Sudhakar Devappa Manere, Ichalkaranji V. Income-tax Officer, Kolhapur

ITA 1322/PUN/2015

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 9521 (ITAT-PUNE)
• Duration Of Justice: 2 year(s) 3 month(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-01-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 02-01-2018
• Assessment Year: 2011-2012
• Appeal Filed On: 06-10-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: DR VIVEK AGGARWAL
• Keywords: Unexplained investment; Opportunity of being heard; Reasonable cause; Condonation of delay

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH B, PUNE . , , BEFORE SHRI D.KARUNAKARA RAO, AM AND SHRI VIKAS AWASTHY, JM . / ITA NO. 1322/PUN/2015 / ASSESSMENT YEAR : 2011-12 SUDHAKAR DEVAPPA MANERE, WARD NO.9, BLOCK NO.34A, SAHWAS, INDUSTRIAL ESTATE, ICHALKARANJI 416 115 PAN : AAZPM7738C . /APPELLANT VS. ITO, WARD-4, ICHALKARANJI . / RESPONDENT . / ITA NO.1223/PUN/2015 / ASSESSMENT YEAR : 2011-12 ITO, WARD-4, ICHALKARANJI . /APPELLANT VS. SUDHAKAR DEVAPPA MANERE, WARD NO.9, BLOCK NO.34A, SAHWAS, INDUSTRIAL ESTATE, ICHALKARANJI 416 115 PAN : AAZPM7738C . / RESPONDENT / APPELLANT BY : SHRI M.K. KULKARNI / RESPONDENT BY : DR. VIVEK AGGARWAL, CIT-DR / DATE OF HEARING : 05.01.2018 / DATE OF PRONOUNCEMENT: 10.01.2018 / ORDER PER D. KARUNAKARA RAO, AM : THESE ARE CROSS APPEALS FILED BY THE ASSESSEE AND R EVENUE INVOLVING ASSESSMENT YEAR 2011-12. THEY ARE FILED AGAINST THE ORDER OF CIT(A) 1 & 2, KOLHAPUR DATED 01-06-2015. ITA NOS. 1322 & 1223/PUN/2015 SHRI SUDHAKAR D. MANERE 2 2. CONDONATION OF DELAY : THERE IS DELAY OF 67 DAYS IN FILING THE APPEAL BY THE ASSESSEE. BEFORE US, LD. AR FOR THE ASSESSEE DREW OUR ATTENTION TO THE AFFIDAVIT DATED 20-12-2017 FILED BY THE ASSESSEE AND REQUESTED FOR CONDONING THE SAID DELAY. THE ASSESS EE IN THE AFFIDAVIT STATED THAT HE IS NOT AWARE OF THE INCOME-TAX LAW A ND INTRICACIES OF THE SAME. IT IS SUBMITTED THAT, DUE TO HIS OLD AGE, T HE FILING OF APPEAL WENT OUT OF HIS MIND AND THEREFORE, HE COULD NOT FILE TH E APPEAL WITHIN THE STIPULATED TIME. FURTHER, THE DELAY IS NOT DUE TO N EGLIGENCE OR DISRESPECT TO LAW. THUS, LD. AR FOR THE ASSESSEE PRAYED FOR C ONDONING THE DELAY, ADMIT THE APPEAL AND DECIDE THE ISSUES ON LINES OF THE APPEALS IN THE CASES OF SMT. SUSHAMA MANOHAR ZOLE (ITA NOS.386 & 702/PUN /2015 & CO NO.78/PUN/2017). 3. LD. DR OPPOSED THE SUBMISSION OF THE ASSESSEES AUTHORISED REPRESENTATIVE DUTIFULLY AND RELIED ON THE ORDERS O F THE AO/CIT(A). 