFFICER THE ASSESSEE PREFERRED AN APPEAL BEFORE THE COMMISSIONER OF INCOME TAX (AP PEALS). 5. IN THE APPELLATE PROCEEDINGS, THE LD. COUNSEL FILED DETAILS AND MENTIONED THAT THE MISTAKE IN THE ACCOUNTS IS DUE TO WRONG POSTING ITA NO.1314/MDS/2015 :- 4 -: AND WAS RECTIFIED SUBSEQUENTLY AND FURTHER SUBMITTE D BANK STATEMENT OF M/S. MICKEY PAPER CAPS WORKS AS A SOURCE OF ;5 L AKHS. WHEREAS THE LD.CIT(A) HAS OVERLOOKED THE ACCOUNTING ASPEC TS AND RECONCILIATION OF ACCOUNTS AND CONFIRMED THE ORDER OF THE ASSESSING OFFICER. AGGRIEVED BY THE ORDER OF LD.CIT(A) THE A SSESSEE FILED AN APPEAL BEFORE THE TRIBUNAL. 6. THE LD. COUNSEL ARGUED THAT, THE ASSESSEE IS HAVING SOURCES AND SAME WAS SUBMITTED IN APPELLATE PROCEEDINGS ALO NGWITH THE LEDGE COPIES AND BANK ACCOUNT REFLECTING ;5 LAKHS PAID B Y THE ASSESSEE VIDE CHEQUE NO.023509, DATED 28.03.2008. THE AMOUNT OF ;5 LAKHS WAS WITHDRAWN FROM THE BUSINESS OF THE ASSESSEE M/S. M ICKY PAPER CAPS WORKS AND WRONGLY DEBITED TO THE ACCOUNT OF MOHAMME D BHAI INSTEAD OF SHRI. V. KANNAN. THE LD. AR ALSO REFERRED TO PAGE NO.11 OF PAPER BOOK SHOWING THE CHEQUE NO. DETAILS TALLIED WITH FI NDING IN ASSESSMENT ORDER WITH THE LEDGER OF M/S. MICKY PAPER CAPS WOR KS, SIVAKASI. ON 01.04.2008 RECTIFICATION ENTRY WAS PASSED AND THE C HEQUE WAS CLEARED IN SBI BANK ACCOUNT OF M/S. MICKY PAPER CAPS WORKS ON 10.04.2008 AND FILED WRITTEN SUBMISSIONS AND STATED THAT THE P ROPERTY WAS PURCHASED BY THE ASSESSEE FOR THE PURPOSE OF GROUP COMPANY AND RECTIFICATION ENTRIES WERE PASSED AND DUE TO MISUND ERSTANDING WITH THE TRANSFEREE THE CONFIRMATION LETTER COULD NOT BE FIL ED IN THE ASSESSMENT ITA NO.1314/MDS/2015 :- 5 -: PROCEEDINGS AND PRAYED THE TRIBUNAL TO DELETE THE A DDITION OF UNACCOUNTED INVESTMENT. 7. ON THE OTHER HAND, THE LD. DEPARTMENTAL REPRESENTAT IVE RELIED ON THE ORDERS OF THE LOWER AUTHORITIES AND A RGUED THAT SAID INFORMATION WAS NOT SUBMITTED BEFORE THE ASSESSING OFFICER AND PRAYED THE APPEAL OF THE ASSESSEE BE DISMISSED. 8. WE HEARD BOTH PARTIES AND PERUSED THE MATERIAL ON R ECORD. THE LD. AR HAS SUBMITTED THE SOURCE FOR INVESTMENT BEFORE THE INCOME TAX AUTHORITIES AND ALSO SUBSTANTIATED THE CLAIM BE FORE US BY SUBMITTING LEDGER COPIES AND BANK ACCOUNT DETAILS O F M/S. MICKY PAPER CAPS WORKS AT PAGE NO.13 OF PAPER BOOK EVIDENCING C HEQUE NO. CLEARED FROM BANK ACCOUNT, WHICH TALLIES WITH THE C HEQUE NO REFERRED IN THE ASSESSMENT ORDER PASSED BY THE LD.AO. THERE IS NO DISPUTE ABOUT THE CHEQUE DETAILS, PARTIES OF THE AGREEMENT AND CL EARANCE OF BANK. HOWEVER, IT WAS ALLEGED BY THE LD. DR THAT THE TRA NSACTION HAS TO BE VERIFIED WITH REFERENCE TO AGREEMENT AND CONSIDERIN G THE GENUINENESS OF RECTIFICATION ENTRIES. ON THE ABOVE FACTS, WE AR E OF THE OPINION THAT THE MATTER REQUIRES FURTHER ENQUIRY BY THE ASSESSIN G OFFICER. THEREFORE, THE ISSUE IN DISPUTE IS REMITTED BACK T O THE FILE OF ASSESSING OFFICER TO VERIFY THE DOCUMENTS FILED IN APPELLATE PROCEEDINGS AND ITA NO.1314/MDS/2015 :- 6 -: DECIDE THE ISSUE AFRESH AFTER PROVIDING ADEQUATE OP PORTUNITY OF HEARING TO THE ASSESSEE. 9. IN THE RESULT, THE APPEAL OF THE ASSESSEE IN ITA NO.1314/MDS/2015 IS PARTLY ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED ON FRIDAY, THE 16TH DAY OF OCTOBE R, 2015, AT CHENNAI. SD/- SD/- ( ) (CHANDRA POOJARI) / ACCOUNTANT MEMBER ( . ) (G. PAVAN KUMAR) ! /JUDICIAL MEMBER / CHENNAI . / DATED:16.10.2015 KV / ' )!+12 32$+ / COPY TO: 1 . %& / APPELLANT 3. 4+ () / CIT(A) 5. 278 )!+! / DR 2. )*%& / RESPONDENT 4. 4+ / CIT 6. 89# : / GF