Sri. V. K. Chikkanna, Bangalore V. ITO, Bangalore

ITA 1440/BANG/2010

• Counselvise Citation: [2011] 140 COUNSELVISE.COM (IT) 51398 (ITAT-BANGALORE)
• Duration Of Justice: 1 year(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-12-2011
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: B
• Next Hearing Date: 22-12-2011
• Assessment Year: 2005-2006
• Appeal Filed On: 15-12-2010
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: SUSAN THOMAS JOSE
• Assessee Lawyers: RAJENDRA HEGDE
• Keywords: Validity of assessment
• Section: 144

Judgement Text

PAGE 1 OF 6 ITA NO.14 40/BANG/2010 1 INCOME TAX APPELLATE TRIBUNAL BANGALORE BENCHES B BEFORE SHRI N K SAINI, ACCOUNANT MEMBER AND SHRI GEORGE GEORGE K, JUDICIAL MEMBER ITA NO.1440/BANG/2010 (ASST. YEAR 2005-06) SHRI V K CHICKANNA, C/O M/S BALAJI WINE CENTRE, NO.106, MYSORE ROAD, BANGALORE-26. - APPELLANT PA NO. AFSPC3229C VS THE INCOME TAX OFFICER, WARD-3(2), BANGALORE. - RESPONDENT DATE OF HEARING : 22/12/2011 DATE OF PRONOUNCEMENT : 22/12/2011 APPELLANT BY : SHRI RAJENDRA HEGDE, C.A. RESPONDENT BY : SMT. SUSAN THOMAS JOSE, JCIT O R D E R PER GEORGE GEORGE K : THIS APPEAL INSTITUTED BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF THE LD. CIT (A)-I, BANGALORE DATED 29.10.2 010. THE RELEVANT ASSESSMENT YEAR IS 2005-06. 2. THE ASSESSEE, IN ALL, HAS RAISED EIGHT GROUNDS OF APPEAL. HOWEVER, DURING THE COURSE OF HEARING, THE LD. A R SUBMITTED THAT GROUND NOS. 1 TO 6 ARE NOT PRESSED AND, THEREFORE, THE GRO UNDS FROM ONE TO SIX ARE PAGE 2 OF 6 ITA NO.14 40/BANG/2010 2 DISMISSED AS NOT PRESSED. THE REMAINING TWO GROUND S, NAMELY GROUND NOS.7 AND 8 RELATE TO THE ISSUE OF ALLEGED ADVANCE PAYMENT FOR A PROPERTY. 3. BRIEFLY STATED, THE ASSESSEE, AN INDIVIDUAL, WHO SE INCOME WAS FROM OTHER SOURCES. ON THE BASIS OF RECEIPT OF A IR INFORMATION FROM CIT (CIB), THE ASSESSEE WAS REQUIRED TO FURNISH THE DE TAILS OF DEPOSITS HELD IN CORPORATION BANK, MYSORE ROAD. ACCORDING TO THE LD. AO, THERE WAS NO COMPLIANCE IN SPITE OF SUFFICIENT NUMBER OF OPPORTU NITIES EXTENDED AND BASED ON THE AIR INFORMATION, THE DEPOSITS MADE IN CORPORATION BANK AMOUNTING TO RS.70,37,360/- WAS TREATED AS INCOME F ROM OTHER SOURCES WHICH THE ASSESSEE HAD NOT DISCLOSED TO THE DEPARTM ENT AND THE ASSESSMENT WAS, ACCORDINGLY, CONCLUDED U/S 144 OF THE ACT. 4. AGGRIEVED, THE ASSESSEE RAISED VARIOUS ISSUES, AMONG OTHERS, VALIDITY OF ASSESSMENT, ADDITION OF RS.70.37 LAKHS BEFORE THE LD. CIT (A) FOR RELIEF. AFTER DUE CONSIDERATION OF THE REMAND REPORT, REJOINDER OF THE ASSESSEE AND ALSO PERUSING THE RELEVANT RECORDS, TH E LD. CIT (A) HAS, AMONG OTHERS, OBSERVED WITH