Income-tax Officer, Ward-1(4), Nashik V. Shri Mahendra Raghunath Metkar, Nashik

ITA 1540/PUN/2011

• Counselvise Citation: [2012] 119 COUNSELVISE.COM (IT) 9807 (ITAT-PUNE)
• Duration Of Justice: 11 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-11-2012
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2007-2008
• Appeal Filed On: 01-12-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ANN KAPTHUAMA
• Keywords: Additional evidence; Reasonable cause
• Section: 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH A, PUNE BEFORE SHRI SHAILENDRA KUMAR YADAV, JUDICIAL MEMBER , AND SHRI R.K.PANDA, ACCOUNTANT MEMBER. ITA.NO.1540/PN/2011 (ASSTT. YEAR : 2007-08) ITO, WARD-1(4), NASHIK. .. APPELLANT VS. SHRI MAHENDRA RAGHUNATH METKAR, PLOT NO.8, VIRAJ SAINATH, WADALA SHIWAR, NASHIK. .. RESPONDENT PAN: AGAPM3213F ASSESSEE BY : NONE DEPARTMENT BY : MS.ANN KAPTHUAMA DATE OF HEARING : 23.11.2012 DATE OF PRONOUNCEMENT : 23.11.2012 ORDER PER SHAILENDRA KUMAR YADAV, JM : THIS APPEAL HAS BEEN FILED BY THE REVENUE AGAINST THE ORDER OF THE CIT(A) ON FOLLOWING GROUNDS: 1. IN THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN L AW, THE CIT(A) IS NOT JUSTIFIED IN DELETING THE ADDITION OF RS.12,00,000/- MADE BY THE A.O. U/S.68 OF THE I.T. ACT, 1961. 2. IN THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN L AW, THE CIT(A) IS NOT JUSTIFIED IN ADMITTING THE ADDITIONAL EVIDENCES FILED BY THE ASSESSEE IN APPELLATE PROCEEDINGS WHEN THE SAME WERE NOT FILED BEFORE A.O. IN ASSESSMENT PROCEEDING S INSPITE OF THE FACT THAT THE A.O. GRANTED SUFFICIENT OPPORTUNI TY TO THE ASSESSEE TO SUBMIT THE EVIDENCES AND THE ASSESSEE F AILED TO ACT. 2. BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE IS IN THE BUSINESS OF BUILDER AND DEVELOPER. HE HAS FILED A RETURN OF INCOME DECLARING TOTAL INCOME OF RS.7,36,267/- ON 31.10.2007. THE A SSESSING OFFICER EXAMINED THE RETURN. IN THE ASSESSMENT PROCEEDINGS THE ASSESSING 2 OFFICER ASKED FOR CONFIRMATION OF ALL THE PARTIES F ROM WHOM ADVANCES AGAINST BOOKING OF ROW HOUSES WERE RECEIVE D DURING THE YEAR. OUT OF THE SAID ADVANCES FOR BOOKING OF ROW HOUSES, THE ASSESSEE COULD NOT FURNISH THE CONFIRMATION IN RESP ECT OF ADVANCE AGAINST BOOKING OF ROW HOUSE NO.B-6 AMOUNTING TO RS .12,00,000/- RECEIVED FROM MR.SHITAL DESHPANDE. AS THE REQUIRED DETAILS IN RESPECT OF THE SAID ADVANCE RECEIVED FROM SAID MR.S HITAL DESHPANDE WERE NOT FURNISHED, THE ASSESSING OFFICER MADE ADDI TION OF THE SAME U/S.68 OF THE ACT AND ENHANCED THE INCOME OF THE AS SESSEE TO THAT EXTENT. MATTER WAS CARRIED BEFORE THE CIT(A) WHERE IN RELIEF WAS GRANTED TO THE ASSESSEE. SAME HAS BEEN OPPOSED BEF ORE US. 3. THE LD. DEPARTMENTAL REPRESENTATIVE SUBMITTED TH AT THE CIT(A) WAS NOT JUSTIFIED IN DELETING THE ADDITION O F RS.12,00,000/- MADE BY THE ASSESSING OFFICER U/S.68 OF THE ACT. T HE CIT(A) WAS NOT JUSTIFIED IN ADMITTING THE ADDITIONAL EVIDENCES FILED BY THE ASSESSEE IN APPELLATE PROCEEDINGS WHEN THE SAME WER E NOT FILED DURING ASSESSMENT PROCEEDINGS. ACCORDINGLY, THE OR DER OF THE ASSESSING OFFICER BE UPHELD. NONE APPEARED ON BEHA LF OF THE ASSESSEE SO THE MATTER IS BEING DECIDED ON THE BASI S OF THE ARGUMENTS OF LD. DEPARTMENTAL REPRESENTATIVE AND MA TERIAL ON RECORD. 