Nizar Bhailakhani, Hyderabad, Hyderabad V. ITO, Ward-5(2), Hyderabad, Hyderabad

ITA 1755/HYD/2016

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 9613 (ITAT-HYDERABAD)
• Duration Of Justice: 3 year(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-01-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB-B
• Next Hearing Date: 07-01-2020
• Assessment Year: 2008-2009
• Appeal Filed On: 30-12-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: N SWAPNA
• Keywords: Unexplained cash credit; Additional evidence; Condonation of delay
• Section: 142(1); 5(2); 143(2); 144

Judgement Text

ITA NO 1755 OF 2016 NIZAR BHAI LAKHANI HYDERABAD. PAGE 1 OF 4 IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD B SMC BENCH, HYDERABAD BEFORE SMT. P. MADHAVI DEVI, JUDICIAL MEMBER ITA NO.1755/HYD/2016 ASSESSMENT YEAR: 2008-09 SHRI NIZAR BHAI LAKHANI, HYDERABAD PAN:ABPPL3106J VS. INCOME TAX OFFICER WARD-5(2) HYDERABAD (APPELLANT) (RESPONDENT) ASSESSEE BY: SMT. S. SANDHYA REVENUE BY : SMT. N. SWAPNA, DR DATE OF HEARING: 07/01/2020 DATE OF PRONOUNCEMENT: 08/01/2020 ORDER THIS IS ASSESSEES APPEAL FOR THE A.Y 2008-09 AGAIN ST THE ORDER OF THE CIT (A)-4, HYDERABAD, DATED 10-06- 2016. 2. AT THE OUTSET, IT IS SEEN THAT THERE IS A DELAY OF 115 DAYS IN FILING OF THE APPEAL BEFORE THE TRIBUNAL. T HE ASSESSEE HAS FILED AN APPLICATION FOR CONDONATION OF DELAY STATI NG THAT THE PERIOD OF 60 DAYS IN FILING OF THE APPEAL ENDED ON 6.9.2016 BUT DURING THE PERIOD FROM 2.9.2016 ONWARDS THE PETITIO NER FELL SICK DUE TO ACUTE SLIP DISC AND WAS ADVISED ABSOLUTE BED REST INITIALLY FOR THREE MONTHS BUT HE HAD TO UNDERGO REST TILL 27 .12.2016 FOR COMPLETE RECOVERY FROM ILLNESS AND THEREFORE, THERE IS A DELAY OF 115 DAYS IN FILING OF THE APPEAL. THE PETITION IS A CCOMPANIED BY AN AFFIDAVIT AND A MEDICAL CERTIFICATE FROM THE MEDICA L OFFICER OF THE OSMANIA GENERAL HOSPITAL, HYDERABAD. TAKING THE SAM E INTO CONSIDERATION, THE DELAY IN FILING OF THE APPEAL IS CONDONED AND THE APPEAL IS TAKEN UP FOR ADJUDICATION. ITA NO 1755 OF 2016 NIZAR BHAI LAKHANI HYDERABAD. PAGE 2 OF 4 3. BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE, A N INDIVIDUAL, ENGAGED IN THE BUSINESS OF AUTOMOBILE C ONSULTANCY, FILED HIS RETURN OF INCOME FOR THE A.Y 2008-09 ON 2 1.08.2008 DECLARING TOTAL INCOME OF RS.1,13,840/-. DURING THE ASSESSMENT PROCEEDINGS U/S 143(3), THE ASSESSEE WAS ISSUED WIT H NOTICES U/S 143(2) OF THE ACT. HOWEVER, THE NOTICE WAS RETURNED WITH THE REMARK SHIFTED 3 MONTHS BACK AND NEW ADDRESS NOT K NOWN. THEREAFTER, THE INSPECTOR OF THE RELEVANT WARD ON 1 3.10.2010 SERVED THE NOTICE U/S 143(2) BY WAY OF AFFIXTURE ON 30.09.2010 AT THE KNOWN ADDRESS I.E. THE ADDRESS GIVEN IN THE RET URN OF INCOME FILED AND ALSO AS WAS MENTIONED IN THE BANK STATEME NT OF THE ASSESSEE WITH THE DEVELOPMENT CREDIT BANK, ABIDS, H YDERABAD. IN RESPONSE TO THE SAID NOTICE, THE ASSESSEES FATHER FILED A LETTER DATED 15.11.2010 STATING THAT HIS SON USED TO STAY WITH HIM LONG AGO AND HE IS NOT IN TOUCH WITH HIM NOR HE HAD ANY CONNECTIONS WITH HIM. HOWEVER, SINCE THE ASSESSMENT WAS GETTING TIME BARRED, THE NOTICE WAS ISSUED U/S 142(1) AND REQUESTED THE ASSESSEE TO EXPLAIN THE SOURCES FOR THE DEPOSITS IN THE DEVELOP MENT CREDIT BANK A/C. SINCE THERE WAS NO RESPONSE FROM THE ASSE SSEE TO THE SAID NOTICE, THE