REGARD TO THE ADDITION OF RS. 12,50 LAKHS AS UNDER: 16.12.2004 - RS.12,50,000 : (ON PAGE 5: THE APPELLANT CLAIMED THAT THIS SUM REPRESENTS THE AMOUNT WITHDRAWN AND RE-DEPOSITED TH E SAME DAY. THE AO EXAMINED THE APPELLANT ON 25.8.2010 WHEN HE STATED THAT HE WITHDREW IN CASH, A SUM OF RS.24,50,000/- AND GAVE IT TO DR. PUSHPALATHA FOR PURCHASING HER PROPERTY. HE, HOWEVER, DID NOT GIVE THE FULL ADDRESS OF DR. PUSHPALATHA ALTHOUGH HE AGREED TO PAGE 3 OF 6 ITA NO.14 40/BANG/2010 3 FURNISH THE NEXT DAY. THE AO REPORTED THAT THERE I S, THEREFORE, NO POSSIBILITY OF FURTHER ENQUIRY AND C ONCLUDED THAT IT IS IMPOSSIBLE TO HAVE THE MONEY WITHDRAWN E ARLIER RE-DEPOSITED. I HAVE CONSIDERED THE FACTS OF THE CASE AND THE REP ORT OF THE AO. NO MATERIAL HAD BEEN BROUGHT ON RECORD TO CONTROVERT THE FINDING OF THE AO. I WOULD, THEREFO RE, CONFIRM THE ADDITION OF RS.12,50,000/- 5. DURING THE COURSE OF HEARING BEFORE US, THE BRI EF SUBMISSION ON BEHALF OF THE ASSESSEE WAS THAT THE LD. CIT (A) FAI LED TO NOTE THAT THE APPELLANT HAD WITHDREW RS.24.5 LAKHS FROM HIS ACCO UNT TO ADVANCE ON A PROPERTY AND THE ENTIRE AMOUNT WAS NOT UTILIZED AND A SUM OF RS.12.5 LAKHS WAS DEPOSITED BACK ON THE SAME DAY. IT WAS, FURTHER , CONTENDED THAT THE OBSERVATION OF THE LD. CIT (A) IS NOT ACCEPTABLE, M ERELY BECAUSE THE APPELLANT HAD NOT FURNISHED COMPLETE ADDRESS OF DR PUSHPALATHA AND CONFIRMING THE ADDITION OF 12.5 LAKHS. IN CONCLUS ION, IT WAS FORCEFULLY SUBMITTED THAT THE CONFIRMATION OF THE ADDITION WAS UNJUSTIFIABLE. THE LD. D R PRESENT WAS HEARD. 6. WE HAVE CAREFULLY CONSIDERED RIVAL SUBMISSIONS A ND METICULOUSLY PERUSED THE RELEVANT CASE RECORDS. 6.1. AT THE OUTSET, WE WOULD LIKE TO REITERATE THA T THE ASSESSMENT HAS BEEN CONCLUDED ON THE BASIS OF AIR INFORMATION AND THE BANK STATEMENT FURNISHED BY THE CORPORATION BANK AND THAT THE DEPOS ITS OF RS.70.37 LAKHS IN THE SAID BANK WAS TREATED AS ASSESSEES INCOME FROM OTHER SOURCES AS THE ASSESSEE HAD NOT DISCLOSED TO THE DEPARTMENT AND TH AT TOO WITHOUT ANY PAGE 4 OF 6 ITA NO.14 40/BANG/2010 4 DISCUSSION U/S 144 OF THE ACT. HOWEVER, AT A GLIMP SE OF FACTS OF THE CASE FURNISHED BEFORE THE LD. CIT (A) ALONG WITH FORM NO . 35, WE FIND THAT THE ASSESSEE HAD CLAIMED TO THE EFFECT THAT HE HAD FUR NISHED A RETURN OF INCOME FOR THE ASSESSMENT YEAR UNDER CONSIDERATION O N 31.1.2006. THE APPELLANT, FURTHER, TOOK A CLAIM BEFORE THE CIT (A) THAT HE HAD FILED THE RETURN OF INCOME ON 18.5.2006 WITH THE ITO, WARD 3( 2), BANGALORE [COURTESY: PAGE 2 OF CIT(A)S ORDER] THE JURISDICTI ONAL OFFICER AND THAT THE AO WHO HAD NO JURISDICTION OVER THE APPELLANT, PASS ED THE IMPUGNED ORDER. HOWEVER, THE CIT (A) OBSERVED THAT IN THE NOTICE U/ S 142 OF THE ACT DATED 30.10.2007, THE ITO, WARD 14(10) HAD STATED THAT (PARA 4IF YOU HAVE ALREADY FILED THE RETURN OF INCOME FOR THE ASS ESSMENT YEAR 2005- 06, PLEASE FURNISH THE COPY OF THE SAME. THERE APPEARS TO BE NO COMPLIANCE FROM THE ASSESSEE TO THIS QUERY. 