Shri Doraiswamy G, Shivamogga V. Income Tax Officer, Ward-1, Shivamogga

ITA 1857/BANG/2018

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 5038 (ITAT-BANGALORE)
• Duration Of Justice: 2 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-08-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2013-2014
• Appeal Filed On: 29-05-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: K N DHANDA
• Assessee Lawyers: S KRISHNA SWAMY
• Keywords: Opportunity of being heard
• Section: 143(3); 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL SMC B BENCH : BANGALORE BEFORE SHRI N.V. VASUDEVAN, JUDICIAL MEMBER ITA NO. 1857/BANG/2018 ASSESSMENT YEAR : 2013 - 14 SHRI DORAISWAMY G., NO.48/2, GOVINDASWAMY BUILDING, YELAKAPPA STREET, SHIVAMOGGA. PAN: AFSPD 7527C VS. THE INCOME TAX OFFICER, WARD 1, SHIVAMOGGA. APP ELLANT RESPONDENT APP ELLANT BY : SHRI S. KRISHNASWAMY, CA RESPONDENT BY : SHRI K.N. DHANDAPANI, JT.CIT(DR)(ITAT), BENGALURU. DATE OF HEARING : 17 . 07 .2018 DATE OF PRON OUNCEMENT : 10 .08.2018 O R D E R THIS IS AN APPEAL BY THE ASSESSEE AGAINST THE ORDER DATED 28.03.2018 OF THE CIT(APPEALS), DAVANGERE RELATING TO ASSESSMENT YEAR 2013-14. 2. THERE ARE TWO ISSUES THAT ARISE FOR CONSIDERATIO N IN THIS APPEAL. THE FIRST ISSUE IS WITH REGARD TO ADDITION OF RS.18,09, 508 MADE U/S. 68 OF THE INCOME-TAX ACT, 1961 [THE ACT] IN RESPECT OF TRAD E CREDITORS APPEARING IN THE BALANCE SHEET OF THE ASSESSEE. THE SECOND ISSU E IS AN ADDITION OF RS.3,50,000 U/S. 68 OF THE ACT WHICH IS THE LOAN T AKEN BY THE ASSESSEE FROM MR. GANESH. ITA NO. 1857/BANG/2018 PAGE 2 OF 4 3. THE ASSESSEE IS A CIVIL CONTRACTOR. IN THE COUR SE OF ASSESSMENT PROCEEDINGS U/S. 143(3) OF THE ACT, THE AO CALLED U PON THE ASSESSEE TO FURNISH CONFIRMATION OF SUNDRY CREDITORS. ACCORDIN G TO THE AO, THE ASSESSEE COULD NOT FURNISH CONFIRMATION TO THE EXTE NT OF RS.18,09,508 AND THEREFORE THE AO ADDED THE SUNDRY CREDITORS TO THE EXTENT OF RS.18,09,508 AS UNEXPLAINED AND ADDED THE SAME TO THE TOTAL INCO ME OF THE ASSESSEE. 4. BEFORE THE CIT(APPEALS), THE ASSESSEE SUBMITTED THAT IT HAD FURNISHED CONFIRMATION FROM ALL THE CREDITORS AND T HE ADDITION MADE BY THE AO WAS ARBITRARY. THE ASSESSEE ALSO SUBMITTED THAT MAJORITY OF THE CREDITORS ARE OLD CREDITORS AND DID NOT RELATE TO T HE PREVIOUS YEAR UNDER CONSIDERATION BECAUSE THERE WERE NO TRANSACTIONS WI TH THEM DURING THE RELEVANT PREVIOUS YEAR. THE ASSESSEE ALSO SUBMITTED THAT THERE WERE NO TRANSACTIONS DURING THE PREVIOUS YEAR WITH THE PART IES. THE CIT(APPEALS), HOWEVER, UPHELD THE ORDER OF THE AO OBSERVING AS UN DER:- 6. AS REGARDS SECOND ISSUE, THE ASSESSEE HAD RELIE D ONLY ON HIS WRITTEN SUBMISSION WITHOUT EVIDENCE. IT IS FOR THE ASSESSEE TO PRODUCE ALL THESE DETAILS IN SUPPORT OF HIS CLAIM A S ENSHRINED IN SEC. 143(2). HE CANNOT REQUIRE THE AO TO DO SOMETH ING WHEN HE HAS MADE NO ATTEMPT TO DISCHARGE THE ONUS CAST ON H IM. EVEN BEFORE ME, WHEN HE HAS CHOSEN TO FILE APPEAL, NO EV IDENCES ARE PLACED AND HE HAS REQUESTED THAT ASSESSMENT BE COMP LETED ON THE BASIS OF WRITTEN SUBMISSIONS. IN THE ABSENCE OF MATERIAL EVIDENCES, I HAVE NO ALTERNATIVE BUT TO CONFIRM THE ADDITIONS MADE BY THE AO. THUS, THE GROUND FAILS. 