Krishnamurthy B Narayanana , Bangalore V. Income Tax Officer Ward-6(2), Bangalore

ITA 1318/BANG/2018

• Counselvise Citation: [2018] 121 COUNSELVISE.COM (IT) 4641 (ITAT-BANGALORE)
• Duration Of Justice: 1 month(s) 14 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-06-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2008-2009
• Appeal Filed On: 24-04-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: DK JHA
• Assessee Lawyers: C RAMESH
• Keywords: Condonation of delay

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL SMC-A BENCH : BANGALORE BEFORE SHRI ARUN KUMAR GARODIA, ACCOUNTANT MEMBER A ND SHRI LALIET KUMAR, JUDICIAL MEMBER ITA NO. 1318 / BANG/201 8 ASSESSMENT YEAR : 20 08 - 09 SHRI KRISHNAMURTHY B NARAYANAN, NO. 19, S.P. EXTENSION, 12 TH CROSS, 9 TH MAIN, MALLESWARAM, BANGALORE 560 003. PAN: ABAPN0767G VS. THE INCOME TAX OFFICER, WARD 6 (2), BANGALORE. APPELLANT RESPONDENT APPELLANT BY : SHRI C. RAMESH, CA RESPONDENT BY : SHRI D.K. JHA, ADDL. CIT (DR) DATE OF HEARING : 2 4 .05.2018 DATE OF PRONOUNCEMENT : 08 .0 6 .2018 O R D E R PER SHRI A.K. GARODIA, ACCOUNTANT MEMBER THIS APPEAL IS FILED BY THE ASSESSEE WHICH IS DIREC TED AGAINST THE ORDER OF LD. CIT(A)-2, BANGALORE DATED 21.01.2017 FOR ASSESSMENT YEAR 2008-09. 2. THE GROUNDS RAISED BY THE ASSESSEE ARE AS UNDER. THE APPELLANT OBJECTS TO THE ASSESSMENT ORDER ON TH E FOLLOWING GROUNDS IN SO FAR AS IT IS PREJUDICIAL TO THE APPEL LANT AS IT IS OPPOSED TO LAW AND CIRCUMSTANCES OF THE CASE:- 1. CONDON THE DELAY IN FILING OF APPEAL AS THE DELA Y HAS HAPPENED BEYOND THE CONTROL OF THE APPELLANT DUE TO WRONG AD VICE GIVEN BY THE LEGAL PROFESSIONAL. 2. THE CIT (A) WAS NOT CORRECT IN CONFIRMING THE AD DITION MADE BY A.O. TO THE EXTENT OF RS.6,63.504/- TOWARDS DIFFERE NCE OF SUNDRY CREDITORS BALANCES AS ON 31.03.2008, THOUGH THE DIF FERENCE OF BALANCE WAS RECONCILED AND EXPLAINED. 3. THE CIT (APPEALS) WAS NOT CORRECT IN NOT ACCEPTI NG THE EXPLANATION GIVEN BY THE APPELLANT THAT THE SUNDRY CREDITORS BA LANCES DIFFERENCES IS RELATING TO EARLIER YEARS AND THERE IS NO DIFFER ENCE IN CURRENT YEAR TRANSACTIONS. ITA NO.1318/BANG/2018 PAGE 2 OF 5 4. THE APPELLANT CRAVES LEAVE TO ADD, TO ALTER, TO AMEND OR TO DELETE ANY OF THE GROUNDS THAT MAY BE URGED AT THE TIME OF HEARING OF THE APPEAL. WHEREFORE ON THE ABOVE GROUNDS AND ON SUCH OTHER GR OUNDS THE APPELLANT PRAYS THE APPELLATE AUTHORITY TO DELETE T HE ADDITIONS AS ABOVE AND MAY PASS SUCH OTHER AS THE APPELLATE AUTH ORITY DEEMS FIT. 3. THIS APPEAL IS FILED BY THE ASSESSEE BEFORE THE TRIBUNAL AFTER A DELAY OF 375 DAYS. THE ASSESSEE HAS SUBMITTED AN APPLICATION FOR CONDONATION OF DELAY IN WHICH HE SUBMITTED THAT ASSESSEE WAS GIVEN TO UNDER STAND THAT AFTER ORDER OF CIT(A) , THE ASSESSEE HAS TO FIRST PAY THE TAXES IN CLUDING INTEREST AND THEN ONLY THE ASSESSEE CAN FILE THE APPEAL BEFORE THE TRIBUNA L AND THEREFORE, ASSESSEE WAS BUSY IN ARRANGING