Mr. Satish Prabhakar Bakre L/H of Late Shri Prabhakar Govind Bakre, Pune V. ACIT (HQ)-II, Pune

ITA 1748/PUN/2013

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 93641 (ITAT-PUNE)
• Duration Of Justice: 1 year(s) 6 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-04-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2008-2009
• Appeal Filed On: 16-09-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: ABHAY A AVCHAT
• Keywords: Salary income; Opportunity of being heard

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH A, PUNE BEFORE MS. SUSHMA CHOWLA, JUDICIAL MEMBER AND SHRI R.K. PANDA, ACCOUNTANT MEMBER ITA NO. 1748/PN/2013 (ASSESSMENT YEAR : 2008-09) MR. SATISH PRABHAKAR BAKRE, LEGAL HEIR OF LATE SHRI PRABHAKAR GOVIND BAKRE 1198, F.C. ROAD, SHIVAJINAGAR, PUNE 411 004 .. APPELLANT PAN NO.AARPB9084C VS. ACIT (HQ)-II, PUNE .. RESPONDENT ASSESSEE BY : SHRI ABHAY A. AVCHAT REVENUE BY : SHRI RAJESH DAMOR DATE OF HEARING : 09-04-2015 DATE OF PRONOUNCEMENT : 15-04-2015 ORDER PER R.K.PANDA, AM : THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAIN ST THE ORDER DATED 11-12-2013 OF THE CIT(A)-II, PUNE RELAT ING TO ASSESSMENT YEAR 2008-09. 2. THE ASSESSEE IN THE GROUNDS OF APPEAL HAS CHALLE NGED THE ORDER OF THE CIT(A) IN SUSTAINING AN AMOUNT OF RS.6 7,500/- OUT OF ADDITION OF RS.1,11,767/- MADE BY THE AO. 3. FACTS OF THE CASE, IN BRIEF, ARE THAT THE ASSESS EE IS AN INDIVIDUAL AND DERIVES INCOME FROM SALARY, HOUSE PR OPERTY AND OTHER SOURCES. IT FILED ITS RETURN OF INCOME ON 29 -07-2008 2 DECLARING TOTAL INCOME AT RS.18,60,680/-. DURING T HE COURSE OF ASSESSMENT PROCEEDINGS, THE AO NOTED THAT THE ASSES SEE HAS NOT OFFERED THE INTEREST RECEIVED FROM JANATA SAHAKARI BANK CORRECTLY. THERE IS SUPPRESSION OF INTEREST TO THE EXTENT OF R S.15,570/- AS PER ITS DATA AND RS.96,017/- AS PER 16A CERTIFICATE ISS UED BY THE BANK. THE ASSESSEE ALSO COULD NOT GIVE SATISFACTOR Y REPLY TO THE AO. HE, THEREFORE, MADE ADDITION OF RS.1,11,767/- TO THE TOTAL INCOME OF THE ASSESSEE. 4. SO FAR AS THE ADDITION OF RS.96,017/- BEING INTE REST ON FIXED DEPOSIT IS CONCERNED, IT WAS ARGUED BEFORE THE LD.C IT(A) THAT THE BANK HAD RECOVERED AN AMOUNT OF RS.44,267/- DUE TO PREMATURE ENCASHMENT OF DEPOSITS AGAINST INTEREST GIVEN EARLI ER OF RS.51,750/- ON 25-06-2007. IT WAS EXPLAINED THAT T HE BANK HAD EARLIER CREDITED AN AMOUNT OF RS.46,420/- ON 25-06- 2007 AFTER DEDUCTING THE TDS OF RS.5,330/- ON RS.51,750/-. TH E AO HAD ERRONEOUSLY CONSIDERED BOTH THE AMOUNTS, I.E. RS.51 ,750/- AND RS.44,267/- AS INTEREST GIVEN BY THE BANK AND MADE ADDITION OF RS.96,017/-. 