4. AFTER GOING THROUGH THE ARGUMENTS OF LD. DEPARTM ENTAL REPRESENTATIVE AND MATERIAL ON RECORD, WE FIND THAT A LETTER OF CONFIRMATION DATED 01.04.2007 AND AGREEMENT DATED 2 5.01.2007 WERE ADDITIONAL EVIDENCES BEFORE THE CIT(A) WITH RE GARD TO CASH CREDIT IN QUESTION. THE SAID CONFIRMATION LETTER D ATED 01.04.2007 WAS SIGNED BY THE SAID MR.SHITAL DESHPANDE AND AGRE EMENT BETWEEN THE ASSESSEE AND MR.SHITAL DESHPANDE HAVE B EEN FILED BY THE ASSESSEE DURING THE APPELLATE PROCEEDINGS WERE NOT FILED BEFORE THE ASSESSING OFFICER. IN THIS REGARD STAND OF THE ASSESSEE HAS BEEN THAT MR.SHITAL DESHPANDE WAS OUT OF STATION AND THE ASSESSING OFFICER ASKED FOR THE CONFIRMATION AT THE FAG END O F DECEMBER AND SUFFICIENT TIME WAS NOT GIVEN TO THE ASSESSEE TO PR ODUCE THE 3 CONFIRMATION LETTER AND THERE WAS NO DISPUTE BETWEE N THE ASSESSEE AND MR.SHITAL DESHPANDE BECAUSE ROW HOUSE WHICH WAS AGREED TO BE SOLD TO MR.SHITAL DESHPANDE WAS CANCELLED IN REV ISED PLAN AND ALSO AT THE SAME TIME WHEN RELEVANT DETAILS WERE AS KED FOR. THEREFORE, THE CIT(A) WAS JUSTIFIED IN ENTERTAINING THE ADDITIONAL EVIDENCE AND SAME WERE SENT FOR VERIFICATION TO THE CONCERNED ASSESSING OFFICER. THUS ADDITIONAL EVIDENCE WERE P ROPERLY ENTERTAINED BY THE CIT(A) BECAUSE THE ASSESSEE WAS PROVIDED BY REASONABLE CAUSE IN NOT FILING THE SAME BEFORE THE CONCERNED ASSESSING OFFICER. COMING TO THE MERIT OF THE CASE , WE FIND THAT THE ASSESSEE HAS RECEIVED AN ADVANCE OF RS.12,00,000/- FROM MR.SHITAL DESHPANDE, THE CONFIRMATION LETTER DATED 01.04.20 07 SIGNED BY MR.SHITAL DESHPANDE REVEALS THAT HE HAD GIVEN CASH OF RS.10,00,000/- AND RS.2,00,000/- ON 06.12.2006 AND 25.01.2007 RESPECTIVELY TO THE ASSESSEE. HIS PAN IS AASPD0346 G AND WAS ASSESSED WITH THE SAME ASSESSING OFFICER WHO HAS PA SSED THE IMPUGNED ASSESSMENT ORDER. IT WAS ALSO ESTABLISHED BY THE ASSESSEE BY FILING COPY OF AGREEMENT DATED 25.01.20 07 THAT THE ABOVE CASH CREDIT OF RS.12,00,000/- WAS ON ACCOUNT OF THE PURCHASE OF A ROW HOUSE WHICH HAS ESTABLISHED THE I DENTITY AND GENUINENESS OF THE TRANSACTION. IN VIEW OF THE ABO VE, THE CASH CREDIT OF RS.12,00,000/- STOOD EXPLAINED. ACCORDIN GLY, THE CIT(A) WAS JUSTIFIED IN DELETING THE ADDITION OF RS.12,00, 000/- MADE BY THE ASSESSING OFFICER BY INVOKING THE PROVISIONS OF SEC TION 68 OF THE ACT. THIS REASONED FACTUAL FINDING NEED NO INTERFERENCE FROM OUR SIDE. 5. AS A RESULT, THE APPEAL FILED BY THE REVENUE IS DISMISSED. PRONOUNCED IN THE OPEN COURT ON THIS THE 23 RD DAY OF NOVEMBER, 2012. SD/- SD/- ( R.K.PANDA ) ( SHAILENDRA KUMAR YAD AV ) ACCOUNTANT MEMBER JUDICIAL MEMBER GSPS PUNE, DATED THE 23 RD NOVEMBER, 2012 4 COPY OF THE ORDER IS FORWARDED TO: 1. THE ASSESSEE 2. THE ITO, WARD-1(4), NASHIK. 3. THE CIT(A)-I, NASHIK. 4. THE CIT-I, NASHIK. 5. THE DR A BENCH, PUNE. 6. GUARD FILE. BY ORDER //TRUE COPY// PRIVATE SECRETARY, INCOME TAX APPELLATE TRIBUNAL, PUNE.