M/s Govind Rakesh Sharma(HUF), Kolkata V. ACIT, Circle-46, Kol, Kolkata

ITA 1477/KOL/2016

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 4235 (ITAT-KOLKATA)
• Duration Of Justice: 4 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-11-2016
• Appeal Filed By: Assessee
• Bench Allotted: SMC
• Assessment Year: 2008-2009
• Appeal Filed On: 13-07-2016
• Court: TRIBUNAL
• Keywords: Unexplained investment
• Section: 143(3); 68

Judgement Text

1 ITA NO.1477/KOL/2016 GOVIND RAKESH SHARMA (HUF), AY 2008-09 IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH: KOL KATA [BEFORE SHRI M. BALAGANESH, AM & SHRI S. S. VISWAN ETHRA RAVI, JM] I.T.A NO. 1477/KOL/2016 ASSESSMENT YEAR: 2008-09 M/S. GOVIND RAKESH SHARMA (HUF) VS. ASSISTANT COM MISSIONER OF INCOME-TAX, (PAN: AABHG6038D) CIRCLE-46, KOLKATA. ( APPELLANT ) ( RESPONDENT ) DATE OF HEARING: 18.11.2016 DATE OF PRONOUNCEMENT: 30.11.2016 FOR THE APPELLANT: SHRI ANIL KOCHAR, ADVOCATE FOR THE RESPONDENT: SHRI SALLONG YADEN, ADDL. CIT ORDER PER SHRI M. BALAGANESH, AM: THIS APPEAL BY ASSESSEE IS ARISING OUT OF ORDER OF CIT(A)-14, KOLKATA VIDE APPEAL NO. 288/CIT(A)-14/WD-47(1)/2010-11 DATED 30.05.2016 . ASSESSMENT WAS FRAMED BY ACIT, CIRCLE-46, KOLKATA U/S. 143(3) OF THE INCOME TAX AC T, 1961 (HEREINAFTER REFERRED TO AS THE ACT) FOR AY 2008-09 VIDE HIS ORDER DATED 28.12.20 10. 2. THE ONLY ISSUE TO BE DECIDED IN THIS APPEAL IS AS TO WHETHER THE LD CITA IS JUSTIFIED IN UPHOLDING THE ADDITION MADE BY THE AO IN THE SUM OF RS.6 LAKHS TOWARDS INVESTMENT IN MUTUAL FUND IN THE FACTS AND CIRCUMSTANCES OF THE C ASE. 3. BRIEF FACTS OF THIS ISSUE ARE THAT THE ASSESSEE , HUF HAD MADE CERTAIN INVESTMENTS IN MUTUAL FUNDS AND DURING THE COURSE OF ASSESSMENT PR OCEEDINGS THE ASSESSEE WAS ASKED TO EXPLAIN THE SOURCE OF MAKING INVESTMENT OF RS. 6 LA CS IN KOTAK MAHINDRA MUTUAL FUND. IN THE ABSENCE OF PROPER EXPLANATION GIVEN BY THE ASSE SSEE REGARDING THE SAME, THE AO RESORTED TO MAKE AN ADDITION BY INVOKING THE PROVISIONS OF S ECTION 68 OF THE ACT. THE ACTION OF THE AO WAS ALSO UPHELD BY LD. CIT(A). AGGRIEVED, ASSES SEE IS IN APPEAL BEFORE US ON THE FOLLOWING GROUNDS: 1. FOR THAT THE APPELLATE ORDER DATED 30.05.2016 MADE BY THE LD. CIT (A) MORE THAN FOUR MONTHS AFTER THE DATE OF HEARING IS BAD-IN-LAW. 2 ITA NO.1477/KOL/2016 GOVIND RAKESH SHARMA (HUF), AY 2008-09 2. FOR THAT THE LD. CIT (A) ERRED IN DISMISSING THE APPEAL ON THE ALLEGED GROUNDS. 3. FOR THAT THERE HAS BEEN COMPLIANCE TO THE OPPORT UNITIES GIVEN BY THE LD. CIT (A) IN THE MATTER OF HEARING AND IT IS DISTURBING TO NOTE THAT IT HAS BEEN NOTED THAT NONE APPEARED FOR THE APPELLANT. 4. FOR THAT THE LD. CIT (A) ERRED IN CONFIRMING THE ADDITION OF RS.6,00,000/- MADE BY THE A.O. UNDER THE HEAD UNEXPLAINED INVESTMENT WHEREAS THERE WAS NO SUCH UNEXPLAINED INVESTMENT WHICH HAS BEEN EXPLAINED BY THE APPELLANT WITH REFE RENCE TO ITS INVESTMENTS.. 