Dr.K.N.Thrunavukarasu, CHENNAI V. ACIT, CHENNAI

ITA 1584/CHNY/2015

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 9048 (ITAT-CHENNAI)
• Duration Of Justice: 11 month(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-06-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Assessment Year: 2010-2011
• Appeal Filed On: 09-07-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MILIND MADHUKAR BHUSARI
• Assessee Lawyers: JHARNA B HARILAL
• Keywords: Unexplained cash credit; Unexplained investment; Additional evidence; Condonation of delay
• Section: 68

Judgement Text

, , IN THE INCOME - TAX APPELLATE TRIBUNAL D BENCH, CHENNAI , . , BEFORE SHRI CHANDRA POOJARI , ACCOUNTANT MEMBER & SHRI DUVVURU RL REDDY , JUDICIAL MEMBER ./ I.T.A.NO. 1 584 /MDS/2015 / ASSESSMENT YEAR :20 1 0 - 1 1 DR. K.N. THIR UNAVUKARASU, NO. 20, KELLYS ROAD, KILPAUK, CHENNAI 600 010. [PAN: A A CPT4864F ] VS. THE ASSISTANT COMMISSIONER OF INCOME TAX , BUSINESS CIRCLE XIV , C HENNAI 600 034 . ( / APPELLANT ) ( / RESPONDENT ) / APPELLANT BY : MS. JHARNA B. HARILAL, FCA / RESPONDENT BY : SHRI MILIND MADHUKAR BHUSARI, CIT / DATE OF HEARING : 04 . 0 4 .201 6 / DATE OF P RONOUNCEMENT : 30 . 0 6 .201 6 / O R D E R PER DUVVURU RL REDDY , JUDICIAL MEMBER : THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF THE LD. COMMISSIONER OF INCOME TAX (APPEALS) 1 2 , CHENNAI , DATE D 13 . 03 .201 5 RELEVANT TO THE ASSESSMENT YEAR 20 1 0 - 1 1 . THE ONLY EFFECTIVE GROUND RAISED IN THE APPEAL OF THE ASSESSEE IS THAT THE LD. CIT(A) ERRED IN CONFIRMING THE ADDITION OF .45,63,550/ - AS UNEXPLAINED CASH CREDIT UNDER SECTION 68 OF THE INCOME TAX ACT, 1961 [ ACT IN SHORT]. I.T.A. NO . 1 584 /M/ 15 2 2. THIS APPEAL OF THE ASSESSEE IS FOUND TO HAVE BEEN FILED LATE BY 29 DAYS IN FILING THE APPEAL. BY RELYING ON THE PETITION FOR CONDONATION OF DELAY HAS BEEN FILED IN SUPPORT OF AN AFFIDAVIT, THE LD. COUNSEL FOR THE ASSESSEE HAS EX PRESSED GENUINE HARDSHIP IN FILING THE APPEAL BY THE ASSESSEE BEFORE DUE DATE OF FILING OF APPEAL BEFORE THE TRIBUNAL AND PLEADED FOR CONDONATION OF SHORT DELAY IN FILING THE APPEAL . SINCE THE LD. DR DID NOT OBJECT TO THE PLEA OF THE LD. COUNSEL FOR THE AS SESSEE, WE CONDONE THE DELAY AND ADMIT THE APPEAL FOR HEARING AND ADJUDICATION. 3 . BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE IS A DOCTOR BY PROFESSION AND IS RUNNING A NURSING HOME IN THE NAME AND STYLE OF K.N. NURSING HOME AND FILED THE RETURN OF INCOME FOR THE ASSESSMENT YEAR 2010 - 11 ON 28.09.2010 ADMITTING TOTAL INCOME OF .79,65,260/ - . THE RETURN FILED BY THE ASSESSEE WAS PROCESSED UNDER SECTION 143(1) OF THE ACT AND THE CASE WAS SELECTED FOR SCRUTINY AND NOTICE UNDER SECTION 143(2) OF THE ACT WAS ISSUED. THE ASSESSING OFFICER HAS COMPLETED THE ASSESSMENT UNDER SECTION 143 (3) OF THE ACT ON 28.02.2013 BY ASSESSING TOTAL INCOME OF THE ASSESSEE AT .1,25,36,129/ - AFTER MAKING ADDITION TOWARDS UNEXPLAINED CASH CREDIT UNDER SECTION 68 OF THE ACT. I.T.A. NO . 