G.V.Sivakumar Reddy, Hyderabad V. ITO,Ward -6(4), Hyderabad

ITA 1665/HYD/2013

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 6284 (ITAT-HYDERABAD)
• Duration Of Justice: 2 year(s) 8 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 24-08-2016
• Appeal Filed By: Assessee
• Bench Allotted: B
• Next Hearing Date: 03-08-2016
• Assessment Year: 2009-2010
• Appeal Filed On: 02-12-2013
• Court: TRIBUNAL
• Department Lawyers: K J RAO
• Assessee Lawyers: S RAMA RAO
• Keywords: Additional evidence

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCHES B, HYDERABAD BEFORE SHRI D. MANMOHAN, VICE PRESIDENT AND SHRI B. RAMAKOTAIAH, ACCOUNTANT MEMBER I.T.A. NO. 1665/HYD/2013 ASSESSMENT YEAR: 2009-10 G.V. SIVAKUMAR REDDY, HYDERABAD [PAN: AEWPG1548M] VS INCOME TAX OFFICER, WARD-6(4), HYDERABAD (APPELLANT) (RESPONDENT) FOR ASSESSEE : SHRI S. RAMA RAO, AR FOR REVENUE : SHRI K.J. RAO, DR DATE OF HEARING : 09-08-2016 DATE OF PRONOUNCEMENT : 24-08-2016 O R D E R PER B. RAMAKOTAIAH, A.M. : THIS IS AN APPEAL BY ASSESSEE AGAINST THE ORDER OF TH E COMMISSIONER OF INCOME TAX (APPEALS)-IV, HYDERABAD, DATED 27-09-2013 ON THE ISSUE OF CREDITS BEING BROUGHT TO TAX . 2. THE FACTS IN BRIEF ARE THAT ASSESSEE, AN INDIVIDUA L HAS INCOME FROM RENTS AND CONTRACT. HE FILED RETURN OF INCOME ADM ITTING TOTAL INCOME OF RS. 6,69,630/- MAINLY COMPRISING OF RENTS RECEIVED. DURING THE COURSE OF SCRUTINY, ASSESSING OFFICER (A O) FOUND THAT THERE ARE CASH DEPOSITS IN ASSESSEES BANK ACCOUNT, WH ICH ARE AS UNDER: I.T.A. NO. 1665/HYD/2013 G.V. SIVAKUMAR REDDY :- 2 -: DATE AMOUNT (RS) 13-01-2009 2,19,000 09-03-2009 9,50,000 13-03-2009 5,50,000 17,19,000 2.1. IN ADDITION, ASSESSEE ALSO HAD A DEPOSIT OF RS. 10,00,000/- BY WAY OF FUND TRANSFER ON 20-03-2009 FROM NELLORE. ON ENQUIRY BY AO, ASSESSEE SUBMITTED THAT THE DEPOSIT ON 13-01-2009 WAS FROM SALE PROCEEDS OF PROPERTY FROM SRI SHAHBAZ HUSSAIN OUT OF RS. 3 LAKHS RECEIVABLE. THE DEPOSIT OF RS. 15 LAKHS ON 09 /03 AND 13/03 ARE FROM THE ADVANCES RECEIVED FROM SALE OF AG RICULTURAL LANDS REGISTERED SUBSEQUENTLY ON 09-04-2009. AO DISB ELIEVED THE SAME AS THE SALE HAPPENED IN 2007 AND COULD NOT BE A SOURCE FOR DEPOSIT IN JAN,09 AND OTHER BEING NOT CONFIRMED BY THEM , EXCEPT AN AMOUNT OF RS. 1,84,500/- FROM ONE SMT. MANGAMMA. THEREFORE, AO BROUGHT TO TAX RS. 2,19,000/- AND RS. 4, 16,000/- AND RS. 5,21,000/- STATED TO BE ADVANCE SALE PROCEEDS AND RS. 3,78,500/- BEING INTEREST ON UNEXPLAINED/INCOME OF AS SESSEE. WITH REFERENCE TO RS. 10 LAKHS ON 20/3/09 EVEN THOUGH EXPL AINED AS AGRICULTURAL INCOME OF HUF OF EARLIER THREE YEARS, A O DISBELIEVED THE SAME AS THERE WAS CASH DEPOSIT OF THE SAME AMOUNT O N 19-03- 2009 IN ANOTHER PERSON ACCOUNT AND THE SAME WAS ALSO BROUGHT TO TAX. IN ADDITION TO THE ABOVE, AO ALSO BROUGHT TO TAX A N AMOUNT OFFERED AS