S.Kamala, Pondicherry V. ITO, Pondicherry

ITA 1852/CHNY/2014

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 8041 (ITAT-CHENNAI)
• Duration Of Justice: 1 year(s) 7 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-02-2016
• Appeal Filed By: Assessee
• Bench Allotted: C
• Next Hearing Date: 28-01-2016
• Assessment Year: 2009-2010
• Appeal Filed On: 27-06-2014
• Court: TRIBUNAL
• Department Lawyers: A V SREEKANTH
• Assessee Lawyers: K RAVI
• Keywords: Unexplained investment; Business income; Peak credit; Agreed addition
• Section: 69

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH : CHENNAI . . . , ! , ' #$ % [ BEFORE SHRI N.R.S. GANESAN, JUDICIAL MEMBER AND SHRI CHANDRA POOJARI, ACCOUNTANT MEMBER ] ./ I.T.A.NO.1852/MDS/2014 / ASSESSMENT YEAR : 2009-10 SMT. S. KAMALA 14, VANIDASAN STREET KAMARAJ NAGAR PONDICHERRY VS. THE INCOME TAX OFFICER WARD (1)(1) PONDICHERRY [PAN AAKPK 5434 G] ( &' / APPELLANT) ( ()&' /RESPONDENT) / APPELLANT BY : SHRI K. RAVI, ADVOCATE /RESPONDENT BY : SHRI A.V SREEKANTH, JCIT / DATE OF HEARING : 28 - 01 - 201 5 / DATE OF PRONOUNCEMENT : 25 - 0 2 - 2016 / O R D E R PER N.R.S.GANESAN, JUDICIAL MEMBER THIS APPEAL OF THE ASSESSEEE IS DIRECTED AGAINS T THE ORDER OF THE COMMISSIONER OF INCOME-TAX (APPEALS)-VI, CH ENNAI, DATED 29.3.2014 AND PERTAINS TO ASSESSMENT YEAR 2009-10. 2. THE FIRST ISSUE ARISES FOR CONSIDERATION IS ADDITIO N OF ` 61 LAKHS U/S 69 OF THE ACT. ITA NO. 1852/14 :- 2 -: 3. SHRI K. RAVI, LD. COUNSEL FOR THE ASSESSEE SUBMITTE D THAT THE ASSESSING OFFICER FOUND CASH DEPOSITS OF ` 11,33,700/- AND ` 66 LAKHS IN THE AXIS BANK ACCOUNT OF THE ASSESSEE. THE AS SESSEE EXPLAINED BEFORE THE ASSESSING OFFICER THAT A SUM OF ` 66 LAKHS WAS RECEIVED FROM SHRI ROBIN THIRUVENGADAM, FRANCE, FOR CONSTRUC TION OF HIS PROPERTY AT 33, III CROSS STREET, RAINBOW NAGAR, PO NDICHERRY, DURING THE FINANCIAL YEAR 2008-09 RELEVANT TO ASSESSMENT Y EAR 2009-10. THE ASSESSING OFFICER, HOWEVER, REJECTED THE CLAIM OF T HE ASSESSEE ON THE GROUND THAT THE ASSESSEE IS NOT A QUALIFIED PERSON TO CARRY OUT THE CIVIL CONSTRUCTION. THE ASSESSING OFFICER HAS NOT DOUBTE D THE RECEIPT FOR S 66 LAKHS FROM SHRI ROBIN THIRUVENGADAM. THE ASSESS ING OFFICER IS DOUBTING THE QUALIFICATION OF THE ASSESSEE TO CARRY OUT THE CIVIL CONSTRUCTION WORK. ACCORDING TO THE LD. COUNSEL, I T IS NOT NECESSARY TO BE A QUALIFIED ENGINEER FOR CONSTRUCTION OF THE BUI LDING. THE ASSESSEE CAN ALWAYS ENGAGE A QUALIFIED CIVIL ENGINEER AND OT HER TECHNICAL PERSONS TO COMPLETE THE CONSTRUCTION. REFERRING TO THE ORDER OF THE CIT(A), THE LD. COUNSEL SUBMITTED THAT THE ASSESSE E HAS FURNISHED ADDITIONAL MATERIAL BEFORE THE CIT(A). HOWEVER, TH E CIT(A) REFUSED TO ADMIT THE SAME UNDER RULE 46A OF THE INCOME-TAX RUL ES. WHEN THE ASSESSEE HAS FILED MATERIAL DOCUMENTS TO ESTABLISH THE CREDITWORTHINESS