Syed Masood Hussian, Hyderabad V. Income Tax Officer, Ward-6(4), Hyderabad

ITA 2125/Hyd/2017

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 1607 (ITAT-HYDERABAD)
• Duration Of Justice: 1 year(s) 5 month(s) 30 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-06-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB-A
• Next Hearing Date: 04-06-2019
• Assessment Year: 2009-2010
• Appeal Filed On: 13-12-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: A C ROUT
• Keywords: Gift; Additional evidence

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCHES A : HYDERABAD BEFORE SMT. P. MADHAVI DEVI, JUDICIAL MEMBER AND SHRI S. RIFAUR RAHMAN, ACCOUNTANT MEMBER I.T.A. NO. 2125/HYD/2017 ASSESSMENT YEAR: 2009-10 SRI SYED MASOOD HUSSAIN, HYDERABAD [PAN: BAUPS5839L] VS THE INCOME TAX OFFICER, WARD-6(4), HYDERABAD (APPELLANT) (RESPONDENT) FOR ASSESSEE : SHRI K.C. DEVDAS, AR FOR REVENUE : SHRI A.C. ROUT, DR DATE OF HEARING : 04-06-2019 DATE OF PRONOUNCEMENT : 12-06-2019 O R D E R PER SMT. P. MADHAVI DEVI, J.M. : THIS IS AN ASSESSEES APPEAL FOR THE AY.2009-10, AGA INST THE ORDER OF THE COMMISSIONER OF INCOME TAX(APPEALS)- 9, HYDERABAD, DATED 28-08-2017. 2. BRIEF FACTS OF THE CASE ARE THAT ASSESSEE, AN INDIV IDUAL, ENGAGED IN THE BUSINESS OF RETAIL TRADE OF CHEMICALS, DETERGENTS AND ABSORBENTS ETC., FILED HIS RETURN OF INC OME FOR THE AY.2009-10 ON 19-08-2009, DECLARING TOTAL INCOME O F RS.2,55,380/-. THE CASE WAS TAKEN UP FOR SCRUTINY. BY ISSUANCE OF A NOTICE U/S.142(1) OF THE INCOME TAX ACT [ACT], THE ASSESSEE WAS ASKED TO FURNISH INFORMATION SPECIFIED TH EREIN. ITA. NO. 2125/HYD/2017 :- 2 -: THE ASSESSEE WAS REPRESENTED BY HIS AUTHORISED REPRESENTATIVE AND SOUGHT TIME TO FILE THE INFORMATION REQUIRED. MEANWHILE, THE ASSESSING OFFICER GATHERED INFORMATION THAT THE ASSESSEE HAD A BANK ACCOUNT WITH A XIS BANK, MEHDIPATNAM RING ROAD BRANCH. SINCE THE ASSESSE E DID NOT FILE ANY INFORMATION AS CALLED FOR. THE ASSESSING OFFICER, CALLED FOR THE BANK ACCOUNT EXTRACT U/S.133(6) OF THE AC T AND FROM THE STATEMENTS SO FURNISHED, HE OBSERVED THAT THE ASSESSEE HAS MADE CASH DEPOSITS INTO THIS BANK ACCOUN T. THE ASSESSING OFFICER OBSERVED THAT THE ASSESSEE HAD STATED THE SOURCES FOR THE SAME TO BE OUT OF GIFTS RECEIVED FROM H IS RELATIVES AS DEFINED U/S.56(2) OF THE ACT TO THE TUNE O F RS.12,50,000/- AND THAT THE BALANCE IS FROM HIS PRESEN T AND PAST SAVINGS AND SALE PROCEEDS OF RETAIL TRADE BUSINE SS TO THE EXTENT OF RS.8,52,715/-. THE ASSESSEE ALSO FILED COP IES OF THE GIFT DEEDS EXECUTED DURING THE FINANCIAL YEAR 2008-09 ALONG WITH THE CONFIRMATION LETTERS. THE ASSESSING OFFICER OBSERVED THAT THE ASSESSEE IS NOT MAINTAINING BOOKS OF ACCOUNT FO R THE BUSINESS BUT HAS DECLARED INCOME @13.21% OF SALES