Smt Narasimhappa Varalakshmi , Bangalore V. Income Tax Officer Ward-10(2), Bangalore

ITA 1860/BANG/2017

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 7035 (ITAT-BANGALORE)
• Duration Of Justice: 3 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-12-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Assessment Year: 2005-2006
• Appeal Filed On: 14-09-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: KUMAR AJITH ADDITIONAL
• Assessee Lawyers: PRATIBHA
• Keywords: Unexplained investment; Opportunity of being heard
• Section: 2

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL SMC-C BENCH : BANGALORE BEFORE SHRI SUNIL KUMAR YADAV, JUDICIAL MEMBER ITA NO.1860/BANG/2017 ASSESSMENT YEAR : 2005-06 SMT. NARASIMHAPPA VARALAKSHMI, NO.29, ST. MARTHAS HOSPITAL ROAD, UTTARAHALLI, SUBRAMANYAPURA POST, BENGALURU 560 061. PAN : ADMPV 4168 R VS. THE INCOME TAX OFFICER, WARD 10(2), BENGALURU. APPELLANT RESPONDENT ASSESSEE BY : MS. PRATIBHA, ADVOCATE REVENUE BY : SHRI. KUMAR AJITH, ADDITIONAL CIT DATE OF HEARING : 13.12.2017 DATE OF PRONOUNCEMENT : 22.12.2017 O R D E R PER SUNIL KUMAR YADAV, JM : THIS APPEAL IS PREFERRED BY THE ASSESSEE AGAINST T HE ORDER OF THE CIT(A), INTER ALIA, ON FOLLOWING GROUNDS: 1. THE LEARNED CIT (A) ERRED IN PASSING THE ORDER IN T HE MANNER HE DID. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LEARNED CIT(A) OUGHT TO HAVE ACCEPTED THE EXPLANATION OF THE APPEL LANT IN FULL WITH REGARD TO THE OPENING CAPITAL AND OUGHT TO HAVE REFRAINED FRO M CONFIRMING THE IMPUGNED ADDITION OF RS.7,38,297/- 3. THE LEARNED CIT (A) OUGHT TO HAVE APPRECIATED THAT THE APPELLANT HAD ADEQUATE RESOURCES FOR INVESTMENT AND ACCORDINGLY H E OUGHT TO HAVE DELETED THE ADDITION AS MADE BY THE ASSESSING OFFICER. 4. THE ID CIT(A) ERRED IN CONFIRMING THE ADDITION OF R S. 3,00,000/- AS DIFFERENCE IN BANK BALANCE AS UNEXPLAINED INVESTMENT WITHOUT APPR ECIATING THE SUBMISSION OF THE APPELLANT. 5. WITHOUT PREJUDICE, THE ADDITION AS CONFIRMED BY THE LEARNED CIT(A) ARE ARBITRARY, EXCESSIVE, UNREASONABLE AND OUGHT TO BE DELETED IN TOTO. 6. THE LEARNED CIT(A) ERRED IN CONFIRMING THE LEVY OF INTEREST CHARGED UNDER ITA NO. 1860/BANG/2017 PAGE 2 OF 3 SECTIONS 234A,234B OF THE ACT. 7. FOR THESE AND SUCH OTHER GROUNDS THAT MAY BE URGED AT THE TIME OF HEARING, THE APPELLANT PRAYS THAT THE APPEAL MAY BE ALLOWED. 2. DURING THE COURSE OF HEARING, THE LEARNED COUNSE L FOR THE ASSESSEE INVITED MY ATTENTION THAT IN THE CASE OF HUSBAND OF THE ASS ESSEE, UNDER IDENTICAL CIRCUMSTANCES, THE MATTER WAS RESTORED BACK TO THE AO TO RE-EXAMINE THE ISSUE OF OPENING CAPITAL AFRESH AFTER AFFORDING OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. COPY OF THE ORDER IS PLACED ON RECORD. THE LEARNED DR PLACED RELIANCE UPON THE ORDER OF TH E CIT(A). 