OF THE CREDITOR, THE GENUINENESS OF THE TRANSACTION AND IDENTITY OF THE CREDITOR, IT IS FOR THE CIT(A) EITHER TO EXAMINE HI MSELF OR TO DIRECT THE ITA NO. 1852/14 :- 3 -: ASSESSING OFFICER TO EXAMINE THE MATERIAL FILED BY THE ASSESSEE AND TO FILE A REPORT. REJECTION OF THE MATERIALS FILED BY THE ASSESSEE IS NOT JUSTIFIED. ACCORDING TO THE LD. COUNSEL, THE ASSES SING OFFICER HAS ORIGINALLY ADDED ` 41,85,560/- U/S 69 OF THE ACT. HOWEVER, THE CIT(A) ENHANCED THE ADDITION TO ` 61 LAKHS INSTEAD OF ` 41,85,560/- MADE BY THE ASSESSING OFFICER. THE LD. REPRESENTAT IVE SUBMITTED THAT SINCE THE MATERIAL EVIDENCE FILED BY THE ASSESSEE WAS NOT EXAMINED BY THE LOWER AUTHORITIES, THE MATTER MAY BE REMITTED B ACK TO THE ASSESSING OFFICER FOR RECONSIDERATION. 4. ON THE CONTRARY, SHRI A.V SREEKANTH, LD. DEPARTMENT AL REPRESENTATIVE SUBMITTED THAT THE ASSESSEE ADMITTE D BEFORE THE ASSESSING OFFICER FOR ASSESSING THE PEAK CREDIT. A CCORDINGLY, THE ASSESSING OFFICER MADE ADDITION OR ` 41,85,560/- BY TAKING THE PEAK CREDIT OF ` 61 LAKHS. REFERRING TO THE ORDER OF THE CIT(A), M ORE PARTICULARLY PAGE 14, THE LD. DR SUBMITTED THAT THE CIT(A) DIRECTED THE ASSESSING OFFICER TO EXPLAIN WHY THE PEAK CREDIT SH OULD NOT BE ARRIVED AT ` 61 LAKHS INSTEAD OF ` 41,85,560/- AS COMPUTED BY THE ASSESSING OFFICER. THE ASSESSEE WAS ALSO DIRECTED BY THE CI T(A) TO PRODUCE COPY OF OTHER BANK ACCOUNT MAINTAINED BY THE ASSES SEE. THE ASSESSEE AGREED WITH THE ARRIVAL OF PEAK CREDIT OF ` 61 LAKHS IN THE COURSE OF APPELLATE PROCEEDINGS. HOWEVER, SHE DID NOT FURNISH THE DETAILS OF ENTRIES FOUND IN THE BANK ACCOUNT. ITA NO. 1852/14 :- 4 -: 5. THE LD. DR PLACED HIS RELIANCE ON THE DECISION OF T HIS TRIBUNAL IN THE CASE OF C.GUNASEKARAN IN I.T.A.NO. 276/MDS/2 010 DATED 20.8.2010 AND SUBMITTED THAT SINCE THE ASSESSMENT W AS MADE ON THE AGREED ADDITION, APPEAL IS NOT MAINTAINABLE BEFORE THIS TRIBUNAL. THE LD. DR FURTHER SUBMITTED THAT THE ASSESSEE IS NOT A QUALIFIED PERSON TO CARRY OUT CIVIL CONSTRUCTION. THERE IS NOTHING ON RECORD TO SHOW THAT THE ASSESSEE HAS CONSTRUCTED ANY BUILDING PREVIOU SLY. THE ASSESSEE HAS ALSO NOT DISCLOSED ANY INCOME FROM CONTRACT WOR K. REFERRING TO THE CONTENTION OF THE LD. COUNSEL FOR THE ASSESSEE THAT WHAT IS REQUIRED IS MONEY AND ABILITY TO CHOOSE RIGHT PERSO N TO ACCOMPLISH THE TASK, SHRI ROBIN THIRUVENGADAM WOULD NOT HAVE CHOS EN THE ASSESSEE. THE ASSESSEE HAS ALSO CONTENDED BEFORE THE ASSESSI NG OFFICER THAT HER HUSBAND SHRI N.K.R. SHANMUGAM SUPERVISED THE CONSTR UCTION OF THE ENTIRE PROPERTY AND ALSO PURCHASED CONSTRUCTION MAT ERIAL, ENGAGED LABOURERS ETC. IF THAT IS SO, ACCORDING TO THE LD. DR, SHRI ROBIN THIRUVENGADAM WOULD HAVE GIVE MONEY TO SHRI N.K.R. SHANMUGAM DIRECTLY AND NOT TO THE ASSESSEE. 