6.2. ON THE BASIS OF REMAND REPORT DATED 22.9.2010 , THE LD CIT (A) DELETED CERTAIN ADDITIONS/CONFIRMED SOME ADDITIONS UNDER DISTINCTIVE HEADS. HOWEVER, WITH REGARD TO UPHOLDING OF THE ADDITION OF RS.12.5 LAKHS (WHICH IS UNDER DISPUTE BEFORE THIS BENCH), ON THE REASONING OF THE CIT (A), WE FIND THAT THE AO EXAMINED THE APPELLANT ON 25.8.2010 WHE N HE STATED THAT HE WITHDREW IN CASH, A SUM OF RS.24.5 LAKHS AND GAVE I T TO DR. PUSHPALATHA FOR PURCHASING HER PROPERTY. THOUGH HE AGREED TO FURNIS H THE COMPLETE ADDRESS OF THE SAID PUSHPALATHA NEXT DAY, IT WAS NOT RATHER FORTH-COMING, ON THE BASIS OF WHICH, THE CIT (A) CONFIRMED THE ADDITION TO THE EXTENT OF RS.12.5 LAKHS. PAGE 5 OF 6 ITA NO.14 40/BANG/2010 5 6.2.1. BEFORE US, IT WAS CLAIMED THAT OUT OF RS.24 .5 LAKHS ALLEGED TO HAVE BEEN WITHDRAWN FROM HIS ACCOUNT, RS.12.5 LAKHS WAS DEPOSITED BACK ON THE SAME DAY, THE BALANCE OF WHICH APPEARS TO HAVE BEEN ADVANCED TO DR. PUSHPALATHA FOR PURCHASE OF HER PROPERTY. IN VIEW O F THE ABOVE, THE CIT(A) UPHELD THE ADDITION OF RS.12.5 LAKHS WHEREAS THE BA LANCE AMOUNT WOULD HAVE BEEN ONLY RS.12 LAKHS [24,50,000 12,50,000] AND, T HUS, WE OBSERVE THAT THERE IS A DIFFERENCE OF RS.50,000/- (OF EXCESS DIS ALLOWANCE), BETWEEN THE CIT (A)S CONFIRMATION AND THE ASSESSEES CLAIM. M OREOVER, THE COMPLETE DETAILS OF DR PUSHPALATHA WHOSE PROPERTY FOR WHICH T HE ASSESSEE ALLEGED TO HAVE MADE AN ADVANCE HAS NOT BEEN FURNISHED BEFORE THE LD. CIT (A), AS PROMISED. 6.3. TAKING THE ABOVE FACTS AND THE CIRCUMSTANCES OF THE ISSUE INTO CONSIDERATION, WE ARE THE FIRM VIEW THAT THE MATTER REQUIRES FRESH CONSIDERATION. ACCORDINGLY, THE ISSUE IS REMITTED T O THE FILE OF THE AO WITH A SPECIFIC DIRECTION TO LOOK INTO THE ISSUE AFRESH AND TO TAKE APPROPRIATE ACTION IN ACCORDANCE WITH THE PROVISIONS OF THE ACT WITH REFERENCE TO THE DETAILS WHICH WOULD BE FURNISHED BY THE ASSESSEE. I T IS ORDERED ACCORDINGLY. 7. IN THE RESULT, THE ASSESSEES APPEAL IS TREATED AS PARTLY ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 22 ND DAY OF DECEMBER, 2011 SD/- SD/- (N K SAINI) (GEORGE GEORGE K) ACCOUNTANT MEMBER JUDICIAL MEMBER PAGE 6 OF 6 ITA NO.14 40/BANG/2010 6 COPY TO:- 1. THE REVENUE 2. THE ASSESSEE 3. THE CIT CONC ERNED 4. THE CIT(A) CONCERNED 5. THE DR 6. GF MSP/- BY ORDER ASST. REGISTRAR, ITAT, BANGALORE.