1 584 /M/ 15 3 4 . AGGRIEVED BY THIS ORDER OF THE ASSESSING OFFICER, THE ASSESSEE PREFERRED AN A PPEAL BEFORE THE LD. CIT(A). AFTER CONSIDERING THE SUBMISSIONS OF THE ASSESSEE, THE LD. CIT(A) CONFIRMING THE ADDITION MADE BY THE ASSESSING OFFICER. 5 . ON BEING AGGRIEVED, THE ASSESSEE IS IN APPEAL BEFORE THE TRIBUNAL. THE LD. COUNSEL FOR THE ASSESSEE HAS SUBMITTED THAT IN ORDER TO SUBSTANTIATE THE CLAIM OF THE ASSESSEE, THE ASSESSEE HAS FILED ADDITIONAL EVIDENCE BEFORE THE LD. CIT(A), BUT THE LD. CIT(A) WITHOUT CONSIDERING THE SAME, HE REJECTED THE ADDITIONAL EVIDENCES FILED BEFORE HIM. THUS, HE PLEADE D THAT ISSUE MAY BE REMITTED BACK TO THE LD. CIT(A) FOR CONSIDERATION OF ADDITIONAL EVIDENCES AND DECIDE THE APPEAL ON MERITS. 6 . ON THE OTHER HAND, THE LD. DR, THOUGH FAIRLY CONCEDED THAT THE ADDITIONAL EVIDENCES FILED BY THE ASSESSEE WAS REJECTED BY T HE LD. CIT(A), BUT DUTIFULLY SUPPORTED THE ORDERS OF AUTHORITIES BELOW. 7 . WE HAVE HEARD BOTH SIDES, PERUSED THE MATERIALS ON RECORD AND GONE THROUGH THE ORDERS OF AUTHORITIES BELOW. ADMITTEDLY, THE ASSESSEE IS AN INDIVIDUAL AND ASSESSED TO INCOME TAX A ND WHILE OPENING THE BANK ACCOUNT WITH CORPORATION BANK, THE ASSESSEE HAS GIVEN HIS PAN I.T.A. NO . 1 584 /M/ 15 4 NUMBER IN HIS INDIVIDUAL CAPACITY TO THE BANK. ON VERIFICATION OF THE BANK ACCOUNT, THE ASSESSING OFFICER HAS OBSERVED THAT THE DEPOSITS WERE MADE MORE OR LESS ON EVERY DAY OF THE YEAR AND THAT TOO RANGING FROM .15,000/ - TO .49,500/ - [ALL BELOW .50,000/ - ]. WHEN THE ASSESSEE WAS ASKED TO EXPLAIN, THE ASSESSEE HAS SUBMITTED THAT THE DEPOSITS REPRESENT AGRICULTURAL INCOME. HOWEVER, THE ASSESSEE HAS NOT SUBMITTED THE NATURE OF AGRICULTURAL ACTIVITY CARRIED ON BY T HE ASSESSEE. THE SUBMISSION OF THE ASSESSEE WAS NOT ACCEPTED BY THE ASSESSING OFFICER SINCE THE AGRICULTURAL INCOME CANNOT BE DERIVED EVERY DAY AND NORMALLY THE AGRICULTURAL INCOME WOULD ACCRUE OR ARISE ONLY AT A PARTICULAR TIME OF REAP OF THE PRODUCTS OR HARVEST AND IT IS DIFFICULT TO ACCEPT THAT THE ASSESSEE WAS ABLE TO GET THE AGRICULTURAL INCOME DAILY FROM ERODE TO CHENNAI TO ENABLE HIM TO DEPOSIT THE AMOUNT IN HIS BANK ACCOUNT AT CHENNAI SINCE THE AGRICULTURAL LANDS ARE SITUATED IN A VILLAGE AT ERODE. THE ASSESSEE HAS NO OTHER EXPLANATION EXCEPT VAGUELY PLEAD ED THAT IT REPRESENTED AGRICULTURAL INCOME OF HIS HUF. AS THE ASSESSEE COULD NOT SATISFACTORILY EXPLAIN THE NATURE AND SOURCE FOR THE CASH DEPOSITED IN THE BANK ACCOUNT, THE ASSESSING OFFICER TREATE D THE SAME AS UNEXPLAINED INVESTMENT BY WAY OF CASH DEPOSIT IN THE BANK MADE OUT OF UNDISCLOSED INCOME OF THE ASSESSEE AND BROUGHT TO TAX. I.T.A. NO . 