6. THE LD. DR FURTHER SUBMITTED THAT IF AT ALL SHRI RO BIN THIRUVENGADAM INTENDED TO GIVE MONEY TO THE ASSES SEE, THE SAME NEED NOT HAVE BEEN GIVEN IN CASH. SHRI ROBIN THIRU VENGADAM WOULD HAVE TRANSFERRED THE FUNDS THROUGH BANKING CHANNEL FROM HIS ACCOUNT IN FRANCE TO THE ASSESSEES ACCOUNT IN INDIA. REFE RRING TO THE ITA NO. 1852/14 :- 5 -: ASSESSMENT ORDER, THE LD. DR SUBMITTED THAT THE AS SESSEE BY LETTER DATED 13.10.2011 OFFERED 8% OF THE CASH DEPOSIT OF ` 66 LAKHS ON PRESUMPTIVE BASIS FOR TAXATION. WHEN THE ASSESSEE OFFERED 8% OF THE CASH DEPOSIT OF ` 66 LAKHS AS INCOME ON PRESUMPTIVE BASIS, NOW THE ASSESSEE CANNOT CHALLENGE THE ORDER OF THE LOWER AU THORITY. IF THE OFFER OF THE ASSESSEE WAS ACCEPTED BY THE ASSESSIN G OFFICER THEN THE ASSESSEE WOULD HAVE GOT AWAY WITH MINIMUM TAX OF ` 5,28,000/-. HOWEVER, THE ASSESSING OFFICER HAS NOT ACCEPTED THE OFFER OF THE ASSESSEE AND ADDED THE PEAK CREDIT OF ` 41,85,560/-. THE CIT(A) COMPUTED THE PEAK CREDIT AT ` 61 LAKHS. 7. REFERRING TO THE ADDITIONAL MATERIAL FILED BY THE ASSESSEE UNDER RULE 46A, THE LD. DR POINTED OUT THAT WHAT WA S FILED BY THE ASSESSEE IS COPY OF THE PASSPORT OF SHRI KADHIRVELU . THE ASSESSEE HAS ALSO FILED LETTERS FROM SHRI N.K.R. SHANMUGAM AND S HRI ROBIN THIRUVENGADAM. THE ASSESSEE FILED COPY OF THE PAS SPORT OF SHRI ROBIN THIRUVENGADAM. APART FROM THAT, THE ASSESSEE HAS ALSO FILED COPY OF THE MUNICIPAL CORPORATIONS APPROVAL FOR CONSTRUCT ION OF THE PROPERTY AND COPY OF THE PHOTOGRAPH OF THE CONSTRUCTED PROPE RTY. ACCORDING TO THE LD. DR, THE PASSPORT COPY OF SHRI KADHIRVELU SH OWS THAT SHRI KADHIRVELU TRAVELLED TO FRANCE. THIS PASSPORT DOES NOT PROVE ANYTHING ELSE. THEREFORE, ACCORDING TO THE LD. DR, PASSPORT OF SHRI KADHIRVELU ITA NO. 1852/14 :- 6 -: MAY NOT HELP THE ASSESSEE IN ANY MANNER. REFERRIN G TO THE LETTERS FROM SHRI ROHIN THIRUVENGADAM AND SHRI N.K.R. SHANM UGAM, THE LD. DR SUBMITTED THAT SINCE THE ASSESSEE CLAIMS THAT T HE MONEY WAS GIVEN TO HER IN CASH BY SHRI ROBIN THIRUVENGADAM A ND NOT TO SHRI N.K.R. SHANMUGAM, THE CONFIRMATION LETTERS SAID TO BE GIVEN BY SHRI SHRI ROBIN THIRUVENGADAM MAY NOT BE RELEVANT FOR T HE DISPOSAL OF THE APPEAL. 8. REFERRING TO THE PASSPORT OF SHRI ROBIN THIRUVENGAD AM , THE LD. DR SUBMITTED THAT THIS PASSPORT SHOWS THAT SHRI ROBIN THIRUVENGADAM TRAVELLED TO INDIA. THIS DOES NOT P ROVE THAT SHRI KADHIRVELU STAYED AT SHRI ROBIN THIRUVENGADAMS RES IDENCE DURING SHRI KADHIRVELUS STAY IN FRANCE. THIS DOES NOT ALSO DI SCLOSE THAT THE ASSESSEE UNDERTOOK TO CONSTRUCT THE PROPERTY FOR SH RI ROBIN THIRUVENGADAM AT PONDICHERRY AND FOR THAT PURPOSE, SHRI ROBIN THIRUVENGADAM GAVE THE CASH. REFERRING TO THE COP Y OF BANK STATEMENT, THE LD. DR SUBMITTED THAT THE CIT(A) CAL LED FOR THE DETAILS OF THE PERSONS TO WHOM THE MONEY WAS PAID FOR CONST RUCTION. INSPITE OF NUMBER OF OPPORTUNITIES GIVEN TO THE ASSESSEE, THE STATEMENT COULD NOT BE RECONCILED WITH