Surendra Kumar Maloo, CHENNAI V. ITO, CHENNAI

ITA 216/CHNY/2012

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 64304 (ITAT-CHENNAI)
• Duration Of Justice: 7 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-09-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 31-07-2012
• Assessment Year: 2007-2008
• Appeal Filed On: 03-02-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: K RAJAGOPAL
• Assessee Lawyers: T VASUDEVAN
• Keywords: Unexplained cash credit
• Section: 142(1); 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH CHENNAI BEFORE DR. O. K. NARAYANAN, VICE PRESIDENT AND SHRI V. DURGA RAO, JUDICIAL MEMBER ITA NO. 216/MDS/2012 ASSESSMENT YEAR : 2007-08 SHRI SURENDRA KUMAR MALOO, 25/2, PERIYAR NAGAR, MOOLAKADAI, CHENNAI-600 060. (PAN : AAWPS7029P) V. THE INCOME-TAX OFFICER, BUSINESS WARD-XII(3), CHENNAI (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI T. VASUDEVAN, ADVOCATE RESPONDENT BY : SHRI K. RAJAGOPAL, JCIT DATE OF HEARING : 31.07. 2012 DATE OF PRONOUNCEMENT : 11.09.2012 O R D E R PER V. DURGA RAO, JUDICIAL MEMBER : THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER PASSED B Y THE COMMISSIONER OF INCOME TAX (APPEALS)-IV, CHENNAI DA TED 08- 11-2011 FOR THE ASSESSMENT YEAR 2007-2008. 2. THERE IS A DELAY OF 19 DAYS IN FILING THE APPEAL . THE ASSESSEE HAS FILED CONDONATION PETITION ALONG WITH AN AFFIDAVIT ITA NO.216/MD S/2012 2 EXPLAINING THE DELAY ON MEDICAL GROUNDS. THE LEARN ED DR DID NOT SERIOUSLY OBJECT TO THE ASSESSEES PRAYER FOR C ONDONATION OF THE DELAY. IN THE AFFIDAVIT THE ASSESSEE HAS SU BMITTED THAT AFTER THE PASSING OF THE ORDER BY THE CIT(A) HE WAS SERIOUSLY ILL AND THE DOCTOR ADVISED HIM TO TAKE REST. AFTER REC OVERY FROM ILLNESS THE ASSESSEE CONTACTED THE AUDITOR AND ENQU IRED ABOUT THE RESULT OF THE CIT(A)S ORDER. THEREAFTER, ON O BTAINING THE ORDER OF THE CIT(A), THE APPEAL WAS FILED AND THERE WAS A DELAY OF 19 DAYS IN FILING THE APPEAL. WE FIND THA T THE REASON FOR THE DELAY IS BECAUSE OF SERIOUS ILL HEALTH OF T HE ASSESSEE. THEREFORE, IN OUR OPINION, THE DELAY HAS TO BE COND ONED. ACCORDINGLY, WE CONDONE THE DELAY. 2. THE FACTS IN BRIEF ARE THAT THE ASSESSEE DID NOT FILE THE RETURN FOR THE YEAR UNDER CONSIDERATION INITIALLY. SUBSEQUENTLY, AFTER RECEIVING NOTICE U/S 148 OF THE INCOME TAX AC T, 1961 ('THE ACT' FOR SHORT), THE ASSESSEE FILED A RETURN OF INCOME DECLARING TOTAL INCOME OF ` 2,28,630/-. THE ASSESSING OFFICER AFTER ISSUING NOTICES U/S 143(2) AND U/S 142(1) OF THE ACT ADDED AN AMOUNT OF ` 4,25,075/- U/S 68 OF THE ACT. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE ASSESSING OFFICER HAS OBSERVED THAT THE ASSESSEE HAS SHOWN ` 4,25,075/- AS ITA NO.216/MD S/2012 3 THE PROCEEDS OUT OF SALE OF HOUSEHOLD SILVER UTENSI LS. ASSESSEE WAS ASKED TO PRODUCE DETAILS IN PROOF OF THE SAME F OR WHICH HE HAD FILED COPY OF THE BILL. ON PERUSAL OF THE SAME IT WAS FOUND THAT THE SAID BILL DID NOT BEAR ANY INVOICE NUMBER OR SEAL. IN ORDER TO VERIFY THE SAME, INSPECTOR WAS DEPUTED TO MAKE NECESSARY ENQUIRIES. THE INSPECTORS REPORT REVEAL ED THAT NO SUCH PERSON AND ADDRESS EXISTED AS MENTIONED IN THE BILL. IN VIEW OF THE ABOVE, THE SAME WAS ADDED TO THE TOTAL INCOME OF THE ASSESSEE AS UNEXPLAINED CASH CREDIT. 