1 584 /M/ 15 5 BEFORE THE LD. CIT(A), THE ASSESSEE TRIED TO SUBMIT ADDITIONAL EVIDENCE. HOWEVER, SINCE THE AR OF THE ASSESSEE HAS NOT BEEN ABLE TO JUSTIFY AS TO HOW THE SAME IS COVERED BY THE PROVISIONS OF RULE 46A WHEN THE ASSESSING OFFICER HAS GIVEN SUFFICIENT TIME FROM JUNE, 2012 TO FEBRUARY, 2013 FOR FURNISHING THE INFORMATION, BUT THE ASSESSEE HAS NOT FILED ANY EVIDENCE BEFO RE THE ASSESSING OFFICER. THUS, THE LD. CIT(A) HAS NOT ADMITTED THE ADDITIONAL EVIDENCE AND REJECTED THE SAME. ON THIS ASPECT, THE CONTENTION OF THE LD. COUNSEL FOR THE ASSESSEE IS THAT THE ASSESSEE WAS MEMBER OF THE HUF AND LOOKING AFTER THE AFFAIRS OF TH E SAID HUF AND HUF HAD 15 ACRES OF LAND IN KULAVILAKKU VILLAGE AT ERODE DISTRICT GOT BY WAY OF PARTITION DEED AND THE DEPOSITS MADE REPRESENTS AGRICULTURAL INCOME RECEIVED AND ALSO THE AMOUNT RETURNED BY THE MEMBERS OF THE FAMILY. THE ASSESSEE HAS FILED PA PER BOOK BY SHOWING THE DETAILS OF REPAYMENT OF LOAN BY MEMBERS OF HUF ACCOUNT AND ALSO VARIOUS DETAILS PERTAINING TO THE PROPERTY. HOWEVER, THE LD. CIT(A) HAS NOT CONSIDERED THE SAME DURING APPELLATE PROCEEDINGS SINCE THE SAME IS NOT COVERED IN THE EXCEPT IONS PROVIDED UNDER RULE 46A. ADMITTEDLY, THE ASSESSEE HAS NOT FILED THE DETAILS BEFORE THE ASSESSING OFFICER, BUT HE FILED THE SAME BEFORE THE LD. CIT(A) AND THE LD. CIT(A) HAS NOT CONSIDERED TO ADMIT THE ADDITIONAL EVIDENCE. AFTER I.T.A. NO . 1 584 /M/ 15 6 CONSIDERING THE SUBMISS IONS OF THE LD. COUNSEL FOR THE ASSESSEE, WE ARE OF THE CONSIDERED OPINION THAT TO MEET THE ENDS OF JUSTICE, THE LD. CIT(A) SHOULD BE CONSIDERED THE ADDITIONAL EVIDENCE AND DECIDED THE ISSUE ON MERITS. THUS, WE SET ASIDE THE ORDER PASSED BY THE LD. CIT(A) ON THIS ISSUE AND REMIT THE MATTER BACK TO THE LD. CIT(A) THE DECIDE THE ISSUE ON MERITS AFTER CONSIDERING THE EVIDENCES. ACCORDINGLY, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. 8 . IN THE RESULT, THE APPEAL FILED BY THE ASSESS EE IS ALLOWED FOR STATISTICAL PURPOSES . ORDER PRONOUNCED ON THE 30 TH JU NE , 201 6 AT CHENNAI. SD/ - SD/ - ( CHANDRA POOJARI ) ACCOUNTANT MEMBER ( DUVVURU RL REDDY ) JUDICIAL MEMBER CHENNAI, DATED, THE 30 . 0 6 .201 6 VM/ - / COPY TO: 1. / APPELLANT , 2. / RESPONDENT , 3. ( ) / CIT(A) , 4. / CIT , 5. / DR & 6. / GF.