AS REQUIRED U/S.44AF OF THE ACT. THE ASSESSING OFFICER OBSERVED THAT THE DETAILS FURNISHED BY THE ASSESSEE DID NOT CONSTI TUTE NECESSARY AND SUFFICIENT EVIDENCE TO ESTABLISH THE ID ENTITY, GENUINENESS AND CREDITWORTHINESS OF THE PERSONS, WHO HAVE GIVEN GIFTS TO THE ASSESSEE. HE, THEREFORE, BROUGHT THE UNEXPLAINED CASH DEPOSITS TO TAX. HE ALSO MADE OTHER DISALLOWANCES U/S.80C AND 80GG OF THE ACT AND ALSO BR OUGHT TO TAX DIFFERENCE IN BALANCE OF CASH IN BANK AND INTER EST EARNED IN SAVINGS BANK A/C. ITA. NO. 2125/HYD/2017 :- 3 -: 2.1. AGGRIEVED, ASSESSEE PREFERRED AN APPEAL BEFORE THE CIT(A), ALONG WITH NECESSARY EVIDENCE. THE CIT(A) CALLED FOR A REMAND REPORT, WHICH WAS SUBMITTED BY THE ASSESSING OF FICER AND THEREAFTER, THE CIT(A) CONFIRMED THE ORDER OF ASSE SSING OFFICER AND THE ASSESSEE IS IN SECOND APPEAL BEFORE US. 3. LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT ASSESSEE HAS FURNISHED RELEVANT CONFIRMATION LETTERS OF THE DONORS TO PROVE THE IDENTITY AND GENUINENESS OF THE GIFTS AND ALSO FIL ED THE INCOME TAX RETURNS OF THE RESPECTIVE PARTIES TO PROVE THE IR CREDITWORTHINESS. HE SUBMITTED THAT THE ASSESSING OFFICE R, EVEN DURING THE REMAND PROCEEDINGS, HAS NOT EXAMINED THE DONORS AS IS EVIDENT FROM THE FINAL PARAGRAPH IN THE R EMAND REPORT DT.19-07-2017, WHEREIN THE ASSESSING OFFICER C LEARLY REPORTED THAT THE CIT(A) HAS SOUGHT ONLY COMMENTS ON THE ADDITIONAL EVIDENCE AND THEREFORE, THE REPORT IS RESTRI CTED TO THE COMMENTS WITHOUT EXAMINATION OF THE DONORS. THEREFOR E, IT IS EVIDENT THAT THE CREDITWORTHINESS OF THE DONORS IS NO T EXAMINED BY THE ASSESSING OFFICER EITHER AT THE ASSESSM ENT PROCEEDINGS OR DURING THE REMAND PROCEEDINGS. 3.1. LD. COUNSEL FOR THE ASSESSEE PRAYED FOR A REMAN D TO THE ASSESSING OFFICER WITH A DIRECTION TO EXAMINE THE DONO RS AND THE LD.DR HAD NO OBJECTION TO THE SAME. 4. IN VIEW OF THE SAME, WE DEEM IT FIT AND PROPER TO RE MAND THE ISSUE TO THE FILE OF ASSESSING OFFICER WITH A DIREC TION TO EXAMINE THE DONORS AS TO THEIR CREDITWORTHINESS AND WH ETHER ITA. NO. 2125/HYD/2017 :- 4 -: THEY HAVE GIVEN THE ALLEGED GIFTS TO THE ASSESSEE AND TH E ASSESSING OFFICER IS DIRECTED TO DECIDE THE ISSUE IN ACCORDANCE WITH LAW, THEREAFTER. 5. IN THE RESULT, THE APPEAL OF ASSESSEE IS TREATED AS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 12 TH JUNE, 2019 SD/- SD/- (S. RIFAUR RAHMAN) (P. MADHAVI DEVI ) ACCOUNTANT MEMBER JUDICIAL MEMB ER HYDERABAD, DATED 12 TH JUNE, 2019 TNMM/PVV COPY TO : 1. SRI SYED MASOOD HUSSAIN, HYDERABAD. C/O. B. NARSING RAO & CO., CHARTERED ACCOUNTANTS, PLOT NO.554, ROAD NO.92, JUBILEE HILLS, HYDERABAD. 2. THE INCOME TAX OFFICER, WARD-6(4), HYDERABAD. 3. CIT(A)-9, HYDERABAD. 4. PR.CIT-6, HYDERABAD. 5. D.R. ITAT, HYDERABAD. 6. GUARD FILE.