5. SO FAR AS THE ADDITION OF RS.15,750/- BEING INTE REST ON DEPOSIT WITH JANATA SAHAKARI BANK IS CONCERNED, IT WAS SUBMITTED THAT THE AO HAS WRONGLY CONSIDERED THE SAID INTERES T OF RS.15,750/- FOR THE QUARTER ENDING MARCH 2008 AS BE LONGING TO SHRI PRABHAKAR BAKRE, INDIVIDUAL WHEREAS THE SAID D EPOSIT BELONGS TO SHRI PRABHAKAR BAKRE, HUF WHO HAS OFFERE D THE ENTIRE INTEREST OF RS.63,000/- (I.E. RS.15,750 X4) TO TAX . IT WAS 3 ACCORDINGLY SUBMITTED THAT THE ADDITION MADE BY THE AO SHOULD BE DELETED. 6. HOWEVER, THE LD.CIT(A) WAS NOT FULLY SATISFIED W ITH THE EXPLANATION GIVEN BY THE ASSESSEE. SO FAR AS THE A DDITION OF RS.96,017/- IS CONCERNED, HE OBSERVED FROM FORM 16A FILED BY THE ASSESSEE THAT OUT OF THE AMOUNT OF RS.51,750/- AN AMOUNT OF RS.44,260/- HAS BEEN DEDUCTED TO ARRIVE AT A FIGURE OF RS.7,483/- THEREFORE, HE WAS OF THE OPINION THAT OUT OF ADDITI ON OF RS.96,017/- A SUM OF RS.44,267/- WHICH IS ON ACCOUN T OF RECOVERY BY THE BANK NEEDS TO BE REDUCED SINCE THE SAME IS NOT INCOME OF THE ASSESSEE. HE, THEREFORE, SUSTAINED T HE BALANCE AMOUNT OF RS.51,750/- AND DIRECTED THE AO TO DELETE THE ADDITION OF RS.44,267/-. 7. AS REGARDS THE ADDITION OF RS.15,750/- IS CONCER NED HE OBSERVED THAT THE ASSESSEE COULD NOT SATISFY WITH E VIDENCE THAT THE AMOUNT CREDITED BY BANK IN THE NAME OF INDIVIDU AL ACTUALLY BELONGS TO HUF. HE ACCORDINGLY SUSTAINED THE ADDIT ION OF RS.15,750/-. 8. AGGRIEVED WITH SUCH ORDER OF THE CIT(A) THE ASSE SSEE IS IN APPEAL BEFORE US. 9. THE LD. COUNSEL FOR THE ASSESSEE DREW THE ATTENT ION OF THE BENCH TO FORM 16A FILED IN THE PAPER BOOK AT PAGE 1 1 AND SUBMITTED THAT AS PER THE CERTIFICATE ISSUED BY THE BANK IN FORM NO.16A THE ASSESSEE HAS RECEIVED ONLY AN AMOUNT OF RS.7,483/- 4 TOWARDS INTEREST. HE SUBMITTED THAT BANK HAD CREDIT ED AN AMOUNT OF RS.51,750/- ON 25-06-2007 AND DUE TO PREMATURE E NCASHMENT OF THE FIXED DEPOSITS THE BANK RECOVERED AN AMOUNT OF RS.49,267/- ON 23-07-2007. THUS, THE INTEREST RECE IVED BY THE ASSESSEE ON THE FIXED DEPOSIT IS ONLY RS.7,483/-. 10. REFERRING TO THE AMOUNT CREDITED ON 24-07-2007 IN THE SAVINGS BANK ACCOUNT, THE LD. COUNSEL FOR THE ASSES SEE DREW THE ATTENTION OF THE BENCH TO THE ENTRY OF 24-07-2007 S HOWING CREDIT OF RS.22,55,773/- ON ACCOUNT OF PREMATURE WITHDRAWA L OF THE FIXED DEPOSIT. HE ACCORDINGLY SUBMITTED THAT THE L D.CIT(A) ERRONEOUSLY CONSIDERED RS.51,750/- AS THE INTEREST INCOME AS AGAINST THE CORRECT INTEREST INCOME OF RS.7,483/-. 