RENT ON A PROPERTY THAT WAS SOLD EARLIER AT RS. 99,000/- AS INCOME FROM OTHER SOURCES, DENYING THE BENEFIT O F RS. 29,700/- CLAIMED UNDER THE HEAD HOUSE PROPERTY. I.T.A. NO. 1665/HYD/2013 G.V. SIVAKUMAR REDDY :- 3 -: 3. ASSESSEE FILED ADDITIONAL EVIDENCE IN THE FORM OF CONFIRMATION LETTER BEFORE CIT(A) FROM MR K MURALIKRISHNA AND MR K.D. LAKSHMI NARASIMHAM IN SUPPORT OF CLAIM OF ADVANCE RECEIPT OF SALE PROCEEDS AND REQUESTED FOR THEIR ACCEPTANCE, AS WAS D ONE IN THE CASE OF SMT. K. MANGAMMA BY AO. WITH REFERENCE TO THE DEPOSIT OF RS. 2,19,000/- IT WAS SUBMITTED THAT THE DUE AMOUNT WAS R ECEIVED. WITH REFERENCE TO DENIAL OF CLAIM, ASSESSEE CONTENDED THAT THE INCOME WAS OFFERED WRONGLY AND NO SUCH INCOME WAS R ECEIVED. 4. LD. CIT(A) REFUSED TO ADMIT THE ADDITIONAL EVIDENCE ON THE REASON OF NON-SUBMISSION BEFORE AO, WHEN SUFFICIENT OPPORTUNITY WAS GIVEN AND CONFIRMED ALL THE ADDITIONS THEREBY REJE CTING ASSESSEES CONTENTIONS. 5. BEFORE US, LD. COUNSEL PLEADED FOR ADMITTING ADDITI ONAL EVIDENCE AND REITERATED THE SAME SUBMISSIONS MADE BE FORE THE AUTHORITIES. LD. DR SUPPORTED THE ORDERS. 6. WE HAVE CONSIDERED THE RIVAL CONTENTIONS AND DOCUME NTS PLACED ON RECORD. AS SEEN FROM THE RETURN OF INCOME FILED, ASSESSEE IS MAINLY HAVING RENTAL INCOMES. THE TDS DETAILS (SC H. TDS-2) INDICATE THAT RS. 8,37,897/- AND RS. 4,18,944/- WAS RE CEIVED FROM ICFAI, TDS BEING MADE AT 15% AND 2% RESPECTIVELY. TH E LATER AMOUNT WAS OFFERED AS INCOME FROM BUSINESS OF CONTR ACT U/S. 44AD. THE CREDITS IN BANK ACCOUNT IN JANUARY AND M ARCH, 2009 MAY BE FROM THE SOURCES AS EXPLAINED OR FROM UNEXPLA INED. IN OUR VIEW THE ENQUIRY OF THESE AMOUNTS HAS NOT BEEN DONE P ROPERLY. AS FAR AS THE ADVANCE RECEIPT OF SALE PROCEEDS ARE CONCE RNED, THE SAME REQUIRE EXAMINATION AS LD. CIT(A) REFUSED TO ADMIT THE ADDITIONAL I.T.A. NO. 1665/HYD/2013 G.V. SIVAKUMAR REDDY :- 4 -: EVIDENCE. WITHOUT ENQUIRY, THE CONTENTS THERE IN CANNOT BE REJECTED. IN FACT, THE CONFIRMATION FILED IN THE NAME OF SHRI K. MURALI KRISHNA DOES NOT SEEN TO BE AUTHENTIC, AS THE SIG NATURE ON THE CONFIRMATION LETTER IS DIFFERING FROM THE SIGNATURE ON THE SALE DEED ENCLOSURES SUBMITTED TO REGISTRY AUTHORITY. THER EFORE, THE AUTHENTICITY OF CONFIRMATION LETTER IS TO BE ESTABLISHED. BEST WAY IS TO ENQUIRE ABOUT THE VERACITY OF THE SAME, INCLUDING TH E CONTENTS THERE IN. THERE IS JUSTIFICATION IN ASSESSEES CLAIM AS AO ACCEPTED THE CONTENTION OF ADVANCE RECEIPT OF SALE PROCEEDS IN TH E CASE OF SMT.K. MANGAMMA. WHETHER THERE ARE ANY MORE CREDITS IN THE MONTH OF APRIL, 2009 WHEN THE REGISTRATION WAS DONE RE QUIRE VERIFICATION, SO AS TO CONFIRM THAT ASSESSEES CONTENTIO N THAT HE RECEIVED IN ADVANCE IS CORRECT OR NOT? THEREFORE, AO IS DIRECTED TO MAKE NECESSARY ENQUIRIES FROM THE SO CALLED BUYERS O F PROPERTY AND ALSO EXAMINE WHETHER