REFERENCE TO THE ENTRIES MAD E IN THE BANK ACCOUNT. THEREFORE, THIS STATEMENT ALSO MAY NOT BE OF ANY ASSISTANCE TO THE ASSESSEE. ITA NO. 1852/14 :- 7 -: 9. REFERRING TO THE APPROVAL SAID TO BE GIVEN BY MUNIC IPAL CORPORATION FOR CONSTRUCTION OF THE BUILDING AT PON DICHERRY, THE LD. DR SUBMITTED THAT THE APPROVAL GRANTED BY THE MUNICIPA L CORPORATION DOES NOT SHOW THAT THE ASSESSEE RECEIVED MONEY FROM SHR I ROBIN THIRUVENGADAM ON VARIOUS DATES. SIMILARLY, THE PHO TOGRAPHS OF CONSTRUCTED PROPERTY ALSO DOES NOT DISCLOSE THE REC EIPT OF MONEY BY ASSESSEE FROM SHRI ROBIN THIRUVENGADAM. IN THOSE C IRCUMSTANCES, ACCORDING TO THE LD. DR, THE CIT(A) HAS RIGHTLY REJ ECTED THE ADDITIONAL MATERIAL FILED BY THE ASSESSEE AND ENHANCED THE AS SESSMENT TO ` 61 LAKHS. 10. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS ON EITHER SIDE AND ALSO PERUSED THE MATERIAL AVAILABLE ON RECORD. DU RING THE COURSE OF ASSESSMENT, THE ASSESSING OFFICER FOUND THAT CASH D EPOSITS OF ` 66 LAKHS MADE IN THE ASSESSEES AXIS BANK ACCOUNT WAS NOT DISCLOSED TO THE DEPARTMENT. THE ASSESSEE EXPLAINED BEFORE THE ASSESSING OFFICER THAT SHE RECEIVED A SUM OF ` 66 LAKHS IN CASH FROM ONE SHRI ROBIN THIRUVENGADAM FOR CONSTRUCTION OF PROPERTY AT PONDI CHERRY. THE ASSESSING OFFICER FOUND THAT THE ASSESSEE IS NOT A QUALIFIED PERSON TO CARRY OUT THE CONSTRUCTION AND THE ASSESSEE HAS NO T ADMITTED ANY INCOME FROM CONSTRUCTION IN THE RETURN OF INCOME. ACCORDINGLY, HE REJECTED THE EXPLANATION OF THE ASSESSEE. FROM TH E ASSESSMENT ORDER IT APPEARS THAT THE ASSESSEES REPRESENTATIVE REQU ESTED THE ASSESSING ITA NO. 1852/14 :- 8 -: OFFICER FOR TAKING THE PEAK CREDIT OF THE BALANCE I N THE BANK ACCOUNT AS UNEXPLAINED INVESTMENT U/S 69 OF THE ACT. ACCO RDINGLY, THE ASSESSING OFFICER COMPUTED THE PEAK CREDIT OF THE A XIS BANK AT ` 41,85,560/- AND TREATED THE SAME AS UNEXPLAINED INV ESTMENT U/S 69 OF THE ACT. ON APPEAL BY THE ASSESSEE, THE CIT(A) FOUND THAT THE ASSESSEE HAS PAID MONEY TO VARIOUS PERSONS. TO FIN D OUT THE GENUINENESS OF THE CLAIM OF THE ASSESSEE, THE CIT( A) DIRECTED THE ASSESSEE TO FURNISH THE NAMES OF THE PERSONS TO WHO M THE MONEY WAS PAID ON DIFFERENT DATES AND THE DETAILS OF THE WITH DRAWAL OF MONEY FROM THE BANK ACCOUNT. HOWEVER, THE ASSESSEE APPE ARS TO HAVE NOT FILED ANY DETAILS BEFORE THE CIT(A). ACCORDINGLY, THE CIT(A) PROPOSED TO ENHANCE THE ASSESSMENT FROM ` 41,85,560/- TO ` 61 LAKHS. DURING THE COURSE OF APPELLATE PROCEEDINGS, THE ASSESSEE HAS FURNISHED ADDITIONAL MATERIAL UNDER RULE 46A OF THE INCOME-TA X RULES. THE ADDITIONAL MATERIALS FILED ARE (I) COPY OF PASSPORT OF SHRI SHRI KADHIRVELU, (II) LETTERS FROM SHRI SHRI ROBIN THIRU VENGADAM AND SHRI N.K.R. SHANMUGAM, (III) PASSPORT COPY OF SHRI ROBIN THIRUVENGADAM, (IV) COPY OF BANK STATEMENT TO CO-RELATE THE VISIT OF SHRI ROBIN THIRUVENGADAM AND