4. ON HEARING BOTH THE SIDES ON THE ISSUE OF CONDON ATION OF DELAY, WE FIND THE DELAY IN FILING OF THE APPEAL BEFORE THE T RIBUNAL IS VERY SMALL. THE REASONS MENTIONED BY THE ASSESSEE IN THE AFFIDAVIT ARE ALSO CONSIDERED FAVOURABLY. WE FIND THERE IS NO DISPUTE ON THE STA TUS OF THE ASSESSEE, BEING A SENIOR CITIZEN. IN PRINCIPLE, THE ASSESSEE SHALL NOT GAIN BY NOT FILING THE APPEALS AGAINST THE UNFAVOURABLE DECISIO NS OF THE CIT(A). THEREFORE, THE DELAY OF 67 DAYS IN FILING THE APPEA L IS CONDONED AND THE APPEAL IS ADMITTED FOR ADJUDICATION. ACCORDINGLY, THE GROUND NOS.1 & 2 OF THE ASSESSEES APPEAL ARE ALLOWED. 5. GROUNDS RAISED BY THE ASSESSEE AND THE REVENUE A RE EXTRACTED AS UNDER : ITA NOS. 1322 & 1223/PUN/2015 SHRI SUDHAKAR D. MANERE 3 GROUNDS BY ASSESSEE : 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW THE DELAY OCCURRED IN FILING THIS APPEAL WAS SUPPORTED BY REA SONABLE CAUSE AS DURING THE PERIOD THE APPELLANT-ASSESSEE WAS PREVEN TED BY REASONABLE CAUSE TO FILE THE APPEAL . THAT NO CHARGE OF MALAFIDES IS ATTRIBUTABLE TO THE ASSESSEE. THE DELAY BE CONDONED AND THE APPEAL BE A DMITTED FOR ADJUDICATION IN ACCORDANCE WITH THE PROVISIONS OF L AW. THE DETAILED AFFIDAVIT WILL BE FILED AT THE TIME OF THE HEARING OF THE APPEAL . 2. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND I N LAW AND SINCE THE APPEAL HAS BEEN FILED BY THE DEPARTMENT AGAINST THE ORDER OF CIT(A) AND THE ASSESSEE DESIROUS OF KEEPING THE ISSUES INV OLVED ALIVE THE ASSESSEE HAS FILED THIS APPEAL . THE DELAY BE CONDONED AND THE APPEAL BE ADMITTED FOR ADJUDICATION. (REFER DY. CIT VS. BMC S OFTWARE (INDIA)(P) LTD., ITAT PUNE BENCH REPORTED AS (2015) 172 TTJ (PUNE) 692. 3. ON THE FACTS AND CIRCUMSTANCES OF THE CASE THE C IT(A) ERRED IN NOT ACCEPTING THE SOURCE OF THE INVESTMENT MADE BY THE APPELLANT DURING THE YEAR UNDER APPEAL TO THE EXTENT OF RS.30,75,315/- R EPRESENTED BY THE FOLLOWING : A. AMOUNTS RECEIVED AGAINST SALE OF PROPERTY OF RS.20,00,000/- FROM MR MANOHAR MANERE . B . BALANCE OF RS.10,75,315/- BEING THE SAVINGS MADE BY THE APPELLANT FROM YEAR TO YEAR WHICH WERE JUST POSSIBL E FOR HIM TO RAISE FOR THE REQUIRED INVESTMENTS CONSIDERING THE STANDING OF THE APPELLANT AND HIS VARIOUS ACTIVITIES. GROUNDS BY REVENUE : 1. ON THE FACT AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW, THE CIT(A) ERRED IN RESTRICTING THE ADDITION MADE ON AC COUNT OF UNEXPLAINED INVESTMENT OF RS. 88,33,852/- TO RS. 30,75,315/- IG NORING THE FACTS/FINDINGS BROUGHT OUT BY THE AO FOR MAKING THE DISALLOWANCE. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW, THE CIT(A) IS NOT JUSTIFIED IN HOLDING THAT THE ASSESSI NG OFFICER CONSIDERED ENTIRE PAYMENT INCLUDING OF EARLIER YEAR IN A. Y. 20 11-12, WHEN THE AO HAS RIGHTLY EXCLUDED SUCH AMOUNTS OF INVESTMENTS MA DE IN EARLIER YEAR TO ARRIVE AT UNEXPLAINED INVESTMENT IN AY 2011-12. 3. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW, THE CIT(A) FAILED TO APPRECIATE THAT THE ASSESSING OFFI CER MADE ADDITION TO THE EXTENT OF AMOUNT WHICH REMAINED SATISFACTORILY. 4. THE APPELLANT PRAYS THAT THE ORDER OF THE CIT(A) BE VACATED AND THAT OF THE AO BE RESTORED. 6. BRIEFLY STATED RELEVANT FACTS ARE THAT ASSESSEE IS AN INDIVIDUAL AND FILED THE RETURN OF INCOME ON 07-12-2002 DECLARING INCOME OF ITA NOS. 1322 & 1223/PUN/2015 SHRI SUDHAKAR D. MANERE 4 RS.2,25,980/-. ASSESSEE DECLARED INCOME FROM HOUSE PROPERTY AT RS.56,213/- AND AGRICULTURAL INCOME OF RS.1,47,775/ -. ASSESSEE ALONG WITH 2 OTHER OWNERS (SHRI JAGONDA KALGONDA PATIL AN D SMT. SUSHAMA MANOHAR ZOLE) PURCHASED A LAND FOR RS.4,31,48,000/- SITUATED AT S.NOS. 78 AND 79, MOUJE KABNOOR, TAL. HATKANANGALE, DIST. KOLHAPUR. ASSESSEES SHARE IS 1/3 RD IN PROPERTY AND HIS INVESTMENT IN THE SAID LAND WA S TO THE TUNE OF RS.1,43,82,667/-. DURING THE SCRUTINY ASSE SSMENT U/S.143(3) R.W.S. 147 OF THE ACT, AO FOUND THAT THE COST OF ST AMP DUTY AMOUNTING TO RS.10,88,640/- AND REGISTRATION CHARGES AMOUNTING T O RS.31,840/- TOTALLING TO RS.11,20,480/- WERE NOT REFLECTED. TH US THE ASSESSEES SHARE OF 1/3 RD ON THIS AMOUNT WORKS OUT TO RS.3,73,493/- REMAINS UNEXPLAINED. ASSESSEE WAS ASKED TO FURNISH THE COMPLETE BIFURCAT ION OF SOURCES OF FUNDS IN CONNECTION WITH THE SAID LAND TRANSACTION. REJECTING ALL THE DETAILS FURNISHED BY THE ASSESSEE AND THE EXPLANATI ON OF THE ASSESSEE THE AO DETERMINED THE ASSESSED INCOME AT RS.88,33,852/- AS UNEXPLAINED INVESTMENT U/S.69 OF THE ACT. 7. IN THE FIRST APPELLATE PROCEEDINGS, THE CIT(A) P ARTLY CONFIRMED THE SAID ADDITION AS PER THE DISCUSSION GIVEN IN PARA N OS. 5 & 6 OF HIS ORDER. 8. AGGRIEVED WITH THE ORDER OF THE CIT(A) THE ASSES SEE AS WELL AS THE REVENUE ARE IN APPEAL BEFORE US WITH THE EXTRACTED ABOVE. 9. WE HEARD BOTH THE SIDES ON THIS ISSUE AND PERUSE D THE ORDERS OF THE REVENUE. WE FIND THE FACTS AND ISSUES AND ARGU MENTS OF THE PRESENT APPEAL ARE IDENTICAL TO THE FACTS OF SMT. SUSHAMA M ANOHAR ZOLE, WHO IS THE CO-OWNER OF THE PROPERTY UNDER DISPUTE. IN THE APPEALS FILED SMT. SUSHAMA MANOHAR ZOLE, THE TRIBUNAL VIDE ITA NOS. 38 6 AND 702/PUN/2015 & CO NO.78/PUN/2017 ON 05-01-2018 REM ANDED THE ISSUE ITA NOS. 1322 & 1223/PUN/2015 SHRI SUDHAKAR D. MANERE 5 TO