3. HAVING CAREFULLY EXAMINED THE ORDERS OF THE LOWE R AUTHORITIES IN THE LIGHT OF RIVAL SUBMISSIONS AND THE ORDER OF THE TRIBUNAL IN THE ASSESSEES OWN CASE, I FIND THAT UNDER IDENTICAL CIRCUMSTANCES, THE MATTER WAS RESTORED BACK TO THE AO FOR READJUDICATION OF THE ISSUE AFRESH AFTER AFFORDING OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. THE RELEVANT OBSERVATION OF THE TRIBUNAL IS EXTRACTED HEREUNDER FOR THE SAKE OF REFERENCE: 7. THE LD. DR SUPPORTED THE ORDERS OF AUTHORITIES BELOW. 8. I HAVE CONSIDERED THE RIVAL SUBMISSIONS. REGARDI NG GROUND NO.2 IN A.Y. 2005- 06 IN RESPECT OF ADDITION OF RS.15,55,477, I AM OF THE CONSIDERED OPINION THAT THE ASSESSEE DESERVES ONE MORE OPPORTUNITY TO ESTABLISH THAT VARIOUS PROPERTIES IN QUESTION WHICH ARE NOT ACCEPTED BY THE AO AS HAVING BEEN ACQUIRED BY THE ASSESSEE PRIOR TO 1.4.2004 IS ACQUIRED ON WHICH DAT E. IF THE ASSESSEE CAN ESTABLISH THAT THESE PROPERTIES WERE ACQUIRED BY TH E ASSESSEE PRIOR TO 1.4.2004, THEN IT HAS TO BE ACCEPTED THAT OPENING CAPITAL WAS MORE BY THAT AMOUNT OVER AND ABOVE THE OPENING CAPITAL ACCEPTED BY THE AO. I FEEL SO BECAUSE THE AO HAS ALSO NOT ESTABLISHED THAT THESE PROPERTIES IN QUEST ION WERE IN FACT ACQUIRED BY THE ASSESSEE AFTER 1.4.2004. HENCE ON THIS ISSUE, I SET ASIDE THE ORDER OF THE CIT (APPEALS) AND RESTORE THE MATTER BACK TO THE FILE O F ASSESSING OFFICER FOR FRESH DECISION. THE ASSESSEE HAS TO ESTABLISH THAT THESE PROPERTIES IN QUESTION OF RS.69,370, ITA NO. 700 & 701/BANG/2014 RS.1,71,740, RS.1,76,132.50, RS.3,34,145 AND RS.5,52,500 WERE ACQUIRED BY THE AS SESSEE BEFORE 1.4.2004. IF ALL OF THE PROPERTIES OR SOME OF THEM WERE ACQUIRED BY THE ASSESSEE BEFORE 1.4.2004 AND ASSESSEE IS ABLE TO ESTABLISH THIS, TH EN THE VALUE OF SUCH PROPERTY SHOULD ALSO BE CONSIDERED AS PART OF OPENING CAPITA L OVER AND ABOVE THE AMOUNT OF OPENING CAPITAL ACCEPTED BY THE AO OF RS.22,73,7 26. THE AO SHOULD PASS NECESSARY ORDER AS PER LAW AS PER ABOVE OBSERVATION S AFTER PROVIDING ADEQUATE ITA NO. 1860/BANG/2017 PAGE 3 OF 3 OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. ACCORDI NGLY, GROUND NO.2 OF THE ASSESSEE'S APPEAL FOR A.Y. 2005-06 IS ALLOWED FOR S TATISTICAL PURPOSES. 4. SINCE THE TRIBUNAL HAS TAKEN A PARTICULAR VIEW I N A SIMILAR SET OF FACTS, I FIND NO JUSTIFICATION TO TAKE A CONTRARY VIEW IN THIS AP PEAL. ACCORDINGLY, I SET ASIDE THE ORDER OF THE CIT(A) AND RESTORE THE MATTER BACK TO THE AO TO READJUDICATE THE MATTER AFRESH AFTER AFFORDING OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 5. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. PRONOUNCED IN THE OPEN COURT ON 22 ND DECEMBER, 2017. SD/- (SUNIL KUMAR YADAV) JUDICIAL MEMBER BANGALORE. DATED: 22 ND DECEMBER, 2017. /NSHYLU/* COPY TO: 1. APPELLANTS 2. RESPONDENT 3. DR 4. CIT 5. GUARD FILE BY ORDER SR. PRIVATE SECRETARY, ITAT, BANGALORE.