PAYMENTS TO THE ASSESSEE, (V) COPY OF THE APPROVAL GRANTED BY THE MUNICIPAL CORPORATION FOR C ONSTRUCTION OF THE BUILDING, AND (VI) PHOTOGRAPHS OF THE CONSTRUCTED B UILDING. THE CIT(A) FOUND THAT MERE CONFIRMATION FROM SHRI ROBIN THIRUV ENGADAM TO HAVE ITA NO. 1852/14 :- 9 -: GIVEN CASH TO THE ASSESSEE WITHOUT CO-RELATING THE MODE OF TRANSFER OF FUNDS AND DATES OF TRANSFER OF FUNDS FROM FRANCE IS NOT SUFFICIENT TO TREAT THE TRANSACTION AS GENUINE. ACCORDINGLY, THE CIT(A) REJECTED THE CONFIRMATION LETTER GIVEN BY SHRI ROBIN THIRUVENGAD AM AND THE ASSESSEES HUSBAND, SHRI N.K.R. SHANMUGAM. AFTER R EJECTING THE ADDITIONAL MATERIAL FILED BY THE ASSESSEE, THE CIT (A) FOUND THAT THE ENTIRE CLAIM OF PAYMENT OF MONEY BY SHRI ROBIN THIR UVENGADAM IS NOT SUPPORTED BY ANY DOCUMENTARY EVIDENCE. ACCORDINGLY , HE CONFIRMED THE ADDITION BY ENHANCING THE ASSESSMENT TO THE EX TENT OF ` 61 LAKHS. THE QUESTION ARISES FOR CONSIDERATION IS WHEN THE ASSESSEE REQUESTED THE ASSESSING OFFICER TO TAKE THE PEAK CREDIT IN TH E BANK ACCOUNT AS UNEXPLAINED INVESTMENT CAN HE CHALLENGE THE ORDER O F THE ASSESSING OFFICER BEFORE THE CIT(A)? FROM THE BARE READING O F THE ASSESSMENT ORDER IT APPEARS THAT IT IS NOT THE ASSESSEE WHO R EQUESTED THE ASSESSING OFFICER BUT THE ASSESSEES REPRESENTATIV E REQUESTED THE ASSESSING OFFICER TO TAKE THE PEAK CREDIT. IT IS N OT THE CASE OF THE REVENUE THAT THE REPRESENTATIVE WAS AUTHORIZED TO M AKE SUCH A REQUEST TO TAKE THE PEAK CREDIT AS UNEXPLAINED INVE STMENT U/S 69 OF THE ACT. THE MAIN CONTENTION OF THE ASSESSEE THAT THE MONEY WAS RECEIVED IN CASH FROM SHRI ROBIN THIRUVENGADAM, FRO M FRANCE FOR CONSTRUCTION OF THE PROPERTY. THE ASSESSEE HAS FI LED ADDITIONAL MATERIAL IN THE FORM OF CONFIRMATION LETTERS, BANK STATEMENT ETC. TO ITA NO. 1852/14 :- 10 -: SUPPORT THE CLAIM THAT THE MONEY WAS RECEIVED FROM SHRI ROBIN THIRUVENGADAM. THIS SUPPORTING DOCUMENT WAS REJECT ED BY THE CIT(A) ON THE GROUND THAT THE ASSESSEE COULD NOT P RODUCE THE DETAILS OF THE PERSONS TO WHOM THE MONEY WAS PAID. THIS T RIBUNAL IS OF THE CONSIDERED OPINION THAT WHEN THE ASSESSEE HAS FILE D CONFIRMATION LETTERS FROM SHRI ROBIN THIRUVENGADAM AND SHRI N.K .R. SHANMUGAM, THE CIT(A) OUGHT TO HAVE CALLED FOR THE REMAND REPORT FROM THE ASSESSING OFFICER. WHEN THE ASSESSEE SPE CIFICALLY CLAIMS THAT A SUM OF ` 66 LAKHS WAS RECEIVED IN CASH FROM SHRI ROBIN THIRUVENGADAM, THE CIT(A) MAY NOT BE CORRECT IN SAY ING THAT THE CONFIRMATION LETTER FROM SHRI ROBIN THIRUVENGADAM IS NOT THE RELEVANT DOCUMENT FOR ADJUDICATING THE MATTER. THIS TRIBUN AL IS OF THE CONSIDERED OPINION THAT THE CONFIRMATION LETTERS FI LED BY THE ASSESSEE, THE APPROVAL GRANTED BY THE MUNICIPAL CORPORATION F OR CONSTRUCTION OF THE BUILDING, COPY OF THE PASSPORT WHICH DISCLOSES THE TRAVEL OF SHRI ROBIN THIRUVENGADAM TO INDIA ARE RELEVANT