5. I HAVE HEARD THE RIVAL SUBMISSIONS AND AM OF THE VIEW THAT THE ISSUE REQUIRES RE-EXAMINATION BY THE AO. THE CIT(APPEALS ) HAS NOT CONSIDERED THE SUBMISSION OF THE ASSESSEE THAT ALL CONFIRMATIO NS WERE FILED AND THAT MANY OF THE CREDITORS WERE OLD CREDITORS, WHO DID N OT HAVE ANY TRANSACTION WITH THE ASSESSEE DURING THE PREVIOUS YEAR. THE AO WILL EXAMINE THE CLAIM ITA NO. 1857/BANG/2018 PAGE 3 OF 4 OF THE ASSESSEE AFRESH IN THE LIGHT OF SUBMISSIONS MADE BY THE ASSESSEE BEFORE THE TRIBUNAL. 6. AS FAR AS THE LOAN OF RS.3,50,000 RECEIVED BY TH E ASSESSEE FROM MR. GANESH IS CONCERNED, THE AO MADE THE ADDITION US. 6 8 OF THE ACT FOR THE REASON THAT THE AR AGREED FOR THE ADDITION. BEFORE THE CIT(A), THE ASSESSEE SUBMITTED THAT MR. GANESH WAS HIS BROTHER AND CONFIRMATION LETTER WAS PRODUCED BEFORE THE AO. THE ASSESSEE AL SO CONTENDED THAT MR. GANESH WAS AN INCOME-TAX ASSESSEE AND GAVE THE PART ICULARS OF PAN AND HIS ADDRESS. IT WAS ALSO POINTED OUT THAT HE HAD D ECLARED SUFFICIENT INCOME IN THE RETURN OF INCOME AND OWNED AGRICULTURAL LAND S OF 11 ACRES. THE ABOVE SUBMISSION OF THE ASSESSEE WAS REJECTED BY TH E CIT(APPEALS) FOR THE FOLLOWING REASONS:- 7. AS REGARDS THE THIRD ISSUE OF RECEIPT OF RS.3,5 0,000/- FROM SHRI GANESH, THE AO HAS NOT ACCEPTED THE CREDITS FR OM SHRI GANESH AS NO PROOF WAS FILED. AVERMENT THAT THE GI VER WAS BROTHER IS NO PROOF. THEREFORE, THE GROUND FAILS. 7. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. I AM OF THE VIEW THAT THE MATTER REQUIRES FRESH CONSIDERATION BY THE AO IN TH E LIGHT OF CONTENTIONS PUT FORTH BY THE ASSESSEE BEFORE THE CIT(APPEALS). THE CIT(A) HAS NOT GIVEN ANY DECISION ON THE CLAIM OF ASSESSEE THAT CONFIRMA TION WAS FILED FROM MR. GANESH AND THAT HIS INCOME-TAX PARTICULARS ARE AVAI LABLE WAS ALSO DEMONSTRATED BY FILING THE REQUIRED DETAILS. ACCOR DINGLY, THIS ISSUE IS SET ASIDE AND RESTORED TO THE AO FOR FRESH CONSIDERATIO N. THE AO WILL AFFORD OPPORTUNITY OF BEING HEARD TO THE ASSESSEE IN THE S ET ASIDE PROCEEDINGS AND DECIDE THE ISSUE IN ACCORDANCE WITH THE LAW. ITA NO. 1857/BANG/2018 PAGE 4 OF 4 8. IN THE RESULT, THE APPEAL BY THE ASSESSEE IS TRE ATED AS ALLOWED FOR STATISTICAL PURPOSES. PRONOUNCED IN THE OPEN COURT ON THIS 10 TH DAY OF AUGUST, 2018. SD/- ( N.V. VASU DEVAN ) JUDICIAL MEMBER BANGALORE, DATED, THE 10 TH AUGUST, 2018. / D ESAI S MURTHY / COPY TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR, ITAT, BANGALORE. 6. GUARD FILE BY ORDER SENIOR PRIVATE SECRETARY ITAT, BANGALORE.