3. THE ASSESSEE CARRIED THE MATTER BEFORE THE CIT(A ). BEFORE THE LEARNED CIT(APPEALS) IT WAS SUBMITTED THA T THE SILVER HOUSEHOLD ARTICLES WHICH WERE SOLD BY THE AS SESSEE, WERE DISCLOSED UNDER VDIS, 1997 AND HE SUBSEQUENTLY SOLD THE SAME AND FOR THAT HE RECEIVED A BILL FROM THE BUYER ALSO. THE LEARNED CIT(APPEALS) AFTER CONSIDERING THE EXPLANAT ION OF THE ASSESSEE HELD THAT EVEN IF THE ASSET DECLARED IN VD IS IS SOLD, STILL THE ASSESSING OFFICER CAN VERIFY THE GENUINEN ESS OF THE SUCH SALE. THE ASSESSING OFFICER VERIFIED THE SALE AND CAME TO THE CONCLUSION THAT THE SALE WAS NOT GENUINE AND MA DE THE ADDITION. THE SAME WAS CONFIRMED BY THE LEARNED CIT(APPEALS). ITA NO.216/MD S/2012 4 4. THE ASSESSEE HAS CARRIED THE MATTER BEFORE THE T RIBUNAL. THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE SILVER HOUSEHOLD ARTICLES DISPUTED BY THE ASSESSING OFFICE R WERE ALREADY DECLARED UNDER VDIS AND THEREFORE THE GENUI NENESS COULD NOT BE QUESTIONED. THE SALE TRANSACTION TOOK PLACE IN 2006 AND THE ASSESSING OFFICER HAD DEPUTED HIS INSP ECTOR AFTER 3 YEARS. IF THE BUYER IS NOT AVAILABLE, THE ASSESS EE CANNOT BE BLAMED FOR THAT AND THE ADDITION CANNOT BE CONFIRME D. 5. ON THE OTHER HAND, THE LEARNED DR SUBMITTED THAT THE ASSESSEE HAD ONLY PRODUCED THE VOUCHER AND THE ENQU IRY REVEALED THAT IT IS NOT A GENUINE TRANSACTION. 6. WE HAVE HEARD BOTH THE SIDES, PERUSED THE RECORD S AND GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW. THE ONLY DISPUTE INVOLVED IN THIS APPEAL IS WHETHER THE SALE OF SILVER ARTICLES AMOUNTING TO ` 4,25,075/- IS GENUINE OR NOT. ACCORDING TO THE ASSESSEE THE SALE OF SILVER ARTICL ES UNDER DISPUTE HAD ALREADY BEEN DECLARED UNDER VDIS AND SUBSEQUENTLY SOLD THE SAME. A BILL WAS ALSO PRODUC ED BEFORE THE ASSESSING OFFICER. THEREAFTER THE ASSESSING OFF ICER DEPUTED HIS INSPECTOR TO MAKE ENQUIRIES AND THE INSPECTOR R EPORTED THAT NO SUCH BUYER WAS AVAILABLE AT THE ADDRESS GIV EN IN THE ITA NO.216/MD S/2012 5 BILL. THEREFORE THE ASSESSING OFFICER CAME TO THE CONCLUSION THAT THE SALE OF SILVER ARTICLE AS WAS NOT GENUINE. THE LEARNED CIT(APPEALS) CONFIRMED THE SAME. AFTER CONSIDERING THE FACTS AND CIRCUMSTANCES OF THE CASE, WE FIND THAT IN THIS CASE THE ASSESSEE HAD DECLARED THE SILVER ITEMS UNDER VDIS. SUBSEQUENTLY, THE SILVER ARTICLES WERE SOLD AND THE ASSESSEE FURNISHED A BILL ALSO FROM THE BUYER. SIMPLY BECAU SE THE BUYER IS NOT AVAILABLE AFTER A GAP OF 3 YEARS, IT CANNOT BE SAID THAT IT IS NOT A GENUINE TRANSACTION. THE ASSESSING OFFIC ER MUST HAVE CALLED THE ASSESSEE TO EXPLAIN THE SAME. HOWEVER, THE LEARNED CIT(APPEALS) ASKED THE ASSESSEE TO EXPLAIN IT. BEFO RE THE LEARNED CIT(APPEALS) IT WAS SUBMITTED BY THE ASSESS EE THAT THE TRANSACTION WAS GENUINE AND AFTER A LONG GAP OF 3 YEARS THE WHEREABOUTS OF THE BUYER WERE NOT KNOWN TO THE ASSESSEE AS THE BUYER MIGHT HAVE SHIFTED FROM THE ADDRESS GI VEN IN THE BILL. UNDER THESE CIRCUMSTANCES, WE ARE OF THE OPI NION THAT THE ASSESSEE HAS DISCHARGED THE ONUS LIES ON HIM. THER EAFTER THE ONUS WAS LEFT WITH THE REVENUE TO PROVE THAT THE TR ANSACTION WAS NOT GENUINE. IN OUR OPINION, THE REVENUE HAS F AILED TO PROVE THAT THE TRANSACTION WAS NOT GENUINE. IN THE ITA NO.216/MD S/2012 6 CIRCUMSTANCES, WE ALLOW THIS GROUND OF APPEAL RAISE D BY THE ASSESSEE. 7. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED. ORDER PRONOUNCED ON TUESDAY, THE 11 TH OF SEPTEMBER, 2012, AT CHENNAI. SD/- SD/- (DR. O. K. NARAYANAN) ( V.DURGA RAO ) VICE PRESIDENT JUDICIAL MEMBER CHENNAI, DATED THE 11 TH SEPTEMBER, 2012. H. COPY TO: ASSESSEE/AO/CIT (A)/CIT/D.R./GUARD FILE