MATERIAL WHICH NEEDS TO BE CONSIDERED BY THE ASSESSING OFFICER. EVEN THOUGH T HE ASSESSEES REPRESENTATIVE REQUESTED THE ASSESSING OFFICER FOR TAKING THE PEAK CREDIT OF THE BALANCE IN THE BANK ACCOUNT AS UNEXPL AINED INVESTMENT U/S 69 OF THE ACT, THE CIT(A) HAS NOT ACCEPTED THE REQUEST OF THE LD. REPRESENTATIVE OF THE ASSESSEE. IN FACT, THE ASSE SSMENT WAS ENHANCED BY TAKING THE PEAK CREDIT AT ` 61 LAKHS. THIS SHOWS THAT ITA NO. 1852/14 :- 11 -: EVEN THE REQUEST OF THE REPRESENTATIVE FOR THE ASS ESSEE WAS NOT ACCEPTED BY THE AUTHORITIES BELOW. IN THOSE CIRCUM STANCES, THIS TRIBUNAL IS OF THE CONSIDERED OPINION THAT THAT TH E APPEAL FILED BY THE ASSESSEE IS MAINTAINABLE BEFORE THE CIT(A) AND BEFO RE THIS TRIBUNAL. 11. THE NEXT CONTENTION OF THE LD. DR IS THAT BY A LETT ER DATED 13.10.2011, THE ASSESSEE OFFERED 8% OF THE CASH DE POSIT OF ` 66 LAKHS ON ESTIMATE BASIS FOR TAXATION. THIS OFFER OF THE ASSESSEE IS ALSO NOT ADMITTED BY THE LOWER AUTHORITIES. THE AUTHORITIES BELOW PROCEEDED TO COMPUTE THE PEAK CREDIT AT ` 61 LAKHS WHICH WAS NEVER ACCEPTED EITHER BY THE ASSESSEE OR ASSESSEES REPRESENTATIVE AT A NY STAGE OF THE PROCEEDINGS. THEREFORE, THIS TRIBUNAL IS OF THE C ONSIDERED OPINION THAT THE APPEAL FILED BY THE ASSESSEE IS VERY MUCH MAIN TAINABLE BEFORE THIS TRIBUNAL. 12. WE HAVE ALSO CAREFULLY GONE THROUGH THE DECISION OF THIS BENCH IN THE CASE OF C. GUNASEKARAN (SUPRA). IN T HE CASE BEFORE THIS TRIBUNAL, THE LD. DR FILED A COPY OF THE ORDER SHEE T ENTRY DATED 28.8.2008 OF THE ASSESSING OFFICER WHEREBY THE ASS ESSEES REPRESENTATIVE HAS AGREED FOR APPLYING THE RATE OF NET PROFIT AT 8% AND THE SHOP EXPENSES DISALLOWANCE AT 10,060/-. THIS T RIBUNAL AFTER REFERRING TO THE JUDGMENT OF THE MADRAS HIGH COURT IN THE CASE OF RAMANLAL KAMDAR VS CIT, 108 ITR 73, FOUND THAT AN A PPEAL LIES TO THE ITA NO. 1852/14 :- 12 -: APPELLATE AUTHORITY ONLY IF THE ASSESSEE IS AGGRIE VED BY THE ORDER OF THE OFFICER AND ONCE THE ASSESSEE COULD NOT HAVE H AD ANY GRIEVANCE, THE APPEAL TO THE APPELLATE AUTHORITY WAS INCOMPETE NT. 13. IN THE CASE BEFORE US, THE ASSESSEES OFFER OF PEA K CREDIT OF ` 51,85,560/- OR THE OFFER OF 8% OF CASH DEPOSIT OF ` 66 LAKHS WAS NOT ADMITTED BY THE AUTHORITIES BELOW AND IN FACT, AN A DDITION OF ` 61 LAKHS WAS MADE. THEREFORE, THIS TRIBUNAL IS OF THE CONS IDERED OPINION THAT THE DECISION OF THIS TRIBUNAL IN THE CASE OF C.GUAS EKARAN (SUPRA) MAY NOT BE APPLICABLE TO THE FACTS OF THE CASE. 14. NOW COMING TO THE MERIT OF THE ADDITION MADE BY THE ASSESSING OFFICER, THE ASSESSING OFFICER MADE ADDIT ION ON THE GROUND THAT THE ASSESSEE IS NOT A QUALIFIED PERSON TO CA RRY OUT THE CIVIL CONSTRUCTION. AS RIGHTLY SUBMITTED BY THE LD. COUN SEL FOR THE ASSESSEE, QUALIFICATION OR TECHNICAL EXPERTISE MAY NOT BE REQ UIRED FOR CONSTRUCTION OF THE BUILDING. BY ENGAGING A RIGHT PERSON