THERE ARE ANY MORE DEPOSITS I N APRIL, 2009 OR INVESTMENTS BY ASSESSEE CLAIMING SUCH SOURCE. WITH REFERENCE TO THE DEPOSIT OF RS. 2,19,000/-, THE EXPLANA TION GIVEN BY ASSESSEE IS NOT BELIEVABLE. ON ONE HAND, ASSESSEE S AYS THAT HE RECEIVED ADVANCE SALE PROCEEDS ON SALE OF AGRICULTU RAL LAND AND OTHER HAND SUBMITTED THAT HE RECEIVED DUE AMOUNT AFT ER TWO YEARS ON SALE OF PLOTS. IN FACT, WHETHER ASSESSEE HAS OFFER ED ANY SALE PROCEEDS IN EARLIER YEAR, SO AS TO CLAIM DUE AMOUNTS HAS NOT BEEN EXAMINED BY AO. UNLESS ASSESSEES TRANSACTIONS OF S ALE OF PROPERTY IN A PROPRIETARY CONCERN IN EARLIER YEARS ARE EXAMIN ED OR AT LEAST THE SAID BUYER WAS EXAMINED, THE VERACITY OF ASSESSEE S CLAIM CANNOT BE ESTABLISHED. THEREFORE, THIS CLAIM ALSO RE QUIRES FURTHER EXAMINATION. THE NEXT ISSUE FOR CONSIDERATION IS THE CR EDIT OF RS. TEN LAKHS BY WAY OF FUND TRANSFER. THE SOURCE OF AGR ICULTURAL INCOME IN HUF STATUS AND ASSESSEE INVESTMENTS FROM THAT S OURCE I.T.A. NO. 1665/HYD/2013 G.V. SIVAKUMAR REDDY :- 5 -: IN HUF OR INDIVIDUAL STATUS REQUIRE DETAILED EXAMINATIO N. WHETHER FUNDS ARE IN JOINT OR SEPARATE CAN ALSO BE EXAMINED, AS THE CREDIT IS IN ASSESSEE INDIVIDUAL STATUS BANK ACCOUNT. THAT LEAVES US WITH THE LAST CLAIM OF ASSESSEE THAT RENTAL INCOME WAS WRONGL Y OFFERED. IN CASE ASSESSEE HAS NOT CLAIMED ANY BENEFIT OF THE IN COME OFFERED AS SOURCE OF INVESTMENT OR EXPENDITURE, THERE IS NO NE ED TO ACCEPT THE INCOME. HOWEVER, AO HAS GIVEN CREDIT OF RS. 2,50, 000/- IN THE ORDER FROM OWN SOURCES. WHETHER ASSESSEE HAS WITH DRAWN ANY AMOUNT SO AS TO GIVE CREDIT WAS NOT EXAMINED. THEREFOR E, IN ORDER TO MAKE PROPER ENQUIRY AND EXAMINE ASSESSEES CONTEN TIONS, WE ARE OF THE OPINION THAT THE ORDERS OF AO AND CIT(A) ARE TO BE SET ASIDE AND ENTIRE ASSESSMENT IS TO BE RESTORED TO AO, FOR DOING IT AFRESH. WE ORDER ACCORDINGLY. ASSESSEE IS FREE TO MAKE SUBMISSIONS AND FILE CONFIRMATIONS IN SUPPORT OF THE CLAIMS. AO SHOULD PASS A DETAILED ORDER WITH REASONS FOR ACCEPTIN G OR REJECTING EACH OF THE CLAIM. WITH THESE DIRECTIONS, THE ORDERS OF AO AND CIT(A) ARE SET ASIDE. ASSESSEES GROUNDS ARE ALLOWE D FOR STATISTICAL PURPOSES. AO IS DIRECTED TO RE-DO THE ASSESSMENT AS DI RECTED AS PER LAW AND FACTS. 7. IN THE RESULT, ASSESSEES APPEAL IS ALLOWED FOR STA TISTICAL PURPOSES. ORDER PRONOUNCED IN THE COURT ON 24 TH AUGUST, 2016 SD/- SD/- (D. MANMOHAN) (B. RAMAKOTAIAH) VICE PRESIDENT ACCOUNTANT MEMB ER HYDERABAD, DATED 24 TH AUGUST, 2016 TNMM I.T.A. NO. 1665/HYD/2013 G.V. SIVAKUMAR REDDY :- 6 -: COPY TO : 1. G.V. SIVAKUMAR REDDY, HYDERABAD. C/O. SRI S. RAM A RAO, ADVOCATE, FLAT NO. 102, SHRIYAS ELEGANCE, H. NO. 3-6-643, ST. NO. 9, HIMAYATNAGAR, HYDERABAD. 2. INCOME TAX OFFICER, WARD-6(4), HYDERABAD. 3. CIT (APPEALS)-IV, HYDERABAD. 4. CIT-III, HYDERABAD. 5. D.R. ITAT, HYDERABAD. 6. GUARD FILE.