11. SO FAR AS THE AMOUNT OF RS.15,750/- IS CONCERNE D THE LD. COUNSEL FOR THE ASSESSEE DREW THE ATTENTION OF THE BENCH TO PAGE 14 OF THE PAPER BOOK WHICH IS FORM 16A ISSUED BY TH E BANK AND SUBMITTED THAT THE BANK HAS CREDITED AN AMOUNT OF R S.63,000/- TOWARDS INTEREST FOR THE YEAR ENDING 31-03-2008 AND THE QUARTERLY INTEREST CREDITED IS RS.15,750/. THE HUF OF THE AS SESSEE HAS DISCLOSED THE ENTIRE AMOUNT OF RS.63,000/- IN THE I NCOME TAX RETURN FILED. THEREFORE, TAXING RS.15,750/- AGAIN IN THE HANDS OF THE ASSESSEE AMOUNTS TO TAXING OF THE SAME AMOUNT T WICE, I.E. IN THE HANDS OF THE ASSESSEE AS WELL AS IN THE HANDS O F THE HUF. HE ACCORDINGLY SUBMITTED THAT THIS ADDITION SHOULD BE DELETED. 12. THE LD. DEPARTMENTAL REPRESENTATIVE ON THE OTHE R HAND SUBMITTED THAT THE ASSESSEE HAS NOT FILED DOCUMENTA RY EVIDENCE TO 5 SHOW THAT THE INTEREST ON FIXED DEPOSIT IS ONLY RS. 7,483/-. SIMILARLY, HE HAS NOT FILED THE COPY OF THE RETURN OF INCOME OF THE HUF SHOWING THE ENTIRE AMOUNT IN THE HANDS OF THE H UF. THEREFORE, THE ORDER OF THE CIT(A) BE UPHELD. OTHE RWISE, THE MATTER MAY BE RESTORED TO THE FILE OF THE AO FOR FR ESH ADJUDICATION. 13. THE LD. COUNSEL FOR THE ASSESSEE IN HIS REJOIND ER SUBMITTED THAT HE HAS NO OBJECTION IF THE MATTER IS RESTORED TO THE FILE OF THE AO. 14. WE HAVE CONSIDERED THE RIVAL ARGUMENTS MADE BY BOTH THE SIDES, PERUSED THE ORDERS OF THE ASSESSING OFFICER AND THE CIT(A) AND THE PAPER BOOK FILED ON BEHALF OF THE ASSESSEE. FROM THE COPY OF FORM 16A FILED BY THE ASSESSEE AT PAGE 11 O F THE PAPER BOOK, WE FIND THE INTEREST CREDITED BY THE BANK FOR THE PERIOD 01- 04-2007 TO 31-03-2008 IS ONLY RS.7,483/-. HOWEVER, THE LD. COUNSEL FOR THE ASSESSEE COULD NOT FILE THE COPY OF THE FIXED DEPOSIT RECEIPT AND THE PREMATURE WITHDRAWAL OF THE SAME ON THE GROUND THAT THEY HAVE APPLIED TO THE BANK FOR COPY OF THE SAME AND THEY ARE WAITING FOR A REPLY FROM THE BANK. TH E LD. COUNSEL FOR THE ASSESSEE COULD NOT FILE ANY DOCUMENTARY EVI DENCE TO SHOW THAT THE HUF HAS DECLARED THE INTEREST INCOME OF RS .15,750/- FOR THE QUARTER ENDING MARCH 2008 IN THE RETURN OF INCO ME. CONSIDERING THE TOTALITY OF THE FACTS OF THE CASE A ND IN THE INTEREST OF JUSTICE, WE DEEM IT PROPER TO RESTORE THE ISSUE TO THE FILE OF THE ASSESSING OFFICER WITH A DIRECTION TO GIVE ONE MORE OPPORTUNITY 6 TO THE ASSESSEE TO SUBSTANTIATE HIS CASE. THE ASSE SSING OFFICER SHALL DECIDE THE ISSUE AFRESH AND IN ACCORDANCE WIT H LAW AFTER GIVING DUE OPPORTUNITY OF BEING HEARD TO THE ASSESS EE. WE HOLD AND DIRECT ACCORDINGLY. GROUNDS RAISED BY THE ASSE SSEE ARE ACCORDINGLY ALLOWED FOR STATISTICAL PURPOSES. 15. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. PRONOUNCED IN THE OPEN COURT ON 15-04-2015. SD/- SD/- (SUSHMA CHOWLA) (R.K. PA NDA) JUDICIAL MEMBER ACCOUNTANT MEMBER PUNE DATED: 15 TH APRIL, 2015 SATISH COPY OF THE ORDER FORWARDED TO : 1. ASSESSEE 2. DEPARTMENT 3. THE CIT(A)-II, PUNE 4. THE CIT-II, PUNE 5. THE D.R, A PUNE BENCH 6. GUARD FILE BY ORDER // TRUE COPY // ASSISTANT REGISTRAR ITAT, PUNE BENCHES, PUNE