4. THE LD. AR ARGUED THAT THE ASSESSEE HAD ONLY SWI TCHED OVER FROM KOTAK DYNAMIC ASSET ALLOCATION GROWTH FUND FOR RS.6 LAKHS AND SW ITCHED IN (REINVESTED) KOTAK BLENDED FUND OF FUNDS -DIVIDEND ON 28.11.2007 FOR R S.6 LAKHS. IN OTHER WORDS, A SUM OF RS. 6 LAKHS WAS INVESTED BY THE ASSESSEE IN KOTAK B LENDED FUND OF FUNDS - DIVIDEND OUT OF SWITCHING OVER FROM KOTAK DYNAMIC ASSET ALLOCATION GROWTH FUND AND NO FRESH INVESTMENT BY HAVING PHYSICAL OUTFLOW OF MONEY HAD HAPPENED IN THE INSTANT CASE. HE ALSO FAIRLY AGREED FOR VERIFICATION OF THESE FACTS BY TH E LD AO AND PRAYED FOR SETTING SIDE OF THIS ISSUE TO THE FILE OF THE LD AO FOR VERIFICATION OF SOURCE OF THE SAME. 5. IN RESPONSE TO THIS, THE LD. DR ARGUED THAT THE ASSESSEE DESPITE HAVING GIVEN ENOUGH OPPORTUNITIES HAD NOT BOTHERED TO PRODUCE THIS EVID ENCE AND HENCE, THIS EVIDENCE SHOULD NOT BE APPRECIATED BY THIS TRIBUNAL AND THE ADDITION MA DE BY THE LD AO BE SUSTAINED. 6. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIALS AVAILABLE ON RECORD. WE FIND THAT THE LD. AR HAS PRODUCED COPY OF MUTUAL FUND ACCOUNT STATEMENT OF VARIOUS FUNDS OF THE ASSESSEE, WHICH THE LD. AR HAS CLAIMED AS BEING PART OF RECORDS OF THE LOWER AUTHORITIES. HOWEVER, NO SPECIFIC FINDING SEEMS TO BE PRESENT IN THE ORDERS OF THE LOWER AUTHORITIES. WE FIND FROM THE PERUSAL OF THE SAID A CCOUNT STATEMENT THAT ASSESSEE HAD SWITCHED OVER FROM ONE FUND AND SWITCHED INTO ANOTH ER FUND OF KOTAK MAHINDRA WHICH IS EVIDENT FROM THE MUTUAL FUND ACCOUNT STATEMENT. HO WEVER, IN THE INTEREST OF JUSTICE AND FAIR PLAY IN ORDER TO AVOID ANY APPREHENSION AS TO THE N ON-AVAILABILITY OF THIS DOCUMENT BEFORE THE LOWER AUTHORITIES, WE DEEM IT FIT AND PROPER TO SET ASIDE THIS ISSUE TO THE FILE OF THE LD AO FOR FRESH CONSIDERATION IN ACCORDANCE WITH LAW. TH E ASSESSEE IS HEREBY DIRECTED TO PRODUCE THE NECESSARY EVIDENCE BEFORE THE LD AO TO SUBSTANT IATE THE SOURCE OF MAKING INVESTMENT OF 3 ITA NO.1477/KOL/2016 GOVIND RAKESH SHARMA (HUF), AY 2008-09 RS.6 LAKHS IN KOTAK MAHINDRA MUTUAL FUND ON 28.11.2 007. THE APPEAL OF ASSESSEE IS DISPOSED OF ACCORDINGLY. 7. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS AL LOWED FOR STATISTICAL PURPOSES. ORDER IS PRONOUNCED IN THE OPEN COURT ON 30.11.2016 . SD/- SD/- (S.S. VISWANETHRA RAVI) (M. BALAGANESH) JUDICIAL MEMBER ACCOUNTAN T MEMBER DATED : 30TH NOVEMBER, 2016 JD.(SR.P.S.) COPY OF THE ORDER FORWARDED TO: 1 . APPELLANT M/S. GOVIND RAKESH SHARMA (HUF), C/O S. L. KOCHAR, ADVOCATE, 86, CANNING STREET, KOLKATA-700 001. 2 RESPONDENT ACIT, CIRCLE-46, KOLKATA 3 . THE CIT(A), KOLKATA 4. 5. CIT , KOLKATA DR, KOLKATA BENCHES, KOLKATA / TRUE COPY, BY ORDER, ASSTT. REGISTRAR .