WHO IS TECHNICALLY QUALIFIED, THE ASSESSEE CAN VERY WELL COMPLETE THE CONSTRUCTION. AS RIGHTLY CONTENDED BY THE LD. COUN SEL, WHAT IS REQUIRED IS MONEY FOR CONSTRUCTION OF THE BUILDING AND ABILI TY TO CHOOSE THE RIGHT PERSON TO ACCOMPLISH THE TASK. THE MONEY FOR CONST RUCTION WAS GIVEN BY SHRI ROBIN THIRUVENGADAM. THE ASSESSEE BY TAKI NG THE ASSISTANCE OF HER HUSBAND, SHRI N.K.R. SHANMUGAM APPEARS TO H AVE CONSTRUCTED ITA NO. 1852/14 :- 13 -: THE BUILDING. THEREFORE, THIS CANNOT BE A REASON F OR REJECTING THE CLAIM OF THE ASSESSEE. WHAT IS TO BE EXAMINED IS WHETHE R SHRI ROBIN THIRUVENGADAM IN FACT GAVE ` 66 LAKHS IN CASH TO THE ASSESSEE. THIS FACT WAS NOT EXAMINED BY THE ASSESSING OFFICER IN T HE ASSESSMENT ORDER. THE CIT(A) HAS ALSO SIMPLY PROCEEDED ON THE PRESUMPTION THAT THE ASSESSEE COULD NOT FURNISH THE NECESSARY DETA ILS TO WHOM THE MONEY WAS PAID BY THE ASSESSEE FOR CONSTRUCTION OF THE BUILDING. THE ADDITIONAL MATERIAL FILED BY THE ASSESSEE TO SUPPO RT THE CONTENTION THAT MONEY WAS PAID BY SHRI ROBIN THIRUVENGADAM FO R CONSTRUCTION OF THE BUILDING WAS REJECTED ON THE GROUND THAT THE SA ME IS NOT RELEVANT FOR CONSIDERATION. THIS TRIBUNAL IS OF THE CONSID ERED OPINION THAT THE COPY OF THE PASSPORT WHICH DISCLOSES THE TRAVEL OF SHRI ROBIN THIRUVENGADAM TO INDIA, THE COPIES OF BANK ACCOUNT WHICH DISCLOSES THE DEPOSIT OF MONEY AND PAYMENT, THE APPROVAL OF M UNICIPAL CORPORATION ALL ARE RELEVANT DOCUMENTS TO BE EXAMI NED TO FIND OUT WHETHER THE ASSESSEE IN FACT RECEIVED MONEY FROM S HRI ROBIN THIRUVENGADAM OR NOT. THEREFORE, REJECTION OF THE ADDITIONAL MATERIAL BY THE CIT(A) IS NOT JUSTIFIED. THIS TRIBUNAL IS OF THE CONSIDERED OPINION THAT THE CIT(A) OUGHT TO HAVE EXAMINED THE ADDITIONAL MATERIAL FILED BY THE ASSESSEE BY CALLING FOR A REMAND REP ORT FROM THE ASSESSING OFFICER. SINCE SUCH AN EXERCISE WAS NOT DONE BY THE CIT(A), THE MATTER NEEDS TO BE REMITTED BACK TO THE FILE OF THE ASSESSING ITA NO. 1852/14 :- 14 -: OFFICER FOR RECONSIDERATION. ACCORDINGLY, THE ORDE RS OF THE LOWER AUTHORITIES ARE SET ASIDE AND THE ISSUE OF DEPOSIT OF ` 66 LAKHS IN CASH IN THE AXIS BANK ACCOUNT IS REMITTED BACK TO THE AS SESSING OFFICER. THE ASSESSING OFFICER SHALL REEXAMINE THE ISSUE AFRESH IN THE LIGHT OF THE MATERIAL FILED BY THE ASSESSEE BEFORE THE CIT(A) A ND THAT MAY BE FILED BEFORE THE ASSESSING OFFICER IN THE COURSE OF THE P ROCEEDINGS AND THEREAFTER DECIDE THE ISSUE IN ACCORDANCE WITH LAW AFTER GIVING A REASONABLE OPPORTUNITY TO THE ASSESSEE. 15. THE NEXT GROUND OF APPEAL IS WITH REGARD TO ADDITIO N OF ` 9,07,120/-. 