FUNDS TO PAY TAXES INCLUDING INTEREST. IT IS ALSO SUBMITTED THAT HE WAS UNDER FINANCIAL HARDSHIP AND WAS HAVING ERRATIC HEALTH CONDITION IN VIEW OF BURDEN OF THIS HUGE DEMAND PUT ON HIM AND F OR THIS REASON, THERE WAS DELAY IN FILING APPEAL BEFORE THE TRIBUNAL. IT WAS SUBMITTED BY LD. AR OF ASSESSEE BEFORE US THAT IN VIEW OF THESE FACTS AS N OTED IN THE APPLICATION OF ASSESSEE FOR CONDONATION OF DELAY, THE DELAY SHOULD BE CONDONED. THE LD. DR OF REVENUE SUBMITTED THAT THE DELAY SHOULD NOT BE C ONDONED. 4. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND CON SIDERING THE FACTS OF PRESENT CASE, WE FEEL IT PROPER THAT THE DELAY SHOULD BE CO NDONED AND HENCE, WE CONDONE THE DELAY AND WE ADMIT THE APPEAL. 5. REGARDING THE MERIT OF THE APPEAL I.E. REGARDING CONFIRMING THE ADDITION MADE BY THE AO TO THE EXTENT OF RS. 6,63,504/- TOWARDS D IFFERENCE OF SUNDRY CREDITORS OF ASSESSEE, BALANCE AS ON 31.03.2008, IT WAS SUBMI TTED BY LD. AR OF ASSESSEE THAT THE AO HAS MADE ADDITION IN RESPECT OF DIFFERE NCE IN THE BALANCES OF SIX PARTIES AS NOTED BY THE AO ON PAGE NO. 2 OF THE ASS ESSMENT ORDER BEING THE DIFFERENCE IN BALANCES AS PER ASSESSEES BOOKS AND BALANCES AS PER THE CONCERNED PARTY. HE SUBMITTED THAT OUT OF THESE SI X PARTIES, THE ASSESSEE HAS BEEN PROVIDED COPY OF STATEMENT OF THREE PARTIES ON LY I.E. A) SUBHASH PUBLISHING HOUSE, B) OXFORD UNIVERSITY PRESS AND C) MADHUBAN EDUCATIONAL BOOKS. THERE IS DIFFERENCE OF RS. 5,97,392/- IN RE SPECT OF THESE THREE PARTIES AND ACCOUNTS STATEMENT OF REMAINING THREE PARTIES W ERE NEVER PROVIDED BY THE ITA NO.1318/BANG/2018 PAGE 3 OF 5 AO TO THE ASSESSEE AND THEREFORE, ASSESSEE COULD NO T RECONCILE SUCH DIFFERENCE OF THESE THREE PARTIES. REGARDING THREE PARTIES OF WHICH ACCOUNT STATEMENT HAS BEEN PROVIDED TO ASSESSEE, IT WAS SUB MITTED THAT IN RESPECT OF OXFORD UNIVERSITY PRESS, CONFIRMATION LETTER GIVEN BY THE PARTY IS IN RESPECT OF PERIOD FROM 01.03.2008 TO 07.04.2008 AND UNTIL AND UNLESS, THE STATEMENT OF THE WHOLE YEAR STARTING FROM 01.04.2007 TO 31.03.20 08 IS PROVIDED, THE ASSESSEE CANNOT RECONCILE THE CLOSING BALANCE AND O PENING BALANCES. REGARDING THE SECOND PARTY MACMILLAN PUBLISHERS IND IA LTD., IT WAS SUBMITTED THAT AS PER THE COPY OF STATEMENT OF THIS PARTY AVA ILABLE ON PAGE NO. 19 OF PAPER BOOK, THE STATEMENT IS FOR THE PERIOD FROM 31.12.20 08 TO 21.04.2009 AND IN THE ABSENCE OF THE WHOLE YEARS STATEMENT, RECONCILIATI ON CANNOT BE DONE BY ASSESSEE. 6. REGARDING MADHUBAN EDUCATIONAL BOOKS, A DIV. OF VIKAS PUBLISHING HOUSE PVT. LTD. OF WHICH THE ACCOUNT STATEMENT IS AVAILAB LE ON PAGES 15 TO 18 OF PAPER BOOK, IT WAS SUBMITTED THAT THERE IS OPENING BALANC E OF RS. 4,08,158/- AS ON 01.04.2007 AND DIFFERENCE IS IN OPENING BALANCE AND THEREFORE, NO ADDITION CAN BE MADE IN THE PRESENT YEAR. THE LD. DR OF REVENUE SUPPORTED THE ORDERS OF AUTHORITIES BELOW. 7. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. WE FI ND THAT AS PER PAGE NO. 2 OF THE ASSESSMENT ORDER, THERE IS DIFFERENCES IN THE B ALANCES AS ON 31.03.2008 IN RESPECT OF SIX PARTIES AS NOTED BY AO ON PAGE NO. 2 OF ASSESSMENT ORDER. OUT OF THESE SIX PARTIES, A MAJOR DIFFERENCE IS IN RESP ECT OF OXFORD UNIVERSITY PRESS OF RS. 4,00,832/-, MADHUBAN EDUCATIONAL BOOKS OF RS . 1,54,805/- AND MACMILLAN PUBLISHERS INDIA LTD. OF RS. 36,489/- AND THE ACCOUNT STATEMENT OF THESE THREE PARTIES IS AVAILABLE IN THE PAPER BOOK ON PAGES 14 TO 21 OF PAPER BOOK. FROM THESE PAGES OF PAPER BOOK, WE FIND THAT IN RESPECT OF MADHUBAN EDUCATIONAL BOOKS, THERE IS OPENING BALANCE OF RS. 4,08,158/- AS ON 01.04.2007, AND THE DIFFERENCE AS PER THE AO AS ON 31.03.2008 IS OF RS. 1,54,805/- AND AS PER THE ASSESSEE, THE DIFFERENCE IS IN OPENING BALANCE AND THEREFORE, NO ADDITION IS CALLED FOR IN THE PRESENT YEAR REGARDING SUCH DIFFERENCE. ITA NO.1318/BANG/2018 PAGE 4 OF 5 THIS CONTENTION OF LD. AR OF ASSESSEE COULD NOT BE CONTROVERTED BY LD. DR OF REVENUE. 8. REGARDING THE SECOND PARTY I.E. MACMILLAN PUBLIS HERS INDIA LTD. OF WHICH THE STATEMENT IS AVAILABLE ON PAGE NO. 19 OF PAPER BOOK , WE FIND THAT THIS STATEMENT IS FOR THE PERIOD FROM 01.12.2008 TO 18.05.2009 AND HENCE, THIS STATEMENT IS NOT FOR PRESENT YEAR AND THEREFORE, NO ADDITION CAN BE MADE ON THE BASIS OF THIS STATEMENT. IN RESPECT OF THIRD PARTY, I.E. OXFORD UNIVERSITY PRESS OF WHICH THE ACCOUNT STATEMENT IS AVAILABLE ON PAGE NO. 21 OF PA PER BOOK, IT IS SEEN THAT THIS STATEMENT IS FOR THE PERIOD FROM 01.03.2008 TO 07.0 4.2008. WE ALSO FIND THAT THE RELEVANT EXTRACT OF RESPECTIVE SUNDRY CREDITORS IN THE BOOKS OF ACCOUNT OF ASSESSEE IS ALSO AVAILABLE ON PAGES 24 TO 34 OF PAP ER BOOK AND WHEN WE COMPARE THE ENTRIES FOR THE MONTH OF MARCH AND APRI L 2008 AS PER THE COPY OF ACCOUNT IN ASSESSEES BOOKS AND IN THE BOOKS OF THE PARTIES, WE FIND THAT ALL THE ENTRIES ARE TALLYING AND HENCE, THERE MAY BE DIFFER ENCE IN EARLIER YEAR AND IN THE ABSENCE OF ACTUAL ACCOUNT FOR THE EARLIER YEAR, IT CANNOT BE SAID THAT THE DIFFERENCE IS IN THE PRESENT YEAR AND THEREFORE, NO ADDITION CAN BE MADE IN THE PRESENT YEAR. FOR THE REMAINING THREE PARTIES, NO ACCOUNT STATEMENT IS MADE AVAILABLE BY THE AO TO THE ASSESSEE OR BEFORE US AN D THEREFORE, THE ASSESSEE CANNOT GIVE HIS EXPLANATION REGARDING THE DIFFERENC E ALLEGED BY THE AO. CONSIDERING ALL THESE FACTS, WE ARE OF THE CONSIDER ED OPINION THAT NO ADDITION CAN BE MADE UNDER THESE FACTS AND HENCE, WE DELETE THE SAME. 9. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON THE DATE MENT IONED ON THE CAPTION PAGE. SD/- SD/- (LALIET KUMAR) (ARUN KUMAR GARODIA) JUDICIAL MEMBER ACCOUNTANT MEMBER BANGALORE, DATED, THE 08 TH JUNE, 2018. /MS/ ITA NO.1318/BANG/2018 PAGE 5 OF 5 COPY TO: 1. APPELLANT 4. CIT(A) 2. RESPONDENT 5. DR, ITAT, BANGALORE 3. CIT 6. GUARD FILE BY ORDER SENIOR PRIVATE SECRETARY, INCOME TAX APPELLATE TRIBUNAL, BANGALORE.