Mahendra Babulal Jain, CHENNAI V. ITO NCR 5(3), CHENNAI

ITA 2232/CHNY/2017

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 5667 (ITAT-CHENNAI)
• Duration Of Justice: 2 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-12-2017
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: D
• Assessment Year: 2014-2015
• Appeal Filed On: 13-09-2017
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: B SAGADEVAN JCIT D R
• Assessee Lawyers: K BALASUBR AMANIAN
• Keywords: Unexplained investment
• Section: 69

Judgement Text

, D/ SMC , IN THE INCOME TAX APPELLATE TRIBUNAL D/SMC BENCH, CHENNAI . , BEFORE SHRI CHANDRA POOJARI, ACCOUNTANT MEMBER I.T.A.NO.2232 /MDS./2017 ( ASSESSMENT YEAR : 2014-15 ) SHRI MAHENDRA BABULAL JAIN, NO.9,GENERAL MUTHIAH MUDALI ST., SOWCARPET, CHENNAI 600 079. VS. THE INCOME TAX OFFICER, NCW-5(3), CHENNAI-6. PAN AAIPM 4802 G ( / APPELLANT ) ( / RESPONDENT ) / APPELLANT BY : MR.K.BALASUBRAMANIAN, ADVOCATE / RESPONDENT BY : MR.B.SAGADEVAN, JCIT, D.R ! ' / DATE OF HEARING : 05.12.2017 #$%& ! ' /DATE OF PRONOUNCEMENT : 08.12.2017 / O R D E R PER CHANDRA POOJARI, ACCOUNTANT MEMBER: THIS APPEAL IS FILED BY THE ASSESSEE, AGGRIEVED BY THE ORDER OF THE LEARNED COMMISSIONER OF INCOME TAX(A)-5, CHENNA I DATED 04.08.2017 PERTAINING TO ASSESSMENT YEAR 2014-15. ITA NO. 2232/MDS/2017 2 2. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS FOR ADJUDICATION. 1. CONTRARY TO FACTS, LEARNED CIT (A) ERRED IN DECI DING THE APPEAL EXPARTE AND ERRED IN STATING THAT APPELLANT DID NOT ATTEND THE HEARING ON 2 DATES. 2.1 CONTRARY TO FACTS, A/C ERRED IN ADDING RS.25,00 ,000 U/S 69 TOWARDS UNEXPLAINED INVESTMENT IN PURCHASES OF HOUSE PROPER TY AND CIT (A) ERRED IN CONFIRMING THE SAME. 2.2 AUTHORITIES BELOW ERRED IN NOT APPRECIATING THE FACT THAT APPELLANT OBTAINED THE ABOVE LOAN FROM SRI MAHENDRA KUMAR, PR OPR: AASHANA ENTERPRISES, THROUGH THREE CHEQUES ON 3 DATES, FILE D CONFIRMATION LETTER FROM THE CREDITOR WITH HIS PAN AND REPAID THE LOAN IN THE SUBSEQUENT YEAR IE., RS.5 LAKHS ON 4-6-2014 THROUGH CHEQUE NO. 951954 AND BALANCE THROUGH 5 POST DATED CHEQUES, ALL DRAWN ON ING VYSYA BANK AND HENCE CIT (A) ERRED IN CONFIRMING THE ADDITION. 2.3 CONTRARY TO ABOVE FACTS, MERELY BECAUSE THE CRE DITOR DID NOT RESPOND TO A/OS QUERY, AUTHORITIES BELOW ERRED IN SURMISING T HAT THERE WAS UNEXPLAINED INVESTMENT OF RS.25 LAKHS IN THE PURCHA SE OF HOUSE PROPERTY. 3. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESS EE PURCHASED FLAT AT SANKESHWAR APARTMENT AT POONAMALLEE HIGH ROAD, VEPARY, CHENNAI-7 FROM THE AMOUNT RECEIVED FROM SIX PERSONS . IN THIS ITA NO. 2232/MDS/2017 3 CONNECTION, COMMUNICATIONS WERE SENT TO THE LOAN CR EDITORS FOR VERIFICATION VIDE LETTER DATED 11.11.2014 BY LD. A SSESSING OFFICER. IN RESPONSE TO THE ABOVE SAID COMMUNICATION DATED 11.1 1.2016 EXCEPT SRI. MAHENDRA KUMAR, PROP. OF M/S. AASHANA ENTERPRI SES, NO.5/LB KESAVA IYER STREET PARK TOWN, CHENNAI-600 003 ALL T HE OTHER FURNISHED THE DETAILS CALLED FOR. AS THERE IS NO RE SPONSE FROM SRI. MAHENDRAKUMAR, PROP. OF M/S. AASHNA ENTERPRISE, CHE NNAI-3, A COMMUNICATION WAS SENT TO THE ASSESSEE VIDE THIS OF FICE LETTER DATED 08.12.2016 TO PRODUCE THE LOAN CREDITOR BEFORE THE A.O ON 15.12.206 AT 11.30 A.M. (DULY SERVED UPON THE ASSESSEE ON 10. 12.2016) BUT THERE IS NO RESPONSE FROM THE ASSESSEE. WHETHER A T RANSACTION OF LOAN IS GENUINE OR NOT IS ALWAYS A QUESTION OF FACT AND THE PRIMARY ONUS IS ON THE ASSESSEE TO PROVE THE GENUINENESS OF THE LOAN TRANSACTION. HENCE, FROM THE ABOVE FACT FINDINGS, I T WAS OBSERVED BY THE LD. ASSESSING OFFICER THAT THE ASSESSEE WAS FA ILED TO PROVE THE GENUINENESS OF THE LOAN TRANSACTION. ACCORDINGLY, A SUM OF RS.25,00,000/- INVESTED IN THE SAID PROPERTY WAS UN -EXPLAINED ONE AND HENCE ADDED INTO THE TOTAL INCOME OF THE ASSESS EE AS UNEXPLAINED INVESTMENT UNDER SECTION 69 OF THE ACT, 1961 BY THE A.O. ITA NO. 2232/MDS/2017 4 AGGRIEVED BY THE ORDER OF LD. ASSESSING OFFICER, TH E ASSESSEE CARRIED THE APPEAL BEFORE THE LD.CIT(A). ON APPEAL, LD.CIT (A) CONFIRMED THE ORDER OF LD. ASSESSING OFFICER. AGAINST THE ORDER O F LD.CIT(A), NOW THE ASSESSEE IS IN APPEAL BEFORE US. 4. BEFORE US, LD.A.R SUBMITTED THAT THE ASSESSEE H AS FILED A CONFIRMATION LETTER BEFORE THE LOWER AUTHORITIES, W HICH WAS NOT CONSIDERED. IT IS ALSO SUBMITTED THAT THE ASSESSEE HAS RECEIVED THE MONEY THROUGH THE BANK ACCOUNT AND THE SAME WAS REP AID SUBSEQUENTLY THROUGH BANKING CHANNEL ONLY. 4.1 ON THE OTHER HAND, LD.D.R RELIED ON THE ORDER OF LOWER AUTHORITIES. 5. I HAVE HEARD BOTH THE PARTIES AND PERUSED THE M ATERIAL ON RECORD. IN MY OPINION, WHEN THE ASSESSEE PLACED NE CESSARY EVIDENCE IN THE FORM OF CONFIRMATION LETTER, IT IS THE DUTY OF THE LD. ASSESSING OFFICER TO MAKE FURTHER ENQUIRY BEFORE FR AMING THE ASSESSMENT. IN THE PRESENT CASE, THE LD. ASSESSING OFFICER FAILED TO MAKE NECESSARY ENQUIRIES, EVEN THOUGH ADDRESSES OF ALL THE ITA NO. 2232/MDS/2017 5 CREDITORS AND THEIR PAN IS AVAILABLE WITH THE A.O. IN THE INTEREST OF JUSTICE, THE ENTIRE ISSUE IN DISPUTE IS REMITTED TO THE FILE OF LD. ASSESSING OFFICER FOR FRESH ENQUIRY AND DECIDE THER EUPON IN ACCORDANCE WITH LAW. 6. IN THE RESULT, THE APPEAL OF ASSESSEE IS PARTLY ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED ON 08 TH DECEMBER, 2017. SD/- ( ) ( CHANDRA POOJARI ) /ACCOUNTANT MEMBER CHENNAI, DATED THE 08 TH DECEMBER, 2017 . K S SUNDARAM. ' ( )!*+ ,+%! / COPY TO: 1 . / APPELLANT 3. ' ' -! () / CIT(A) 5. +0 1 )!)23 / DR 2. / RESPONDENT 4. ' ' -! / CIT 6. 1 45 6 / GF