16. SHRI K. RAVI, LD. COUNSEL FOR THE ASSESSEE SUBMITTE D THAT THE ASSESSEE HAS FILED ALL THE MATERIALS TO INDICATE TH AT A SUM OF ` 11,33,700/- WAS DEPOSITED IN THE BANK ACCOUNT WHIC H WAS RECEIVED FROM THE BUSINESS OF THE ASSESSEE. ACCORDING TO T HE LD. COUNSEL, THE CIT(A) CONFIRMED THE ADDITION ONLY ON THE GROUND TH AT COPY OF THE AXIS BANK ACCOUNT WAS NOT PRODUCED BEFORE HIM. THE LD. COUNSEL FURTHER SUBMITTED THAT THE ASSESSEE HAS FILED ALL THE DETA ILS INCLUDING THE BUSINESS ACTIVITY OF MA-MAHARISHI FOODS. INSPITE O F FILING ALL THE MATERIAL, THE ASSESSING OFFICER HAS TREATED THE PEA K CREDIT OF ` 9,07,120/- AS UNEXPLAINED INVESTMENT U/S 69 OF THE ACT. THE LD. COUNSEL FURTHER SUBMITTED THAT SINCE THE DEPOSIT WA S MADE FROM THE ITA NO. 1852/14 :- 15 -: BUSINESS OF MA-MAHARISHI FOODS, THE ADDITION MADE B Y THE ASSESSING OFFICER IS NOT JUSTIFIED. AT THE BEST, THE DETAILE D MATERIALS FURNISHED BY THE ASSESSEE OUGHT TO HAVE BEEN EXAMINED BY THE AS SESSING OFFICER BEFORE MAKING ANY ADDITION. 17. ON THE CONTRARY, SHRI A.V SREEKANTH, LD. DEPARTMENT AL REPRESENTATIVE SUBMITTED THAT THE ASSESSEE HAS NOT FILED ANY MATERIAL TO SUBSTANTIATE THE BUSINESS ACTIVITY CLAIMED TO BE CARRIED ON IN THE NAME OF MA-MAHARISHI FOODS. THE BASIC DETAILS OF T HE BUSINESS SUCH AS SALES, CLOSING STOCK AND TURNOVER WERE NOT FURNI SHED. THE ASSESSEE HAS ALSO NOT FILED THE DETAILS OF EXPENSES INCURRED FOR RUNNING THE BUSINESS, SALARY PAID TO EMPLOYEES ETC. THEREFORE, THE CIT(A) HAS RIGHTLY CONFIRMED THE ADDITION. 18. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS ON EITHER SIDE AND ALSO PERUSED THE MATERIAL AVAILABLE ON RECORD. OU T OF THE CASH DEPOSIT OF ` 11,33,700/-, THE ASSESSING OFFICER MADE ADDITION O F ` 9,07,120/- BY TAKING THE PEAK CREDIT. THE ASSESSEE CLAIMS TH AT THE BUSINESS RECEIPTS FROM MA-MAHARISHI FOODS WERE DEPOSITED IN THE BANK ACCOUNT. HOWEVER, NO MATERIAL WAS ADMITTEDLY FILED BEFORE TH E LOWER AUTHORITIES WITH REGARD TO BUSINESS ACTIVITY OF THE ASSESSEE. SINCE THE MAIN ISSUE OF ADDITION OF ` 61 LAKHS IS REMITTED BACK TO THE FILE OF THE ASSES SING OFFICER, THIS TRIBUNAL IS OF THE CONSIDERED OPINIO N THAT THIS ADDITION OF ITA NO. 1852/14 :- 16 -: ` 9,07,120/- ALSO NEEDS TO BE RECONSIDERED BY THE AS SESSING OFFICER. ACCORDINGLY, THE ORDERS OF THE LOWER AUTHORITIES AR E SET ASIDE AND THE ADDITION OF ` 9,07,120/- IS REMITTED BACK TO THE FILE OF THE ASS ESSING OFFICER FOR RECONSIDERATION. THE ASSESSING OFFICER SHALL RECONSIDER THE ISSUE AFRESH IN THE LIGHT OF THE MATERIAL THAT MAY BE FILED BY THE ASSESSEE AND THEREAFTER DECIDE THE SAME IN ACCORDAN CE WITH LAW AFTER GIVING A REASONABLE OPPORTUNITY TO THE ASSESSING OF FICER. 19. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLO WED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 25 TH FEBRUARY, 2016, AT CHENNAI. SD/- SD/- ( ! ) (CHANDRA POOJARI) ' / ACCOUNTANT MEMBER ( . . . ! ) (N.R.S. GANESAN) / JUDICIAL MEMBER '# / CHENNAI $% / DATED: 25 TH FEBRUARY, 2016 RD %&'' ()'*) / COPY TO: ' 1 . / APPELLANT 4. ' + / CIT 2. / RESPONDENT 5. ),-' . / DR 3. ' +'/! / CIT(A) 6. -0'1 / GF