THE FILE OF CIT(A) WITH CERTAIN DIRECTIONS. FOR THE SAKE OF COMPLETENESS OF THIS ORDER, WE PROCEED TO EXTRACT THE OPERATIONA L PARAGRAPHS OF THE ORDER OF THE TRIBUNAL WHICH READS AS UNDER : 7. ON HEARING BOTH THE SIDES AND PERUSING THE ORD ERS OF THE REVENUE AUTHORITIES, WE HAVE NOTICED THAT THE ORDER OF CIT( A) ON THE ADDITION OF RS.65,73,852/- CANNOT BE CONSIDERED AS A SPEAKING O RDER QUA THE SAID CASH TRANSACTIONS OR THE SOURCE OF CASH AND THE OTH ER AMOUNTS RECEIVED BY THE ASSESSEE FROM VARIOUS PERSONS. CIT(A) ORDER IS ALSO ERRONEOUS TO THE EXTENT OF HIS FINDING IN PARA NO.5 OF HIS ORDER . THE DETAILS GIVEN BY THE CIT(A) IN PARA NO.6 IN OUR OPINION CONSTITUTES A VERY CRYPTIC AND NON- SPEAKING ORDER. AS SUCH, THE FIGURES APPEARING IN PARA NO.6 ARE FOUND TO BE NOT IN TUNE WITH THE FIGURES APPEARING IN THE TA BLE GIVEN IN PARA NO.5.5 OF THE RE-ASSESSMENT ORDER. THERE IS NEED F OR THE CIT(A) TO EXPLAIN IN HIS ORDER BRINGING CLARITY. THEREFORE, WE ARE OF THE CONSIDERED VIEW THAT THE ENTIRE ISSUE OF ADDITION OF RS.65,73, 852/- NEEDS TO BE REMANDED TO THE FILE OF CIT(A). THEREFORE, WE DIREC T THE CIT(A) TO ADJUDICATE THIS ISSUE AFRESH AND PASS A SPEAKING OR DER CONSIDERING EACH OF THE CASH TRANSACTION RECEIVED BY THE ASSESSEE WH ICH FORMED THE SOURCE FOR THE INVESTMENT IN THE OPEN LAND. IF NECESSARY, HE MAY CALL FOR A REMAND REPORT AS PER THE RULES AND PROCEDURES. CIT (A) SHALL HEAR THE ASSESSEE AS PER THE RULES. ACCORDINGLY, THE GROUND S RAISED IN ALL THESE APPEALS ARE ALLOWED FOR STATISTICAL PURPOSES. 10. FROM THE ABOVE, IT IS EVIDENT THAT THE APPEAL I N RESPECT OF THE CO- OWNER SMT. SUSHAMA MANOHAR ZOLE OF THE SAME PROPERT Y IN QUESTION WAS REMITTED BACK TO THE FILE OF CIT(A) FOR DECIDING TH E ISSUE AFRESH AND FOR WANT OF A SPEAKING ORDER AS PER THE PROVISIONS OF S ECTION 250 (6) OF THE ACT AFTER GRANTING REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. ACCORDINGLY, THE GROUNDS RAISED BY THE ASSESSEE AND THE REVENUE ARE ALLOWED FOR STATISTICAL PURPOSES. 11. IN THE RESULT, THE APPEALS FILED BY THE ASSESSE E AND THE REVENUE ARE ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 10 TH DAY OF JANUARY, 2018. SD/- SD/- (VIKAS AWASTHY) (D. KARUNAKARA RAO) JUDICIAL MEMBER ACCOUNTANT MEMBER PUNE; DATED : 10 TH JANUARY, 2018 ITA NOS. 1322 & 1223/PUN/2015 SHRI SUDHAKAR D. MANERE 6 / COPY OF THE ORDER FORWARDED TO : BY ORDER // TRUE COPY // //TRUE COPY// SENIOR PRIVATE SECRETARY , / ITAT, PUNE THE APPELLANT THE RESPONDENT THE CIT(A)-1 & 2, KOLHAPUR CIT-1 & 2, KOLHAPUR , , B BENCH PUNE; / GUARD FILE.