AO COMPLETED THE ASSESSMENT BY BRI NGING TO TAX THE SUM OF RS.18,05,600/- AS UNEXPLAINED CREDIT. TH E ASSESSMENT WAS COMPLETED U/S 144 OF THE I.T. ACT. 4. THEREAFTER, AGGRIEVED BY THE ASSESSMENT ORDER, T HE ASSESSEE FILED AN APPEAL BEFORE THE CIT (A) STATING THAT DURING THE RELEVANT FINANCIAL YEAR, THE ASSESSEE HAD TRIED FOR A US VISA AND FOR THE SAID PURPOSE, HAD BORROWED FUNDS FROM HIS R ELATIVES AND FRIENDS AND DEPOSITED THE SAME IN HIS BANK A/C AND AS HE DID NOT GET THE VISA, THE MONEYS MOBILIZED WERE RETURNED T O THE RESPECTIVE PERSONS WITHIN A SHORT SPAN. THE CIT (A) HOWEVER, O BSERVED THAT THE ASSESSEE DID NOT FURNISH ANY PROOF WITH REGARD TO THE DEPOSITS ITA NO 1755 OF 2016 NIZAR BHAI LAKHANI HYDERABAD. PAGE 3 OF 4 NOR HAD HE APPEARED BEFORE THE CIT (A). SINCE THERE WAS NO SUBSTANTIAL EVIDENCE AVAILABLE OR FURNISHED BY THE ASSESSEE, THE CIT (A) CONFIRMED THE ORDER OF THE AO AND THE ASSES SEE IS IN SECOND APPEAL BEFORE THE TRIBUNAL. 5. THE LEARNED COUNSEL FOR THE ASSESSEE REITERATED THE SUBMISSIONS MADE BY THE ASSESSEE BEFORE THE AUTHORI TIES BELOW AND HAS ALSO FURNISHED ADDITIONAL EVIDENCE WHICH AR E CONFIRMATION LETTERS FROM THE FRIENDS AND RELATIVES OF THE ASSESSEE AND REQUESTED FOR ADMISSION OF THE ADDITIONAL EVIDE NCE AND REMAND THE ISSUE TO THE AO FOR HIS COMMENTS OR FOR RE- ASSESSMENT OF THE ASSESSEES INCOME. 6. THE LEARNED DR, HOWEVER, OPPOSED THE ADMISSION O F THE ADDITIONAL EVIDENCE STATING THAT THE EVIDENCE I S FROM THE FRIENDS AND RELATIVES WHO ARE STAYING WITH THE ASSE SSEE AND THAT THE ASSESSEE HAS NOT EXPLAINED AS TO WHY IT TOOK MO RE THAN 9 YEARS FOR HIM TO PRODUCE THE CONFIRMATION LETTERS F ROM THE SAID PARTIES. THEREFORE, ACCORDING TO HER, THE CONFIRMAT ION LETTERS ARE NOTHING BUT AN AFTERTHOUGHT AND SHOULD NOT BE ENTER TAINED. 7. HAVING REGARD TO THE RIVAL CONTENTIONS AND THE M ATERIAL ON RECORD, I FIND THAT THE ASSESSMENT WAS MADE U/S 144 AS THE NOTICE COULD NOT BE SERVED ON THE ASSESSEE AND THE ASSESSEE DID NOT APPEAR BEFORE THE AO. BEFORE THE CIT (A), THE A SSESSEE HAS FILED THE APPEAL WITH A DIFFERENT ADDRESS AND BEFOR E THE CIT (A) THE ASSESSEE HAD TAKEN A STAND THAT THE FUNDS WERE MOBI LIZED FOR A USA VISA, BUT HAS FAILED TO FURNISH THE RELEVANT CO NFIRMATIONS BEFORE THE CIT (A). NOW THE ASSESSEE HAS FILED SOME CONFIRMATION LETTERS BEFORE THE TRIBUNAL AS ADDITIONAL EVIDENCE. SINCE THE GENUINENESS OF THE SAID CREDITORS AND THE CREDITWOR THINESS OF THE ITA NO 1755 OF 2016 NIZAR BHAI LAKHANI HYDERABAD. PAGE 4 OF 4 PARTIES IS TO BE EXAMINED BY THE LOWER AUTHORITIES, IN THE INTEREST OF JUSTICE, I DEEM IT FIT AND PROPER TO ADMIT THE A DDITIONAL EVIDENCE AND REMAND THE ISSUE TO THE FILE OF THE AO FOR RECO NSIDERATION OF THE SAME IN ACCORDANCE WITH LAW. NEEDLESS TO MENTIO N THAT THE ASSESSEE SHALL BE GIVEN A FAIR OPPORTUNITY OF HEARI NG. 8. IN THE RESULT, ASSESSEES APPEAL IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 8 TH JANUARY, 2020. SD/- (P. MADHAVI DEVI) JUDICIAL MEMBER HYDERABAD, DATED 8 TH JANUARY, 2020. VINODAN/SPS COPY TO: 1 SHRI NIZAR BHAI LAKHANI C/O SHRI S.RAMA RAO, ADVO CATE, FLAT NO.102, SHRIYA'S ELEGANCE, 3-6-643, STREET NO.9, HI MAYATNAGAR, HYDERABAD 500029 2 ITO WARD 5(2) IT TOWERS, MASAB TANK, HYDERABAD 3 CIT (A)-4 HYDERABAD 4 PR. CIT 4 HYDERABAD 5 THE DR, ITAT HYDERABAD 6 GUARD FILE BY ORDER